author: Mr. Justice Magruder

text:
    The Chicago, Santa Fe and California Railway Company v. Hugh Ward.

      Filed at Ottawa

      November 15, 1888

      Re-filed May 16, 1889.

    1. Eminent domain—waiver of trial by jury—as to preliminary facts. Where the petitioner, in a proceeding to condemn land for railroad purposes, makes no objection below to the action of the court in hearing evidence in reference to the title and rights of the defendant in the premises sought to be taken, and finding those rights without a jury, but participates in such hearing and offers evidence, it will be estopped from making the objection in this court that the preliminary facts were not f ound by a jury. In a civil case it is always competent for the parties to waive a jury and submit their case, or any part of it, to the court for decision.
    2. Same—general exception—to what it relates. On petition to condemn, before the case was submitted to the jury, the record showed that the parties appeared, and each introduced preliminary proof to the court as to the extent of the defendant’s interest and right, without objection or protest, and made suggestions to the court, and that the court found such right and interest of the defendant in the premises, after which the record recited, “to which ruling and order of the court the petitioner now here exceptsHeld, that the exception had reference to the conclusion reached by the court after hearing the preliminary proofs, and not to the fact that the court heard and passed upon such proofs without a jury.
    3. Same—measure of damages—rights appurtenant as an element. On a proceeding to condemn the south half of a lot, to which was annexed, as appurtenances, a right of way over the other half of the lot, a coal office and scales also upon such other half, and a side-track in an adjacent alley, such appurtenances are property interests connected, with the land sought, and there is no error in instructing the jury to take such rights, privileges and appurtenances into consideration in determining the fair market or cash value of the south half of the lot, as they are proper elements of value to the property to which they belong.
    4. Where a lot sought to be taken for a public use is used for a coal yard, in connection with its appurtenances, which are, a right of Way over an adjoining lot to a public street, a right to the use of a coal office and a pair of scales on the latter lot, and of a side-track from a railroad, and the lot sought is of but little value without such rights and privileges in the other lot, the juryi in estimating the compensation to the lot sought, should consider its value in connection with its appurtenances.
    5. A acquired title to the south half of a lot, to which was appurtenant a right of way over the north half, and a coal office and scales on the north half of the lot, and also a switch-track along the lot. A railway company, by deed, acquired the title to the north half of the lot, and sought to condemn the south half of such lot. A, the owner thereof, by cross-petition, claimed damages for the value of his lot as enhanced by these appurtenances, or for the value of the appurtenances. The railway company never offered to allow A to remove the coal office and scales from the north half of the lot, and there was no evidence tending to prove that the property had any value to A if left remaining thereon, or that their removal was practicable, but on the contrary, the court included the coal office and scales in its judgment of condemnation: Held, that A, under the facts, was entitled to recover, as compensation, the value of such property as it stood at the time.
    6. Same—measure of damages—elements to be considered, generally. in a proceeding to condemn land for public use, the owner is entitled to just compensation for any property taken or injured. Such compensation is to be estimated according to the existing condition of the property at the time. He is not required to remove buildings or other things attached to the realty, in order to lessen his damages.
    7. Apptjbtenan oe—what so regarded—right of way, coal office—weighing scales—railroad side-track. The owner of a lot conveyed the north half thereof, reciting in the deed that he “expressly reserves from this conveyance the right of way over and across the north half of said lot to the south half thereof, and back again, for learns and men,” and afterward conveyed the south half, “with all the hereditaments and appurtenances thereunto belonging or in any wise appertaining Held, that the right of way over the north half of the lot was appurtenant to the south half, and passed under the conveyance of the latter.
    8. The owner of a lot, the north end fronting on a public street, conveyed by deed the north half of the lot to A, reserving therein a right of way over the same to the south half, and also a coal office located on the north end of the lot. The grantor, and A, the grantee, then made an agreement, which was recorded, in which it was recited that A had bought an undivided half of certain scales situated on the north half of the lot, near the coal office, and that a railway company was about to build a side-track along the west side of the lot for the convenience of business on said lot, and it was thereby agreed that each should own, pay for and keep in repair the undivided one-half of the said scales and side-track, and that the scales should be owned and used jointly. A conveyed the north half with the same reservations, and by mesne conveyances the title was vested in B, who conveyed to a railway company. While the original owner was in the use and enjoyment of the right of way reserved, he conveyed the south half to 0 and D, with the appurtenances, and they conveyed to W., all of which deeds were recorded. The agreement in respect to the scales and side-track was assigned by A to his grantee, and passed, by successive assignments, to the subsequent owners of the south half, which assignments were recorded. By the deeds from the original owner and his grantees, the undivided half of the scales was also conveyed to W., and the proof showed that W. and his grantees had used the coal office, right of way and side-track for over twenty years, in connection with the coal business on said lot: Held, on a proceeding to condemn the south half of the lot, that the right of way over the north half of the lot, the coal office, and the undivided half of the scales and side-track, were to be regarded as appurtenances to the south half of the lot.
    Appeal from the Circuit Court of Will county; the Hon. Dorbance Dibell, Judge, presiding.
    Messrs. Haley & O’Donnell, and Messrs. Williams & Thompson, for the appellant:
    The finding of facts by the court was contrary to the evidence, and the court had no power to pass upon issues of fact, but should have submitted them to the jury.
    If the coal office on the north half of the lot was personal property, it could not be appurtenant to the other half of the lot. Bliss v. Kennedy, 43 Ill. 67; Scheidt v. Belz, 4 Bradw. 431.
    By instructions Nos. 1 and 2, the court took the facts from the jury, and by the last, directed the jury not only to find the damages and just compensation for the property sought and taken, but actually compelled the petitioner to pay for property situated upon land not embraced in the petition, the same as if it took it. Rev. Stat. chap. 47, secs. 1, 8; Dupuis v. Railway Co. 115 Ill. 97; McCormick v. Park Comrs. 118 id. 655; Sherman v. Dutch, 16 id. 283; Dart v. Horn, 20 id. 212; Chicago v. Bixby, 84 id. 82; Village of Warren v. Wright, 3 Bradw. 602.
    Mr. Benjamin Clin, and Mr. J. S. Reynolds, for the appellee :
    It was proper to bring to the attention of the court, by cross-petition, any interest or claim not stated, or not accurately stated, in the original petition. (Johnson v. Railway Co. 111 Ill. 413; Johnson v. Railway Co. 116 id. 521.) But as there was no demurrer or objection to the cross-petition in the case at bar, there is no question presented thereon. Appellant’s counsel, in their brief, do not refer to the subject.
    The court, in condemnation proceedings, is to pass upon preliminary questions before submitting the question of damages or compensation to the jury. Smith v. Railroad Co. 105 Ill. 518.
    The jury, under the statutory oath, are not to pass upon any questions except such as affect the matter of damages or compensation. They have to do alone with values. Smith v. Railroad Co. 105 Ill. 518.
    The submission to the jury of matters of title, and of the question whether lands sought to be condemned are entitled or not to eertain easements appurtenant, etc., would create confusion and embarrassment. Such inquiries for the jury are not contemplated in the statutory oath, nor in their report, under the statute.
    Again, as both sides voluntarily submitted the questions involved in the preliminary findings, to the court, together with the proofs thereon, and as neither side made any objection, of record or otherwise, to the court passing thereon without the intervention of a jury, this question as to the propriety of the court hearing and determining such preliminary mat-tors can not be raised here. It would be a fraud to raise it in this court now, if thereby it would prejudice the rights of the appellee.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is a proceeding for condemnation, begun by the appellant company by the filing of its petition in vacation on March 30,1888, in the Circuit Court of Will County, making the appellee and many other persons defendants, and seeking to condemn a large number of separate pieces of real estate. Among these pieces the petition describes the south half of lot four of H. A. Gardner’s subdivision, etc., in Joliet, Will county, and alleges, that the appellee, Hugh Ward, is the owner thereof. Ward moved for a separate trial, and, after leave granted, filed a cross-petition.

His cross-petition avers that he is the owner of the S. of said lot é, and that he also owns a valuable interest in the north half of said lot; that he also owns the privileges, appurtenances and rights of way hereinafter mentioned; that for more than fifteen years he has been engaged in the coal business on lot 4; that said business is and has been very valuable and profitable; that lot 4 has a special value as a business location for a coal dealer; that his property in and appurtenant to lot 4 and sought to be condemned is of the value of §4500.00; that the damage to his business will exceed §1500.00, etc.

On motion, the court directed that the several pieces of property should be divided into four groups, and that a separate jury should be empannelled to try the questions to be submitted to a jury in connection with each group. By an order entered without objection, the Circuit judge directed, that the south half of lot 4, and certain other property of other defendants, should be assigned to the fourth group, and that the questions in relation thereto should be submitted for trial to the fourth jury.

Before the juries were empannelled, the court below heard preliminary proof as to title, and entered preliminary orders finding that certain defendants were owners of certain pieces of property. On June 6, 1888, a preliminary order or decree was entered in reference to the south half of lot 4 belonging to appellee, and being the only property involved in this appeal. By the terms of this preliminary order, it was found, that Ward was the owner of the S. J of lot 4 subject to a right of way over the same “which is appurtenant to the north half of said lot and held and enjoyed by the owner thereof;” that Ward owns and enjoys, as appurtenant to said south half, 1st—a right of way over and across the north half of lot 4 to the. south half thereof and back again for teams and men, 2d—a coal office on the north half of the lot used in connection with his business on the south half, 3d—an undivided one half of a Fairbanks scales located on said north half and on Fourth Avenue immediately north of said lot, 4th—an undivided one half of a switch-track in an alley 18 feet wide on the west side of said lot 4, which switch-track, connecting at the south with the C. and A. B. B. track and running close to the west line of lot 4 northward and across and north of Fourth Avenue, was formerly built and paid for, one half by the then owner of the south half of the lot and one half by the then owner of the north half thereof, for the convenience of business upon the lot, and under an agreement duly recorded in Will county between the said owners, that the said scales and side track should be used jointly; - that the undivided one half of said scales and switch-track have been conveyed with the south half of the lot and as appurtenant thereto in all subsequent conveyances, and the switch-track has been kept in repair jointly by the said owners; that the rights above specified, with the said alley 18 feet wide and another alley 14 feet wide on the south end of lot 4, used by Ward in connection with the south half thereof, have all been enjoyed and used by Ward, and his grantors of said south half, in their business, carried on on said south half, for more than twenty years, etc.

