text:
    Eugene E. Ellis et al. v. Angus Leek.

      Filed at Mt. Vernon January 26, 1889.

      Mobtgage—strict foreclosure—what interest passes by the decree. A decree of strict foreclosure of a mortgage, after finding the sum due on the mortgage, and that the value of the mortgaged premises was much less than that sum, ordered and decreed that the defendants pay the sum so found due, with six per cent interest thereon, within ninety days, and that in default of such payment within the time fixed, the defendants be forever barred and foreclosed of all right and equity of redemption in and to the mortgaged premises, and every part thereof, and that on such default, all the right, title and interest, both legal and equitable, of the defendants in and to said premises, and every part thereof, should become vested, absolutely and forever, unconditionally, in the complainant: Held, that the decree was a final one, and vested the title and estate of the mortgagor in the complainant, without any further order or decree of the court after the time allowed for payment has elapsed.
    Appeal from the Circuit Court of Alexander county; the Hon. E. W. McCartney, Judge, presiding.
    Mr. Walter Warder, and Mr. William N. Butler, for the appellants:
    In an action of ejectment, the plaintiff must recover on the strength of his own title, and must show a legal title to the premises he recovers. Mester v. Hauser, 94 Ill. 433; Stumpf v. Osterhage, id. 115.
    The appellee can not recover in this case, on account of the insufficiency of his own title.
    Strict foreclosures are not favored, but are discouraged by the laws of this State, and everything should be construed strictly against them. Weiner v. Heintz, 17 Ill. 259; Miller v. Davis, 5 Bradw. 474; 2 Jones on Mortgages, sec. 1542.
    If the defendants failed to pay the money within the time limited, the complainant’s right to the property became absolute, though in order to complete the title there must be a final order finding such default, and confirming the title. Mulvey v. Gibbons, 87 Ill. 380; Mester v. Hauser, 94 id. 439; 2 Daniell’s Ch. Pr. (4th Am. ed.) 996.
    This court should have admitted the affidavit made for a tax deed, and erred in refusing it and the tax deed.
    Mr. John M. Lansden, for the appellee:
    To the bill for a strict foreclosure the Ellis’ filed this answer: “These defendants, answering, say, that the matters and tilings in said bill contained are true, as the same are therein stated, and these defendants hereby consent that a decree of strict foreclosure may be entered in this cause, as prayed for in said bill.” This was enough to justify the final decree at once, as was given. It amounts to an agreement that complainant should take the property for the debt. 2 Jones on Mortgages, sec. 1567.
    The mortgagee after condition broken, and his grantee, may maintain ejectment on the mortgage. (Oldham v. Pfleger, 84 Ill. 102; Barrett v. Hinckley, 124 id. 32.) But the decree passed the title to complainant. Walker v. Schum, 42 Ill. 462; Miller v. McMannis, 104 id. 422.
    The affidavit of the service of notice of the tax sale is fatally defective.
   Mr. Justice Wilkin

delivered the opinion of the Court:

This was a suit in ejectment, by appellee, against appellants, (Eugene E. Ellis being the real party in interest,) to recover possession of lots 30 and 31, in block 53, in the city of Cairo. Both parties claim title through Henry B. and Thomas B. Ellis,—appellee through a mortgage and decree of strict foreclosure, and appellant through a tax deed.

By an amended bill in chancery, filed at the September term, 1886, of the Alexander circuit court, one Holmes B. Kelly prayed a decree of strict foreclosure against said lots, on a mortgage theretofore executed by the said Henry B. and Thomas B. Ellis and their wives, who were made defendants. They filed a joint answer to that bill, admitting its allegations, and consenting that a decree of strict foreclosure should be entered, as therein prayed. The court, by its decree of the same term, found the amount due on the mortgage debt to be $1465, that the mortgaged premises were in bad repair, falling into decay, and did not exceed in value the sum of $600. The decree then concludes with the following order:

“It is therefore ordered, adjudged and decreed by the court, that the defendants, Thomas B. Ellis and Henry B. Ellis, pay to the complainant, Holmes B. Kelly, the said sum of $1465, with six per cent interest thereon from the date hereof, within ninety days from the date of this decree; and in default of the payment of said sum within the said period of ninety days, they, the said defendants, be forever barred and foreclosed of all right and equity of redemption in and to the said premises and every part thereof; and that in default of such payment within the period of ninety days, all the right, title and interest, both legal and equitable, of said defendants in and to said premises, and every part thereof, shall be and become vested, absolutely and forever, unconditionally, in the said complainant, Holmes B. Kelly. It is further ordered, that upon the defendants paying the complainant the said sum of $1465 within the time above mentioned, the complainant re-convey the said premises to the said defendants, Thomas B. Ellis and Henry B. Ellis, by a suitable instrument of conveyance. It is further ordered, adjudged and decreed by the court, that the defendants, Thomas B. Ellis and Henry B. Ellis, pay the costs of this suit, and that execution may issue therefor.”

On the 18th day of January, 1887, the said Holmes B. Kelly and wife conveyed to appellee.

Among other proceedings, in pursuance of which the tax deed under which appellant ¿Ellis claims title, was executed, he offered in proof the affidavit required by section 217 of the Revenue act, upon which the deed was issued; but the court below held it insufficient, and, on objection by appellee, excluded both it and the tax deed. The finding and judgment of the circuit court were for appellee, for the premises in suit, and the record is brought here by appeal.

The judgment of the trial court is assailed, first, because, it is said, the evidence fails to show a legal title in appellee; and, secondly, on the ground that the affidavit and tax deed offered in evidence by appellant were improperly excluded on the trial. The last point is not insisted upon. No argument whatever is offered in support of it. We have, however, examined the affidavit as it is set out in the abstract, and are of opinion that the circuit court ruled correctly upon it.

The first point is earnestly insisted upon. It turns upon what shall be decided to be the correct practice, in -this State, in strict foreclosure proceedings. It is contended that the decree, through which appellee claims, does not vest the title to the mortgaged premises in the complainant, but to do so must be followed by a final order, based on proof, that the money was not paid according to the terms of the decree. Without such an order, it is said, the title is incomplete. The English practice is so stated in Daniell’s Chancery Practice, vol. 2, p. 996, (quoted by Justice Sheldon in Mulvey v. Gibbons et al. 87 Ill. 380,) and in Smith’s Chancery Practice, vol. 1, p. 540. The question has never been directly decided in this State. It was presented and discussed in the Mulvey case, supra, but its determination not being thought necessary in that case, it was passed without decision. We think, however, that an examination of the reported cases, in which records in such proceedings have come before this and the Appellate Courts for review, will show the practice in the various circuit courts of the State to have been to treat the decree of foreclosure as the final order in the case, and that such practice has, with more or less directness, met the approval of this court.

In Johnson v. Donnell et al. 15 Ill. 100, it was objected that the decree did not specify in whom the title to the land should be vested; but the decree was affirmed, and it was said: "By barring the equity of redemption, it confirms the title in the mortgagee. The title conveyed by the mortgage, which was before conditional, now becomes absolute.”

In Wilson et al. v. Geisler, 19 Ill. 49, the decree provided that in default of payment the equity of redemption should be barred, and “that the title revert to the complainant in fee, forever, ” and authorized the sheriff of the county to put complainant in possession of the mortgaged premises. It was also affirmed, no question as to' its finality being raised.

In Stephens v. Bichnell, 27 Ill. 444, the decree barred all equity of redemption in default of payment within four months, and Bbeese, J., in the opinion of the court, says: “It is alleged in the bill, and confessed, that the lands mortgaged are not equal in value to the purchase money due. It was then in the discretion of the court to decree a strict foreclosure, the effect of which is to vest the title absolutely in the mortgagee. ”

In Chickering v. Failes, 26 Ill. 507, as shown by the opinion in Mulvey v. Gibbons et al. supra, the decree was similar to the one then before the court,—a decree nisi, not materially different from the one presented by this record. In the Chickering case, the decree was held color of title, and from what is there said it is clear that the decree was held and treated as the final order in the case. While it is true that the point here urged was not presented in it or any of the foregoing cases cited, yet these cases do clearly show the practice in the courts of this State to differ from that in England. In some of them, at least, the decrees were so questioned as to strongly suggest the point, and. call for a condemnation of the practice, if not approved.

