text:
    John R. Merritt et al., Plaintiffs in Error, v. William C Thompson, Defendant in Error.
    ERROR TO GRUNDY.
    It is error to allow the landlord of the defendants in ejectment, to substitute his own name as defendant, in place of the persons sued, without the consent of the plaintiff.
    It is not improper, in a suit for taxes, to enter a judgment for costs generally, as in ordinary cases; and in case of such entry of judgment, it will be regarded as a judgment for such amount of costs as are legally chargeable against the land.
    A judgment against lands for taxes, recited the return of the collector of certain lots of land assessed for taxes which remained unpaid, and a list of the lots, with the amount assessed upon each. At the foot of this list were the words and figures, “40 cents will be added to each town lot and tract of land as costs in case of sale.” Then followed the recital of the notice given, &e., and the order of the judgment, that the several lots be sold for the “taxes, interest, and costs.” Under this judgment, a lot assessed for $7.50 was sold for $7.90, “being the amount of taxes, interest, and costs assessed,” &c.: —

      Held, that this was a judgment for forty cents costs; or, if not, that it was for costs generally, and that by either construction it was sufficient to support the sale.
    This was an action of ejectment originally commenced in the Circuit Court of La Salle county, by Merritt & Simmons against John P. Thompson, Elijah F. Wellington, and William Gooding. The case was removed to Grundy county by change of venue; and the death of Gooding being suggested, William C. Thompson was, on motion, substituted as defendant, instead of John P. Thompson and Wellington, without the consent of the plaintiffs. At the May term, 1852, of the Circuit Court of Grundy county, a trial was had by the court without a jury) which resulted in a judgment for the defendant, and the plaintiffs brought their writ of error.
    The land sought to be recovered, was lot 1 of block 19, in the town of Peru. The plaintiffs claimed under a tax-title, and offered in evidence the following judgment in a suit for taxes, viz.: Whereas, William Reddick, collector of said county, returned to the Circuit Court of said county, on the first day of November, 1843, the following tracts and parts of tracts of lands, town lots and parts of town lots, as having been assessed for taxes by the assessor of said county, for the year 1842, and that the taxes thereon remained due and unpaid, on the day of the date of said collector’s return, and that the respective owner or owners have no goods and chattels within his county, on which the said collector can levy for the taxes, interest, and costs, due and unpaid on the following described lands, to wit: List of lands and other real estate, in the county of La Salle, and State of Illinois, on which taxes are due, and remain unpaid for the year 1842.

    And, whereas, due notice has been given of the intended application for a judgment against said lands and town lots, and no owner hath appeared, to make defence or show cause why judgment should not be entered against the said lands and town lots, for the taxes, interest, and costs, due and unpaid thereon for the year herein set forth; therefore, it is considered by the court, that judgment be and is hereby entered against the aforesaid tracts of land, town lots, and parts of town lots, in the name of the State of Illinois, for the sum annexed to each tract of land, and to each town lot or part of town lot, being the amount of taxes, interest, and costs due severally thereon ; and it is ordered by the court, that the said several tracts or parts of tracts of land and town lots, and parts of town lots, or so much thereof, as shall be sufficient of each of them, to satisfy the amount of taxes, interest, and costs, annexed to them severally, be sold as the law directs.
    The other facts, sufficient for understanding the case, are stated in the opinion of the court.