Afterwards on June 11, 1888, the case was submitted to the jury who returned a verdict of $2500,00, to be paid by the petitioner to the owner of the south half of lot 4 (subject to the right of way over the same appurtenant to the north half), with the rights, privileges and appurtenances aforesaid, as the just compensation for taking the same. From the judgment rendered upon this verdict the present appeal is prosecuted.

The first error assigned by appellant has relation to the preliminary order entered by the trial court. It is claimed, that the court has no power, in a condemnation proceeding, to enter a decree, determining the title of the defendant or cross-petitioner to the property to be condemned, before submitting to the jury the question of the compensation to be paid for taking the property. It is especially insisted, that, in this case, it was for the jury to determine whether or not the easements and other rights and privileges, claimed to have been appurtenant to the south half of the lot, were actually owned by appellee and used by him in connection with his business, and that the decision of these matters by the court was an invasion of the province of the jury and a withdrawal from them of questions of fact, which should have been submitted to their consideration. We do not deem it necessary .to pass upon the point thus made for the reason that appellant is es-topped from making it in this court by its failure to insist upon it in the court below. It is always allowable for the parties in a civil action to waive a jury and submit their case or any part of it to the court for decision.

In the course of the proceedings below, appellant made no objection to the submission of these preliminary matters to the court, but, on the contrary, united with the appellee in a trial of them before the judge without a jury. We find the following entry in the record: “And now again comes said petitioner by its attorneys, and the said parties, interested in the property, which, by a former order entered herein, is to be submitted to the fourth jury herein to be called, also come, and the court sits and hears the preliminary proofs offered by said several parties.” This entry appears under date of May 29, 1888, and no objection was made nor exception taken by appellant.

After appellee had introduced his preliminary proof to the court, without objection, on the part of appellant, that the court was hearing such proof without a jury, the record then recites, under date of June 2, 1888, that “the petitioner then offered in evidence, as preliminary proof in its behalf to the court, a deed from H. S. Carpenter to C. S. F. and C. B’wy’ Co.” etc., and that “thereupon the petitioner, in its preliminary proof to the court, called H. S. Carpenter, who testified,'” etc.

It is true, that, at the close of that part of the decree of June 6, 1888, which has reference to the south half of lot 4, appears the following: “to which ruling and order of the court the petitioner now here excepts.” But this exception has reference to the conclusions reached by the court after hearing the preliminary proofs, and not to the fact that the court heard and passed upon such proofs without a jury. The record shows, that appellant as well as appellee introduced preliminary proofs without objection or protest, and that, upon such introduction, suggestions were made by appellant’s counsel as well as by counsel for the cross-petitioner.

It is next objected by appellant, that the decree of June 6, 1888', erroneously found appellee to be the owner of the appurtenances therein named. We think the evidence sustains the findings of the decree.

First, as to the right of way over the north half of the lot. Jacob Powles, the original owner of lot 4, by deed dated June 24,1867, and recorded November 26,1868, conveyed the north half of the lot to Oagwin, reciting in the deed that he “expressly reserves from this conveyance the right of way over and across the north half of said lot to the south half thereof and back again for teams and men.” The same reservation is contained in all the successive conveyances of the north half from Cagwin down to Carpenter, the grantor of appellant, all of which conveyances were duly recorded. While Jacob Powles was in the use and enjoyment of the right of way thus reserved, he conveyed the south half of the lot by warrantee deed, dated February 20, 1869, to Daniel Powles and Barbaker; the two latter, by warrantee deeds dated February 22, 1870, and November 29, 1871, conveyed the south half to appellee Ward, and were using the right of way at these dates. The three latter deeds were duly recorded. They convey the south half of the lot “with all the hereditaments and appurtenances thereunto belonging or in any wise appertaining.” This right of way was an appurtenance to the south half at the time of these conveyances, and passed to appellee with the land. “Some things will pass by the conveyance of land as incidents appendant or appurtenant thereto. This is the case with the right of way or other easement appurtenant to land.” (Morrison v. King, 62 Ill. 30.)

Second, as to the undivided half of the scales and the switch-track. June 24, 1867, Jacob Powles, owning the south half of the lot, and Cagwin, owning the north half thereof, made an agreement, which was afterwards recorded, in which it was recited that Cagwin had bought an undivided half of the scales, and that the C. A. and St. L. B. B. Co. was about to build a side track along the west side of the lot, connecting with the main track of the road by means of a switch for the convenience of business on said lot, and it was thereby agreed that each should own, pay.for and keep in repair the undivided half of said scales and sidetrack, and that the side track should be laid and maintained along the west side of the lot, and that the scales should be owned and used jointly. This agreement was assigned by Cagwin to his grantee of the north half, and passed by successive assignments, endorsed on the contract and recorded, to the subsequent owners of the north half. The deed from Jacob Powles to Barbaker and Daniel Bowles, and the deeds from the latter to Ward, convey the south half .of the lot, “together with an undivided one half of a Fairbanks scales, mow located and in use on the north half of said lot 4, and also the interest of party of first part in and to a switch track skirting the west side of said lot, laid down * * * for the convenience of business on said lot.”

Third, as to the coal office. The language of the preliminary order or decree is: “that said Hugh Ward also owns and enjoys, as appurtenant to the south half of lot 4, and uses in connection with his business carried on thereon a coal office on the north half of said lot.” The original deed of June 24, 1867, contains this language: “and saving and reserving also the coal office now located on said north half.” The testimony shows, that appellee owned the coal office, and that he and his grantors used it for more than twenty years in connection with the business carried on on the south half of the lot.

In addition to the documentary evidence, the oral proof shows, that, for more than twenty years, appellee and his grantors had made use of the right of way, and the side track or switch track, and the scales and coal office in connection with the coal business conducted on the south half of the lot. Fourth Avenue ran along the north side of lot 4. The office was on the north-east corner of the north half of the lot fronting on Fourth Avenue. Wagons and teams, used in the coal business, passed from the south half across the north half west of the coal office, along the reserved right of way, to the scales connected with the coal office. Ward and his grantors kept the switch-track in repair and used it jointly with the owners of the north half for purposes connected with the business. There is some evidence tending to show, that Ward’s teams sometimes went, during the last three years, from the south half of the lot across lot 3 to the east of lot 4 in order to reach the scales and office, but there was no abandonment of the right of way across the north half, which, was also used.

The next error assigned by appellant has reference to the instructions given to the jury in behalf of appellee. Two of these instructions are said to be erroneous because they tell the jury, that the rights and privileges above mentioned are appurtenant to the south half of the lot and are property interests connected therewith, and because they direct the jury to take such rights, privileges and appurtenances into consideration in determining, under the evidence, the fair market or cash value of the south half of the lot. We see no error in the instructions in this regard.

Suppose that a man owns a farm surrounded entirely by farms belonging to other parties, so that he has no access to it except by passing oyer land owned by some one of his neighbors. A farm thus situated without means of ingress and egress might be almost valueless. But if its owner at the same time owned a right of way across a portion of the adjoining territory, so that he could go to and from his farm at will, the latter would have a greatly increased value. Why is it not proper to consider the farm as having, such a right of way incident to it in fixing its value ?

So, in the case at bar, the south half of lot 4 is so located that it is fit only'for a coal yard or some similar use. But its fitness even for this purpose depends on there being an office on a public street, a wagon road for men and teams to Fourth Avenue over the north half of the lot, a pair of weighing scales in connection with the street and office, a railroad switch or sidetrack for shipping in coal on the west side of the lot. By itself the south half of the lot has little value; with the privileges thus designated it does have a very considerable value to its owner for the uses, to which he applied it. These privileges do not constitute other and outside property interests not a part of the land taken by appellant. They are appurtenant to the land taken and go with it.

The instructions do not compel appellant to pay for the coal office itself. They merely designate the right to use so much of the north half of the lot, as is occupied by the coal office, for the purposes of such an office in connection with the business carried on on the south half. Such right, as well as the privilege of using the scales and switch and right of way, made the south half valuable to appellee as a coal yard. When appellant takes the ground embraced within the limits of the south half of the lot, it also takes or destroys these appurtenances.

It is complained that the instructions take from the jury certain questions of fact. But the questions of fact referred to are only those, which concern the matter of title and the matter of interest in the appurtenances above mentioned. As these questions were settled by the court in its preliminary order entered after a hearing without a jury by consent of both parties, it was not error to assume the existence of the appurtenances in' the instructions to the jury. The jury were merely to take into consideration the appurtenances, whose existence had already been decided upon by the court, in determining the value of the land.

We perceive no such error in the record as will justify a reversal.

The judgment of the Circuit Court is, therefore, affirmed.

" Judgment affirmed.

Subsequently, on May 16,1889, upon rehearing, the following additional opinion was filed:

Mr. Justice 'Wilkin : On examination of the petition for a rehearing in this case, we were led to believe that the error assigned on instructions given at the request of appellee, was entitled to further consideration, and to that end granted the rehearing.

