author: Mr. Justice Mulkey

text:
    The Union Railway and Transit Company v. Louisa Shacklet, Admx.

      Filed at Mt. Vernon January 25, 1887.

    1. Negligence—negligence of another contributing to the injury. A railway company will not be excused from the consequences of its own neglilenee, or its liability for an injury caused thereby, from the fact that another company was more culpably negligent than it, thereby contributing to the injury, as, in the case of a collision of trains causing the death of a passenger.
    2. Parties—representative capacity of the plaintiff—whether it must be proven, and in what way. In an action on the case by one suing as administrator of an estate of a deceased person, against a railway company, to recover for causing the death of the plaintiff’s intestate, unless the representative capacity of the plaintiff is put in issue by plea, it is not necessary to make any proof of his letters of administration, or his appointment, or right to sue in such capacity.
    3. The appointment of one as administrator of an estate, when that fact is put in issue, may be shown by an examined copy of the record of the appointment, satisfactorily proved, by oral testimony, to be a true copy thereof.
    4. Action—remedy—ira case of a new right given by statute. Where a statute gives a new right, without providing a special remedy for its enforcement, it may be enforced by any appropriate common law action.
    5. Appeal—reviewing the facts—for what purpose. AVhereitis claimed there is no evidence of a fact, as, negligence in operating a train of cars, upon which to base an instruction, and the alleged error in giving the instruction depends upon there being no evidence tending to prove the fact, this court will examine the evidence to see if it does prove, or tend to prove, such fact.
    Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on appeal from the City Court of East St. Louis; the Hon. Wm. P. Launtz, Judge, presiding.
    Messrs. G. & G. A. Koerner, for the plaintiff in error.
    Mr. M. Millard, for the defendant in error.
   Mr. Justice Mulkey

delivered the opinion of the Court:

In the month of September, 1879, Elijah E. Shacklet, the plaintiff’s intestate, and his brother, Abraham Shacklet, who were shippers and dealers in stock, shipped four car-loads of cattle, by way of the Missouri Pacific railroad, from Dresden, Missouri, to the National Stock Yards, in East St. Louis. The Missouri Pacific Bailroad Company gave through bills of lading for the stock, and stock passes to the shippers. There was a caboose attached to the Missouri Pacific train, in which the Shacklets rode until they reached the Union depot, in St. Louis, where they were told to change cars. The cars containing the cattle were then detached from the Missouri Pacific train, and turned over to the Union Bailway and Transit Company, to be taken by it to the National Stock Yards, in East St. Louis. The train of the transit company in which the detached cars were placed for this purpose, had on this occasion no caboose attached to it for the accommodation of shippers, though the evidence shows a caboose car was sometimes provided for this purpose. The deceased and his brother, finding no caboose attached to the train, took positions on the top of one of the stock cars, preparatory to- starting. This being observed by one of the employes of the transit company, they were directed by him to get down and go to the engine. On attempting to get in the cab on the engine, they were ordered by the engineer to take a place in front, on the engine. This being the only place provided for them, they accordingly did so. Being carried in this manner, they passed through the tunnel over into East St. Louis, and were proceeding on their way to the stock yards, when suddenly, while rounding a sharp curve in the track, and almost at the end of their destination, the train carrying them collided with another, belonging to the Wabash, St. Louis and Pacific Railway Company, which, at the time, was being rapidly backed out from the stock yards. The front of the tender upon which the parties were riding, being sloping and wedge-shaped, the rear car of the Wabash train was forced, in the collision, up the tender, catching the plaintiff’s intestate-between it and the car, and inflicting upon him serious injuries, from which he died in a few minutes thereafter. Shacklet, at the time of his death, was a resident of Pettis county, Missouri. He died intestate, leaving the defendant in error, his widow, and three minor children. The defendant in error, having first taken out letters of administration on her husband’s estate at the place of his domicile in Missouri, brought the present action in the City Court of East St. Louis, against the appellant, to recover damages for the death of her husband, which, she alleges, was caused by the latter’s negligence. The trial resulted in a judgment of $5000 for the plaintiff, which was subsequently affirmed by the Appellate Court for the Fourth District. The company brings the case here for review.

The accident which caused the death of Shacklet, occurred on a short line of railway belonging to the National Stock Yards, and connecting the various roads passing through and terminating at East St. Louis, with the stock yards, aiid was used exclusively for transferring and carrying stock to and from the stock yards. It was open alike to all the owners and operators of railways having occasion to use it for such purpose.

The substance of the charge of negligence, in the declaration, shortly stated, is, that at the time of the collision the defendant was operating its train without having first ascertained whether or not the track was obstructed by other trains. Whether this charge was proved or not, of course, was a question for the Appellate Court, and not for this; yet for the purpose of passing upon the plaintiff’s first instruction, it is proper to advert to some of the evidence, as it is claimed there is no evidence upon which to base it. The instruction is as follows:

“The jury are instructed, that if it appears, from the testimony, the defendant company was guilty of negligence which materially contributed to the injury complained of, and that the said Elijah E. Shacklet was exercising due care, the plaintiff is entitled to recover, although the'Wabash company may have also been guilty of negligence in causing the death of the plaintiff’s husband.”

Notwithstanding the very sweeping assertion of counsel for plaintiff in error, that the collision in question was produced by the Wabash without the slightest fault on the part of the Union Transit Company, we feel constrained to say, that after a very careful examination of the record we fail to find the statement verified by the evidence. For instance, Mr. Dasey, the very first witness examined, in giving an account of the affair, says: ““Mr. Shacklet was sitting on the tender of the engine of the transit company, and there was a very short curve at the stock yards, and in going around the curve there was a Wabash train in there, backing out, and in making this curve the trains collided. The transit engine ran into the Wabash train,—the hind end of the Wabash train. Both trains ivere moving when they collided, and when they came together. * * * ' There were no particular rules as to the use of those tracks. The transit company generally had the best show there. The tracks all belonged to the National Stock Yards. The engines of. the different roads went in and out any way they could. * * .* The incoming train did not necessarily have to go on this track where the collision occurred, to unload the stock, but seventy-five yards further on it necessarily would have to get on there. ” John Kay, the next witness, states, among other things: “There were no rules, that I know of, in regard to the right of the track. Different companies used the tracks just as they found them. I knew the engineer and conductor. They were perfectly familiar with the manner these tracks were used by other companies. They generally whistled going around the curve. Simply looking out for each other, was the way they avoided accidents.” Absalom Burton, another witness, states: “The Wabash train was backing out. Trains coming out of there usually came out that way. ” Charles Smith, a witness for the defendant, who was the engineer op the transit company’s train at the time of the collision, says, in speaking of the place where the accident occurred: “It is a-bad, a very bad, place, and we have always looked out. We always expected a train there, so I was going round very slow. ” It is shown by other testimony, that on the curve where the collision occurred one could see but a very short distance,—not to exceed, perhaps, seventy-five yards, and one of the witnesses puts it much below that.

There is no attempt on the part of the company to show, nor does it otherwise appear, that the defendant had taken any means whatever to ascertain whether the track was clear or not, or to prove that the defendant’s train had the right of way. In fact, the very 'contrary is shown. Nor does it appear that the company, although daily running its trains to and from the stock yards, had any system of telegraphing, telephoning, or of flagging, to either give or receive notice of the approach of its own trains, or of those belonging to other companies. The only thing done to avoid danger was the ringing of the bell or sounding the whistle" while rounding the curve. But that clearly could be of no avail where a long train like that of the Wabash had commenced already to back out, as is abundantly proved by the accident in question. The protection afforded by the ringing of the bell and sounding of the whistle, under the circumstances shown, is hardly so good as that which the crew of a vessel at sea, enveloped in an impenetrable fog, derives from the monotonous notes of the fog-horn. While the expedient of the fog-horn, in the ease of the vessel, is by no means absolute security against collisions, yet it is, under the circumstances, about all that can be done. Not so with the plaintiff in error. By a proper system of flagging, or other like precautions, the company might doubtless have attained almost absolute security against collisions with other trains. But nothing of this kind was done, or attempted to be done. On the occasion in question, as usual, the train was blindly forced around the curve, at a speed, as one of the witnesses swears, of six miles an hour, in • expectation, as defendant’s own witness swears, of encountering other, trains! From the evidence before us, it is clear that the companies' doing business over the- stock yards tracks, as a general rule, operated their trains in a- grossly negligent manner, and the transit company was equally guilty with the others. It is true, the Wabash company, on the occasion in question, was, perhaps, more culpable than the defendant, but that can not avail the latter. It is quite clear, from the evidence to which we have adverted, there is no foundation for the claim that the instruction is obnoxious to the objection taken to it.

There is but one other question arising upon the record, to be noticed. Counsel for plaintiff offered in evidence, on the trial, what was claimed to be a copy of letters of administration granted by the probate court of Pettis county, Missouri, to the defendant in error, on the estate of her husband. It was admitted by counsel on the other side, for the purpose of raising the question of law whether the existence of a record could be thus established, that the county clerk or county judge of said probate court would, if present, testify that the instrument offered ivas a true copy of the récord; but it was insisted that the only way such proof could be made was by the production of a copy of the record of the letters, duly authenticated, as required by the act of Congress. The court overruled the point, and admitted the copy of letters in evidence, and its ruling in this respect is assigned for error.