      O. Peters and E. S. Holbrook, for plaintiffs in error.
    .1. It was error to order William C. Thompson to be substituted for the original defendants, thus making him sole defendant. The plaintiff has a right to elect whom he will as defendants. William C. Thompson is a non-resident, and has given security for costs only. Plaintiffs have a right, if they recover the land, to recover damage in this action for rents and mesne profits. Rev. Stat. 209, § 76, and post. They cannot be cut off from this, but have a right to retain any one who has interfered with the possession as a defendant. Perhaps the landlord of a defendant may be let in, to be made a co-defendant, if the original defendant refuses to defend; otherwise he can only come in by consent of plaintiff. Adams on Eject. 226, notes.
    2. The rejection of the judgment and precept was erroneous. Because, first, there was no such variance as should exclude them. If the memorandum in the judgment of “ 40 cents ’’ costs was no part of the judgment, then the precept and judgment are identical, — the lot, the tax, the valuation are identical. This appears by inspection. Secondly, if the 40 cents make part of the judgment, it authorized the sheriff to collect it'as cost, whether included in the precept or not. The law fixes the cost, and the officer is directed by the precept and judgment to collect it. There is no need of the clerk taxing the cost; the law does that by fixing every item of it.
    The report of the collector authorizes the court to render the judgment. Spedman v. Curtinius, 12 Ill. 416. But whether it was properly in or out of the precept, it will not vitiate the sale.
    A judgment for taxes, and the subsequent proceedings under it, are to be treated as judgments and proceedings in ordinary suits at law; and every reasonable intendment and presumption in favor of the title under them is to be indulged. This is now the established rule in this court. Vann v. Schuyler, 1 Gil. R. 162; Minsuger v. Germain, 1 Gil. R. 634; Hinman v. Pope, 2 Gil. R. 141, 142; Atkins v. Hinman, 2 Gil. R. 445, 446; Bestor v. Powell, 2 Gil. R. 128; Graves v. Buren, 11 Ill. R. 437; Chesnut v. March, 12 Ill. R. 176; Job v. Tibbetts, 5 Gil. R. 280, 281; and such is also declared to be the rule in the case of Pitkin v. Yaw, (Ante, 251) “the percept performs the same office in this respect as an execution on an ordinary judgment.”
    The rule, then, is the same as in other suits at law. What is that rule ? 1. A variance between the precept and judgment such as this is supposed to be will not vitiate the title. The officer stands in the place of the debtor, and does that for him which he ought to have done for himself. Orr v. Winans, 2 Green, (N. J.) R. 1; Armstrong v. McCoy, 8 Ohio (Ham.) R. 135; Swaggart v. Harlen, 4 Scam. R. 364; Bryan v. Smith, 2 Scam. R. 47; Bank of Whitehall v. Pickett, 13 Vt. R. 395.
    3. As to the first deed offered in evidence, we say, first, there is no variance between it and the judgment, if the 40 cents noted as costs forms part of the judgment. They are identical in the description of the lot, the tax, amount of costs, and valuation ; that is, the sum total is the same. If the 40 cents do not form part of the judgment, then there is no variance between the judgment and precept, as already shown. It is no forced construction to say, that it (the judgment) adjudges the tax or debt at a specific, precise sum, and generally for the costs, as in ordinary judgments at law; and the mandate of the sheriff is to collect such judgment, that is, the tax as fixed by the judgment, and the costs as fixed by law. Each item of costs, being fixed by law, follows the judgment. The lot in this case was sold for precisely the amount of taxes and the costs, as fixed by law. Secondly, if there be a variance between the judgment, precept, and deed, of 40 cents, it will not vitiate the deed when attacked thus collaterally. When enough is shown to identify the precept and judgment to be the same on which the sheriff acts, in no case will it affect the title. Jackson v. Jones, 9 Cow. R. 182; Jackson v. Shuter, 5 Cow. R. 530; McGuire v. Kouns, 4 Monr. 386; Orr v. Rue, 4 Blackf. 263; Sneed v. Reardon, 1 A. K. Marsh. R. 160; Humphrey v. Busoo, 1 Iowa (Jones) R. 200; Hinds v. Scott, 11 Penn. State R. 20; Chesnut v. Marsh, 12 Ill. R. 181.
    But admit that the 40 cents formed no part of the judgment and execution or precept, and that the sheriff collected 40 cents more than he was authorized to do, yet we insist, that if the sale was irregular, and too much cost was charged and collected, more than either the judgment or precept authorized, the title, by reason thereof, cannot be affected in this action; for, first, it is not one of the four cases enumerated in the statute, viz.: 1, that the land was not subject to taxation; 2, that the taxes had been paid; 3, that it had not been listed or assessed for taxation; or 4, that it had been redeemed. Chesnut v. Marsh, supra. Secondly, it is the fault of the officer, and not of the purchaser, in selling for too much; and the misconduct or irregularity of the officer in maldng the sale can never vitiate the title. Homes v. Hall, 4 Metc. R. 419; Adams v. Reiser, 7 Dana’s R. 208; Tipton v. Grubbs, 2 B. Monr. R. 83; Morrison v. Bruce, 9 Dana’s R. 211; Odiorne v. Mason, 9 N. H. R. 30; Burnham v. Aiken, 6 N. H. R. 306 to 322; Sturdivant v. Frothingham, 10 Maine R. 100; Huntington v. Winchell, 8 Conn. R. 46; 1 Supp. U. S. Dig. 762, § 619 to 621; Pitkin v. Yaw, [Ante, 251.]
    The purchaser is not in fault. The only one in fault is the owner of the land, who neglects his duty to the State, and then seeks to take advantage of his own neglect, his own wrong.
    If such meré technicalities as these are to defeat tax-titles, it discourages and impedes the improvement of the country by begetting want of confidence in titles. The decision making the revenue laws constitutional, gave confidence, and rapid improvements followed on lands holden by tax-titles in the Military Tract. It will give the non-resident an advantage over the resident citizen, under the rigid rule; the resident is liable to have his goods seized for the payment of taxes; the non-resident’s land only is liable. And, under technicalities, he will come and reclaim his land disincumbered of any public burden, and the purchaser in good faith pockets the lóss of all he has paid.
    E. S. Leland and T. L. Dicicey, for defendant in error.
   Trumbull, J.