The only ground upon which a reversal of the judgment below is now urged is, that the trial court erroneously included in its order of June 6, 1888, “a coal office, an undivided one-half of platform scales, and an undivided one-half of a switch-track,” as appivrtenant to the south-half of lot 4, the first two being located on the north half of said lot, and the switch-track on an alley west of and adjacent to said lot 4, and ordering that in estimating the compensation to be paid appellee, they should be considered as a part of said south half. Also, that the same error was carried into instructions given on behalf of appellee, the effect being to charge appellant with the value of the pieces of property so designated, thus, as is said, adopting an improper measure of damages, to the prejudice of appellant.

We are not able to perceive, from the manner in which the trial was conducted before the jury, how the preliminary order of the court could have influenced their verdict. We are of opinion, however, that the instructions were calculated to lead the jury to understand that the value of said property was a proper element of damages to be considered by them in making their verdict. This, under other facts and circumstances, would doubtless work a reversal of the judgment below, but we do not think such should be the result in this case. In other words, we think, under all the evidence, appellee was justly entitled to recover of appellant the value of the property, and whether that was accomplished by the misuse of the term “appurtenances,” or otherwise, is a matter of no importance to appellant. We have already decided that the coal office, scales and switch-track, though not located on appellee’s land, were his property. That appellant has taken them, can not, in the light of this evidence, be denied. Then, why should it not pay for them ?

The record shows that it had obtained a deed to the north half of lot 4 prior to filing its petition, though it was not recorded until afterward. On page 48 of the record we find this recital: “Flearing of further preliminary proof on the part of the petitioner, touching the property of Hugh Ward.” And on page 49 the finding of the court, as follows: “And the court doth further find and adjudge, that by deed from Henry S. Carpenter and wife, of date March 16, 1888, and recorded in the recorder’s office of Will county, Illinois, on June 9, 1888, the petitioner herein became the owner of the appurtenances to the north half of said lot 4, in said former order herein stated or referred to, and that the petitioner has contracted with said Carpenter to disconnect and remove the switch-track from the north half of said lot 4.” This further order was made at the instance of petitioner, and no objection or exception thereto appears to have been made. Appellee, by his cross-petition, had set up his ownership to this property. There is nothing whatever in the record to show that appellant at any time offered to allow appellee to remove it from said north half, nor that he was offered a reasonable opportunity so to do; nor is there any evidence tending to prove that the property had any value to appellee if left remaining thereon, or that its removal was even practicable, even if he had been allowed to remove it.

When it is sought to condemn private property for public use, the owner is entitled to just compensation for any property taken or injured, such compensation to be estimated according to the existing condition of the property at the time. He is not required to remove buildings or other things attached to the realty in order to lessen his damages, nor has he a right to do so without the consent of the petitioner. True, this property was not on the south half of lot 4, but appellee’s rights thereto being set up, appellant could not, after acquiring the title to the north half, take it without making compensation therefor. Moreover, in this case, the verdict of the jury and the judgment below give appellant the property, and the judgment expressly provides, “that appellant, upon payment to appellee of the amount found by the jury, shall take possession of and hereafter hold for railroad purposes,” not only the south half of lot 4, but “a coal office on the north half of said lot, and one undivided half interest in one Fairbanks’ scales, now located on the north half of said lot, * * * and the undivided half interest of said Hugh Ward in and to a switch-track on the west of said lot, all as appurtenant to said south half, ” etc. Thus the error in the preliminary order and instructions complained of, is carried into the final judgment, giving appellant all that it is required to pay for.

The witnesses on behalf of appellant and those on behalf of appellee differ very widely in their estimate of damages. There was no proof as to the value of the property in question. Neither party seems to have given any attention to that subject on the trial, and no witness on either side includes the value of the coal house, switch and scales in his estimate, and it may well be doubted whether or not such value entered into the estimate made by the jury. Certain it is that in no view of the case can it be said that the verdict was increased by the instructions complained of, beyond the naked value of such property, which being in possession of appellant, and the title thereto vested in it by the order and judgment of the court below, it must pay for.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Chief Justice Craig

license: Public Domain

text:
    Esther F. Wilkinson et al. v. Abraham R. Thomas et al.

      Filed at Ottawa

      May 16, 1889.

    1. Advancement—cannot rest in parol—since the act of 1872. An advancement of a parent, in his lifetime, to his child, can not, since the act of 1872, relating to the descent of property, be shown by the parol declarations of the parent or the parol admissions of the child, that he or she had received his or her share.
    2. .Under this statute, an advancement can not be created by parol declarations or statements. On the other hand, in order to create a valid advancement, the gift or grant must be expressed in writing as an advancement, or charged in writing by the intestate, or acknowledged in writing by the child or other descendant.

      3. In 1869, a father, for the expressed consideration of love and affection and one dollar, conveyed a lot of ground to his daughter, of the value of $1000. In 1876 he conveyed to each of two of Ms sons eighty acres of land in Iowa, for the expressed consideration of love and affection and one dollar. In 1886 he executed a will, which was not probated, on account of a subsequent marriage, in and by which he devised to his daughter five dollars, reciting: “She having heretofore received the sum of $1000 in real estate. * * * My several sons all had land and other property to the value of at least $2000 each Held, that the words used in the will were not sufficient to afford evidence of an advancement to the daughter and sons.
    Appeal from the Circuit Court of Stark county; the Hon. Samuel S. Page, Judge, presiding.
    Mr. Allen P. Miller, and Mr. Frank Thomas, for the appellants :
    If the deceased had entered the charges on the leaves of a diary, journal, day-book or ledger, they would not be entitled to greater weight, and doubtless would not express his intention and the facts more clearly than as stated in said instrument. The statements are under the signature and seal of the deceased, and while the words “charge” and “advancement” are not found therein, yet the facts are positively set forth, and agree with the great weight of testimony in the case.
    No particular formality or form of words is required to indicate an advancement or its acceptance by the child, (Brown v. Brown, 16 Vt. 197, Bulkeley v. Noble, 2 Pick. 337, Holliday v. Wingfield, 59 Ga. 206,) unless so prescribed by statute. Sayles v. Baker, 5 R. I. 457; Mowry v. Smith, id. 255; Treadwell v. Cordis, 5 Gray, 341; Holliday v. Wingfield, 59 Ga. 206; Cal. Civ. Code, sec. 1397.
    Our statute does not prescribe any particular form of words in which the charge shall be made, or the system of bookkeeping that shall be adopted,—whether it shall be double or single entry.
    A conveyance of land by a parent to a child, either directly or by payment of the purchase money, and having the deed made to the child, is, in the absence of proof to the contrary, presumed to be an advancement. Murphy v. Nathans, 46 Pa. St. 508; Weaver’s Appeal, 63 id. 309; Wormley v. Wormley, 98 Ill. 544; Miller’s Appeal, 40 Pa. 57.
    As to the competency of the declarations of parents made subsequently to gifts, see Merkel’s Appeal, 89 Pa. St. 340; McOlintock’s Appeal, 58 U. H. 152; Clark v. Kingsley, 37 Hun, 246; Camp v. Camp, 18 id. 217.
    Mr. James H. Milleb, for the appellees:
    Under the statute of 1845 alone, an advancement is a question of intent.. The intent must be proved to have existed at the time of the transaction, and by contemporary acts and declarations of the parties. Wallace v. Reddick, 119 Ill. 151; Comer v. Comer, id. 170; Merkel's Appeal, 89 Pa. St. 340.
    The burden of establishing an advancement is upon the expectants to show the transaction to be other than it appears. (Miller’s Appeal, 107 Pa. St. 222.) But this case is governed by the statute of 1872. (Hurd’s Stat. 1887, p. 505, secs. 4-7; Simpson v. Simpson, 114 Ill. 603.) And I take it now, that there is no presumption of law in this case, as laid down in Taylor v. Taylor, 4 Grilm. 303, and Grattan v. Grattan, 18 Ill. 167.
    An advancement which is not evidenced in the manner required by the statute, is, in legal effect, no advancement at all, however clearly it may appear it was so intended. Long v. Long, 118 Ill. 638.
    Mr. Miles A. Fullee, for Abraham B. Thomas and guardian ad litem for Owen W. Thomas, Jr.:
    The following cases are referred to, to show that no matter what the intent of the ancestor may be, unless the gift is expressed in writing to be an advancement, it can not be recognized as such: Long v. Long, 118 Ill. 650; Comer v. Comer, 119 id. 179; Wallace v. Reddick, id. 158.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

Owen W. Thomas died on the 11th day of November, 1886, leaving him surviving, a widow, Sarah Thomas, a wife of a second marriage, and the following children: Abraham E. Thomas, Hannah E. Galbraith, Esther E. Wilkinson, Mary J. Wilkinson and Hannah E. Witt; also a grandson, Owen W. Thomas, a son and only heir of Owen W. Thomas, Jr., deceased. On the 18th day of March, 1886, Owen W. Thomas executed a will, but it was not admitted to probate, on the ground of his subsequent marriage, and his estate was settled as an intestate estate. This bill was brought by Esther F. Wilkinson, Mary J. Wilkinson and Anna E. Witt, for a partition of the real estate of which Owen W. Thomas died seized. The widow, Sarah Thomas, and the three other heirs, were made defendants to the bill. In an amended bill it was in substance alleged, that five of the heirs had received various amounts of real and personal property by way of advancement on their respective shares in the estate, and on a partition of the real estate the bill prayed that the amount each one had received should he deducted from that portion of the estate to be allotted to him or her on final division. Answers were put in to the bill, and replications having been filed, the cause was referred to the master, and he was directed to take the evidence and report to the court, with his conclusions of law and fact. As to the rights of the parties in the premises the master reported as follows: First, to the widow, Sarah Thomas, dower interest in the premises of deceased; second, to Hannah E. Galbraith the one-sixth part of said premises, subject to the widow’s dower, and less a charge of $500 received by her as an advancement ; third, to Owen W. Thomas, Jr., the one-sixth part, subject to dower, and less a charge of $2000; fourth, to Abraham E. Thomas the one-sixth part, subject to dower, and less a charge of $2000; fifth, to Anna E. Witt the one-sixth part, subject to dower, and less a charge of $300; sixth, to Mary J. Wilkinson the one-sixth part, subject to dower, and less a charge of $200; seventh, to Esther F. Wilkinson the one-sixth part, subject to dower, there being no charge or advancement. Exceptions were filed to the report, which were overruled by the master, but on the hearing of the exceptions by the court, the findings were set aside as to the advancements, and a decree rendered granting the widow dower in the premises, and dividing the residue equally between the six hens.