There are two complete answers to the point raised: First, the right of the plaintiff to sue as administratrix not having been put in issue by plea, it was not necessary to make any proof in respect to her appointment or right to sue in her representative capacity. Replying to this view, counsel say: “This is true as a general proposition, but this is a proceeding under the statute. The administrator, in such a case, is not the real representative of the deceased, representing his property or his claims to property. He is the creature of the statute, and represents the widow and next of kin. He is their trustee, as it were, and it has heretofore been the common practice to prove the letters in such cases, although there was no special denial. The ease relied upon by defendant in error, (92 Ill. 317,) is not in point, as it is only by way of illustration, and speaks of ordinary administrators. ” The view here suggested we do not regard as sound, and the reasons assigned for departing from the general rule referred to, are, in our judgment, clearly insufficient. While the right to sue is given by statute, and the creditors of the deceased are excluded from participating in the amount recovered in a suit of this kind, yet the action by which this right is to be enforced can not be regarded as a statutory proceeding. A mere glance at the pleadings in the case will show that the proceeding is nothing more than an action on the case at common law, and being so, the rules of pleading and proofs are the same as in any other action on the case, or, indeed, in any other common law action. It is a familiar principle, that whenever a statute gives a new right without creating a special remedy for its enforcement, it may be enforced by any appropriate common law action. That is just the case here. So where a right is to be enforced by a common law action, it is wholly inconsequential whether the right has been conferred by statute or by the common law, so far as the procedure in court is concerned. It will be remembered that a large portion of that vast body of maxims and legal rules, known as the common law, had its origin in ancient British statutes; yet, in giving effect to rights accruing under them through the instrumentality of legal proceedings, no question is ever made as to how those rules and legal maxims originated, with a view of determining the procedure. The same is true in respect to all rights arising under our own statutes, where no special or statutory remedy has been provided.

We do not think there is anything in the suggestion that the administrator’s relation to a claim like this is different from that which he sustains to any other claim where his title accrues upon his appointment and acceptance of the office and trust of administrator. Whether he takes for the creditors, the widow and next of kin, or for the widow and next of kin alone, his title in either case arises ex lege, and he takes and holds, by virtue of his office as administrator, for the benefit of those whom the law points out as the persons entitled. Whether this is done by a general law or by a statute, can make no possible difference. Nor do we appreciate the force of the suggestion that the administrator is a trustee, as to a claim of this kind, in a different sense from that which he is in respect to other claims held or prosecuted by him in his representative capacity. We are of opinion there is nothing in the suggestion. But conceding him to be a trustee in the strictest sense of the term, still it does not follow that his relation in this respect will require any change in the rules of pleading or evidence when he brings a common law action to enforce such a claim, for a court of law has nothing to do with the equities of those on behalf of whom he sues.

Secondly—Assuming, however, for the purposes of the argument, that it was necessary for the plaintiff to prove her appointment as administratrix, there is no doubt but that an examined copy of the record of her appointment, satisfactorily proved by oral testimony to be a true copy, was sufficient for that purpose. That proof of a record, for the purpose it was offered in this case, may be made by an examined copy, is so well settled and elementary in its character, we decline to discuss the subject. 1 Greenleaf on Evidence, 501; Freeman on Judgments, sec. 408; 1 Wharton on Evidence, sees. 94-98; Abbott on Trial Evidence, pp. 23, 536. •

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    Calvin S. Blackman et al. v. Preston Bros. et. al.

      Filed at Mt. Vernon January 25, 1887.

    Appeals and writs op error—whether a freehold is involved. No freehold being involved in a decree upon a creditor’s bill declaring certain lands subject to the lien of a judgment and'ordering a sale subject to redemption, no writ of error lies from this court to review the decree. It should be sued out of the Appellate Court.

      Writ of Error to the Circuit Court of Saline county; the Hon. David J. Baker, Judge, presiding..
    Messrs. Green & Gilbert, for the plaintiff in error.
    Mr. William H. Parish, and Mr. John J. Parish, for Carter Bros. & Co., etc.
    Messrs. Marsh & Scott, for Alter, Packard & Co.
    Messrs. Boyer & Choisser, for Preston Bros.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This writ of error is improperly sued out of this court. It should have been sued out of the Appellate Court for the Fourth District. It must therefore be dismissed.

The decree sought to be reversed is upon a creditor’s bill declaring certain lands subject to the lien of certain judgments, and that, unless the judgments shall be paid, the lands shall be sold upon execution, but subject to redemption. No freehold is involved, and there is no other ground upon which we can take jurisdiction. Conkey et al. v. Knight et al. 104 Ill. 337; Clement v. Reitz et al. 103 id. 315; Sawyer et al. v. Moyer et al. 105 id. 192; Chicago, Burlington and Quincy Railroad Co. v. Watson et al. id. 217; Galbraith v. Plasters, 101 id. 444; Furnace Co. et al. v. Vinnedge et al. 106 id. 650; Chicago and Great Western Railroad Land Co. et al. v. Peck et al. 112 id. 408; Hutchinson v. Howe, 100 id. 11; Johns v. Boyd, 117 id. 339.

The writ of error is dismissed, with leave to plaintiff in error to withdraw record, abstract and briefs, to re-file in the Appellate Court.

Writ dismissed.


author: Mr. Justice Sheldon

text:
    William Hill et al. v. Joseph Hill et al.

      Filed at Mt. Vernon January 25, 1887.

    Delivery op a deed—what to he so regarded. A father made a deed to his son, and upon acknowledging the same, requested the officer taking the acknowledgment, to hold the deed for his son until the death of the grantor, which the officer declined to do. The grantor expressed confidence in his son, but feared his son’s wife might have him, the grantor, dispossessed if she knew of the conveyance, and asked if he could not place the deed where his son might find it after his death, and was informed by the officer that this might do. It was held, that if the father, before his death, placed the deed in his son’s trunk, where it was afterwards found, that was sufficient to show a delivery of the deed by the father in his lifetime.
    Appeal from the Circuit Court of Franklin county; the Hon. B. W. McCartney, Judge, presiding.
    Mr. George C. Boss, and Mr. Charles H. Layman, for the appellants:
    The delivery of a deed is essential to its validity. 3 Washburn on Real Prop. 282; Byars v. Spencer, 101 Ill. 432; Jordan v. Doris, 108 id. 430.
    Nor can a deed undelivered take the place of a testamentary devise. Cline v. Jones, 111 Ill. 569.
    A will takes effect only on the death of the testator. A deed of conveyance must be operative, if at all, during the life of the grantor. Lewin on Trusts, 124.
    The grantor of land must lose all control over it by the transfer and delivery of the deed. Bryan v. Wash, 2 Gilm. 557; Byars v. Spencer, 101 Ill. 433.
    It must be delivered in the lifetime of the grantor. 3 Wash-burn on Beal Prop. 293.

      Mr. F. M. Youngblood, for the appellees:
    The evidence shows that Green B. Hill intended to deliver the deeds so as to pass the title before his death, and they being found, after his death, in the possession of the grantees, the presumption is that they were delivered by the grantor, or placed by him, in his lifetime, within the possession of the grantees. The burden of proof was on complainants to show the deeds were never delivered.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a bill filed by the heirs and the widow of Green B. Hill, deceased, for the partition of, and assignment of dower in, lands, of which it was averred the said Green B. Hill died seized. The bill alleged, that on August 1, 1881, the said Green B. Hill caused to be made two deeds, which purported to convey to Preston1 Hill, one of the defendants, a certain part of the lands, and to Joseph Hill, another defendant, the rest of the lands; that the deeds were signed by the said Green B., but never delivered; that at the time of his death he had the deeds in his possession, and, some time thereafter, Preston and Joseph Hill broke open the private trunk of the said Green B. Hill, and took therefrom the deeds, and had them recorded. The bill prays that the deeds be set aside as clouds upon the title. Upon final hearing, on proofs taken, the circuit court dismissed the bill as to all the complainants except the widow, and decreed and assigned to her dower in the lands. The complainants, heirs, appeal.

The only question arising here, is as to the delivery of the deeds. Green B. Hill died February 27, 18S5, eighty years of age. On November 15,1881, he was married to the widow he left surviving him. The date of the deeds, and their acknowledgment, is August 1,1881. The magistrate who drew and took the acknowledgment of the deeds, testifies that after he took the acknowledgment of Green B. Hill to the deeds, he gave them back to.him; that at first said Hill requested him to keep the deeds, and deliver them to Preston and Joseph Hill when he died, which witness declined to do, telling him he must deliver the deeds to make them effectual; that he then asked witness if he could not place the deeds where the boys could get them at his death; witness said that might do. He said he was not afraid of Preston and Joseph, but if he delivered the deeds to them, their wives might find it out, and he would be put out of house and home; that he wanted to retain the place as long as he lived; that he wanted Preston and Joseph to have it; that he finally said he would take the deeds, and put them where the boys would get them. Another witness testifies to Green B. Hill saying, about two or three weeks before he died, that he would put the deeds where the boys would get them when he Was gone; and Joseph Hill testifies to the like statement. Latterly, the said Green B. Hill was separated from his wife, and lived with Preston Hill, in his family, on the place which was included in the deed to Preston. Preston paid him rent for the land. A few days before his death, Green B. Hill went from Preston’s to the house of a son-in-law, Cockrum, where he died. His trunk was at Preston Hill’s house. He had the key to the trunk, and the day before his death had requested Cockrum to take the key and go and get the money from the trunk to pay the taxes on the land. Two or three months before his death, Green B. Hill wanted to sell the lands to a neighbor, and give the proceeds to Preston and Joseph, asking $10 an acre for the land. His administrator, about nine days after his death, found his trunk. It was locked, and Cockrum gave him the key, and he unlocked it. He found in 'the trunk some old deeds, but not those to Preston and Joseph. The testimony shows that a short time after the death of Green B. Hill, Joseph Hill went to two or three different neighbors, and got from them keys, and a bunch of trunk keys, to open a trunk with. Preston Hill testified that he, on March 4, 1885, found the deeds in an old trunk of his, at home where he kept all his papers and his wife kept the children’s clothing; that he had no key to the trunk. We think the question of the delivery of the deeds turns upon this point: whether Green B. Hill himself placed the deeds in the trunk of Preston Hill, or whether Preston and Joseph Hill, or either of them, got the deeds from their father’s trunk, and placed them in 'Preston’s trunk. If Green B. Hill put the deeds there, we think it establishes a delivery of the deeds.