The decree in a foreclosure proceeding in England, as shown by both of the above named authors on chancery practice, is essentially different from the one appearing in this record and those usually rendered under our practice. There, the decree orders a reference to the master to take an account and tax costs, “and directs that if the same are paid by the mortgagor at such time and place as the master shall fix, the mortgagee is to reconvey the premises, but orders, in default of payment at such time and place, that the mortgagor be absolutely foreclosed from all equity of redemption in the mortgaged premises.” (1 Smith’s Ch. Pr. p. 532.) “On the day appointed, either the mortgagee, or one duly authorized by him under a power of attorney, attends at the place appointed, to receive the money, and remains there till the expiration of the time appointed. If the mortgage money is not paid, upon an affidavit of being duly attended, and of the non-payment of the money, the plaintiff is entitled to an order, on a motion, as of course, that the defendant do from henceforth stand absolutely debarred and foreclosed of and from all right, title, suit, and equity of redemption, of, in or to the said mortgaged premises.” (Id. 540.) There, the decree of foreclosure does not purport to be the final order in the case. The amount due, the costs, the time within which and the place at which the payment is to be made, are all left to be ascertained and fixed by the master; and that some further order must follow such a decree, to complete the foreclosure, is manifest.

The decree before us is a final decree, and expressly provides, that in default of payment “all the right, title and interest, both legal and equitable, of said defendants in and to said premises, and every part thereof, shall be and become vested, absolutely • and forever, unconditionally, in the said complainant.” Although courts of chancery, in this State, are governed by the same practice as courts of chancery in England, or by rules and regulations consistent with such practice, we are unable to see wherein the practice here adopted is so inconsistent with that in England, as laid down by authors on chancery practice, as that it should be condemned. Under the one practice the title is vested in the complainant by an order in the decree; under the other, by a final order made subsequently. When the practice is once established and understood, the rights of the defendant are as well protected by one mode of procedure as the other. That the decree in question is in conformity with the practice in this State, as understood by courts and the profession, we have no doubt ;• and to unsettle that practice now, would be productive of no good, but might be attended with evil results.

In this view of the case, it is unnecessary to inquire whether or not appellee could maintain this action on the title vested in Holmes B. Kelly by virtue of the mortgage from Thomas B. and Henry B. Ellis to Wheeler. The decree of strict foreclosure vested the title in Kelly absolutely, and his deed to appellee clothed him with a legal title, which, in the absence of all proof of right or title in appellant, entitled him to possession, and the judgment of the circuit court was therefore right.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Magruder

license: Public Domain

text:
    Spooner R. Howell, Admr. v. Thomas T. Moores.

      Filed at Ottawa January 25, 1889.

    1. Insolvent debtors—assignment for the benefit of creditors—prior to act of 1877. The provisions of an act concerning voluntary assignments, and conferring jurisdiction therein upon county courts, which took effect July 1, 1877, have no application to an assignment by an insolvent debtor or debtors made before that act took effect.
    '2. Same—assignment by partnership firm, and by the individual part-tiers—rule of distribution. Where co-partners make an assignment of tlieir individual and firm property for the benefit of their creditors, in the absence of statutory regulations the assignee will be justified in making such distribution as the assignment calls for, there being no proof of any fraud or improper conduct either in the making of the deed or in the carrying out of its provisions.
    3. A and B, composing a partnership firm, made an assignment, in January, 1877, of all the partnership and individual property, to an assignee, for the benefit of their creditors, both of the firm and of the individual partners. The schedule of debts, made a part of the deed of assignment, described three notes, of $500 each, signed severally by each partner, in his own name, as partnership or firm debts. The assignee, in distributing the proceeds of thé assets of the firm and of the several partners, treated such notes as firm obligations, and paid dividends on them out of the partnership assets: Held, on bill seeking to hold the assignee’s estate liable for not applying the proceeds of the estate of the several partners on such notes, that he was justified in acting as he did under the instrument which defined his powers and duties, and that his estate was not liable for his not applying the assets of the several partners upon the notes.

      i. Same—compensation of assignee. An assignee’s account, in the case of a voluntary assignment to him for the benefit of creditors, showed credits for his services in excess of that allowed by law for similar services by administrators and executors. On bill filed for an accounting, the master in chancery reduced the assignee’s compensation so as to make it the same as that allowed to administrators and executors: Held, that the deduction was proper.
    5. Jurisdiction—concurrent—which shall prevail. In cases of concurrent jurisdiction, the court which first obtains jurisdiction will have the precedence.
    6. Same—in chancery—in the matter of trusts, generally. The 12th section of article 6 of the constitution of 1870, gives the circuit courts original jurisdiction of all cases in law and equity, and the legislature has no power to deprive the circuit courts of their equitable jurisdiction in suits to enforce trusts.
    7. The jurisdiction of a court of equity for enforcing trusts is not taken away by the fact that a party has a remedy at law, especially when the person seeking relief is entitled to a discovery, or where the trustee is bound to state an account of the trust fund and its proceeds.
    8. Same—administration of estates—probate courts and. courts in chancery. The sixth clause of section 70 of the “Act in regard to the administration of estates,” which gives the county or probate court jurisdiction of claims against estates, when the decedent has received money in trust for any purpose, can not be regarded as' conferring upon those courts exclusive jurisdiction. Their jurisdiction is concurrent with that of courts of equity.
    9. Same—assignment for benefit of creditors—jurisdiction in chancery. A court of equity will entertain jurisdiction to enforce the trust created by an assignment of a debtor for the benefit of creditors, at the suit of one or more of such creditors. The death of the assignee will not deprive the creditor of his right to go into such court to enforce the trust and obtain an accounting.
    10. An assignment was made by debtors for the benefit of creditors, prior to the time the act relating to voluntary assignments took effect. The assignee died without having made an account and paying out all the moneys received by him from the estate of the insolvents. A creditor of the insolvents held a claim which was unpaid, and which he had not filed against the assignee’s estate. It was held, that the creditor might maintain a bill in equity against the personal representative of the assignee for an accounting and enforcement of the trust.
    11. Partnership debt—what constitutes. Although the several members of a partnership firm sign a note with their individual names, and not by the name of the firm, if it in fact is for a partnership object it will be treated as a partnership debt, in marshaling the assets, as between firm and individual creditors.

      12. Same—evidence—to show the obligation to be for a partnership debt. In case of an assignment by the members of a firm, of their partnership and individual property, for the benefit of their creditors, a note which, on its face, appears to be the individual obligation of one or more of the partners, may be shown, by parol evidence, to have been given for a firm debt; and where there is no such proof, the description of such a note as a firm debt, in the deed of assignment, will be sufficient evidence of that fact to warrant the assignee in distributing the funds accordingly, when no objection is made to such action by the owner of the note, or notice by such owner that the note is the individual obligation of the several partners.
    13. Covenants fob title—statutory form. When a conveyance of land, in the statutory form prescribed in section 9 of the Conveyance act, contains the words “conveys and warrants,” it will be held to be a deed with covenants of seizin, against incumbrances, and for quiet possession, etc., as specified in that section.
    14. Tendob aed pubohaseb—pre-existing incumbrance—agreement by vendor to protect against it. Where one conveys land which is subject to a mortgage, and afterward gives his grantee a bond, that the grantor will pay, or cause to be paid, all liens against the land, whether by mortgage or otherwise, within a given time, the grantee will not be bound to pay the incumbrance, but may rely on its payment by the obligors in his bond.
    15. Same—measure of damages—for breach of bond to discharge incumbrance. Where the grantor of land, by a warranty deed, gives to his grantee a bond, conditioned that he will discharge and satisfy a mortgage thereon within a given time, the executory contract embodied in the bond will be a security independent of the covenants in the deed, and for its breach the obligee will be entitled to recover such damages as are the necessary, natural and proximate result of such breach. The measure of his damages when the title is lost by foreclosure sale under the mortgage, will be the actual consideration which he paid for the land, with six per cent interest thereon from the time of eviction.
    16. In this case, the purchaser of a tract of land July 1,1874, conveyed to his grantor, as the purchase price, two town lots, then worth $500, and gave his note for $1000. The deed recited $2000 as the consideration. The prior grantor gave the purchaser a bond, in the sum of $2000, conditioned that the former should pay off and discharge all liens on the land, by mortgage, or otherwise. The land was sold under a preexisting mortgage, and the pmchaser was evicted in 1878. In a suit to fix the liability of the grantor, the court ordered the purchaser’s note of $1000 to be returned, and in addition gave him as damages $500,—the value of the lots,—with six per cent interest thereon from July 1,1874: Held, that the interest on the $500 should not have been allowed from July 1, 1874, but only from the time of the eviction, in 1878.