No question is presented in regard to the decree awarding dower to- the widow, Sarah Thomas, hut it is claimed by apo pellants that Owen W. Thomas made an advancement to his daughter Hannah E. Galbraith of $500, and to his two sons, Owen W. Thomas, Jr., and Abraham E. Thomas, $2000 each, and that the court erred in not requiring each of them to account for the amount so advanced, on the division of the premises described in the bill.

It appears from the evidence, that on the first day of July, 1869, Owen W. Thomas and wife conveyed to Hannah E. Galbraith lot 5, in Culbertson’s eastern addition to the town of Toulon, and this is the property claimed to have been advanced to her. There is some evidence in the record that Hannah E. Galbraith made statements, on different occasions, that her father had given her $1000 in town property on her share of his estate. The complainants also proved that the grantor in the deed had made statements, at different times, to the effect that he had given his daughter a deed of the property, and the amount was at least $1000, advanced on her share of his estate. But it is manifest that an advancement can not be established by evidence of this character. Section 7 of the act of 1872, in regard to descent of property, declares: “No gift or grant shall be deemed to have been made as an advancement unless so expressed in writing, or charged in writing by the intestate as an advancement, or acknowledged in writing bv the child or other descendant.” Under this statute, an advancement can not he created by parol declarations or statements; but, on the other hand, in order to create a valid advancement, the gift or grant must be expressed in writing as an advancement, or charged in writing by the intestate,' or acknowledged in writing by the child or other descendant. This is the plain provision of the statute, and it can not be disregarded. The deed, on its face, discloses nothing from which the inference can be drawn that the property conveyed was intended as an advancement, but rather the contrary. The consideration expressed is as follows: “For and in consideration of their love and affection for their daughter, and of $500 in hand paid.”

But it is said the will of the deceased has an important bearing on the question. The testator, after making provision in the will for some of his daughters, then declares: “And to my daughter Hannah B. Galbraith the sum of five dollars, she having heretofore received the sum of $1000 in real estate, situated in John Culbertson’s eastern addition to the town of Toulon, in the county of Stark and State of Illinois, which was worth $1500 at the time, and all without interest for twenty years. My several sons all had land and other property to the value of at least $2000 each.” The language here used, giving it the most favorable view for complainants, can only be regarded as a mere declaration of the testator that he had on a prior occasion given his daughter $1000; but there is no intimation that the amount had been given by way of advancement, and the mere fact that he had made a present to his daughter, and had never charged it as an"advancement, can not be regarded as giving aid to the position of complainants. As said in Comer v. Comer, 119 Ill. 180, it is not every gift that a parent may make the child that is to be considered an advancement. It should appear in some way it was intended as an advancement, before the child’s part will be charged with it.

We now come to the question of advancement to the two sons, Abraham B. and Owen W. Thomas, Jr. On the 2d day of March, 1876, Owen W. Thomas and his wife conveyed to Abraham E. Thomas eighty acres of land in Mahaska county, Iowa. The deed was made, as recited therein, “in consideration of love and affection and one dollar.” On the same date the same parties conveyed to their son Owen W. Thomas, Jr., another eighty-acre tract of land in Mahaska county, Iowa. The deed recites, “for the consideration of the sum of two dollars in hand paid, and the love and natural affection we have for our son.” The two deeds, and the declaration in the will of the deceased that “my several sons all had land and other property to the value of at least $2000 each, ” is the only evidence in writing relied upon to establish that the lands conveyed in the two deeds were intended as an advancement. There is nothing contained in either deed which in the least ■shows, or tends to show, that the lands conveyed were intended as an advancement. The lands may have been conveyed as a gift, or the conveyance may have been made in consideration of services rendered by the sons to their father; but however that may have been is immaterial. So far as the question here involved is concerned, it is enough that there is nothing appearing on the face of the deeds indicating that the lands were conveyed by the grantor, or accepted by the grantees,.as an advancement. As to the clause in the will, we do not think it has any special bearing on the question. It is but a declaration of the testator that his sons had had property of the value of $2000. The declaration was probably thrown in as an excuse for not devising more of his property to his sons. Suppose he had given his sons property, or sold it to them, unless the transaction was made as an advancement it could have no bearing on the future disposition of the estate. There is nothing in the deeds or the will which brings the transaction within the terms of the statute.

We have not alluded to the declarations of Owen W. Thomas which have been proved, nor to the conversations between him and his sons, for the obvious reason that an advancement can not be established by parol, and hence such evidence can have but little bearing on the case. The legislature has seen proper to enact a law, which, in plain and clear language, declares that no gift or grant shall be deemed to have been made as an advancement unless so expressed in writing, or charged in writing, or acknowledged in writing by the child. Nothing of this character occurred here, and we perceive no ground upon which it can be held that either of the parties can be charged with money or property received from their father by way of advancement.

The decree of the circuit court will be affirmed.

Decree affirmed.


author: Mr. Justice Wilkin

text:
    Clifton H. Moore v. Sylvanus Shurtleff et al.

      Filed at Springfield

      May 14, 1889.

    1-. Inverse order of alienation—application of the rule in the case of a prior mortgage. The owner of certain lots of land, numbered 4 and 5, subject to a trust deed on them and other property, sold lot 5 to A, and afterward sold lot 4 to B. A afterwards sold and conveyed lot 5, as follows, and in the order indicated: to C the north part thereof, to D the south part, and, lastly, to E the middle part: Held, that if lot 5 were sold without conditions, lot 4, subsequently conveyed, would be first charged with the whole sum due on the trust deed, and after it should be exhausted, the subdivisions of lot 5 "would be liable in the inverse order in which they were conveyed by A.
    2. The general rule of inverse order, above stated, is never applied when the parties, by an agreement in their'deed, have charged a mortgage upon land in a different manner,—as when, by the terms of the sale of a part of the premises, the mortgage is made a common charge, or the part conveyed is subjected to a proportionate part of the incumbrance. In such case, if there be no specific agreement as to the proportion which each part is to bear, contribution must be made according to the relative value of each part.

      3. Same—of an agreement as to liability of separate parcels sold. A sold to B Ms interest in lot 5, which, with lot 4, was subject to a deed of trust, together with other land. A’s deed provided that the sale was subject to the deed of trust of $2000, to secure the payment of which, ten acres of other land had been set aside, by decree of court, to be sold, and the proceeds applied on the debt; that after the sale of said ten acres, and application of the proceeds, A was to further protect B to the amount of $200-against the trust deed, and no more, B to pay any excess due thereon over the proceeds of the ten-acre tract, and said $200; that if the proceeds of the ten acres should be more than was required to satisfy the deed of trust, the excess should be paid to A, and that said B “hereby agrees to save and forever keep the said grantor harmless from the payment of any sum by reason of said trust deed, other than herein provided.” After this sale, A sold lot 4 to O, and B subdivided and sold and conveyed lot 5 in three parcels: Held, that by the stipulation or agreement in A’s deed to B, it was the intention of the parties, that instead of lot 5 being held pro rata, as it would have been under the first clause, it should be held only liable, to the extent, but no further, than the mortgage debt should exceed the proceeds of the ten acres, and $200.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of DeWitt county; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. Moore & Warner, for the appellant and Shurtleff:
    The rule that mortgaged lands are liable to the debt in the inverse order of their alienation, is subject to two exceptions: First, when, upon examination of the various deeds, the court can see that it was the intent of the parties to change the rule; second, when the carrying out of the rule would work great injustice. 2 Jones on Mortgages, sees. 1092,1620-1625, and cases cited in note 4; Hoy v. Bramhall, 19 N. J. 593; Briscoe v. Power, 47 Ill. 447; Vogel v. Brown, 120 id. 338.
    On the point that the parties can change the rule by contract, we refer the court to 2 Jones on Mortgages, sec. 1625, p. 551; Life Ins. Co. v. Boughrum, 24 N. J. Eq. 44; Pancost v. Duval, 26 id. 445; Briscoe v. Power, 47 Ill. 447; Halsey v. Reed, 9 Paige, 445.