This was an action of ejectment originally commenced by Merritt & Simmons against John P. Thompson, Elijah F. Wellington, and William Gooding, in the La Salle Circuit Court, to recover the possession of lot one, in block nineteen, in the town of Peru.

The cause was taken by change of venue to the county of Grundy, where the death of William Gooding, one of the defendants, was suggested, and, on motion, William C. Thompson, the landlord of the surviving defendants, was substituted as sole defendant in their place, on his giving security for the payment of such costs as might be awarded against him, and stipulating that he was in the actual possession of the premises sued for at the time of the commencement of the action, and that the depositions which had been taken in the cause might be read against him on the trial. This substitution was made against the consent of the plaintiffs, and they excepted to the opinion of the court allowing it to be done.

The defendant pleaded the general issue. On the trial the plaintiffs offered in evidence a certified copy of the record of a judgment of the Circuit Court of La Salle county, rendered at the November term, 1843, against the lot in question for the taxes, interest, and costs due thereon for the year 1842, and the precept issued upon said judgment. The defendant objected to the receiving of these papers in evidence, on the ground that the precept varied from the judgment, and the court sustained the objection. The plaintiffs also offered in evidence a sheriff’s deed to the lot to Onslow Peters, the assignee of the purchaser at the tax sale, which was objected to by the defendant and excluded by the court, on the ground that it showed a sale of the lot by the sheriff for a larger amount than was authorized by the judgment and precept, and that there was a variance between such deed and the judgment and precept. The plaintiffs then gave in evidence, without objection, a deed from Peters to themselves for the premises in controversy. The court found the issue for the defendant, and entered judgment against the plaintiff for costs.

Two questions are submitted by this record for our consideration :

First, was it error to substitute William C. Thompson as sole defendant, without the consent of the plaintiffs ?

Second, was there any such variance between the judgment, precept, and deed, as should have excluded them from being received in evidence ?

Upon the first point we think the court erred. When the premises are actually occupied, the statute requires the suit to be brought against the occupant; if not occupied, the action must be brought against some person exercising acts of ownership on the premises, or claiming title thereto or some interest therein. Rev. Sts. ch. 36, § 4. Section 36 of the same chapter authorizes the plaintiff, recovering judgment in ejectment, to recover damages against the defendant for the rents and profits of the premises, and in subsequent sections the mode of proceeding is prescribed. If the landlord of the occupant should happen to be a non-resident, and he is allowed to substitute his own name as defendant in the place of his tenant, how could the plaintiff recover for the rents and profits in case he was successful in the ejectment suit? The defendant, in such a case, would be beyond the reach of the process of the court, and it would consequently be impossible to proceed against him in the mode prescribed by the statute, while if the tenant in possession had remained defendant, the plaintiff would have had a remedy against him. The consequence of allowing a substitution of a different person from the one sued as defendant against the plaintiff’s consent, would often be to deprive the plaintiff of the remedy which the statute gives him for the rents and profits. It may be that the court has the right to allow a landlord to come in as a co-defendant with his tenant; or he can be permitted to defend in the name of the person sued, with such person’s assent; but there is no warrant in the statute for the substitution of his own name as defendant in the place of the person sued, as in this case, without the plaintiff’s consent, nor was such a practice tolerated at the common law. Adams on Ejectment, ch. 9; Emlin v. Hoops, 3 Serg. & Rawle, 130; Jackson v. Stiles, 1 Cow. 134.