      17. Evidence—boohs of account—debits and credits both to be considered. On bill by creditors against the estate of a deceased assignee of the debtors, the only evidence of the state of the account was the entries in the assignee’s books. The court charged the estate with all the debits in the account, and allowed only a portion of the credits, without any testimony discrediting any items of the account: Held, that the assignee’s books should have been received as an entirety, and accepted as a whole, or not at all.
    18. Where a complainant introduces in evidence the books of another for the purpose of charging his estate, the former is bound to admit those items or entries which make against him as well as those which operate in his favor, unless he can show that the items to his prejudice have been improperly inserted.
    19. Same—as to consideration of a conveyance of land. The recital in a deed for land of the consideration paid, is prima facie evidence that it is the true sum paid; but as between the grantor and grantee this recital will not be conclusive evidence of the consideration. The actual sum may be shown by parol evidence to be different from that expressed in the deed.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    On January 13, 1877, Sylvanus Town and Henry B. Town, of Aurora in Kane County, composing the firm of S. Town and Son, made a general assignment for the benefit of their creditors to Isaac M. Howell, as assignee, therein conveying all their property, real and personal, and partnership and individual. Howell accepted the trust and, before his death, sold the realty and personalty, described in the schedules attached to the deed of assignment, which was recorded on January 15, 1877. He died intestate on November 7, 1881, and, about sixty days thereafter, Spooner B. Howell, the appellant herein, was appointed administrator of his estate.
    The bill in this case was filed in the Circuit Court of Cook County on July 24, 1883, by the appellee, Moores, as a creditor of Sylvanus and Henry B. Town, on behalf of himself and all the other creditors both of the firm and of each member of it, against appellee, as administrator of the deceased assignee, charging that the assignee failed to pay over, or account for' the proceeds of the sales made by him- either to the firm or individual creditors, but wrongfully retained or converted the, same to his own use, or otherwise wrongfully appropriated or applied the same, and that the administrator since his death has also failed and refused to account, and praying for a discovery and an accounting, and for the payment, in due course of administration, of appellee’s claims, as set out in his bill, and 'of those of the other creditors, who may come in and offer proofs, etc.
    The deed of assignment provides that, after the assignee has converted the assets into money, he shall retain out of the proceeds his lawful fees and disbursements, and pay to the creditors of the firm of S. Town & Son so much of the residue of said proceeds as shall be realized from the assets of said firm, and, if such residue shall be insufficient to pay said creditors in full, then the same shall be divided among them pro rata, etc., and the share of such proceeds as shall be realized from the sale of the individual property of either the said Sylvanus Town or Henry B. Town, shall be applied first, in payment of the private debts of each in proportion to his share in such proceeds, and if more than sufficient to pay such debts in full, the residue shall be applied in payment of the debts of said firm.
    The answer denies the charges of the bill and avers that all the proceeds of the sales of the assets were applied faithfully to the payment of the firm and individual creditors after deducting lawful fees and disbursements.
    The cause was referred to the master, who took proofs and made report and gave notice to the creditors to come in by a certain day and prove up their claims. No creditors except appellee responded to this notice, and no claims except those of appellee were presented. The Master found in his report, that' there was due to the complainant, upon the notes hereinafter mentioned the sum of $2753.60, and, upon the bond hereinafter mentioned, the sum of $1515.00, making a total of $4268.60; that the amount so due on the bond was the individual indebtedness of Sylvanus Town; that the amount so due on the notes was the individual indebtedness of Sylvanus and also of H. B. Town; that there was due to complainant from the estate of Isaac M. Howell the sum of $2662.62. The circuit court confirmed the report and decreed that complainant recover of said estate said sum of $2662.62 to be paid in due course of administration. This decree has been affirmed by the Appellate Court, and the case is brought here by appeal from the latter court.
    The only evidence produced before the Master as to the receipts and disbursements of the assignee was a book kept by the latter in his life time and found among his papers after his death by the administrator. This book contains certain debit and credit entries, which are in the handwriting of the deceased assignee. The debit entries show that the assignee realized from all the assets, partnership -and individual, the sum of $3183.24 between January 19, 1877, and March 11, 1879. It is conceded that the property was sold in a legal and proper manner, and that the amounts stated in said debit account are reasonable amounts resulting from such sales.
    Of this sum of $3183.24 $2668.90 was realized from the individual property of Sylvanus Town, $252.50 from the individual property of Henry B. Town, and $261.84 from property of the firm of S. Town & Son.
    The credit entries show that, between January 15, 1877, and May 10, 1881, the assignee paid out to the creditors of the firm, to the creditors of Sylvanus Town, to the creditors, of Henry B. Town, and, for the expenses of the assignment, the total sum of $2885.30, leaving a surplus of $297.94 in his hands unaccounted for.
    The sum of $2662.62 is arrived at by deducting certain items of disbursement for the expenses of the assignment, and two certain payments made upon the notes above mentioned, from the sums of $2668.90 and $252.50, and charging the estate of the assignee with interest on the balance from the date, fixed upon as the date of the refusal to pay, to the date of the report. In other words, of the sum of $2885.30, with which the assignee credits himself in his book, the report of the master allows only the sum of $1340.50; that is to say, $1097.81 for expenses and $242.69 paid on said notes. The balance of the credits in the book, amounting to the sum of $1544.80, are disallowed.
    The sum of $2753.60 found to be due the complainant is the amount of three judgment notes of $500.00 each, together with interest on the same, less certain payments endorsed on the notes. These notes are dated respectively October 18, 1876, November 20, 1876 and November 22, 1876. The following is a copy of each: “Ninety days after date, for value received, we or either of us promise to pay to the order of the First National Bank of Aurora Five hundred dollars with interest after due at ten per cent.
    Sylvanus Town,
    Henry B. Town.”
    Bach note is endorsed by the Bank-and by S. W. Thatcher “without recourse.”
    The indebtedness, claimed by the appellee to be due to him upon the bond hereinbefore referred to, arises out of the following facts:
    By a warrantee deed, dated June 1, 1874, and recorded June 11, 1874, Sylvanus Town and his wife sold and conveyed to the appellee 26-]^- acres of land in Kane County, the consideration expressed in the deed being $2000.00. The deed is silent about the existence of any incumbrance. As matter of fact, however, there was upon the land at that time a mortgage, dated April 22, 1872, recorded August 27, 1872, executed by Sylvanus Town and wife to Mary B. Brogden to secure a note of same date of $1000.00, made by Sylvanus Town and payable in two years, etc. The mortgage contained a power of sale, authorizing the mortgagee to sell the premises upon default, etc., after advertising notice of sale in a newspaper, etc. On June 8, 1874, Sylvanus and Henry B. Town executed and delivered to appellee a bond of that date in the penal sum of $2000.00, conditioned that Sylvanus Town should “well and truly perform, fulfill and keep each and all of the covenants, conditions and agreements specified and conditioned as eontaihed in” said warrantee deed, etc. The bond for $2000.00 and the Brogden note and mortgage are described in the schedule to the assignment as individual liabilities of Sylvanus Town. The mortgage not having been paid the mortgagee, after due notice given, sold the premises, under the power in the mortgage, on July 3, 1877, at public sale to Sarah Brogden, and executed to the latter, as purchaser, a mortgagee’s deed, dated July 3,1877, recorded March 14,1878. By quit claim deed, dated September 26,1877, recorded March 14, 1878, the property was conveyed to S. W. Thatcher by Sarah Brogden. By quit-claim deed dated November 1, 1877, S. W. Thatcher sold and conveyed the 26r8-g8g acres to 0. D. Howell. In an action of forcible entry and detainer begun on May 17, 1878, before a Justice of the Peace in Kane County by O. H. Howell against appellee, in which the latter was duly served, a judgment was rendered, on May 24, 1878, against appellee, ordering that the plaintiff therein “have and recover possession of the lands, etc., and that he have a writ of restitution therefor,” which writ was issued on May 31, 1878. It is admitted that appellee, after this, surrendered possession of the premises to O. D. Howell, counsel for appellant contending in their brief that appellee moved away the house he had built upon 2j- acres of the tract of 26T8^- acres.
    ■ Appellee paid for the 26-ffig- acres, so conveyed to him, by deeding to Sylvanus Town two lots in Aurora, known as the Bose street lots, and by giving to said Town his note for $1000.00, dated June 1,1874, payable eight years after date, etc. This note is described in the schedule to the assignment as a part of the personal assets of Sylvanus Town, and passed into the hands of the assignee, and, after his death, into the possession of appellant as administrator.
    The warrantee deed from Sylvanus Town to appellee is in the statutory form, containing the words “conveys and warrants.”
    The court below found that appellee had lost the tract of Síd/tfo- acres by reason of the mortgage sale and the proceedings above set forth, and was entitled to recover $2000.00, the consideration named in the deed, and accordingly decreed that appellant should deliver up to appellee the note for $1000.00, so executed by him to Sylvanus Town, in discharge of one half of the $2000.00, and that appellee was entitled to recover the remaining sum of $1000.00 with interest, amounting altogether to $1515.00.
    Mr. Mason B. Loomis, for the appellant:
    A court of equity will not ordinarily interfere with the administration of estates, but when it does it will take cognizance of the whole administration. 1 Story’s Eq. Jur. sec. 543 a; Freeland v. Dazey, 25 Ill. 294; Garvin v. Stewart's Heirs, 59 id. 229; Huestis v. Johnson, 84 id. 61; Crain v. Kennedy, 85 id. 340; Harding v. Shepard, 107 id. 264; Wood v. Johnson, 13 Bradw. 549.
    ■In the settlement of estates, the county court has jurisdiction to adjudicate upon equitable demands. Wilson v. Kirby, 88 Ill. 573; Moore v. Rogers, 19 id. 349; Dixon v. Buell, 21 id. 203; Moline Water Power v. Webster, 26 id. 233; Hurd v. Slaten, 43 id. 348; Hales v. Holland, 92 id. 498; Wadworth v. Connell, 104 id. 370.
    In cases where a court of equity has concurrent jurisdiction with a court of law, the court which first acquires jurisdiction must hold and exercise it until the litigation is ended. Whitney v. Stevens, 97 Ill. 482; Mason v. Piggott, 11 id. 85.
    The law may be regarded as settled in this State, that a court of equity will not assume jurisdiction of a claim against an estate until the claimant shall have exhibited his claim and had it allowed in the county, court; and then, if any special reasons that may be deemed sufficient can be assigned why that court can not afford the requisite relief, equity will assist him, but not otherwise. Harris v. Douglas, 64 Ill. 466; Blanchard v. Williamson, 70 id. 651; Armstrong v. Cooper, 11 id. 561; Freeland v. Dazey, 25 id. 294; Barnard v. Barnard, 119 id. 93.
    On a breach of covenant against incumbrances, the grantee can only recover such damages as he has actually sustained. If by it the title has failed, and the premises have been lost, he may recover to the full extent of the covenant; or, if he has removed the incumbrance, he may recover the sum paid for that purpose, unless it exceeds the limit of the covenant. But if he has not been disturbed in the title, and has paid nothing to remove the incumbrance, he can only recover nominal damages for the breach. If, however, eviction has taken place, he may recover substantial damages. Willetts v. Burgess, 34 Ill. 495; Brady v. Spurck, 27 id. 479; Kirkendall v. Keogh, 2 Bradw. 492; Rawle on Covenants for Title, 288.
    So upon the covenant of warranty, it was necessary not only to prove a want of title, but an eviction also. Moore v. Vail, 17 Ill. 185; Bostwick v. Williams, 36 id. 65; Jones v. Warner, 81 id. 344.
    The fact that each partner individually signed the notes, does not necessarily render them individual obligations. Bump on Bankruptcy,- (9th ed.) 244; In re Warren, 2 Ware, 322; 1 Parsons on Notes and Bills, 131; Bank v. Case, 8 B. & C. 427; Maynard v. Fellows, 43 N. H. 255; Carson v. Byers, 67 Iowa, 606; Patch v. Wheatland, 8 Allen, 102.
    The assignee, finding the notes scheduled as firm liabilities, had a right, in the absence of notice to the contrary, to treat them as such. Goodwin v. Mix, 38 Ill. 115; Burrill on Assignments, sec. 462.