      This ease is similar to the one at bar. Warren v. Boynton, 2 Barb. 18; Tony v. Bank of Orleans, 9 Paige, 649; Zabriskie v. Salter, 80 N. Y. 555; Mickle v. Maxfield, 42 Mich. 304; Niles v. Harmon, 80 Ill. 396.
    Upon the construction of deeds, see Cooper v. Cooper, 76 Ill. 57; Finley v. Steele, 23 id. 56; Louk v. Woods, 15 id. 258; Voris v. Renshaw, 49 id. 425; City of Alton v. Transportation Co. 12 id. 38; Hawk v. McCullough, 21 id. 220; Manufacturing Co. v. Wagon Co. 91 id. 230; Sharp v. Thompson, 100 id. 447; Maynard v. Maynard, 4 Edw. 711; Bradstreet v. Clark, 12 Wend. 602; Covenhoven v. Shuler, 2 Paige, 122; Brownfield v. Wilson, 78 Ill. 467; Gallaher v. Herbert, 117 id. 160; Lehndorfr. Cope, 122 id. 317; Park v. Park, 9 Paige, 107; Morfitt v. Jessop, 94 id. 158; Rountree v. Talbott, 89 id. 246; Blake v. Hawkins, 8 Otto, 337; Smith v. Stevens, 10 Wall. 226; Wilson v. Eden, 11 Beav. 289.
    Hutchin shows, by his acceptance of the deed with this clause inserted, that he meant and intended to let the rule be changed, and took the land subject to the trust deed. The intent of the parties to the deed is what this court desires to learn, and then carry it out. Ohitty on Contracts, pp. 74-76, and cases cited in note 2, on page 74; Bolman v. Lohman, 79 Ala. 63; Topliff v. Topliff, 122 U. S. 121, and cases cited; Field v. Leiter, 118 Ill. 17; Kuecken v. Fote, 110 id. 269; Insurance Co. v. Whitehill, 25 id. 466; Coey v. Lehman, 79 id. 173; Kimball v. Custer, 73 id. 389; Harpstrite v. Vasel, 3 Bradw. 121; Benjamin v. McConnell, 4 Gilm. 536; Walker v. Packer, 70 Ill. 527.
    Messrs. Geaham & Monson, for the appellee ¡Vogel:
    Aliened mortgaged premises must be sold in the inverse order of alienation, to' satisfy the mortgage indebtedness. 2 Jones on Mortgages, secs. 1621/1091.'
    The same rule applies where the mortgagor has conveyed the mortgaged premises in different parcels, and the grantees of these parcels again convey them in parcels. 2 Jones on Mortgages, sec. 1621; Vogel v. Brown, 120 Ill. 338; Iglehart v. Crane, 42 id. 261.
    Subsequent purchasers of portions of the mortgaged premises are bound by the constructive notice furnished by the registry of prior conveyances of any portion of the mortgaged premises. Iglehart v. Crane, 42 Ill. 261.
    Mr. E. A. Lemon, for the appellees Yogel and Frank Adkisson.
   Mr. Justice Wilkin

delivered the opinion of the Court:

Thomas B. Adkisson, being the owner of certain real estate in DeWitt county, known as lots 4 and 5, the former subject to the homestead and dower rights of his mother, and both encumbered by a trust deed to the amount of $458.27, (as found by the court below,) sold and conveyed the same in the following order, viz.: January 6, 1876, to Andrew Hutchin, lot 5; February 10,1876, to appellant, Clifton H. Moore, lot 4. Hutchin reconveyed lot 5 in subdivisions, as follows: February 26,1876, to Sylvanus Shurtleff, the north part; same date, to P. H. Mills, the south part; .and March 6, 1876, to Jacob Yogel, the middle part. Afterward, January 20, 1882, the part so conveyed to appellee Sylvanus Shurtleff, was sold, to satisfy a balance then due on the before mentioned trust deed, for $685.66, and afterward redeemed or repurchased by the said Shurtleff. On the 13th of the following June he filed this bill for contribution. On a. hearing in the circuit court of said DeWitt county he obtained a decree for the sum of $685.66, with six per cent interest from the date of said sale to the rendering of the decree, amounting at that time to $916.54. One-half of this amount was charged to and made a lien on that part of lot 5 conveyed by Hutchin to Jacob Yogel, and lot 4 conveyed by Adkisson to appellant, Moore, the former with $191.14, and the latter with $267.14, the former also being charged with two-tenths of all the costs of that proceeding, and the latter with three-tenths thereof. This decree being affirmed by the Appellate Court, appellant brings the record here on a certificate of importance made by that court. Jacob Vogel and Frank Adkisson, appellees, assign cross-errors.

No question is raised as to the right of appellee Shurtleff to have contribution, nor is it contended that the amount found by the court below as chargeable against Thomas B. Adkisson is incorrect; neither is it denied that that amount is properly chargeable against the said lots 4 and 5 ; but the question is, in what order shall they be charged. There seems to be, and, in fact, there is, no room for controversy as to the general rule of law in this State applicable to such cases. If the conveyance of lot 5 to Hutchin had been without conditions, lot 4, subsequently conveyed to appellant, Moore, would have been first chargeable with the whole amount due from Thomas B. Adkisson on the trust deed, and after it had been exhausted, the subdivisions of lot 5 would have become liable in the inverse order in which they were conveyed by Hutchin. 2 Jones on Mortgages, (2d ed.) secs. 1620,1621; Iglehart et al. v. Crane & Wesson, 42 Ill. 261.

Ignoring all conditions or stipulations in the Hutchin deed, and relying on this general rule, appellee Vogel insists that the court below erred in charging lot 5 with any portion of said sum of $458.27, except upon condition that "lot 4 should prove insufficient in value to satisfy the same.

The Hutchin deed contains the following agreement: “Said land being sold, and this deed made and accepted,, subject to a certain trust deed or mortgage made by Thomas B. Adkisson, and Elizabeth A., his wife, Corrilla Adkisson and Horace Adkisson, to Charles F. Emery, dated June 1, 1874, recorded June 13, 1874, in book No. 12 of mortgages, of records qf DeWitt county, Illinois, at page 292, to secure the payment •of $2000, to pay which said trust deed or mortgage, by the terms of a decree of the circuit court of DeWitt county, Illinois, rendered at thé December term, 1875, of said court, the following described tract of land is set apart to be sold, and the proceeds applied to the payment of said trust deed or mortgage. * * * After which said ten acres is so sold and the proceeds so applied, then the said T. B. Adkisson shall be. bound to further protect said Hutchin to the amount of $200 •against said trust deed, and no more, said Hutchin to pay any •excess due thereon over the proceeds of said ten acres, and said ■sum of $200. And in case said ten acres shall produce more than sufficient to pay said trust deed, then such excess shall be paid to said T. B. Adkisson. And the said Hutchin hereby agrees to save and forever keep the said grantor harmless from the payment of any sum by reason of said trust deed, other than herein provided; that after the master in chancery of .said county shall, under said decree, sell said ten acres, and have paid off and discharged said trust deed or mortgage to •said Emery, he shall surrender the same, and the notes and bonds therein described, to the grantors therein, and pay to the parties to said decree, and not to said Andrew Hutchin, the excess arising from such sale, the said Hutchin not to be held responsible for the performance of the duty of said master in chancery, it being distinctly understood that said Hutchin is only bound to protect said T. B. Adkisson against the payment of money by reason of said trust deed, but that he is not required to protect Corrilla Adkisson or Horace Adkisson. As to said Corrilla and Horace Adkisson, the said Hutchin is hereby substituted in place of T. B. Adkisson.”

The general rule of inverse order above stated is never applied where the parties, by an agreement in their deed, have «charged a mortgage upon land in a different manner, “as, where by the terms of sale of a part of the premises the mortgage is made a common charge, or that part conveyed is subjected to a proportionate part of the incumbrance. In such cases, if there be no specific agreement as to the proportion which each part is- to bear, contribution must be made according to the relative value of each part.” (2 Jones on Mortgages, sec. 1625; Briscoe et al. v. Poiuer, 47 Ill. 447.) It is clear, therefore, that notwithstanding lot 5 was conveyed before lot 4, under the agreement between the parties, it was not relieved from the lien of said trust deed, but remained .primarily liable, so far as made so by the terms of said agreement. The position of appellee Vogel can not be maintained.

Appellant contends that by a fair construction of said stipulation, Hutchin became liable for the whole amount of said incumbrance, and that therefore lot 4, subsequently conveyed to him, could only be held secondarily liable. In support of this position, it is insisted that by the latter clause, “it being distinctly understood that said Hutchin is only bound to protect said T. B. Adkisson against the payment of money by reason of said trust deed, but that he is not required to protect Corrilla and Horace Adkisson,” etc., Hutchin abandoned his claim for the $200, and agreed to become liable for the whole of the debt, after the proceeds of the ten acres should be applied. This position is clearly untenable. The whole agreement must be construed together. This clause is for the protection of Hutchin, not to increase his liability. By its terms he is to protect Adkisson only, and not others. How protect him? Clearly, according-to the terms of the agreement previously stated.

It is again insisted, that by the clause, “T. B. Adkisson shall be bound to further protect said Hutchin to the amount of $200 against said trust deed, and no more, said Hutchin to pay any excess due thereon over the proceeds of said ten acres, and said sum of $200,” Hutchin assumed the mortgage debt over and above the proceeds of the ten acres, and the promise of payment of $200 by Adkisson was but a personal liability. The Appellate Court held against this view, and, we think,, correctly. When the whole agreement is considered, the intention of the parties is shown to be, that instead of lot 5 being held pro rata, as it would have been under the first clause, it should be liable to the extent, but no farther, than the debt should exceed the proceeds of the ten acres, and $200. It is, in effect, but an agreement between the parties that Hutchin should pay all of the mortgage debt remaining after the proceeds of the ten acres should be applied thereon, except the sum of §200. We think the circuit court decided correctly in holding that both lots were liable to contribute to the payment of said sum of $458.27, and that it was properly apportioned under the agreement in Hutchin’s deed.

It follows, from what has already been said, that so much of that amount as is chargeable against lot 5 was properly decreed against the -part conveyed to appellee Vogel, he being the last purchaser from Hutchin. His claim, therefore, that the other subdivisions of said lot should be charged pro rata, can not be maintained. It is true that the rule of inverse order, both as to first and subsequent grantees of incumbered property, will not always be enforced, and never when it would work great injustice, or when, upon examination of the various-deeds, the court can see that it was the intent of the parties to change the rule. But we find nothing in this record tending 'to show that its application would work injustice, or that the parties intended to change it, except in the Hutchin deed, as before stated.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed„

      For a detailed statement of the facts in this case, other than as given in the opinion, see Vogel v. Brown et al. 120 Ill. 338.


author: Mr. Justice Magrudeb

text:
    Lewis Umlauf v. Victoria Umlauf.