The supposed variances between the judgment, precept, and sheriff’s deed, out of which arise the other questions in the case, and on account of which those papers were rejected when offered in evidence, all relate to costs. In other respects it is not pretended that there is any variance between the precept and judgment; and there is no variance between the judgment as recited in the deed, and for which the sale took place, and the one which was offered in evidence, if the costs are to be considered as included in the latter.

The judgment against the lot is for a tax of seven dollars and fifty cents; and annexed to the list of lands and other real estate, as described in the judgment, and immediately preceding the other parts of the judgment order, is this statement: “ Forty cents will be added to each town lot or tract of land as costs, in case of sale.”

The precept, as copied into the record, omits the statement as to costs, but, upon examination of the original process on which the sale took place, which, by agreement of the parties, has been brought before the court for its inspection, it is found to contain a true copy of the statement in the judgment as to costs. So that, in point of fact, there is no variance between the judgment and the process on which the land was sold. So far, therefore, as relates to those records or any variance between them, it is quite immaterial whether the statement as to costs is to be considered as part of the judgment or not. If it is regarded as part of the judgment, it will be so considered in the copy of the order on which the lot was sold. If it is not to be regarded as constituting part of the judgment against the lot in question in the judgment itself, no more will it be in the copy of the judgment which constituted the process; and it has already been decided that whether a judgment be for too much costs or not enough, cannot be made a question when the judgment comes collaterally in issue. Spellman v. Curtinius, 12 Ill. 414.

The deed to Peters recites a judgment against the lot in controversy for seven dollars and ninety cents, being the amount of taxes, interest, and costs assessed upon said tract of land for the year 1842.” It is insisted that this shows the sale of the lot to raise a larger sum than was authorized by the judgment, that the sheriff exceeded his authority in making a sale to raise $7.90, when the judgment against the lot was for only $7.50, and that therefore the sale was illegal and void. Numerous authorities have been referred to to establish the proposition that an officer, in the execution of a naked power conferred by statute, in derogation of the common law, must strictly pursue the power, and that any excess of authority by him will vitiate his proceedings. Of the principle of law we have no doubt, but the question here is, did the sheriff exceed his authority in making a sale for $7.90 ? The judgment was for a tax of $7.50, and contained a statement that, in case of sale, forty cents would be added to each town lot or tract of land, as costs. These two sums make the precise amount of $7.90 for which the land was sold, and which is stated in the deed to have been the amount of the judgment and costs. It is a maxim in law that that is certain which may be rendered certain, and there is no more difficulty, in legal contemplation, in ascertaining, from the statements in this judgment, the amount of costs assessed against each lot and tract of land contained in it, than there would have be,en if the sum of forty cents had been annexed to and carried out opposite each tract of land as the costs chargeable against the same. The statement in the judgment, at the foot of the list of lands, does in fact make it a judgment against each tract for forty cents costs, in addition to the amount of the tax. The amount of the costs to be collected is necessarily conditional, depending on the fact whether a sale takes place. If the taxes are paid before the sale, though after judgment, the owner is only required to pay the costs which have accrued up to that time. But admitting that the statement as to costs constitutes no part of the judgment against each tract of land, and still there is in reality no variance between the judgment offered in evidence and that recited in the deed. The judgment would then be for $7.50 tax and costs generally, without specifying the amount. This is the form in which judgments are entered in ordinary cases, and the clerk makes up the costs, which are then included in the execution which is issued on the judgment. This practice was sanctioned in the case of Bryan v. Smith, 2 Scam. 49.