      The actual value of the property delivered for the deed is the measure of damages. 3 Washburn on Real Prop. *673, note 1; Dayton v. Warren, 10 Minn. 237; Bingham v. Weiderwax, 1 Comst. 513; McCrea v. Purmont, 16 Wend. 460; Morse v. Shattuck, 4 N. H. 229; Belden v. Seymour, 8 Conn. 304; Cowen & Hill’s Notes, 1441, 1442.
    The appellee, by giving in evidence the assignee’s books, was bound to admit the items of credit as well as those of debit. Frink v. Cole, 5 Gilm. 339; Moore v. Wright, 90 Ill. 470; 1 Greenleaf on Evidence, see. 201.
    If a defendant makes out a written statement of what he considers to be the plaintiff’s claim upon him, and on the same paper draws out a counter-claim on his own part, if the plaintiff seeks to make use of the statement as evidence against the defendant, the latter is entitled to have the counter-claim also laid before the jury. 1 Phillips on Evidence, *411; Randle v. Blackburn, 5 Taunt. 245; Walden v. Sherman, 15 Johns. 409; Wakeman v. Marquand, 5 Mart. Lou. (N. S.) 265.
    The party introducing or using the books in evidence, thereby makes them evidence for the opposite party. Dewey v. Hotchkiss, 30 N. Y. 497; Veiths v. Hagge, 8 Iowa, 191; Jones v. Jones, 4 Hen. & Munf. 447; 1 Phillips on Evidence, *387, note.
    An account is composed of items, and they are placed on the debit and credit sides. If the defendant produce the account, you can no more take the items on the credit side to charge him, and reject the debits, than you can take his acknowledgment of what was agreed to be paid, and reject what he states with respect to the condition. Morris v. Hurst, 1 Wash. C. C. 443.
    An admission of the plaintiff’s account by the defendant, at the same time producing and claiming one of equal amount against the plaintiff, must be taken together. Jacobs v. Farral, 2 Hawks, 570.

      Mr. B. G. Montony, and Mr. A. 0. Little, for the appellee:
    As to the jurisdiction of a court of equity, see Rosenthal v. Magee, 41 Ill. 370; Wells v. Miller, 45 id. 33; Dickey v. Reed, 78 id. 261; Darling v. McDonald, 101 id. 370; Const. 1870, art. 6, sec. 12; Clapp v. Emery, 98 Ill. 523.
    As to the right to recover under covenants of warranty, see Beebe v. Swartwout, 3 Gilm. 162; Moore v. Vail, 17 Ill. 185; Brady v. Spurck, 27 id. 479; Claycomb v. Munger, 51 id. 373; Bostwick v. Williams, 36 id. 65; Jones v. Warner, 81 id. 343; Stewart v. Drake, 4 Halst. 139; Rawle on Covenants, 283, 284, 315; Day v. Chism, 10 Wheat. 449; Ohling v. Luitjens, 32 Ill. 23.
    As to the measure of damages on the covenants and bond, see Bawle on Covenants, (2d ed.) 155, 164, 168.
   Mr. Justice Magruder

delivered the opinion of the Court:

The assignment mentioned in this record was executed in January 1877. The present “Act concerning voluntary assignments, and" conferring jurisdiction therein upon county courts,” did not go into effect until July 1, 1877. Therefore, the provisions of that act have no application to the questions involved in the present discussion.

It is insisted by the appellant, that a court of chancery has no jurisdiction to entertain a bill of this character. By the terms of the assignment now under consideration, the property was conveyed to the assignee in trust to convert the same into money and pay the creditors. The enforcement of trusts is peculiarly within the province of a court of equity. Such a court will entertain jurisdiction to enforce the trust, created by an assignment for the benefit of creditors, at the suit of one or more of such creditors.

There can be no doubt that the appellee could have filed this bill for an accounting against Isaac M. Howell, as assignee, in his lifetime. The death of the assignee does not deprive the creditor of his right to go into a court of equity to enforce the trust and obtain an accounting. Such money belonging to the assigned estate, as Howell had in his possession when he died, went into the hands of his administrator. The administrator took the assets charged with the same trust, to which they were subject, while under the control of Howell in his lifetime.

It is contended, however, that appellee could have filed his claims in the Probate court against the estate of Isaac M. Howell under section 70 of the “act in regard to the administration of estates.” (Starr & C. Stat. page 219). That section provides that all demands against the estates of deceased persons shall be divided into seven classes, the sixth of which is as follows: “where the decedent has received money in trust for any purpose, his éxeeutor or administrator shall pay out of his estate the amount thus received and not accounted for.”

The sixth clause of section 70 can not be regarded as conferring exclusive jurisdiction upon the Probate court. The twelfth section of article ti of the constitution of 1870 provides, that “the circuit courts shall have original jurisdiction of all cases in law and equity.” A case, which has for its object the enforcement of a trust, is a case in equity. The legislature has no power, under the constitution, to deprive the circuit courts of their equitable jurisdiction. Therefore, the jurisdiction, conferred upon the county or probate court by the clause above quoted, must be held to be concurrent only with the previously existing jurisdiction of the circuit courts in matters of trust. In cases of concurrent jurisdiction the court, which first obtains jurisdiction, will have precedence. Appellee never filed his claims in the probate court, and, therefore, that court can not be said to have first acquired jurisdiction of the subject matter of this suit, if it should be conceded that it had the power to grant the relief sought by the present bill.

“The jurisdiction of a court of equity for enforcing trusts is not taken away by the fact that the party has a remedy at law, especially where the party seeking relief is entitled to a discovery, or where the trustee is bound to state an account of the trust fund and its proceeds.”