      Filed at Ottawa

      May 16, 1889.

    1. Divorce—custody of the children. Although the general rule that the custody of the children will be given to the party in whose favor the divorce is granted, is never enforced when the welfare of the chil■dren will be injuriously affected by its enforcement, yet it must be clearly shown that their welfare does really require the abrogation of the rule.
    2. The right of the father is superior to that of every other person, and can only be made to yield when it is manifestly inconsistent with the health and welfare of the child.
    3. In this State it may sometimes be proper to give to the mother the custody of the children in case of a divorce, even when the divorce is granted on account of her desertion of her husband.
    4. The controlling consideration with a court of equity, when both the husband and the wife are equally fit to have the care of the children, is the welfare and best interests of the children, and not the gratification of either parent. In such cases, the custody is often given to the mother when the health or tender years of the children require her care and attention. The common law right of the father to the custody of his infant child will be made to yield to the discretionary power over the subject vested by the statute in the court.
    5. In this case the considerations are stated which induce the court to give the custody of the oldest son, aged about ten years, to the father, .and the youngest son, aged about seven, to his mother.
    Appeal from the Appellate Court for the 'First District;— heard in that court on appeal from the Superior Court of Cook ■county; the Hon. Egbert Jamieson, Judge, presiding.
    Mr. William T. Ament, Mr. C. C. Strawn, and Mr. Edmund S. Holbrook, for the appellant:
    A husband, on divorce for the fault of the wife, who is in ■all respects a proper, fit and competent person to have the «custody of his minor sons, aged, respectively, seven years, and nine years and six months, who is able and willing to have then- custody, care and tuition, is entitled to their custody. 2 Bishop on Marriage and Divorce, secs. 532, 543; Stewart on Marriage and Divorce, sec. 402; Church on Habeas Corpus, secs. 441-443, and authorities cited; State v. Stigall, 2 Zabr. 286; People v. Humphrey, 24 Barb. 523; Olmstead v. Olmstead, 27 id. 9; People v. Mercein, 3 Hill, 399; Clark v. Bayer, 32 Ohio, 310; Waring v. Waring, 100 N. Y. 570; Rev. Stat. chap. 40, sec. 18; Miner v. Miner, 11 Ill. 49; Hewitt v. Long, 76 id. 406;
    The facts in this case, per se, show that the best interests of these children are secured in their father’s care and custody.
    A husband who, on divorce for the fault of the wife, is in every respect a proper, fit and competent person to have the custody of his minor sons of proper age, and who is willing and able to support and maintain them in his own home, can not and ought not to be compelled, against his will, to maintain them elsewhere.
    Messrs. Blanks & Chateaus, for the appellee:
    When a divorce shall be decreed, the court may make such order touching the alimony and maintenance of the wife, the care, custody and support of the children, or any of them, as from the circumstances of the. parties and the nature of the case shall be fit, reasonable and just. Rev. Stat. chap. 40, sec. 18.
    This statute has been repeatedly construed by this court to give the chancellor full discretion in the exercise of the powers conferred, regardless of the common law rights of the parties. Reavis v. Reavis, 1 Scam. 242; Deenis v. Deenis, 79 Ill. 74; Hewitt v. Long, 76 id. 399.
    No certain rule-can be laid down on the custody of children, except that their best interests must be consulted. Cowls v. Cowls, 8 Ill. 440; Hewitt v. Long, 76 id. 408.
   Mr. Justice Magrudeb

delivered the opinion of the Court:

Appellant filed a bill for divorce against appellee in the Superior Court of Cook County, and obtained a decree against her on April 22, 1887. The decree granted him a divorce on account of her desertion, but gave her the custody of the two children, one, a boy named Arthur, nine years old, and the other, a boy named Oscar, six years and six months old, and required him to pay her $40.00 monthly for the support of the two sons, being $20.00 per month for each, “until the further order of the court.” The decree found that both appellant and appellee were fit and proper persons to have the care, custody and tuition of the children, but it also found that, “on account of the tender ages of and the present physical condition of the said children, it is for their better welfare that they remain under the custody, care and tuition of the defendant, their mother, in whose custody they have been for the past six years. ”

Appellant took no appeal from this decree, and has never ' sought to have it reviewed by writ of error. Though favorable to him upon the question of the divorce, it was against him, so far as the custody of the children, and the payment of money to the appellee for their support, were concerned. He submitted to the decree, and made the monthly payments from the date of the rendition of the decree on April 22, 1887, to the first Monday of November, 1887. On October 13, 1887, he filed Ms petition in the same court, asking for the custody of the children. This petition, on final hearing, was dismissed.

It may sometimes be proper to give the mother the custody of the children even where the divorce is granted on account of her own desertion of her husband. (Reavis v. Reavis, 1 Scam. 242; Deenis v. Deenis, 79 Ill. 74). The controlling consideration with a court of equity, where both the husband and the wife are equally fit to have the care of the children, is the welfare of the children, and not the gratification of either parent. In such cases, the custody is often given to the mother, where the health or tender years of the children require her attention. (2 Bishop on Mar. & Div. 532; Stewart on Mar. & Div. sec. 402; Waring v. Waning, 100 N. Y. 570). Under our statute, the court may make such order touching “the care, custody and support of the children, or any of them, as, from the circumstances of the parties and the nature of the case, shall be fit, reasonable and just.” (Rev. Stat. chap. 40, sec. 18). The common law right of the father to the custody of the infant child will be made to yield to the discretionary power over the subject vested by the statute in the court, (Hewitt v. Long, 76 Ill. 399), where the best interests of the child demand it.

We are not prepared to say, that the decree of April, 1887, based upon evidence not now before us, was not right and proper at the time it was rendered. Indeed, the conduct of the defendant for six months thereafter, and the language contained in his petition, and in his brief filed in this court, would seem to indicate that he himself considered the decree as authorized by the facts as they then existed.

The 18th section of the Divorce Act provides,-however, that “the Court may, on application, from time to time, make such alterations in the allowance of alimony and maintenance, and the care, custody and support of the children as shall appear reasonable and proper.” The question then arises whether or not it would have been reasonable and proper to modify or change the terms of the decree, as to the custody of either or both of these boys, when appellant’s petition was dismissed in December, 1887.

As to the younger boy, we are of the opinion, that it was right to allow him to remain with his mother. He was barely seven years of age in December, 1887. In addition to being a delicate boy, he was lame. He is spoken of as being pale and as having been so for several years. One of the physicians says: “In the past I have treated the younger one the most,' treated him for typhoid fever and for malarial fever, chiefly typhoid, during the time specified from March to June of last year.” He had not yet been shown to be strong enough to attend regularly at school. He was entered in one of the public schools in the second week of September, 1887, and left in the following month, attending five weeks altogether. The evidence shows, that he has evinced a strong attachment for his mother, and a decided disinclination to go to his father. To have taken him away from his mother, against his will and in his feeble condition, may have proved injurious to his health.

As to the older boy, we think, under all the facts in the case, his custody should have been awarded to his father. It is true, that, according to the testimony of the two physicians who have given their evidence in the case, he was a boy of an exceedingly delicate and nervous temperament, and might become afflicted with the disease, known as St. Vitus’ dance, unless properly cared for. But he had been going to school for nearly two years, and was at school most of the time in the spring, summer and fall of 1887. At the time of the hearing he was nearly ten years old. His father met him on the street several times in May and June, 1887, and conversed with him, and he seemed to be well and in good spirits. He manifested a willingness to go with his father and to be in his company. He seemed to have more affection for his father than his younger brother exhibited. There is nothing in the evidence, which produces the impression, that it would injure his health or his spirits to take him from the custody of his mother. Henry M. Coburn, an attorney, who was with appellant during one of his interviews with the older son, and who appears to be an entirely disinterested witness, says: “Arthur said he would like to see his father frequently, but he was afraid his mother would punish him.”

It has not been made to appear to us, that the desertion, of which appellee was found guilty, was induced by the fault of appellant. Although the general rule, that the custody of the children will be given to the party in whose favor the divorce is granted, is never enforced when the welfare of the children will be injuriously affected by its enforcement, yet it must be clearly shown, that their welfare does really require the abrogation of the rule. After a careful study of this record, we are not led to the conclusion, that the true interests of the oldest son, either mental, moral or physical, will suffer in any way by placing him under the control of his father.

The proof shows that the appellant is á man of good character. There is nothing to indicate, that he is unworthy of being intrusted with the care of his son. He has a comfortable home of his own, well supplied with books and the usual and necessary comforts of life. He has two daughters by a former marriage, who keep house for him.

It is also true that the appellee is a good woman. There is not one word of proof to the contrary. But she is a dressmaker by trade and pursues that business, having under her charge, most of the time, quite a number of employees. She occupies a house of four stories, renting the rooms on the third and fourth floors, and reserving for herself the first and second floors. Being thus actively engaged in business, she can not devote to both of her boys as much time and attention, as she would be able to give them if she were differently situated. Particularly is this the ease with Arthur, who, as the older of the two, will not be as much under her notice as his younger and more afflicted brother. Unquestionably no other person can feel for a boy as his mother does, or show to him the love and affection, which he receives from his mother. But the rule is “that the right of the father is superior to that of every other person, and can only be made to yield when it is manir festly inconsistent with the health and welfare of the child.” (3 Smith’s Lead. Cases in Eq. 375.) We can not say, that it will be “manifestly inconsistent with the health and welfare of the child,” Arthur, that he shall be reared in his father’s home, and under the care of his father and his older sisters.