Joseph Hill admits that he supposed the deeds were in his father’s trunk, and that he did borrow keys for the purpose ■ of opening the trunk and getting the deeds, but he explicitly testifies that when he went to Preston with the keys, the latter would not consent to open the trunk; that he never opened the trunk with those keys, nor did any one else; that the keys were mot out of his pocket from the time he borrowed them until he returned them; that he never opened his father’s trunk, and he did not know that any one else did. Preston Hill, too, testifies that Joseph did not open the trunk. The repeated declaration the father had made, that he would leave the deeds where Preston and Joseph would get them when he was dead, favors the idea that he might have placed them where they were found by Preston in his trunk; and' a finding that he did place them there, we are of opinion, was so sufficiently supported by the evidence that it phould not disturbed.

The decree will be affirmed.

Decree affirmed.


author: Mr. Chief Justice Scott

text:
    The Town of Aurora et al. v. The Chicago, Burlington and Quincy Railroad Company.

      Filed at Ottawa January 25, 1887.

    1. Taxation—diversion of taxes from the purpose for which they were levied and collected—power of the toion authorities—rights and remedy of the tax-payer. Taxes levied and collected by town authorities for the purpose of paying off certain municipal bonds issued in aid of a railway company, constitute a-special .trust fund, and can not lawfully be used for any other purpose, even if such bonds are void. The fact that such bonds are void, will not authorize the voters of the town, at a town meeting, to appropriate such special fund to purposes of local improvement.
    2. So where a special tax is levied and collected by a town to pay void bonds issued by it in aid of a railway company, and the supervisor is directed, by a resolution of the voters of the town, at their annual town meeting, to pay over such taxes to the commissioners of highways, to be used as a bridge fund, a tax-payer may enjoin such application of the fund as to the amount of such taxes paid by him. Such tax-payer will have the right to have the taxes paid by him appropriated for the purpose for which it was levied and collected.
    Wbit of Ebbob to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Kane county; the Hon. Isaac G. Wilson, Judge, presiding.
    Mr. B. G. Montony, for the plaintiffs in error:
    Taxes paid to a municipal corporation may be recovered back in assumpsit, when, and in general only when, the following requisites co-exist: First, the authority to levy the tax must be wholly wanting, or the tax itself wholly unauthorized, in which cases the assessment is not simply irregular, but absolutely void; second, the money sued for must have been actually received by the defendant corporation, and received for its own use, and not as an agent or instrument to assess and collect money for the benefit of the State or other public corporation or person; third, and the payment must have been made under compulsion, and not voluntarily. Dillon on Mun. Corp. p. 857, sec. 751; Cooley on Taxation, chap. 34.
    Here, the tax in question was paid to the town under a claim of right. There was no duress, or mistake of fact. There was no fraud or imposition practiced upon the taxpayer, and there was no failure of consideration.
    Courts of equity have no jurisdiction of this class of cases to recover back money paid, the remedy being at law. Hindman v. Aledo, 6 Bradw. 436; Clinton County v. Chester, 82 Ill. 138; Ranson v. Clinton County, 92 id. 225; High on Injunctions, secs. 1236, 1237.
    Messrs. Dexter, Herrick & Allen, for the defendant in error:
    On the facts stated, although the bonds are void, in the sense no judgment could be rendered on them against the town, still the town can not divert the special tax collected for the purpose of paying the bonds, from such purpose, and appropriate it to other uses.
    The tax-payers, by paying this special tax, did, in fact, create a trust for the payment of the town bonds, and the town did, in fact, accept the trust, and partly performed it.
    It is contended, that as complainant voluntarily paid in the money, it can not recover it back. We are not trying to recover it back, but to prevent the trustee from embezzling the fund. The fact that a person who voluntarily pays a tax can not recover it back, will not deprive him of the right to prevent its diversion to another and different purpose than that for which it was raised. Drake v. Phillips, 40 Ill. 388; Springfield v. Edwards, 84 id. 626; Jackson v. Norris, 72 id. 394; Wright v. Bishop, 88 id. 302.
    Whenever a trust fails, for any reason, there is a resulting trust for the persons who created it. Perry on Trusts, sec. 160; Bradford v. Chicago, 25 Ill. 411.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

This bill was brought by the Chicago, Burlington and Quincy Bailroad Company, against the town of Aurora and the then supervisor of the town, and was to enjoin the supervisor from turning over to the commissioners of highways of the town a certain fund, designated as the “registered bond tax, ” and for other relief touching the same fund. That tax had been levied and collected off the tax-payers of the town for the distinct purpose of paying certain bonds that had been issued by the town under the act of February 18, 1857, to aid in the construction of the “Ottawa, Oswego and Fox Biver Valley railroad. ” The tax in controversy was levied by the proper authorities of the town in 1872, and the fund to be raised was for the specific purpose of paying off the bonds of the town that would become due in 1873. It is admitted, complainant paid a large portion of this special fund raised by the town for the special purpose of paying the aid bonds that would mature the year next ensuing. It is also admitted there is still in the hands of the supervisor an amount of this special fund, a sum in excess of the sum paid by complainant as its due proportion of this special tax. Defendants also admit that the special purpose of levying this tax was to raise a special fund to pay certain bonds that would mature July 1, 1873. It also appears that at the annual town meeting day of the town, about April 1,1883, the electors of the town in town meeting assembled, by resolution, ordered the supervisor of the town, holding the proceeds of such tax for the town, to turn over the same to the commissioners of highways of the town of Aurora, to be kept and used by them as part of the bridge fund of such town; that all moneys put to the credit of such bridge fund are to be used solely by the highway commissioners of the town in building and keeping in repair bridges of the town which are a charge .upon such town. On the final hearing of the cause in the circuit court, a decree was entered “that the defendants be enjoined from turning-over to the bridge fund of said town, according to the prayer of said bill, that-part, to-wit,-$1491.40,.of the special town tax levied in 1872, as stated in said bill, paid by the complainant to the town as its part of said special tax, called in said bill ‘registered bond tax,’ for the purpose of paying the interest on the registered bonds of said town, and paying a portion of said bonds, as also stated in said bill and in the facts agreed upon aforesaid, and issued by said town to the Ottawa, Oswego and Fox Bivef Valley Bailroad Company, as stated in the same and in said statement of facts, and that the defendants pay the costs of this suit.” That decree was affirmed by the judgment of the Appellate Court for the Second District, and defendants bring the case to this court on error.

It will be perceived, the only decree rendered by the circuit court was to enjoin defendants from turning over to the commissioners of highways of the town that portion of the “registered bond tax” that had been levied upon the property of complainant situated in the town, and collected off it, and that is so obviously correct it needs no extended discussion. The tax had been levied by the town authorities for the special purpose to raise a special fund, with which to pay certain bonds of the town that would shortly mature. Being a special fund, it could not lawfully be used for any other purpose than that for which it was raised. It -was a trust fund in the hands of the town officers. They were charged by law to see to its faithful application. It is said, and the admission is, that these particular bonds have been declared by the State and Federal courts to be void, and hence it is insisted the town authorities have no right to use the funds for their payment. It may be, and doubtless is, true, no payment of these funds could be made without the consent of the taxpayer who has contributed to the funds; but if any tax-payer wishes to have the amount of the tax he has paid in, appropriated in that way, there is certainly no reason why he may not have it so appropriated. But placing the decision on the position taken by the town, that the bonds are void, that fact, of itself, does not authorize the voters of the town, at a town meeting, to appropriate this special fund to purposes of local improvement, and the resolution adopted, to that effect, is without authority by law.

Confining the discussion to the relief granted by the court, as should be done, other points made in the argument need not be considered.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Mulicey

text:
    John Sutton v. The People of the State of Illinois.

      Filed at Springfield January 24, 1887.