The views thus far expressed are sustained by the following authorities: Clapp et al. Admrs. v. Emery, 98 Ill. 523; Gibson et al. v. Rees et al. 50 id. 383; Darling et al. v. McDonald, 101 id. 370; Harris v. Douglas et al. 64 id. 466; Burrill on Assignments, (4th ed.) pages 737, 689, 708; Pomeroy’s Eq. Jur. secs. 276, 279, 280, 187, 994, 351, 1154 (n. 2); First Congregational Society in Raynham v. Trustees, 23 Pick. 148; Clark v. Henry’s Admr. 9 Mo. 336; Oliveira v. University, 1 Phillip’s Eq. Rep. (N. C.) 69.

We are of the opinion, that the objection to the jurisdiction of the Circuit Court is not well taken.

The assignee’s account shows that his receipts exceeded his disbursements by the sum • of $297.94. The report of the Master deducts $243.04 from the compensation of the assignee, as fixed by the latter in his account. The compensation as thus reduced is the same as that allowed by law for similar services to administrators and executors. We think this deduction was proper. The estate of the assignee is justly chargeable with the two sums of $297.94 and $243.04, aggregating $540.98, together with interest thereon at six per cent per annum from March 11,1879, the latest date at which any of the proceeds of the sales of the assigned property are shown to have come into his hands.

We see no reason why the disbursements, with which the assignee credits himself, after deducting therefrom the overcharge for services as above explained, should not have been allowed by the master.

The assignee’s account shows that he paid out $115.00 to the creditors of H. B. Town upon the Carr and Dickson notes, and $389.16 to the creditors of Sylvanus Town upon the Brogden and Wheat notes. These payments were properly made out of the respective funds realized from the individual assets of the two partners. In the schedules attached to the assignment, the Carr and Dickson notes are mentioned as debts of H. B. Town, and the Brogden note is mentioned as a debt of Sylvanus Town. We do not find the Wheat note named in the schedules. But the assignment contains this provision: “If any debt is by mistake omitted, it is nevertheless to share in the proceeds of the assigned estate.” There is nothing to„ show, that Wheat was not a creditor of Sylvanus Town, or that the payment of the Wheat note was not a legitimate disbursement.

The account book of the assignee was introduced by the complainant. In the accounting, the assignee’s estate is charged with all the monies shown on the debit side of his account to have been received by him. Items aggregating $1340.50 are picked out from the credit side of the account and allowed. So far as we can find, there is no more proof sustaining the credit items which are allowed, than there is in favor of the credit items which are disallowed. There is no testimony discrediting any of the items in the assignee’s book. The only witness, who refers to any of them, is Henry B. Town, and his evidence, as far as it goes, tends to sustain their correctness. The entries in the book are the only proof in regard to the receipts and disbursements by the assignee. Sylvanus Town had died before the accounting was had before the master.

It is not allowable for the complainant to introduce one entire account and use the debit side and a part of the credit side as evidence, and ignore all the balance of the credit side, there being no testimony outside of the account to discredit any of its items. The account in the book is an entirety and must be- accepted as a whole or not at all. Viewed as an admission by the assignee, it must be taken with the qualifications, which accompany the admission. In Frink v. Cole, 5 Gilm. 339, we said: “The complainant called for and introduced the books in evidence, and he was bound to admit those items, which made against, as well as those which operated in his favor, unless he could show, that the items to his prejudice had been improperly inserted.” (Moore v. Wright, 90 Ill. 470; Morris v. Hurst, 1 Wash. C. C. Rep. 433; Jacobs v. Farrall, 2 Hawks, 570; Veiths v. Hagge, 8 Iowa, 191.)

The remainder of the disallowed credits is shown by the account in the book of the assignee to have been paid out by him in the form of dividends to the creditors of the firm of S. Town & Son. We now reach the main theory, upon which -the accounting in the court below was based. It is not denied, that the assignee paid these monies upon the firm debts, but it is'charged that ’such application of them was improper, upon the alleged ground that, being derived chiefly from sales of property belonging to the individual partners, they should have been used in paying the individual debts and not the firm debts. It is claimed that the assignee should have applied the funds, realized from the individual assets, to the payment of complainant’s two claims, it being contended that such claims are individual and not firm indebtedness.

The notes of $500.00 each, which contain the words, “we or either of us promise to pay” etc., are claimed to be the individual indebtedness of each of the partners. The obligation is certainly joint as well as several. It is not universally true, when a contract appears on its face to be the separate contract of one partner, that it will not be binding on the firm if it is understood to be, and is, in fact, for the.benefit of the firm. “When a partnership consists of two persons, and they both sign a note with their individual names and not by the name of the firm, if it be in fact for a joint or partnership object, there would seem to be strong reasons for putting it, in the marshaling of securities, to the partnership account. ” (In re Warren, 2 Ware, 322; Bump on Bankruptcy, (9th ed.) page 245; Maynard v. Fellows, 43 N. H. 255; Carson v. Byers, 67 Iowa, 606; 1 Parsons on Notes and Bills, 131.)

In the present case, the deed of assignment contains the foil owing language: “The co-partnership debts of said-firm and the private debts of Sylvanns and Henry B. Town are set forth and described in a schedule hereto attached, marked schedule B and made a part of this deed.” When we turn to Schedule B, we find the three notes of $500.00 each described under the following heading: “Copartnership debts due from said firm of S. Town & Son, towit” etc. The assignors thus designated these notes as firm debts. The assignee, acting under the instrument, which defined his powers and duties, treated the notes as partnership obligations and paid dividends upon them as upon the other partnership obligations. The Bank, which was then the holder of the notes, accepted the dividends, and made no claim to larger payments, as being the owner of an indebtedness against the individual partners. In his account book the assignee arranges the payments upon these notes among the dividends paid upon the firm indebtedness of Town & Son.

The question is not, whether the notes may not be construed upon their face to be the several obligations of the individual partners, but whether the estate of the assignee shall be required to account for monies, which the assignee in his life time distributed in good faith among the creditors of the firm, treating the holder of these notes as a firm creditor in compliance with the directions of the assignors themselves. It is to be observed that, after the assignment was made, four years and two months passed before the death of the assignee, and six years and six months elapsed before the filing of this bill. However rigidly the rule contended for may be applied where the law marshals and distributes the individual and copartnership assets of the different members of a firm, yet when the copartners undertake to administer their own funds, as they do when they make an assignment for the benefit of their creditors in the absence of statutory regulations, the assignee is justified in making such distribution as the assignment provides for, there being no proof of any fraud or improper conduct either in the making of the deed or in the carrying out of its provisions. (Burrill on Assignments, (4th ed.) pages 193 and 295.) We are, therefore, of the opinion that the appellant as administrator should not be required to repay the monies distributed among the firm creditors, simply because such funds were not applied as individual assets upon the notes in question. (Lill v. Egan, 89 Ill. 609.)

In support of the decree below, reference has been made to the case of The National Bank v. Bank of Commerce, 94 Ill. 271. We do not regard the views here expressed as being in conflict with that case. There a firm, consisting of five members, made an assignment of their firm property, and three of the members each made a separate assignment of his individual property; a note was made by these three members alone to the order of the firm, and endorsed by the firm to the Bank, but was not mentioned at all in the schedules attached to the assignments.

The authorities already cited hold that, where a note is on its face the individual obligation of one or more of the partners, it may be shown by parol proof to have been given for a firm debt. While there is no proof that the nqtes in this case were given for firm debts, yet their description as firm debts in the assignment was sufficient evidence of that fact to warrant the assignee in distributing the funds accordingly, there being no objection to such action on his part by the owner of the notes, and no notice to him by such owner, that the latter regarded the indebtedness as an individual liability.

The next question relates to the indebtedness upon the bond. The warrantee deed from Sylvanus Town to appellee must be held to be a deed with covenants of seizin, against incumbrances, and for quiet possession, etc., as specified in section 9 of the Conveyance Act. We do not, however, deem it necessary to discuss the points made by counsel in their able and elaborate arguments upon these covenants, and upon the doctrines of actual and constructive eviction.

The bond for $2000.00, in addition to the provision in regard to performing the covenants of the deed, contains the following language: “To him, the said Thomas T. Moores, his executors, administrators and assigns, we bind ourselves, our administrators, executors and assigns, that we will pay or cause to be paid all liens against the above described 26T8780 acres, whether by mortgage or otherwise, at this time standing, within three years from this date, then if such liens, whether by mortgage or otherwise, are fully paid and cancelled, or caused to be paid and cancelled, this obligation to be void,” etc.