The judgment of the Appellate Court and the decree of the Superior Court are reversed, and the cause is remanded to the Superior Court, with directions to so modify its decree as to give the custody of the oldest child to the appellant, and to so reduce the amount to be paid monthly by the appellant as to require him to pay appellee $20.00 per month, instead of $40.00 per month, for the support of the youngest child, and with further directions to provide that both appellant and appellee shall have the privilege of visiting and freely communicating with both of said children. The costs of this proceeding must be paid by the appellant.

judgment reversed.


author: Per Curiam :

text:
    The Chicago, Milwaukee and St. Paul Railway Company v. Arthur C. Harper.

      Filed at Ottawa

      May 16, 1889.

    1. Juror—question of discharge pending the trial, for supposed prejudice. When a juror was accepted, it did not appear that he was in any manner prejudiced against the defendant. Dining the trial, however, he assumed to cross-examine some witnesses, but there was nothing in the nature of the questions to show that he had become incompetent to discharge the duty of a juror. The defendant’s counsel moved the court to exclude the juror from the panel, which the court refused: Held, no error in overruling the motion.
    2. Bum op exceptions—what it should contain—of instructions not .copied into the bill. Where instructions given on the trial of a cause are not written into the bill of exceptions, they can not be considered in this court. In this case, the original bill of exceptions was brought up by agreement, but the instructions were not copied therein, though they were sent up with the transcript: Held, that they could not be treated as part of the record.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. John P. Altgeld, Judge, presiding.
    Mr. E. Walker, for the appellant.
    Mr. E. A. Sherburne, for the appellee.
   Per Curiam :

But two grounds are relied upon for a reversal of the judgment: First, because the court denied defendant’s motion to exclude one of the jurors from the panel after the trial had begun; and second, because the first instruction given for the plaintiff is erroneous.

During the trial, one of the jurors undertook to examine a witness, and asked him a number of questions, which were answered by the witness. Counsel for defendant, claiming that the examination conducted by the juror disclosed the fact that he was prejudiced against the defendant, entered a motion to exclude the juror from the panel. When the juror was accepted on the panel to try the cause, it did not appear that he was in any manner prejudiced against either party, and while the juror, in his attempt to examine a witness, assumed a duty which did not belong to him, and which, perhaps, ought to have been checked by the.court at the outset, still there is nothing in the nature of the questions which disclosed the fact that the juror had become incompetent to discharge his duty as a juror, and we do not think the court erred in denying defendant’s motion to exclude the juror from the panel.

In regard to the other question, upon an examination of the record it will be found that the instruction does not appear in the bill of exceptions, and hence it can not be regarded as a part of the record. In this case, as in Chicago, Milwaukee and St. Paul Railway Co. v. Yando, 127 Ill. 214, the original bill of exceptions was brought up by agreement, but the instructions were not copied into the bill of exceptions, but were sent up with the transcript. In the case cited, it was held that the instruction, not being in the bill of exceptions, formed no part of the record, and could not be considered. There is no distinction between the record in the case cited and this one, and the decision in that case must control here.

The judgment of the Appellate Court will he affirmed.

Judgment affirmed.


text:
    William Y. Grant v. A. C. Badger et al.

      Filed at Ottawa

      May 16, 1889.

    1. Limitation—act of 1889—'payment of taxes—of an illegal tax. In order to establish title by limitation under the act of 1839,—section 8 of the Revised Statutes of 1845,—the person in possession of the premises under color of title is required to pay all taxes legally assessed on the property for seven successive years. He is not required to pay a void tax.
    2. In 1873 the legislature passed an act for the levy and collection of city taxes, under which a lot was taxed $5.70, which sum the holder of color of title paid. The courts having adjudged the act unconstitutional, in 1877 the legislature authorized the levy and collection of uncollected back taxes, requiring credit to be given to those who had paid the prior illegal levy. Under this act the city levied a tax on the lot of $6.15, which included forty-seven cents of an illegal tax, being for interest on void city bonds: Held, that the amount paid the city in 1874 was a payment under the act of 1877, and that the holder of the color of title was not bound to pay the illegal tax for interest on city bonds. The credit allowed by the act of 1877, in such case must be taken as applied on the valid taxes, and not on a void tax.
    Appeal from the Circuit Court of Will county; the Hon. Charles Blanchard, Judge, presiding.
    Mr. Egbert Phelps, for the appellant:
    The judgment under which the tax deed was made was void, as containing illegal taxes. The owner not appearing, may attack the judgment collaterally. Nail Co. v. People, 98 Ill. 399; Gage v. Bailey, 102 id. 12; Riverside Co. v. Howell, 113 id. 263; Gage v. Basse, 114 id. 589.
    That the item in the tax levy for “Interest on Bolling Mill Bonds” is illegal and absolutely void, has already been decided by this court in English v. The People, 96 Ill. 566, which was an appeal from a judgment for taxes, involving the interest and part of the principal of this same series of rolling mill bonds for which appellant’s property was taxed. See, also, Bissell v. City of Kankakee, 64 Ill. 249.
    We claim, as we shall show hereafter, that the forty-five cents for which the tax judgment was obtained against the land, was solely and exclusively for its pro rata share of interest on the rolling mill bonds, and hence, under the decision in 96 Ill. swpra, illegal and void. But however that may be, it can not be denied that that illegal item of interest “entered into and formed a part of the judgment, and the sum for which the land was sold.” In such case, this court has decided that"the sale is void. McLaughlin v. Thompson, 55 Ill. 251; Riverside Co. v. Howell, 113 id. 262.
    Appellant, in 1875, paid $5.70 as in full of city taxes on this lot for 1874. Under section 3 of the law of May 5,1877, (Sess. Laws of 1877, p. 57,) this payment became a trust fund in the hands of the city, to be applied upon city taxes for 1874 under the subsequent levy. It is submitted that if this fund was sufficient to discharge aH legal taxes under the new assessment, then, by the express provision of that act, nothing more could be collected against the property, and any judgment or sale for any excess over that sum would be void ab initio.

    It has been shown that the city tax, under the new assessment, was $6.15, and that in that tax was embraced an item of forty-seven cents, for “interest on rolling mill bonds,” which this court has already decided to be illegal and void. Deducting this item of forty-seven cents from the $6.15, there remains $5.68 as the total legal tax for 1874, being two cents less than the amount of appellant’s funds already in the hands of the city in trust for the payment of those very taxes.
    Messrs. Garnsey & Knox, for the appellees:
    Plaintiff, to recover, as he claims, under the sixth section of the Limitation law, must show complete compliance with that statute, color of title claimed in good faith, payment of all taxes, and possession,—the defendant, in any event, having shown outstanding title in a third party. (Irving v. Brownell, 11 Ill. 402; Heacock v. Lubuke, 107 id. 396.). He has failed to do this, for he suffered the property to be sold for taxes for 1874, his claim commencing June 14, 1872. This sale for taxes destroys the bar. Irving v. Brownell, 11 Ill. 402; Holbrook v. Dickenson, 56 id. 499; Woodruff v. McHarry, id. 218.
    The record produced is conclusive evidence that the land was sold for taxes which he ought to have paid to make out his title. Holbrook v. Dickenson, 56 Ill. 499.
    The ruling of this court, in effect, is, that the words “legally assessed,” in the statute, do not mean “legal taxes,” and that when the taxes are legally assessed,—that is, levied by the proper authorities and extended by the proper officer,—they must all be paid, to make out a valid bar under the statute. Elston v. Kennicott, 46 Ill. 187; Fagan v. Rasier, 68 id. 88; Wettig v. Bowman, 47 id. 17; Allen v. Munn, 55 id. 486.
    It would be unjust that a party should take from a fee simple owner his property, and not pay taxes upon it, on the ground that they were illegal. See, also, by analogy, Gage v. Pirtle, 124 Ill. 504.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

This was an action of ejectment, brought by William Y. Grant, to recover the possession of lot 3, block 12, in Casseday’s addition to Joliet. On a trial of the cause before the court without a jury, judgment was rendered against the plaintiff for costs, to reverse which he appealed.

The plaintiff claimed, on the trial, color of title and seven successive years’ possession and payment of taxes. He read in evidence a deed, dated June 14, 1872, from Mary A. Kavanaugh, to himself, which purported to convey the premises. Under the deed, plaintiff immediately took possession of the lot, enclosing it with a fence, and erected a house upon it, and continued in the possession until December, 1881, when the defendants entered into the possession of the lot. No question is made in regard to color of title and seven successive years’ possession of the lot under color of title before action brought, but it is claimed that the plaintiff failed to establish seven successive years’ payment of all taxes legally assessed on the property, and hence he failed to establish title under section 8 of the Limitation act of 1845. The act provides, that “every person in the actual possession of lands or tenements, under claim and color of title made in good faith, and who shall for seven successive years continue in such possession, and shall also, during said time, pay all taxes legally assessed on such lands or tenements, shall be held and adjudged to be the legal owner of said lands or tenements, to the extent and according to the purport of his or her paper title.”

As observed before, color of title and seven years’ possession, as required by the statute, was proven, and for the purpose of proving payment of taxes the plaintiff read in evidence tax receipts showing payment of taxes on the lot from 1872 to 1880, both inclusive. No question was raised in regard to the payment of any of the taxes for either of the years, except the city tax of the city of Joliet for the year 1874, and for the purpose of proving a break in the payment of all taxes assessed on the lot, the defendant offered in evidence a certified copy of the judgment, record, precept, and return of the county treasurer to the county clerk thereon, of a judgment and sale for taxes of the lot in question, for the city taxes of the city of Joliet, for the year 1874, showing that said lot was sold for taxes under a judgment rendered at the May term of the county court of Will county, 1878, for back taxes, assessed under the law entitled “An act in regard to the assessment, levy and collection of the taxes of incorporated cities in this State for years prior to the year 1877,” passed and approved May 5, 1877. These records show the valuation of the lot to be $314, and that it was assessed to William Y. Grant; that the total tax extended was $6.15 ; that the credit to which said Grant was entitled was $5.70, and that the amount of unpaid tax was forty-five cents, and that the sale was for the sum of ninety-six cents, of which fifty-one cents were costs, sale being made to James G. Elwood.