    1. Continuance—in crimi/nal case—absence of witnesses. An affidavit for a continuance, in a case of homicide, after stating the nature of the charge, the place and circumstances of the killing, making it very probable that the evidence would be conflicting, as it proved to be, and averring the innocence of the accused, and that he could not safely proceed to trial on account of the absence of certain named witnesses, then set out the facts the affiant expected to prove by such witnesses, which were material and vital; and it appeared the absent witnesses named were real persons, and were present at the affray which resulted in the homicide, and had as good an opportunity of seeing what occurred as the witnesses for the prosecution, most of the latter being parties to the affray and hostile to the defendant. It also appeared that due diligence had been used to procure the attendance of the witnesses, and that the evidence on the trial was not as full as it might have been: Held, that under the circumstances it was error to refuse a continuance on such affidavit.
    2. Pbaotioe—latitude allowed and restrictions imposed, in the examination of witnesses—in a capital case. On the trial of one for homicide, the broadest latitude should be allowed to the defendant in the cross-examination of witnesses who were active partisans in the difficulty leading to the killing, and who are hostile in their feelings against the defendant, and on the other hand, the examination of such witnesses by the People should be correspondingly restricted.
    Writ of Error to the Circuit Court of Scott county; the Hon. George W. Herdman, Judge, presiding.
    Messrs. Morrison & Whitlock, for the plaintiff in error:
    It is the right of a relative, servant, or even a stranger, to interfere to prevent the commission of a felony; and that right extends to the taking of the life of the assailant, if necessary to prevent the commission of a felony. 1 Bussell on Crimes, secs. 662, 670; 2 Bishop on Grim. Law, sec. 581; Shueir v. People, 23 Ill. 17; Sharpe v. State, 17 Ohio, 379; Sharpe v. State, 30 Miss. 619.
    The danger need not be real, provided it was apparent, and the accused acted in good faith. Campbell v. People, 16 Ill. 17; Steinmayer v. People, 95 id. 383; Maher v. People, 24 id. 211; Belt v. People, 97 id. 261.
    Mr. George Hunt, Attorney General, and Mr. Thomas H. Devine, State’s Attorney, for the People.
   Mr. Justice Mulicey

delivered the opinion of the Court:

John Sutton, the plaintiff in error, was indicted, at the April term, 1881, of the Scott county circuit court, for the murder of George Hupert, alias George Snyder. At the following October term the cause was submitted to a jury, who, upon consideration of the evidence and the instructions of the court, found the defendant guilty of manslaughter, and fixed the time of his confinement in the penitentiary at twelve years. The court sentenced the accused in pursuance of thé verdict, and the record of the proceedings and conviction is now before us for review.

When the case was called for trial, counsel for the defendant moved for a continuance of the cause, founded upon the affidavit of the latter. The affidavit,'after setting out the nature of the charge, the place and circumstances of the homicide, and averring the innocence of the accused, stated, in substance, that the defendant could not safely proceed to the trial of the cause at that term of the court, for the want of the testimony of Isaac Whitworth, Lemuel P. Davis, Wealthy Cooper and Mary Jane Blackburn, all of whom were present at the time of the affray; that he could prove by said Whit-worth, that immediately before the firing of the two shots from defendant’s pistol, which were the only ones fired by him on that occasion, the deceased approached the defendant and commenced assaulting him with something in his hand, and continued to do so until. both shots were fired; that the first shot went off accidentally, in the struggle that ensued between them, taking effect in the ceiling; that the other was fired while the parties were facing each other, and, consequently, could not have taken effect, as the ball which caused Snyder’s death, and the only one that touched him, is conceded to have entered the back part of the head; that he could prove by said L. P. Davis, the deceased had, on more than one occasion, declared he intended to whip the accused the first time he got an opportunity, and that these threats were communicated by said witness to the accused; that he could prove by said Wealthy Cooper, that she was passing through the room in which the shooting occurred, and that while doing so, she saw some one, whom she took to be Isaac Whitworth, discharge a pistol from behind Snyder, and while the latter and defendant were engaged, and facing each other; that he could prove by the said Mary Jane Blackburn, formerly Mary Jane Christerson, that at the inception of the difficulty the defendant went to his brother, who was somewhat intoxicated, and endeavored to quiet him, and prevent any disturbance.

Under the circumstances disclosed by the record, we are of opinion the court below erred in overruling the plaintiff’s application for a continuance. The claim in the affidavit, that owing to the confusion which prevailed at the time of the killing there would probably be great conflict in the testimony, and that by reason thereof it was important to a fair trial that the witnesses specified in the affidavit should be present to testify to the material circumstances attending the affair, is fnlly sustained by the facts developed on the trial. - There was a sharp conflict between the witnesses upon some material points in the case, while upon others, if the theory of the prosecution is to be accepted, the evidence is wanting in detail, and is unsatisfactory in this, that it fails to give any rational account of the cause, commencement or progress of the difficulty. Had the absent witnesses been jwesent, their evidence might have thrown much light on the subject, and possibly have led to a different result. We do not overlook the fact that applications of this kind are sometimes made in had faith, and for the sole purpose of defeating the ends of justice. When such is the case, the alleged absent witnesses are often mere fictitious or known disreputable characters, who have probably absented themselves for the express purpose of laying the foundation for the application. We see nothing, however, in the record before us, to cast the slightest suspicion upon the good faith of the application in this case. The absent witnesses are all real, and not fictitious, persons, and the testimony given on the trial shows that they, or at least most of them, wére present at the time of the homicide, and consequently had, so far as it can now be known, an equal opportunity with those who testified against the accused, of learning and knowing just what occurred during the fatal affray, and we think it was error, for which the judgment should be reversed, to deprive the accused of their testimony. With the exception of Whitworth, who was at the time out of the State, all these witnesses had been regularly subpoenaed, at the instance of the defendant, and there is no pretence that their non-attendance is attributable to his negligence or connivance,—the absence of two of them being occasioned by sickness. We the more readily adopt this view, for the reason that two of the three witnesses examined in chief by the People, and upon whose testimony the conviction mainly rests, were active parties to the affray which resulted in Snyder’s death; The1 evidence shows' there had been, a short time before, a difficulty between the Buttons and McEvers, and the evidence tends to show' that the latter went to the dance that night with the intention of renewing it; that it w'as commenced by them or those acting in concert with them, and that Kirkpatrick and Lyon, the two main witnesses for the People, together with the deceased, were actively aiding and abetting McEvers during the affray. All of them went there armed, and either used their own weapons, or incited the others to use theirs, pending the affray. The McEvers had made repeated threats against the accused, and his friends had notified him of them. Under these circumstances, every reasonable opportunity should have been afforded the defendant to throw all the light possible upon the disgraceful and unfortunate affair, in order to determine his true relation to it, and the degree of his responsibility for the results, if responsible at all.

With respect to the rulings of the court upon questions of evidence, w'e do not think, taking them as a whole, they were altogether fair to the accused, in view of the particular circumstances in the case, and the relations- which the main witnesses for the People sustained to the difficulty in question. We are also of opinion, for the same reason, that the right of cross-examination was, in several instances, unduly restricted, particularly in the case of Kirkpatrick and Lyon, who were parties to the affray, and, presumptively, hostile to the defendant. In the cross-examination of these witnesses the broadest latitude should have been allow'ed, while, on the other hand, their examination by the People should have been correspondingly restricted. The rule seems, in some degree, to have been reversed.

We have adverted to these matters in a general way, with the hope that the court below will, on another trial, watch more vigilantly the rights of all parties concerned, and hold the scales of justice as nearly equipoised as possible.

Under all the circumstances, we think the case should be submitted to another jury; and that there may be a full and fair investigation of the whole case, unaffected, so far as the evidence is concerned, by anything that may be said here, we have purposely refrained from discussing the facts further than was deemed necessary to show the pertinency of the general observations submitted.

The judgment of the court below is reversed, and the cause remanded for further proceedings in conformity with the views here expressed.

Judgment reversed. '

Mr. Justice Magruder does not concur.


author: Mr! Justice Sheldon

text:
    The Chicago West Division Railway Company v. Mary L. Lambert

      Filed at Ottawa January 25, 1887.

    1. Practice—obviating objection to testimony—necessity of so doing, in order that the parly may protect his interests. A party can not have a judgment reversed on account of an objection to testimony which he might have removed by the introduction of other evidence, but failed to do.
    2. So where the plaintiff in an action to recover damages for personal injury alleged to have been occasioned by the negligence of the defendant, had proved that the profits of his business, which he was disabled from attending to, were $100 a month, including charges for certain medical services, which medical charges were excluded on defendant’s motion, it was held, if this left it uncertain as to the profits exclusive of the medical charges, the defendant should not be heard to complain on that ground, when he might have obviated the objection by proof, but did not.
    3. Evidence—relevancy—physical condition of medical witness, as giving value to his opinion as an éxpert. In an action for a personal injury, in which it was claimed that the left side of the plaintiff was paralyzed, he called a physician, who testified that he, himself, was paralyzed on the left side, in his arm and leg, and had no practical use-of them: Held, that while the paralj'sis of the witness was not an issue, the testimony was relevant, as tending to show that the witness had given the subject special study, and thus giving greater value to, his opinions as an expert.
    4. Instruction—should be restricted to matters involved. On the trial of an action for a personal injury to the plaintiff, the defendant asked an instruction, to the effect that if the jury believed, from the evidence, that the evidence on the part of the defendant was equally balanced with the evidence of the plaintiff, or preponderated in favor of the defendant, they should find for the defendant:' Held, "properly refused, for the reason it was not restricted to matters essential to the right to recover.
    5. Same—whether modification is not too broad. On the trial of an action based on alleged negligence of the defendant, he asked the court to instruct, generally, that if the evidence of the parties was equally balanced, to find for the defendant. The court modified the same by making it read, that if the evidence on the question of negligence was equally balanced, etc. It was objected that the instruction was improperly restricted to- the question of negligence, and did not embrace the question of the injury of the plaintiff: Held, that the modification was proper, as the instruction was directed to the right to recover at all, and not" to the extent of the recovery.
    Appeal from the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county.
    Messrs. Wm. H. & J. H. Moore, for the appellant.
    Messrs. Brandt & Hoffman, for the appellee.
   Mr! Justice Sheldon

delivered the opinion of the Court:

This is an appeal from a judgment of the Appellate Court for the First District, affirming a judgment of the circuit court of Cook county, in favor of the appellee, against the appellant. The. cause of- action set out in the declaration is, that the defendant railway company was operating a street railroad in the city of Chicago, and while the plaintiff was in the act of alighting from one of the company’s cars, the car was negligently started suddenly forward, whereby plaintiff was thrown heavily to the ground, and received the injury complained of.