In suits for taxes, when no defence is made, the law fixes the amount of the costs, and they are no more certain when the amount in numero is specified in the judgment than when it is not. If the amount of costs is not specified in the judgment, it then becomes the duty of the sheriff to tax them; and should he tax a larger amount than the law allows, and make a sale therefor, such sale would doubtless be void for the reason that he would exceed his authority in making a sale for costs not allowed by law. Suits for taxes may, however, be defended, and in such cases costs to a large amount may accumulate, which are to be charged to the particular tract of land on account of which they are made. No costs of this kind appear to have been made in the case under consideration; but suppose there had been such costs, would it be insisted that the amount must have been made out and inserted in dollars and cents opposite the'particular tract of land on account of which they were made, or would a general judgment for costs, leaving the amount to be afterwards taxed by the clerk, as in ordinary cases, have been sufficient 1 We apprehend that a judgment for costs generally, without specifying the amount, would be proper in such a case, and that such a judgment is proper in all cases of suits for taxes. In a legal sense, such a judgment is to be regarded as a judgment in numero against each lot or tract of land for the amount which the law authorizes to be taxed against it. In this case it is not pretended that the legal costs against the lot in controversy did not amount to forty cents. There was, therefore, no excess of authority in making the sale for $7.90, which was the exact amount of the taxes and costs due upon the lot; nor was there any variance in a legal point of view between the amount of the judgment, as recited in the deed and that specified in the record of the judgment offered in evidence, for the amount of the costs as fixed by the law and for which judgment was entered generally, when added to the amount of the tax as fixed by the judgment, makes the exact sum recited in the deed as the total amount of taxes and costs for which judgment was rendered.

On the argument, much stress was laid upon the forms prescribed by the statute for the collector’s report, the judgment of the court thereon, and the sheriff’s deed; also upon what the statute requires to be stated in the advertisement. “ The amount of taxes, interest, and costs due ” on the lands advertised for sale, is required to be stated in the notice. In the form given for the judgment, it is stated to be “ fop the sum annexed to each tract or parcel of land, being the amount of taxes, interest, and costs, due severally thereon.” In the form prescribed for the deed is a recital of a judgment, for the sum of dollars and cents, being the amount of taxes, interest, and costs assessed upon said tract of land,” <fec., and the consideration for the deed is stated to be “ the said sum of dollars and cents.” The form for the collector’s report also contains a column for costs. Acts 1838, 1839, pp. 12, 13, 14, and 17.

These provisions of the statute, taken by themselves, would seem to require that the whole amount of costs, attendant on the sale of a tract of land for taxes, should be included in the collector’s report, the advertisement, and the judgment, and that it should correspond in all three. In ordinary cases, and where no defence is made, this could be done; but at the time of giving notice of the intended application for judgment, which is required to state “ the amount of taxes, interest, and costs due on the land,” and also that the lands against which judgment is rendered will be exposed to sale “ for the amount of said taxes, interest, and costs due thereon,” it would be impossible to know what costs might be made by an unsuccessful defence by the owner of any tract of land. In the forms prescribed, the judgment is also said to be for the amount of the taxes, interest, and costs due on the land, and yet interest is never charged, nor does the statute make any provision for charging interest.

In ordinary cases, and when no defence is made, the costs could be as well made up before judgment as afterwards, and we have no doubt it would be a correct practice for the collector to tax and insert in his report and notice the whole amount of costs necessarily chargeable against each lot of land in case of sale, though the amount would of necessity be changed in the judgment, in case additional costs were incurred in an unsuccessful defence of the suit.

There are other provisions of the statute which seem to contemplate a taxation of costs after the judgment is entered. Section 35 of the act under which this sale took place, Acts 1838, 1839, p. 15, declares, that “in selling the said lands, the sheriff shall offer the whole tract or lot for sale, for the amount of taxes, interest, and costs thereon, including the fees hereinafter mentioned.” Why insert the words, “ including the fees hereinafter mentioned,” which evidently relate to the fees attendant on the sale of the land, if such fees were already included in the amount of the judgment for costs? Section 46, of the same act, declares, that “ persons paying taxes upon lands advertised for sale for taxes, or after judgment has been obtained, and previous to sale, shall be required to pay the costs of suit, and of advertising the same, and all other costs which may have accrued on said land under the provisions of this act, up to the time of such payment.” Here a distinction is drawn between the costs of suit, the cost of advertising, and other costs in the case.

These provisions of the statute evidently contemplate that there will be no judgment in numero for costs, which will embrace all the charges in case of sale. Hence we are inclined to hold, notwithstanding the forms prescribed in the statute, that it is not improper, in suits for taxes, to enter a judgment for costs generally, as in ordinary cases, and that when a judgment is thus entered, it is to be regarded in a legal sense as a judgment for such an amount of costs as are legally chargeable against the land, leaving it to the sheriff, or to the sheriff and clerk, in case defence be made, to tax the amount.

The judgment is reversed, and the cause remanded.