The portion of the bond thus quoted amounts, in effect, to an executory contract bearing date eight, days after the date of the warrantee deed. The mortgage to Mary E. Brogden was a lien standing against the land at the date of the contract. The Towns did not pay off the mortgage within three years, but suffered it to be foreclosed, resulting in a conveyance to the purchaser at the foreclosure sale and a judgment for possession against appellee. No question is made as to the validity of this mortgage sale or of the deed made in pursuance thereof. The appellee was not bound to take the risk of paying the incumbrance himself. He had a right to rely upon its payment by the obligors in his bond. He may not have had the money to discharge it.

It is unnecessary to inquire what may be the proper measure of damages in an action on the covenants against incumbrances and for quiet possession. The executory contract, embodied in the terms of the bond, is independent of the covenants in the deed, and, for the breach of this contract, appellee is entitled to recover such damages as are the necessary, natural and proximate result of such breach. He lost his title to the 26^0- acres, and the land itself, by the sale under the mortgage, and the proceedings for possession, which followed. The measure of his damages is the actual consideration which he paid for the land, together with interest at six per cent. The consideration named in the deed is the sum of $2000.00. Prima facie the sum so named is the amount paid for the land. But, as between grantor and grantee, the recital in the deed is not conclusive evidence of the consideration paid. The actual consideration, which passed between the parties, may he shown by parol testimony to be different from the consideration recited in the conveyance. (3 Wash, on Beal Prop. (4th ed.) page 375; Kimball v. Walker, 30 Ill. 482; Illinois Land and Loan Co. v. Bonner et al. 91 id. 120; McCrea v. Purmont, 16 Wend. 460; Morse v. Shattuck, 4 N. H. 229; Parker v. Brown, 15 id. 176.)

The appellee, on July 1, 1874, purchased the tract from Sylvanus Town by deeding to the latter two town lots known as the Bose street property and by executing his note for $1000.00. It appears from the testimony of four witnesses, that, on July 1, 1874, the Bose street property was not worth more than $500.00. Therefore the appellee will be made whole if he gets back his note and receives $500.00 with interest. By the decree of the Circuit Court the note is returned to him. In addition to this he is entitled to recover $500.00 with interest at six per cent from July 1, 1878. Under the circumstances of this ease, interest should not be allowed from July 1, 1874, because appellee was in possession'of the 26^87 acres, drawing the rents and profits, as late as some time in June 1878.

. Our conclusion is that the decree of -the court below is right in finding $2753.60 to be due to the appellee upon the notes, and in ordering the appellant to surrender to appellee, the. latter’s note for $1000.00; but the decree should be so modified as .to find that there is due to appellee upon the bond $500.00 with interest at six per cent from July 1, 1878, instead of $1515.00, and that appellant should be required to pay, instead of $2662.62, the sum of $540.98, with interest thereon at six per cent from March 11, 1879. If there shall be any surplus after paying the indebtedness on the bond, it should be applied upon the indebtedness on the notes.

The judgments of the Appellate and Circuit courts are therefore reversed, except in the respects above indicated, and the cause is remanded to the Circuit Court for further proceedings in accordance with the views here expressed.

Judgment reversed in part and in part affirmed.

Mr. Justice Bailey, having heard this case in the Appellate Court, took no part in its decision here.


author: Mr. Chief Justice Craig Mr. Justice Bailey,

text:
    Henry H. Gage v. Thaddeus Hampton.

      Filed at Ottawa January 25, 1889.

      1. Limitation—act of 1889—color of title. A tax deed purporting to convey land to the grantee therein named, is good color of title.
    2. Same—as to vacant and unoccupied land. Where the holder of color of title, acquired in good faith, pays all the taxes legally assessed upon the land to which the color of title relates, for seven successive years, while it remains vacant and unoccupied, and then takes actual possession by enclosing the same with a fence, the bar of the statute will be complete, and the holder of such title may assert the same, either as a defense, or to regain possession when invaded.
    3. Evidence—payment of taxes—parol evidence. The payment of taxes may be proved by parol evidence. Tax receipts may be explained, and if a mistake has been made in the description of the land or in the name of the person who actually made the payment, resort may be had to parol evidence to rectify such mistake.
    4. Same—sufficiency of evidence—to show payment of taxes. To prove the payment of taxes for the years 1880 and 1881 by H. H. Gage, two tax receipts were given in evidence, that for the tax of 1880 reading, “Received of Asahel Gage, by H. H. Gage,” and that for the taxes of 1881 reading, “Received of Asahel Gage,” etc. Asahel Gage testified that he never paid any taxes on 'the property, and never had in his possession any tax receipts for taxes paid .on the property; and H. H. Gage testified that he paid the taxes on the property from 1879 to 1886, both inclusive,— that for the years 1880 and 1881 he paid the taxes, and that he had the tax receipts ever since their issue, but could not tell how the name of Asahel Gage appeared therein: Held, that the evidence showed that H. H. Gage paid the taxes for the two years named.
    5. Possession—what may constitute.• It is not necessary that a man shall reside upon property in order to obtain or hold possession of it. Possession of land may be acquired and held in different modes,—by inclosure, by cultivation, by the erection of buildings or other improvements, or, in fact, by any use that clearly indicates an appropriation to the use of the person claiming to hold the property.
    6. The holder of color of title in good faith, after the payment of all the taxes on the land for over seven successive years, fenced the same with a post and board fence, the fence being completed September 10, 1887. In the latter part of December, 1887, the former owner or his agent visited the property, and found most of the fence on the north and east sides of the lot gone, but on the south and west sides the fence was mainly standing as erected. The latter re-fenced the property, using that part of the fence and materials remaining, and supplying the balance: Held, that the act of re-fencing conferred no rights on the party, the original fences remaining being enough to notify him that the property had been reduced to possession, and that his entry was wrongful, and a trespass.
    7. Same—how possession may he acquired. The doctrine of this court is uniform, that a man can not take the law into his own hands, and regain by force a possession which he may be entitled to recover in an appropriate action.
    8. The common law right to enter and use all necessary force to obtain possession from him who may wrongfully withhold it, has been taken away by our statute of forcible entry and detainer. Any entry is forcible, within the meaning of the statute, that is made against the will of the occupant.
    9. Clotjd on title—of the character of complainant’s possession. A claimant of the legal title to land can not maintain a bill in chancery to set aside an adverse claim as a cloud on his, when he obtains possession of the land forcibly and unlawfully. In equity, he will be treated as though out of possession. The case of Fort Dearborn Lodge v. Klein, 115 Ill. 177, does not conflict with the rule here announced.
    Appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    Mr. Augustus N. Gage, for the appellant:
    The taxes were paid by appellant under color of title to vacant property for the requisite length of time, and though the receipts for two of the years stated that the payment was made by Asahel Gage by Henry H. Gage, and by Asahel Gage, the evidence showed that the payments were made, in fact, by Henry H. Gage, under his color of title, and this was sufficient to sustain his limitation. Rev. Stat. 1874, chap. 83, sec. 7; Cofield v. Furry, 19 Ill. 183; Darst v. Marshall, 20 id. 227; Rand v. Scofield, 43 id. 167; Elston v. Kennicott, 46 id. 187; Lyon v. Kain, 47 id. 200; Rawson v. Fox, 65 id. 200; Coleman v. Billings, 89 id. 183.
    Plaintiff having taken possession under his limitation title, he must be treated as still in possession. Especially so as against the appellee, who has attempted to take possession by the commission of a trespass. Hale v. Gladfelder, 52 Ill. 91; McDuffee v. Sinnott, 119 id. 449.
    Appellant having lawfully reduced the property to possession in July or August, 1887, no subsequent trespass by appellee could give him a standing to maintain a bill in equity. Comstock v. Henneberry, 66 Ill. 212; Hardin v. Jones, 86 id. 313.
    Appellant has shown the requisite color of title in him by deed bearing date in 1877; that he has paid all taxes on the property from that time to 1886, being more than seven years; that the property was vacant all these years, and that after paying those taxes he took actual possession of the property. This constituted a good defense -under the limitation laws of this State, and entitled him to ask affirmative relief of the court, in the premises.
    Mr. H. S. McCartney, for the appellee.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by Thaddeus Hampton, in the Superior Court of Cook county, against Henry H. Gage, to set aside three tax deeds as- clouds on the title to lots 36 and 37, in the west half of block 1, in a certain subdivision of a certain eighty-acre tract of land in Cook" county. The first tax deed named in the bill was executed on the 10th day of February, 1877, the second was executed on February 15, 1881, and the third on the 18th of February, 1881. The defendant, Gage, put in an answer to the bill, in which he denied complainant’s title and possession, and set up title and possession of the premises in himself. He alleged that he acquired color of title, in good faith, in 1877, while the property was vacant and unoccupied, and while it remained vacant he paid all taxes assessed on the property, for more than seven years, to-wit, for the years 1878, 1879, 1880, 1881, 1882,1883,1884, 1885 and 1886, and that afterward, and before the bill was filed, he took actual possession of the premises, and that since he took possession thereof he has continuously held the same, and is now in the possession thereof. Replication was filed to the answer, and the defendant also filed a cross-bill, in which substantially the same facts were set up as are contained in the answer. The complainant answered the cross-bill, and the cause proceeded to a hearing on the pleadings and proofs, and the court decreed in favor of complainant, and dismissed defendant’s cross-bill.