As respects the questions of fact arising under a conflict of evidence, the responsibility of their determination is with the courts below, and we have but to deal with questions of law. But few of the latter are presented upon this record, and they of no serious character.

The plaintiff testified, on the trial, that she was a midwife, and kept a private lying-in hospital in Chicago; that her patients used to pay her from $7 to $10 per week for board; that her profits wrere about $100 per month; that she delivered her patients, and took care of them during confinement, without the aid of any doctor. The defendant moved to strike out all plaintiff’s testimony as to the value of her services as a midwife, as to the amount she earned as a nurse, and the amount she received for board. The court sustained the motion as to any fees or charges as a midwife, on the ground, it would seem, of objection made that plaintiff had not been licensed, and had not practiced midwifery in the State ten years before July 1, 1877, and overruled the motion in the other respects. This part denial of defendant’s motion is claimed to be erroneous, because the testimony as to plaintiff’s earnings as a nurse and boarding house keeper was not separated from that as to the value of her services as a midwife, and there was no way for the jury to determine the amount with respect to each. Any uncertainty in this- regard it was in the defendant’s power to have had removed by the introduction of testimony, and not having availed of that opportunity, we do not think it should be heard now to complain ; and as respects the amount received for board, there was separate testimony as to that.

The witness Dr. Thomas D. Fitch, a physician of thirty years’ standing, introduced by the plaintiff, testified: “I am paralyzed on the left side—my arm and leg; have no practical use of them, but I can move the leg along. ” The refusal of defendant’s motion to -strike out the above evidence is assigned for error. It was a controverted question whether or not the plaintiff was paralyzed in her left leg and arm. It is true that the witness’ paralysis was not within the issue, and yet it was not a wholly unimportant fact. It tended to add strength to the witness’ testimony as an expert, in being calculated to excite in him a peculiar, interest, and lead him to give special study to that subject of inquiry. We see no just ground of complaint on defendant’s part in not excluding this evidence.

It is insisted, lastly, that the court erred in refusing to give to the jury the following instruction, asked by the defendant, as originally written, without the words italicised therein, and in writing the words italicised therein, and in giving said instruction as so modified, .viz:

“If the jury believe, from the evidence, that the evidence on the question of negligence on the part of the defendant railway company is equally balanced with the evidence on that question on the part of the plaintiff, Mrs. Lambert, or preponderates in favor of the defendant railway company, then the jury are instructed that the law requires them, and it is their duty, to return their verdict for the defendant.”

As asked, the instruction was defective, and properly refused, in its not' being restricted to something which was essential to the maintenance of the action. There was much of conflicting evidence on points not thus essential, and the instruction as asked might mislead the jury to think they should find for the defendant if the evidence was in equipoise, or preponderated in favor of the defendant on some point which was not essential to a recovery. It is objected to the modification made by the court, that it limited the instruction to the question of negligence, and did not extend it to the question of injury. • There was no doubt that some injury was received. The conflict of evidence on this point was as to the extent of the injury, which would go, not to the right of recovery asserted by the instruction, but only to the amount of recovery. • The controversy in this respect, as touching the right of action, was; whether the injury came from a negligent management of defendant’s car, and the instruction, as modified, substantially covered the whole question in this regard, and was not erroneous.

We find no error in the record, and the judgment must be affirmed.

Judgment affirmed.


text:
    George Bartelott v. The International Bank.

      Filed at Ottawa January 25, 1887.

    1. Practice—motion to exclude all the evidence, or to instruct the jury to find for the defendant—as likened to and distinguished from a demurrer to evidence. Motions to exclude the entire evidence from the jury, and motions to instruct the jury to find for the defendant, are in the nature of demurrers to evidence, in this, that they admit not only all that the testimony "of the plaintiff proves, but also all that it tends to prove. But they are not subject to any of the technical particularity required in demurrers to evidence, and no judgment is rendered against the defendant on disallowing them.
    2. "Same—directing what the verdict shall be—upon what condition of the evidence— and of the modes of withdrawing a case from the jury. The evidence tending to prove a cause of action which will entitle the plaintiff to have it passed upon by a jury, and which will render it error to instruct the jury to find for the defendant, must be more than a mere scintilla of evidence. It must be evidence upon which the jury can, without acting unreasonably in the eye of the law, decide in favor of the plaintiff or the party producing it.
    3. Where the plaintiff fails to give any evidence of a fact essential to his right of action, the defendant may. take advantage of the omission by simply presenting to the court an instruction excluding the entire evidence, or directing the jury to find for him, or it may be done by both these ways.

      4. Same—at what stage of the trial such motions may be made. Where such motion may be rightfully made, it is proper and most convenient to make it at the close of the plaintiff’s evidence; but there is no reason or authority why it may not be made after evidence has been heard in behalf of the defendant. At most, the latter course can only affect the question of costs incident to the examination of the defendant’s witnesses on a motion to re-tax the costs.
    5. Pleading—amending declaration—effect upon prior plea. Where two are sued in assumpsit, and one of the defendants pleads that he, together with the other defendant, did not undertake and promise, etc., which is a plea not sworn to, and a nolle prosequi is entered as to such other defendant, and the declaration is amended so as to show only an individual liability, the plea will amount to but the general issue, and the clause relating to such other defendant may be treated as surplusage.
    6. Same—practice where plea is inapplicable to declaration as amended. Where the plaintiff dismisses his suit against one of two defendants, and amends his declaration sq as to show an individual instead of a joint liability, and no new pleas are filed, and the parties go to trial upon the issues formed under them, it will be too late to raise any question as to defects in the pleas, or their applicability to the amended declaration. If such pleas are not good, they should be demurred to, and if deemed inapplicable, the defendant should move to strike them from the files.
    7. Evidence—hearsay—deposition of a witness in a different suit. An action was brought against a bank and its cashier, but was dismissed as to the latter before the trial, at which the plaintiff offered in evidence a deposition of the cashier, taken in another suit between the bank and a third party: Held, that such deposition could not be admitted as original evidence in the last action, as the cashier w’as not a party thereto. His statements in the deposition would be admissible in the later suit only for the purpose of contradicting him, a proper foundation being first laid for that purpose.
    8. Burden of proof—on replication to plea of the Statute of Limitations. Where the plea of the Statute of Limitations is interposed to a declaration containing only the common counts, and the plaintiff replies, setting out the specific facts constituting the cause of action, and that knowledge of such facts was concealed from him by the defendant, and this is traversed, it will be incumbent on the plaintiff to prove, first, the existence, and then the concealment, of the alleged facts.
    9. Same—purchaser of land—burden of showing the land discharged as a collateral for various debts. Where a party deposits notes secured by deed of trust, with his banker, as collateral security for a loan, under a written agreement authorizing the bank to hold all collaterals pledged for particular loans, for the payment of all notes held by the bank on the pledgor, the burden of proof will lie upon a purchaser of the land described in the trust deed to show, not only that the particular loan was paid, but also that the col-laterals were released from the general pledge for other debts of the pledgor.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county.; the Hon. R. S. Williamson, Judge, presiding.
    On October 17, A. D. 1881, George Bartelott brought an action of assumpsit, in the Superior Court of Cook county, against the International Bank and Berthold Lowenthal. The declaration contained the common counts, only. The bank filed the following plea: “And the International Bank, one of the above named defendants, by Bisbee & Ahrens, its attorneys, comes and defends the wrong and injury, when, etc., and says- that it, together with said Berthold Lowenthal, did not undertake and promise in manner and form as the plaintiff has above thereof complained against it; and of this it puts itself upon the country, ” etc. This plea was not sworn to. And the bank also pleaded specially, first, that it was not jointly liable with Berthold Lowenthal, which was sworn to; second, the five years’ Statute of Limitations; fourth, former settlement with plaintiff. There were issues formed upon these pleas, but they need not be specially noticed.
    During the- progress of the trial a nolle prosequi was entered as to Berthold Lowenthal. The cause then proceeded, resulting in a judgment for the plaintiff. This judgment, on appeal, was reversed in the Appellate Court, and the cause remanded for a new trial. (International Bank v. Bartelott, 11 Bradw. 620.) No amendment was made of the declaration, after the nolle prosequi as to Lowenthal, before the trial, .and no rule was taken against the bank to plead further to the declaration. The plea above recited is called and treated as the general issue, in the opinion of the Appellate Court, supra.