It appears from the evidence, that in the year 1875 the city of Joliet attempted to collect its taxes for 1874 under an act of April 15, 1873, known as “Bill 300.” The books were placed in the hands of the collector, and some of the tax-payers paid their taxes. Among those who paid was the plaintiff, and upon payment of the amount due he received the following receipt:

“Joliet, III., March 27, 1875.
“Received of William T. Grant, Eleven 40-100 dollars, in full for city taxes assessed as follows upon the following described property in the city of Joliet, Will county, and State of Illinois, for the year 1874, to-wit:
Mathew Touhey, Collector.”

Others contested the taxes, and the act under which the city had proceeded was held to be unconstitutional, and hence the collection of the taxes was defeated. To remedy this difficulty, the legislature, in 1877, passed an act which authorized cities to re-levy and collect back taxes which such cities had failed to collect under any unconstitutional law. (Laws of 1877, p. 56.) The second section of the act provided, that all payments which had been made under the first levy by any person or persons should be considered voluntary payments, and the party who had made payment should receive credit for the payment so made, in the new levy. That section of the act also provided, that if the amount of taxes under the new levy should not exceed in amount the payment to he credited, then nothing should he collected; but if the taxes so extended should exceed such payment, then the excess, only, should be collected. Under this act the city of Joliet re-levied and proceeded to collect its back taxes for 1874, and among the items certified to the county clerk by the city council was one for interest on “rolling mill bonds,” the pro rata share of which item upon the lot in question was forty-seven cents, being two cents more than the amount for which tax judgment was had. The “rolling mill bonds” were a donation made by the city of Joliet to the Union Coal, Iron and Transportation Company, to assist said company in erecting rolling mills at Joliet, and this item of forty-seven cents was actually extended upon the tax books and collected by the sale in question. In the new levy the tax against the lot in question, including the item of forty-seven cents for interest on rolling mill bonds, was $6.15, being forty-five cents more than plaintiff had paid on the prior levy, and for which he had received a receipt in full.

'In order to establish title under the section of the statute heretofore cited, the person in possession of the premises under-color of title is required to pay all taxes legally assessed on the property for seven successive years. Did the plaintiff pay all taxes legally assessed on the lot for the period indicated ? There is, as observed before, no dispute as to the payment of the taxes for either year claimed by the plaintiff, except for the year 1874, and if the evidence establishes a payment for that year, then the title of plaintiff was made out. The amount which plaintiff paid in the year 1874, under the act of 1877 must be regarded as a payment on the taxes, as by the terms of the act plaintiff was entitled to a credit on the new levy for the amount which he had paid, and he could not be required to pay any additional amount, unless the taxes assessed under the new levy exceeded the amount paid. It is claimed that the taxes under the new levy exceeded the amount which plaintiff had originally paid, in the sum of forty-five cents. But the item of forty-seven cents for interest on rolling mill bonds was illegal, as the city had no power to issue bonds in aid of a private manufacturing company, and had no power to levy or collect taxes to pay’either interest or principal on such bonds. English v. The People, 96 Ill. 566, is decisive of this question.

But while it is conceded that the item of forty-seven cents is an illegal tax, it is said, you can not dissever the portion of the tax claimed to be illegal from that portion which is admitted to have been legal, and that the application of plaintiff’s payment of $5.70 must be made on both portions of the tax,— that legal and that illegal,—in the proportion that forty-seven cents bears to $6.15, the entire tax. It is plain, if a portion of the money plaintiff paid to the city is to be applied in discharge of the illegal tax, a small amount of legal tax would remain unpaid. But the statute, as has been observed, allowed plaintiff a credit on the new levy for the amount which he had previously paid. The money was in the hands of the city, and the city was bound to make an application of the money in payment of a legal tax. The law would not sanction the payment of the money on an illegal tax, nor could the money be appropriated to an illegal purpose.

It is also insisted that plaintiff was bound to pay all the taxes, whether legal or illegal, and as he failed' to do so he did not make out a title under the statute; and in support of this view we have been referred to Elston v. Kennicott, 46 Ill. 190, Wettig v. Bowman, 47 id. 21, and Allen v. Munn, 55 id. 486. We do not think these cases sustain the view of counsel. In the first case no effort was made to pay any portion of the tax, while the justness of the tax was not called in question. The only objection to the legality of the tax was, that the assessment roll did not contain the dollar-mark. In the second case there was no question in regard to the legality of the assessment and the legality of the tax, but it was insisted that the party was released from the payment by an act of the legislature, passed for the relief of certain persons in the “American Bottom.” So, too, in the Munn case, as said in the opinion: “The property, as appears, was taxed every year, like other property, and by a description perfectly definite, and appearing upon a recorded plat of this portion of the city, made by the town authorities.”

We fully concur in the decision of each of the cases cited, but we do not think they control the question involved in this case. It must be conceded that a person, to come within the protection of the statute, must pay all taxes legally assessed on the premises. That was done in this case. The forty-five cents for which the lot was sold was a void tax, and if void it must be regarded as no tax. The plaintiff was under no obligation, legal or otherwise, to pay it, and the county authorities had no right whatever to sell the lot for the tax. The sale was void. (See Riverside Co. v. Howell, 113 Ill. 256.) We think the evidence introduced on the trial showed that plaintiff had paid all taxes legally assessed on the lot, for seven successive years, and as he had color of title, made in good faith, and continued in possession of the lot during the same period, he established paramount title, and was entitled to recover.

The judgment will be reversed, and the cause remanded.

Judgment reversed.


author: Mr. Justice Scholfield

text:
    Jacob Koehler v. Christoph Klein et al.

      Filed at Ottawa

      May 16, 1889.

    1. Partition—commissioners’ report—grounds of exception thereto. A party to a proceeding for partition excepted to the commissioners’ report of partition of land, on the ground that the interests of the parties were manifestly prejudiced by the partition as reported, and because the partition could not be made without manifest prejudice to the interests of the parties. No proof was introduced showing that the party complaining, or any other party, was injured hy the partition: Held, that the court properly overruled the exceptions to the report. If any party was injured, the party objecting should make that fact appear.
    2. A ground of exception to the report of commissioners making partition was, that the map or plat referred to in the report did not show the size and dimensions of the several parcels, as indicated by the surveyor’s figures thereon. The correctness of these figures was not disputed, they showing the distances of each line: Held, that the ■objection on account of the plat was frivolous and properly overruled.
    Appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    Messrs. Walker & Judd, for the appellant.
    Mr. William Vocke, and Mr. Harvey Storok, for the appellees.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This is a proceeding for the partition of the north ten acres of the east half of the west half of the north-east fractional quarter of section 1, township 40, north, range 13, east of the third principal meridian, in Cook county. The land belonged to Christoph Klein, deceased, in his lifetime, and he dying intestate, it descended in equal parts to his seven children, who were his heirs-at-law. Two of these children sold and conveyed their undivided interests to Jacob Koehler, and partition of the tract was therefore to be made, so as to give Christoph Klein, Catharine Keller, Barbara M. Beinstich, Sybilla Meyer and Elizabeth Buschert each one-seventh, and Jacob Koehler two-sevenths. Partition was decreed, and commissioners were appointed to make partition. They reported that they had made partition by dividing the tract by parallel lines, running north and south, into seven equal tracts, numbered from 1 to Y, consecutively, commencing on the east side, and that they assigned and set apart to Jacob Koehler lots numbered 1 and 2, and that to each of the other five parties they assigned and set apart a lot, indicated by its number; and they accompanied their report with a plat exhibiting the partition. Jacob Koehler excepted to the report, because— first, the interests of the parties are manifestly prejudiced by the partition report; second, the premises in question can not be partitioned without manifest prejudice to the interests of the parties; third, the plat attached to said report is false and misleading, and is not such a plat as would be entitled to record; fourth, the item of $25, surveyor’s fees, should not be allowed, because the surveyor has furnished a false and erroneous plat.

In support of these exceptions, an affidavit of Jacob Koehler was filed, which shows that the premises sought to be partitioned are of a long, slender and rectangular shape, and four times as wide north and south, as broad east and west; that the only means of access to said premises is from a public road running along the north side thereof; that said premises are situated in a sparsely inhabited farming region, five miles from the city limits of the city of Chicago, and that the land is very low, and inclined to be swampy. Also the affidavit of Samuel S. Greeley, a surveyor, in support of said exceptions, which states that he has had submitted to him the plat attached to the commissioners’ report; that said plat is out of proportion to the dimensions marked thereon, and gives an erroneous impression of the shape of the tracts of land to be represented by the same; he states that the map attached to his affidavit is a correctly prepared representation of a tract of land of such dimensions as are indicated by the figures upon the map attached to the report.

The map attached to Greeley’s affidavit, with an addition thereto showing the location of twenty acres of other land, owned by Koehler, is as follows:

The length of the lots is 1315T4o5o feet, and their width is 47t2^3q feet. No other evidence was introduced in support of the exceptions. The court overruled the exceptions, and decreed that the report be confirmed. Koehler brings the ease here by appeal from that decree.

The court below very properly overruled the exceptions and confirmed the report. No one testifies that Koehler is injured by this partition—not even himself. It is obvious that it is made so as to best subserve his interests, throwing his land,— that is, the two lots and the twenty acres,—all together, so that he can hereafter use it as a single tract, or subdivide it to suit his fancy. No one testified that the interests of the parties are injured by this partition, and we are not authorized, in the absence of evidence in that respect, to determine there was injury.

The objection on account of the form of the plat accompanying the report, is frivolous. The distances are correctly given, and it is therefore impossible that any one can be misled by the plat.

The decree is affirmed.

Decree affirmed.