The tax deed executed February 10,1877, purporting to convey the premises in question to Henry H. Gage, was color of title, and it is not questioned that the deed was made in-good faith. When the deed was executed, the premises were vacant and unoccupied, and the property remained vacant and unoccupied until September, 1887, when it was fenced by appellant.

As to the payment of taxes while the land was vacant, it is conceded that Gage proved payment for the years 1882, 1883, 1884,1885 and 1886,—five successive years,—but it is insisted that the evidence fails to show payment for the years 1880 and 1881 by Henry H. Gage. We do not concur in this view. The receipt, introduced in evidence, for the tax of 1880, reads, “Received of Asahel Gage, by H. H. Gage,” while the receipt for the taxes of 1881 reads, “Received of Asahel Gage.” If the proof of payment rested alone on the words of the two receipts, -the position of appellee,—that Henry H. Gage had failed to prove payment of taxes for the two years in question,—. might he sustained. But such is not the case. Asahel Gage testified that he never paid any taxes on the property,—that he never had in his possession any tax receipts for taxes paid on the property. . And Henry H. Gage testified that he paid the taxes on the property from 1879 to 1886, both inclusive ; that for the years 1880 and 1881 he paid the taxes. Upon cross-examination the witness was asked:

Q. “How did it happen that two of the tax receipts which were offered in evidence recited the payment of taxes by Asahel Gage, and two of them by Asahel Gage, by Henry Gage ?

A. “I can not state how the mistake occurred, or how the receipts were made out in that way. I paid, at the same time I paid these, over $1000 for other taxes, to the same collector of the West Side, and until this case was called up I did not find that there, was any difference in the receipts,—in the method of making out the receipts.” Witness continued: “I have had the receipts in my possession since they were issued— paid for them with my own money.”

The payment of taxes may be.proven by parol evidence. Tax receipts may be explained,- and if a mistake has been made in the description of the land, or in the name of the person who actually made the payment, resort may be had to parol evidence to rectify such mistake. Here is the evidence of Asahel Gage, that he never paid any tax on the property, and of appellant, who testified that he paid the taxes for the years in dispute with his own money. If these witnesses testify to the truth, and it nowhere appears that they are unreliable, the fact is beyond dispute that appellant paid the taxes for seven successive years. In Hinchman v. Whetstone, 23 Ill. 185, it was held that proof of-payment of taxes.may be made otherwise than by the production of tax receipts. , It is there said: “No reason is perceived why the payment, of taxes may not be proved * * * by the verbal evidence of a witness, as well as the payment of money in any other case.” In Cole man v. Billings, 89 Ill. 185, where the receipts showed payment by Billings and Parsons, it was held that it would have been competent to prove," if such was the fact, that the taxes were in fact paid by Billings, and that the name of Parsons was by some inadvertence included in the receipt. As the law has heretofore been settled by this court, we regard the evidence sufficient to establish seven successive years’ payment of taxes by appellant.

The appellant, Gage, having established color of title made in good faith, and seven successive years’ payment of taxes on the property while it was vacant and unoccupied, the next question to be considered is, whether, after the completion of the seven years’ payment of taxes, he acquired possession of the land, so as to bring him within the provision of section 7, of chapter 83, of the statute entitled “Limitations,” which reads as follows: “Whenever a person having color of title, made in good faith, to vacant and unoccupied land, shall pay all taxes legally assessed thereon for seven (7) successive years, he or she shall be deemed and adjudged to be the legal owner of said vacant and unoccupied land, to the extent and according to the purport of his or her paper title.”

It is clear, from the evidence, that the property was vacant until July, 1887, and on the 12th day of that month Henry H. Gage employed the surveyor of Cook county to survey the lots and put a post and four-board fence around the property. On July 28 the surveyor notified appellant that the work was done. -Within a few days after appellant received the notice, he went to see the property, and found that the surveyor had made a mistake, and fenced lots 36 and 37 on the east half of block 1, instead of lots 36 and 37 on the west half of the block. The surveyor then made a new survey, and removed the fence, and put it around the lots in controversy. The fence was completed by the 10th day of September, 1887, and appellant then paid the surveyor for his labor. Thus far there is no controversy between the parties, and it is an undisputed fact that on the 10th day of September, 1887, appellant, Gage, had the property in controversy enclosed with a post and four-board fence. This act of appellant gave him possession of the property under color of title. By taking possession, after he had paid taxes for seven successive years while the lots were vacant, he did all the law required, and his title to and rights in the property became fixed. He then had not only a title which he could invoke as a shield or defensive title to protect him in the possession of the lots, but if another should, by some means, obtain possession of the property, he had a title under "which he might sue and recover the possession of the property.

This is not a new question in this court. In Hale v. Gladfelder, 52 Ill. 91, a title acquired in the same manner as appellant acquired his title was fully considered, and it was there held, that where the bar of the statute has become complete under the second section of the act of 1839, (which is section 7 of our present Limitation act,) by the concurrence of claim and color of title acquired in good faith, payment of taxes for seven successive years under such color of title, and the actual taking of possession of the premises, such bar can be used as a shield to protect the possession against every one; and if the possession be invaded, or the premises again become vacant, and another make entry, even if the latter hold the paramount title, the holder of the color of title may sue and recover his lost possession. The bar of the statute having become complete, the right of the person entitled to its benefits to have and enjoy the possession, is as perfect as though he were actually invested with the title; and as against him, the holder of the paramount title can not use it for the purpose either of recovery or defense. The same doctrine was announced in the late case of McDuffee v. Sinnott, 119 Ill. 450. It is there said: “In view of the repeated decisions of this court, it would be a fruitless consumption of time to enter upon a discussion of the eases decided outside of this State, for whatever the rule may be elsewhere, it is now well settled in this State, that whenever the bar of the statute has become absolute, and the party -entitled is in possession under it, it is thereafter just as available for attacking as for defensive purposes, and its availability in this respect will not depend at all upon the occupant continuing in the actual possession of the property. His rights in that respect are precisely the same as those of any other absolute owner of land. He can vacate it or occupy it, just as convenience or interest may dictate!”

It will not be necessary to cite other cases in this State on the question, as the law is too well settled to admit of controversy.

It appears, however, from the evidence, that in the latter part of December, 1887, appellee or his agent visited the property, and, as they claim, found the most of the fence on the north and east sides of the lots gone, but on the south and west sides the fence was mainly standing as originally erected. Finding the property in this condition, apj)ellee re-fenced it, using that portion of the fence and material which had been put on the property by appellant, and supplying enough other material to make a good and substantial fence. The act of re-fencing the property conferred no rights upon appellee. As has been heretofore said, when Gage, in September, T887, fenced the property, he lawfully acquired the possession thereof. That possession was never relinquished or abandoned, and no person had any right to invade that possession. When the agent of appellee visited the property, in December, 1887, although some of the fence had been torn down by some unauthorized person, there was enough to notify him that the property had been reduced to possession by another. It is not necessary that a man should live on property in order to obtain or hold possession of it. Possession of land may be acquired and held in different modes,—by enclosure, by cultivation, by the erection of buildings or other improvements, or, in fact, by any use that clearly indicates an appropriation to the use of the person claiming to hold the property. (Trues- dale v. Ford, 37 Ill. 210.) When appellee saw that the property had been reduced to possession by another, by enclosing it with a fence, he had no right to interfere, in any manner whatever, with the possession of the property. His entry was that of a wrongdoer. He was a trespasser. (Lee v. Town of Mound Station, 118 Ill. 319.) If he claimed the title, when he found the lots in the possession of another his remedy was • ejectment, where the title could be settled in a court of law. Surely he could not^lay a foundation for a bill in equity by unlawfully invading the possession of another. Equitable rights can not be acquired in that way. In Comstock et al. v. Henneberry, 66 Ill. 213, where a bill in equity was filed by one in the actual possession of land, for equitable relief, as it appeared that the possession was obtained unlawfully and forcibly, it was held that he could not be allowed to take advantage of his own wrong, and that he would be treated in equity as out of possession. In Hardin v. Jones, 86 Ill. 313, where a bill was filed to quiet title, the doctrine of the case supra was approved, and it was held that the possession that confers jurisdiction must have been acquired in a lawful way. If obtained by violence, or by the use of unfair or corrupt means, a court of equity will not lend its aid.