    After the cause was remanded and re-docketed in the Superior Court, on the 16th of January, 1883, the plaintiff asked leave to amend his declaration, and also to amend his replication to the plea of the Statute of Limitations, which replication the opinion of the Appellate Court had held to be insufficient. The leave asked was granted, and thereupon appellant filed a new declaration, containing the common counts only, omitting entirely the name of Berthóld Lowenthal; and he,- also, then filed an amended replication to the defendant’s plea of the Statute of Limitations. No rule was taken against the defendant to plead to the amended declaration, but the pleas filed to the original declaration remained on file. Thereafter, the Superior Court rendered judgment in favor of the defendant, on demurrer to the plaintiff’s replication to the plea of the Statute of Limitations. The plaintiff appealed from this judgment to the Appellate Court, and that court reversed the judgment of the Superior Court, and again remanded the cause for a new trial. (Bartelott v. International Bank, 14 Bradw. 158.) In the opinion then filed, the Appellate Court again treated the record as containing the plea of non-assumpsit.
    No subsequent changes were made in the pleadings, and the cause, upon being remanded and re-docketed in the Superior Court, again came on to be tried, and was tried in that court -at its March term, A. D. 1883. On that trial the' plaintiff contended, that about October 12, A. D. 1870, he purchased of Samuel J. Walker, block 12 and the west half of block 11, in assessor’s division of section 18, town 39, range 14 east, in Cook county, for the sum of $48,500; that said Samuel J. Walker procured Henry H. Walker to make a deed to plaintiff for the property; that said Samuel J. Walker assured plaintiff that the property was free of all liens or incumbrances, and promised plaintiff, from time to time, before and after the making of the deed, to furnish plaintiff with an abstract of title to the property, but he did not furnish it; that about January 1, 1874, plaintiff had an abstract of title, of the property made, and, upon examination of that, it showed that a trust deed had been given on the property on-the 22d day of July, A. D. 1869, by said Henry H. Walker, to one Francis A. Hoffman, as trustee, to secure two promissory notes of said Henry H. Walker, for the sum of $15,000 each, payable to the order of Samuel J. Walker; that at the time he purchased from Samuel J. Walker, plaintiff did not know of said trust deed being upon the property, and that he did not purchase subject to it, and assume its payment; that the notes secured by the trust deed had been deposited with the defendant, by said Samuel J. Walker, as collateral security for certain other notes, amounting to $20,000; that on the 11th of September, A. D. 1873, said Samuel J. Walker paid said defendant said $20,000, and cancelled the principal notes, and thereby also cancelled the said two $15,000 notes secured by the trust deed aforesaid, and left all of said notes in defendant’s keeping; that in the month of January, A. I). 1874, when plaintiff discovered that the property was incumbered by said trust deed, he made diligent inquiry to learn whether said two $15,000 notes so secured by trust deed had been paid; that said Henry H. Walker then informed him that it was the duty of Samuel J. Walker to pay said notes, and the said Samuel J. Walker then informed him that the defendant held said notes, and that the same were not paid in full,—that there was then due the defendant the sum of $20,000 on said notes, and that he, the said Samuel J. Walker, was unable to pay the same; that on the .... day of February, A. D. 1874, the plaintiff applied to the defendant, and inquired whether said two $15,000 notes had been paid, and was informed by its president that they were unpaid, and held by the defendant, and that there was due upon them $20,000, all of which, plaintiff charges, was known by the defendant to be false; that the plaintiff, not knowing that the notes had been paid, and fearing that the property might be sold under the trust deed, and so lost to him, and relying upon the defendant’s false and fraudulent representations, did, on or about April 4, A. D. 1874, pay said defendant said sum of $15,000 in full payment of said claimed indebtedness on said last mentioned notes, and for a release of said property from said deed of trust. Plaintiff further claimed that knowledge of the payment of the notes by Walker was fraudulently concealed from him by the president of the defendant.
    Evidence was given on behalf of both plaintiff and defendant. The fact was proved that Walker paid, substantially as claimed by plaintiff, the original notes for the payment of which the promissory notes, and deed of trust securing them, on this property, were pledged as collateral security; and then defendant gave in evidence the following agreement:
    “Chicago,' July 7,1869.

    “Whereas, the undersigned has heretofore, and intends hereafter, to borrow money from the International Mutual Trust Company, on his own note or notes, or the note or notes of H. H. Walker; and whereas, to secure the payment of such note or notes, he has heretofore, and intends hereafter, to deposit collateral securities; and whereas, such collaterals were given, and are hereafter to be given, to secure the payment of specific notes; now, therefore, for the purpose of more fully securing the said International Mutual Trust Companj*, I do hereby agree that all and singular the collaterals by me given, or to be given as aforesaid, shall, at the option of said International Mutual Trust Company, apply generally to all notes held at any time by said trust company, executed by me or said H. H. Walker, and shall also apply and be considered collaterals to secure the payment of any and all notes negotiated fbr my account by said trust company.
    Samuel J. Walker. ”
    Evidence was given, showing that at the time Walker paid off the two notes for which the notes and deed of trust were pledged as collateral, Walker was indebted to the defendant many thousands of dollars more than the amount of these notes, and that he so continued to be indebted to it,—and there is no evidence that this agreement ivas subsequently cancelled. The notes and trust deed were found in the possession of the bank, uncancelled.

      Samuel J. Walker testified: “I have no recollection whether these two $15,000 notes were left at the bank, or delivered to me and marked ‘cancelled’ when the $20,000 was paid. (April 11, 1873.) I have taken up collaterals when I paid paper, and sometimes I left them. I have no recollection whether I gave directions for a release deed to issue to Bartelott. I really have no recollection about it. It would be very difficult to say whether I took them away or left them. I was in the habit of leaving them occasionally, and taking them away sometimes. It would be almost impossible to state an impression. I haven’t them.” He further testified that the bank held a large amount of doubtful notes that were not specially secured,—some $80,000 or $90,000 in amount. He further added: “I knew Lowenthal was endeavoring to realize all he could on the securities, and was endeavoring to realize as fast as possible. I did not enter into any conspiracy with Lowenthal to swindle Bartelott. I supposed, at the time Bartelott paid the $15,000, that the bank was entitled to $20,000. At the time this $15,000 "was paid, there was a great deal more than this due the bank on my notes. The bank quite often carried what was known as my cash memoranda,—$10,000 or $20,000,—at.various times; short loans carried a day or two. If I had gone in there and paid this $20,000, and said nothing, and left the collaterals without asking to give them up, they could, I suppose, under the agreement, claim afterwards to have held them in a general Avay. I said I did not recollect Avhether, in this case, I took them up or left them.”
    Lowenthal testified that upon the payment of the principal notes, on September 11, 1873, the collaterals were retained as general security for all Walker’s indebtedness, which then amounted to about $200,000, of which about $100,000 had no specific security.
    At the conclusion of the evidence, on motion of the defendant’s counsel, the court instructed the jury to find for the defendant; and the jury so finding, the court thereupon rendered judgment upon the verdict, after overruling a motion of the plaintiff for a new trial. This judgment, on appeal to the Appellate Court, was affirmed, and the ease is now here by appeal from that judgment. Errors are assigned, properly raising the questions considered in the opinion.
    Mr. W. E. Hughes, and Messrs. Beaming & Thompson, for the appellant:
    A demurrer- to the evidence admits not only the facts stated in such evidence, but also every conclusion which a jury might fairly or reasonably infer therefrom. Schuchardt v. Allens, 1 Wall. 369; Hansborongh’s Exrs. v. Thorm, 3 Beigh, 147; Park v. Ross, 11 How. 362; Phillips v. Dickerson, 85 Ill. 11.
    Had the defendant in this ease offered a demurrer to the evidence at the close of plaintiff’s ease, the latter would have been entitled to a judgment. So conclusive was the plaintiff’s evidence, that counsel for the defendant would not admit it, but immediately offered evidence, and when they got through with their proof they asked the court to grant an instruction which made it imperative upon the jury to find a verdict for the, defendant, and which has in many-States superseded the ancient practice of a demurrer to the evidence. It answers the same purpose, and should be tested by the same rules. (Phillips v. Dickerson, 85 Ill. 11; Park v. Ross, 11 How. 362.) And, therefore, under those authorities, it is clear that the Superior Court erred in giving such an instruction to’the jury after the defendant had offered evidence on its own behalf.
    This court has repeatedly held, that where a plaintiff has offered evidence which tends to establish his right to recover,' the court has no right to take the evidence from the jury, or to instruct them to find one way or another. It has always been held by this court, that it is the province of the jury to weigh the evidence, and the court has no right to invade their province. Railway Co. v. Mills, 105 Ill. 63; Holmes v. Railroad Co. 94 id. 439.
    The following cases in this court discuss the power of the trial court to instruct a jury to find for the defendant where there was a total failure on the part of the plaintiff to support, by proof, his case as pleaded. Railway Co. v. Lewis, 109 Ill. 120; Simmons v. Railroad Co. 110 id. 340; Abend v. Railroad Co. 111 id. 202; Ayers v. City of Chicago, id. 406; Alexander v. Cunningham, id. 511.
    The motion to instruct the jury to find for the defendant, was in the nature of a demurrer to the evidence, and hence admitted not only all that the evidence proved, but all that it tended to prove. Ward v. City of Chicago, 15 Bradw. 98; Frazer v. Howe, 106 Ill. 563; Pennsylvania Co. v. Conlan, 101 id. 93.
    It is not within the province of the judge, on such a motion, to Weigh the evidence, and ascertain where the preponderance is. This function is limited strictly to determining whether there is, or not, evidence legally tending to prove the facts affirmed. Hubner v. Feige, 90 Ill. 208; Crowe v. People, 92 id. 231; Pennsylvania Co. v. Stoelke, 104 id. 201.
    Messrs. Rosenthal & Pence, for the appellee:
    It is too late to make' the point that there .was no general issue filed to the amended declaration. Vasey v. Board of Trustees, 59 Ill. 188; Webb v. Insurance Co. 5 Gilm. 225.
    The only question this court can examine in this, case is, whether, under any circumstances, the trial court can take a case away from the jury, and it is not for this court to consider whether in this particular case it had such right, for that would be determining and passing upon the effect of the evidence in this case, which this court has no power to do. Bridge v. Comrs. of Highways, 101 Ill. 518.
    The trial court has the legal right, after the evidence is all in on both sides, to take a case away from the jury, or direct the jury to find for the defendant. Martin v. Chambers, 84 Ill. 579; Polman v. Johnson, id. 269; Phillips v. Dickinson, 85 id. 11; Frazer v. Howe; 106 id. 573; Simmons v. Railroad Co. 110 id. 340; City of Mattoon v. Fallin, 113 id. 249; Reed v. Inhabitants, 8 Allen, 524; Pleasants v. Fant, 22 Wall. 120; Randall v. Railroad Co. 109 U. S. 478; Herbert v. Butler, 97 id. 318; Railroad Co. v. Munson, 14 Wall. 342.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The Appellate Court held, that since there is conclusive evidence showing that, on the lltli day of September, A. D. 1873, at the time that Samuel J. Walker paid the appellee the $20,000, in satisfaction and discharge of the principal notes for which the two $15,000 notes, secured by the trust deed, were held as collateral security, Samuel J. Walker was indebted to the appellee to the further amount of nearly or quite $200,000, on a large amount of which it held no specific security, the appellee was entitled to still retain the two $15,000 notes, and trust deed securing them, as collateral security for such further indebtedness, bjr virtue of the agreement made and reduced to writing between the appellee and Samuel J. Walker, on the 7th day of July, A. D. 1869, unless the appellant has proved that at the time that Walker made such payment there was a special arrangement or agreement between said Walker and appellee, to the effect that the payment of the. principal notes, in this instance, operated as a redemption of the collateral; that there is no evidence in the record tending to prove such arrangement or agreement, and that, therefore, the Superior Court properly directed the jury to find in favor of the appellee.

The questions presented for. our consideration by the arguments before us, are: First, even assuming that the Superior Court did not misjudge as to the character and effect of the evidence, was it competent for that court to instruct the jury to find in favor of the appellee, after evidence had been in-traduced by appellee to sustain the defence; second, if it was competent to so instruct the jury, then, upon whom was the burden of proof, on the question of whether it was agreed and intended by the parties that the payment of the $20,000 notes by Walker should discharge the two $15,000 collateral notes, and release the trust deed securing them; third, if the burden was on appellant, then ivas there any evidence, proper for the consideration of the jury, tending to prove such agreement and intention.

First—Although we have said that motions to exclude the entire evidence from the jury, and motions to instruct the jury to find for the defendant, are in the nature of demurrers to evidence, yet this relates rather to the mode of viewing the evidence, than to the time or mode of interposing such motions. They are in the nature of demurrers to evidence, in that they admit not only all that the testimony of the plaintiff proves, but also all that it tends to prove. (Frazer v. Howe et al. 106 Ill. 573.) But none of the technical particularity is required in making such motions, that is required in demurrers to evidence, and no judgment is rendered against the defendant on disallowing the motion. They are usually informal, and most frequently made by simply presenting to the court an instruction, to be given or refused, instructing the jury that the evidence is excluded, or that they should find for the defendant, or, it may be, both. It would certainly be proper, and, where the motion can rightly be sustained, most convenient, to present the motion at the conclusion of the plaintiff’s evidence, so as to at once terminate the trial; but we know of no reason or authority why it may not be made after evidence is heard on behalf of the defendant. At most, so far as is now perceived, delaying the motion until after the introduction of defendant’s evidence could only affect the question of costs incident to the examination of the defendant’s witnesses,—and this, obviously, would appeal only to the discretion of the court, on a motion to re-tax costs, as, in case of the examination of unnecessary witnesses. In the following cases the practice seems to have been to entertain the motion after hearing the evidence of the defendant: Reed v. Inhabitants, 8 Allen, 524; Improvement and Railroad Co. v. Munson, 14 Wall. 342; Randall v. Baltimore and Ohio Railroad Co. 109 U. S. 478; Herbert v. Butler, 97 id. 318. And that practice is recommended by this court in City of Mattoon v. Fallin, 113 Ill. 249.

Second—The declaration contained the common counts, only. The plea of the Statute of Limitations affirmed, generally, that any cause of action that the plaintiff might have under those counts was barred. The replication set out specific facts constituting a cause of action, and that knowledge of such facts was concealed from appellant. This was traversed by the rejoinder. The burden was then upon the appellant to prove his plea. If a thing alleged as a fact never existed, it would seem clear that knowledge of it could not have been concealed; and so, in order to sustain his plea, it was incumbent on him to prove, first, the existence, and then the concealment, of the alleged facts. It was incumbent on appellant to thus particularly reply. (Beatty v. Nickerson, 73 Ill. 605.) And the same necessity exists for specific proof as for specific allegation. (Watt v. Kirby, 15 Ill. 200.) But apart from this, the defendant pleaded to the original declaration, that it, “together with said Berthold Lowenthal, did not undertake and promise, in manner and form, ” etc. This plea was not sworn to, and therefore could but amount to the general issue. When a nolle proseguí was entered as to Lowenthal, so much of the plea as alleged that, “together with said Berthold Lowenthal, ” became surplusage. It may be that when the amended declaration was filed, appellant might have required a new and more specific plea; but he did not do so. He neither demurred to this plea, nor asked that appellant re-plead. Three trials were had in the Superior Court, and the cause was three times passed upon by the Appeilate Court, without any objection ever being urged in either court to the sufficiency of this plea. The Appellate Court, in 11 Bradw. 620, and again in 14 Bradw. 158, expressly characterize it as the general issue. Even if we thought that characterization inaccurate, which we clo not, it is now too late to raise any question upon it. The plea sufficiently put in issue the allegations of the declaration, and imposed the burden upon appellant of proving them. If deemed obnoxious to a demurrer, appellant should have demurred to it. If deemed- inapplicable to the amended declaration, he should have moved -to strike it from the files.

Third—We said in Frazer v. Howe, supra,—and that ruling has been since approved in Simmons v. Chicago and Tomah Railroad Co. 110 Ill. 340, and other cases,—that the function of the judge on such a motion “is limited strictly to determining whether there is or is not evidence legally tending to prove the fact affirmed,—i. e., evidence from which, if credited, it may reasonably be inferred, in legal contemplation; the fact affirmed exists, laying entirely out of view the effect of all modifying or countervailing evidence.” In Simmons v. Chicago and Tomah Railroad Co. supra, this language was used: “We think the more reasonable rule, which has now come to be established by the better authority, is, that when the evidence given at the trial, with all inferences that the ■jury could justifiably draw from it, is so insufficient to support a verdict for the plaintiff, that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant.” And this language was referred to with approval in Lake Shore and Michigan Southern Railway Co. v. O'Conner, 115 Ill. 261. In Doane v. Lockwood, 115 Ill. 494, it was said: “Instructing the jury to find the issues for defendant, is, in effect, the same thing as sustaining a demurrer to the evidence. In either case the court holds, that, admitting all the evidence tends to prove, it is not sufficient in law to sustain the action. ”

Since it was not intended in this case to overrule Simmons v. Chicago and Tomah Railroad Co. supra, it is apparent that “evidence tending to prove, ” means more than a-mere scintilla of evidence,- but • evidence upon which the jury could, without acting unreasonably in the eye of the law, decide in favor of the plaintiff, or the party producing it. It is not intended by this practice that the function of the jury to pass upon questions of fact is to be invaded, any more than it is intended that such function is to be invaded. by a motion to set aside a verdict, and for a new trial, upon the ground of the want of evidence to sustain the verdict. In neither case is the court- authorized to weigh the evidence and decide where the preponderance is. Hilliard on New Trials, pi 339, sec. 9, et seq.; Johnson v. Moulton, 1 Scam. 532; Lowry v. Orr, 1 Gilm. 70; Morgan v. Ryerson, 20 Ill. 343.

What, then, is the effect of the evidence? We have held that this identical contract between Samuel J. Walker and appellee, of July 7, 1869, authorized appellee to hold all col-laterals pledged for particular loans then made, for the payment of all notes held by the appellee against said Walker, regardless of the manner in which they were secured. Buchanan v. International Bank, 78 Ill. 500; Walker et al. v. Abt et al. 83 id. 226.

If this contract was subsequently cancelled, it devolved' upon appellant to prove it. It is not pretended that there is any evidence in that respect. When Walker made payment of the $20,000 notes on the 11th day of September, A. D. 1873, he did not take up . the two $15,000 collateral notes, and trust deed securing them. They are produced by the appellee, uncancelled, and if there was any agreement between Walker and appellee that by paying the $20,000 these two $15,000 notes were also to be cancelled and the trust deed released, it devolved upon appellant to prove it. There is absolutely no proof to this effect in the record. What Walker may have intended in this respect, is, obviously, unimportant, in the absence of proof showing that such intention was shared by appellee. An attempt was made to use a deposition of Lowenthal, taken in a case between appellee and another party, as original evidence in this case. Without conceding that it would have afforded material proof on 'the question we are considering here, if admissible as original evidence, we content ourselves with saying that Lowenthal is not a party to this suit, and that therefore his statements in a deposition in another suit could only be admissible in this suit for the purpose of contradicting him—a sufficient foundation having first been laid for that purpose. It can not be used as original affirmative evidence in this case, and this is so apparent that it can need no discussion. Walker is the only other person whose testimony was taken, who could have had any knowledge of such an agreement, if made, and his testimony proves nothing in that respect. Mere suspicions or conjectures are inadequate to sustain a legal judgment.