Gage v. Williams, 119 Ill. 564, is cited and relied upon by appellee as an authority to sustain his position. The facts in that case, however, are so different from the facts shown here, that the decision can have no bearing. There the property was in possession of Goslee, through whom the complainant derived title as early as 1869, and one Van Allen had charge of the property for Goslee from 1869 to the winter of 1885. In 1881, while Van Allen occupied the relation of tenant, he took a lease from the appellant in the case. A leasing by the tenant of Goslee from a stranger could not lawfully deprive Goslee of his possession. Moreover, if the appellant in the case cited ever had possession, there was evidence that such possession was abandoned.

Eeliance is, however, placed by appellee on the case of Fort Dearborn Lodge v. Klein, 115 Ill. 177. We do not think that case has any bearing here. There is but one question decided in that case,—that is, the plea of liberum tenementum is a proper plea in an action of trespass quare clausum fregit, and that it was error to instruct the jury to disregard such a plea. Upon an inspection of this record, it will be found that Hampton did not enter under paramount title. As heretofore shown, when Gage took possession of the lots by enclosing them with a good and substantial fence, in September, 1887, his title, under- our statute, became and was the paramount title,—in other words, as is said in the McDuffee case, supra, his rights were the same as those of any other absolute owner. And in December, 1887, when Hampton entered upon the premises and undertook to take possession thereof, he occupied the position of one without title entering upon the possession of another who held the absolute title to the property. Occupying this position, he was a mere trespasser. If Hampton had been seized in fee of the premises when he entered,- and had entered in a peaceful manner, then he might rely upon the rule laid down in Fort Dearborn Lodge v. Klein. But such was not the case, and hence the decision in that ease has no bearing on the facts presented by this record.

The judgment of the Superior Court will be reversed, and the cause remanded for further proceedings consistent with this opinion.

Judgment reversed.

Mr. Justice Bailey,

dissenting:

I am unable to concur with the majority of the court either as to the facts or the law of this case. Hampton, the complainant, filed his bill, claiming to be the owner in fee and in possession of lots 36 and 37, in block 1, etc., in the city of Chicago, and praying to have three several tax deeds removed as clouds upon his title. Henry H. Gage, the defendant, in his answer and cross-bill, claims the paramount title under and by virtue of one of said tax deeds, and the payment of taxes thereunder for seven consecutive years while the lots were vacant and unoccupied and an entry into said lots after the expiration of the seven years limitation. The main question of fact relates to the payment of the taxes for the years 1880 and 1881.

Of the three tax deeds, the one under which the defendant now claims title, was executed to the defendant February 10, 1877. Subsequent to the date of this deed, viz., September 23, 1878, both lots were sold for the taxes of 1873 and 1874, and October 18, 1878, lot 36 was sold for the taxes of 1877, the purchase at both sales being made in the name of Asahel Gage, and the certificates of sale being issued to him. In pursuance of these two sales tax deeds were executed to Asahel Gage, dated respectively February 15 and 18,1881. September 15, 1882, Asahel Gage quitclaimed his interest in said lots to the defendant.

The defendant offered in evidence a contract under seal between himself and Asahel Gage, bearing date December 6, 1880, in which, after reciting that they were then and had been theretofore engaged in the business of 'purchasing property at tax sales in Cook county, Illinois, and that their business relations were such that it was proper and necessary that written articles of agreement should be entered into between them, it was provided, among other things, in substance, that Asahel Gage authorized and directed Henry H. Gage to use his, said Asahel’s, name at tax sales, for the purchase of property, both for said Asahel and said Henry H., and to use his name for the purpose of serving tax sale notices, and to take out tax deeds in his name, upon certificates issued to him and belonging to either party. And said Asahel agreed, upon reasonable request, to quitclaim to said Henry H. such pieces of property as might belong to him, and to assign to said Henry H. all such certificates of sale as he might be interested in, whenever requested so to do. Said Asahel also ratified and confirmed anything theretofore done or which might thereafter he done by said Henry H. in accordance with the intent and spirit of said agreement, and it was provided that said agreement should extend to and embrace all matters in the past and in the future within its spirit and intent.

The defendant proved the payment of taxes by himself on the lots in question for the years 1882, 1883, 1884, 1885 and 1886. To prove the payment of the taxes for the year 1880, he introduced in evidence a tax receipt which read, “Received of Asahel Gage by Henry H. Gage” the taxes of 1880, and to prove the payment of the taxes of 1881, he introduced in evidence a tax receipt which read, “Received of A. Gage” the taxes of 1881. There can be no doubt that these receipts, unexplained, prove payment of taxes for and on account of Asahel Gage and this is so irrespective of who actually made the payment or whose money was used in making it; and being -made on account of Asahel Gage, it will be presumed, in the absence of proof to the contrary, to have been made under and in support of the title standing in his name.

No question is made hut that tax receipts are susceptible of explanation by parol proof, and that the presumptions arising therefrom are susceptible of being thus rebutted, but the proof by which such explanation is made should be clear and convincing. In Winchester v. Grosvenor, 44 Ill. 425, where there was a question of explaining by parol a receipt for money executed by one party to the other, this court said: “That a receipt may he explained by parol is conceded, hut the proof by which it is done must be clear and unmistakable. A written receipt is evidence of the highest and most satisfactory character, and to do away with its force, the testimony should he convincing, and not resting in mere impressions, and the burden of proof rests on the party attempting the explanation.” See also Rosenmueller v. Lampe, 89 Ill. 212.

In the present case the facts established or attempted to be established by the evidence given in explanation of the receipts ■ are, that Asahel Gage did not pay the taxes; that Henry H. Gage did pay them, and that he paid them with his own money. Neither of the witnesses attempts to state that the payments were not made on account of and for Asahel Gage, and under and in support of the tax titles standing in his name. These, the material presumptions arising from the receipts, are in no way rebutted.. Asahel Gage, as it seems, was a resident of the State of New Jersey, and had employed Henry H. Gage to transact all business arising out of his purchases of property at tax sales, and the fact that Asahel Gage did not pay the taxes, and that Henry H. Gage did pay them, and that he paid them with his own money, are not inconsistent with the presumption arising from the receipts that he made such payments under the Asahel Gage tax titles. If the fact had been otherwise it would have been easy for Henry H. Gage when on the stand as a witness in his own behalf to so state, but his absolute silence on that subject furnishes additional ground to conclude that the receipts record the precise truth in relation to the transaction.

To establish a title by limitation, a party must not only show the payment of taxes for seven consecutive years under claim and color of title, but he must show that all such payments were made under color of the same title, and a payment of taxes in fact made in support of and under color of one title, can not be availed of as a payment under another and adverse claim of title. As said by this court in Cofield v. Furry, 19 Ill. 183 : “The true question in such case is, under what title were the taxes paid? If they were paid under no claim and color, or under title adverse to that to which they are sought to be applied, the payment is unavailing.” This doctrine was repeated and approved in Hardin v. Gouveneur, 69 Ill. 140. In that ease it is held that while tax receipts may be explained or payment proved by parol, the evidence must be clear not only that the payments have been made, but that they were made under claim and color of the title interposed as a bar to the recovery.

The proof in this case furnished by the tax receipts being that the payments of taxes for the years 1880 and 1881 were made under the Asa,hel Gage title, a title wholly adverse to that under which the defendant now claims, and there being no proof to the contrary, the defendant has, in my opinion, wholly failed to make out the payment of taxes for seven consecutive years under claim and color of title, and his defense has therefore failed.

I am also of the opinion that, at the time of filing his bill, the complainant was in lawful possession of the lots in question, and that his possession was sufficient to authorize him to file his bill to remove the tax deeds as clouds upon his title. Admitting that the defendant took possession of and fenced said lots in August, 1887, as he claims, it appears without contradiction, that in the following December, and prior to filing his bill, the complainant went to said lots and found them but partly enclosed, a considerable portion of the fence built" around them by the defendant having been removed by some person unknown. The complainant thereupon peaceably and, without force took possession and proceeded to enclose the lots with a fence of his own, and held possession under such entry at the date of filing his bill. As I construe the evidence, he was then the owner of the paramount title, and as such, had the right of possession and of entry, and was justified in taking possession, so long as he was able to do so peaceably and without force. Such would undoubtedly be his right at common law, and such was his right under our Statute of Forcible Entry and Detainer, as interpreted by this court in Fort Dearborn Lodge v. Klein, 115 Ill. 177.

I am of the opinion therefore that the court below, sitting as a court of equity, had jurisdiction, and that it decided correctly in holding that, under the evidence the defendant had failed to show title as alleged in his answer and cross-bill. The decree cancelling the tax deeds and removing them as clouds on the complainant’s title should, in my judgment, be affirmed.