We concur with the reasoning of the Appellate Court, and affirm its judgment.

Judgment affirmed.

Mr. Chief Justice Scott, dissenting.


text:
    McAlpine, Polk & Co. v. Julia Zitzer et al.

      Filed at Mt. Vernon January 25, 1887.

    1. Tax title—acquired by the owner—treated as a payment of taxes, only. Where the owner lets his land be sold for taxes, and buys it in at the tax sale, he does not thereby get any independent title, but the transaction will be treated as but a payment of the taxes.
    2. Same—tax title obtained by a third person by collusion with the owner, to defeat a mortgage. Where a mortgagor, by fraud and collusion with another, suffers the premises to be sold for taxes, and procures such third person to purchase the same to defeat the mortgage, the tax title will be treated the same as if the mortgagor were the purchaser, and held subject to the mortgage.
    3. Same—service of notice upon tenants in possession, as to expiration of time of redemption. Where the holder of a certificate of purchase at a tax sale fails to serve the requisite notice of the purchase, and of the time when the redemption will expire, on a tenant in the occupancy of a building upon the premises, he will acquire no title, notwithstanding he may have made affidavit that he had served such notice on all persons in possession.
    4. Remedy—to question the validity of tax title set up to defeat a foreclosure—whether at law or in equity. On bill to foreclose a mortgage, the validity of a tax title held by a third party, not acquired by collusion with the mortgagor, will not be passed upon and determined in that suit, but will be left to be adjudicated in an action at law. But if the tax title has been obtained by such collusion, it will be in subordination to the mortgage, and the question of its validity may be passed upon in the suit to foreclose, and the title made subject to the mortgage in the decree of foreclosure.
    Appeal from the Appellate Court for the Fourth District;— heard in that court on writ of error to the Circuit Court of Eichland county; the Hon. W. C. Jones, Judge; presiding.
    Messrs. Wilson '& Hutchinson, for the appellants :
    As a general rule, when a court of chancery acquires jurisdiction, it settles all the matters incidentally arising in connection with the principal matter. Wade v. Bunn, 82 Ill. 120; Roole v. Decker, 92 id. 508.
    The cases of Gage v. Perry, 93 Ill. 176, and Gage v. Board of Directors, 4 Bradw. 412, relied on by appellees, differ widely from this case. In both those cases, there was an outstanding legal title existing before the mortgage was given, "while here, the tax title ivas acquired after the mortgage, by fraud and collusion, to defeat the mortgage.
    If fraud has been proved, chancery will decree the proper relief, even if law has full jurisdiction of it. Turrett v. Wainwright, 4 Grilm. 418; Kennedy v. Northup, 15 Ill. 148; Nelson v. Rockwell, 14 id. 375; Babcock v. McComant, 53 id. 215.

      The notice of the tax sale was not sufficient. No notice was published, as to appellants, by publication, as required, nor upon all the parties in possession. Revenue Law, see. 216.
    The mortgagor can not, by suffering his land to go to sale, acquire a tax title to defeat his mortgage, nor can he collude with a third party to effect the same purpose, and purposely conceal the fact of the tax sale.
    Messrs. Allen & Fritchey, for the appellees:
    A court of equity will not inquire into the validity of a tax title to determine whether it is a cloud upon a legal title, and to enjoin the holder from asserting it. Hamilton v. Quimby, 46 Ill. 90; Spiringer v. Rosette, 47 id. 223.
    Courts of equity will not assume jurisdiction to remove a cloud by tax title, unless complainant is in possession, or the land unoccupied. Wing v. Shearer, 77 Ill. 200; Hardin v. Jones, 86 id. 213 ; Whitney v. Stevens, 97 id. 482.
    In a bill to foreclose, a third party holding an adverse title can not be made a party to the bill, unless the adverse title is derived from the mortgagor or some one claiming under him. Gage v. Perry, 93 Ill. 176; Gage v. Board of Directors, 8 Bradw. 410; Bozarth v. Landers, 113 Ill. 181.
    The court, on motion, should dismiss a bill to foreclose, as to third parties claiming adverse title, when the evidence shows that the adverse title was not derived from the mortgagor, or some one claiming under him. Gage v. Perry, 93 Ill. 176; Bozarth v. Landers, 113 id. 181.
    The purchaser of land at a tax sale is only required to give such notic.e of his intention to take a deed, as may be required by the statutes. Roper v. Sangamon Lodge, 91 Ill. 518.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a bill in equity, for the foreclosure of a mortgage on lots in Olney, in this State, executed by John Von Cunten and his wife, on May 7,1880, to secure the payment of three promissory notes of the same date, made by John Von Gunten to McAlpin, Polk & Co., payable in one, two and three years after date, with eight per cent interest. Charles Von Gunten was made a 'party, the bill seeking to set aside a tax deed for the lots in his favor, on the ground that it was obtained by fraud and collusion. Pending the suit, he made a quitclaim deed of the lots to Julia Zitzer, and she was made a party. The circuit court, on final hearing, rendered a decree of foreclosure, holding the tax deed to have been obtained by fraud and collusion, and to be void as against the mortgage. On appeal to the Appellate Court for the Fourth District, that court reversed the decree as to Julia Zitzer, and dismissed the bill as to her, and affirmed the decree in all other respects.

On June 14,1880, the lots were sold for the taxes of 1879, by the collector of Richland county, and bid off by Charles Von Gunten at the sum of $26.62. On June 16, 1882, he obtained from the county clerk a tax deed for the lots. At the time of the tax sale, and afterward, McAlpine, Polk & Co. lived in Cincinnati, Ohio, and John Von Gunten, the mortgagor, lived at Olney, in this State, and was in the occupancy of the property, carrying on a store thereon. Charles Von Gunten was his son, a single man, and lived with his father. Julia Zitzer was the sister of Charles Von Gunten. The property, at the time of the tax sale, was worth $4500. After the tax sale, John Von Gunten sold twenty feet off from one of the lots, for $1500, and after obtaining the tax deed, Charles Von Gunten made a quitclaim deed for the twenty feet to the purchaser. The purchase money was paid to and applied by John Von-Gunten to the payment of the first of the three mortgage notes, thus showing that after the tax sale John Von Gunten dealt with the property as his own, selling a portion of it, and receiving the proceeds for his own use, with the assent of his son, Charles.

It is an express provision of the statute, that no purchaser at a tax sale shall be entitled to a tax deed until certain conditions shall he complied with, one of which is, that he shall serve a written or printed notice of the sale, and when the time of redemption will expire, on the owners of, or parties interested in, the land, if they can, upon diligent inquiry, be found in the county, and if they can not be so found, then shall make publication of the notice in a newspaper in the county; and shall also, before being ‘entitled to such deed, make an affidavit of compliance with such conditions. On June 15, 1882, the day of taking out the tax deed, Charles Yon Gunten made an affidavit before the county clerk, which, after stating the service of the notice on John Yon Gunten, the person in whose name the lots were assessed, and on Daniel Gaffner and Gottlieb Gaffner, the persons in the actual occupancy of a part of the lots, proceeded as follows: “That there is no other person or persons in the possession of said premises; that upon diligent inquiry, affiant has been unable to find any other person in said county having an interest in said lots, or either of them, or any part thereof, * * * and that affiant relies upon the foregoing facts as such compliance with the law as to entitle him to á deed for said lots.” And yet, the said Charles Yon Gunten, at that time, well knew of this mortgage, and also that Gardner & Schultz were in the actual occupancy of a building upon the lots, under a lease made to them by John Yon Gunten, on February 4,1882, and continued in such occupancy until November, 1882, when the building was burned. Schultz and Gardner testify that they had no notice of the tax sale, and that if they had had such notice, they think they would have notified the mortgagees, as they knew of the mortgage, and did business with the mortgagees. The mortgagees had no notice of the sale for taxes until after the tax deed was made.

The facts in the ease quite plainly indicate, to our minds, that there was fraud and collusion between John Yon Gunten and his son, Charles, to defeat this mortgage; that by understanding between them, the property was let go to sale for taxes, and was bought in by Charles for the benefit of his father. It was the duty of the mortgagor to pay the taxes. We have often held that where the owner lets his land be sold for taxes, and buys it in at the tax sale, he does not thereby get any independent title,—that it is but a mode of paying the taxes. As respects the mortgage, we can view the tax sale as of no different effect than if the "mortgagor had, himself, been the purchaser at the tax sale, and we hold that the tax title is subject to the mortgage.

The cases of Gage v. Perry, 93 Ill. 176, and Bozarth v. Landers, 113 id. 181, are cited by the appellees as sustaining the proposition that in a suit for the foreclosure of a mortgage the validity of a tax title held by a third party will not be passed upon and determined. There was no such case of collusion there, as the facts here present. Those cases but proceeded upon the general, well understood rule, that mere legal titles are for trial and determination in courts of law, and that in a suit, in chancery for the foreclosure of a mortgage, the independent legal title of a third person, which is adverse and paramount, should not be drawn into adjudication there. The tax title here is not an independent one, and adverse and paramount. The facts of the case make it subject to the mortgage, and it is properly the subject of investigation in a suit to foreclose the mortgage.

The judgment of the Appellate Court is reversed, and the decree of the circuit court affirmed.

Judginent reversed.