- Judgment reversed.


source: Caselaw Access Project

author: Catón, J.

license: Public Domain

text:
    William Tyson and Ann Tyson his wife, Plaintiffs in Error, v. James Postlethwaite and Mary Postlethwaite his wife, George Vickers, Ellen Vickers, Thomas Postlethwaite, Danforth Nettleton, Margaret Nettleton, William Frank, Isabella Frank, John Postlethwaite, Lawrence Fagan, and George Postlethwaite, Defendants in Error.
    ERROR TO BOOK
    CONSTRUCTION OF STATUTES. — REPEAL BY IMPLICATION.
    Where the legislature passes a law, the manifest object of which is to extend a benefit, or create a right, under a misapprehension or in ignorance of the existence or effect of a former law, which extended a greater benefit, or created a greater right, than that provided by the new law; the first law is not repealed or affected by the last, so as to limit or abridge the right or benefit, so as to restrict it within the limits of the last law, unless there are restrictive words showing an intention, that no greater right or benefit shall be enjoyed than is provided in the last law.
    A law is not repealed by implication, where the legislature had no design to repeal it, unless the provisions of the new law show an intention, that such provisions as are contained in the old law, should no longer continue in force.
    In this State, where a man dies intestate, leaving a widow but no descendants, the widow inherits, as heir of the intestate, one half of the real and all of the personal estate of which her husband died seized, which shall remain after the payment of his debts, and she is also entitled to her dower.
    The 15th section of the 34th chapter of the Eevised Statutes, does not repeal any portion of the 46th section of the 109th chapter.
    This bill was filed by the complainants against the defendants below, at the May term, 1848, of the Boone Circuit Court. At the December term-, 1849, the case was brought to a hearing upon pleadings and proofs, Henderson, Judge, presiding, and was taken under advisement till the April term, 1850, when a decree was entered declaring the complainants, as the heirs of Mary Tyson, the widow of the intestate, to be entitled to' one half of the real estate of which the intestate died seized; and the defendant below, William Tyson, to be entitled to the other half, and appointing -commissioners to make partition of the premises, who, at the December term, 1850, reported the division which they had made, which report was approved by the court, and a final decree entered accordingly. To reverse these orders and decrees, the defendants below have brought the record here by writ of error.
    The opinion of the court contains a sufficient statement of the facts of the case for a full understanding of the questions decided.
    F. Burnap, and W. T. Burgess, and G. W. Kulsinger, for the plaintiffs in error.
    A. C. Fuller and J. Marsh, for the defendants in error.
   Catón, J.

On the 17th of September, 1846, Isaac Tyson, of Bonne county, departed this life intestate, leaving Mary Tyson, his widow, and William Tyson, an only brother, who resided in England. He left neither children nor the descendants of children. No administration was taken out upon the estate, but the widow paid the debts out of the personal estate. He left a considerable real estate situated in Boone county. On the 16th of August, 1847, Mary Tyson departed this life intestate, leaving the complainants her only heirs at law. The bill alleges that Mary Tyson did not, during her lifetime, elect to take her dower in the premises of which her husband had died seized, nor did she in any way relinquish her inheritance therein, but elected to take by inheritance. The bill also claims that she did, upon the decease of her husband, inherit one half of the real estate and all of the personal estate of which he died seized. The complainants claim to have inherited one half of the real estate from Mary Tyson, and the bill seeks a partition of the premises according to the respective rights of the parties. A decree was entered according to the prayer of the bill, and the case is brought here by William, the only brother of Isaac Tyson, deceased, claiming to have inherited all of the real estate of which his brother died seized, subject only to the right of dower in the widow. There is no question of fact controverted in the case, except as to an alleged election made by the widow to take by inheritance one half of the real estate. Upon this point, therefore, it maybe proper to advert more particularly to the evidence.

Mr. Burgess, an attorney at law, testifies that in February, 1847, he was consulted by Mary Tyson in relation to her late husband’s estate, and that he prepared for her a letter addressed to the defendant, William Tyson, and also a power of attorney for him to execute, authorizing some one to act for him in relation to his interest in the said estate. These he gave to Mrs. Tyson, who took them away with her. The testimony of Mr. Neely shows that he mailed this letter to Liverpool, the place of residence of William Tyson, to whom it was directed, together with one written by him and signed by Mary Tyson to her brother-in-law on the same subject, inclosing also the power of attorney prepared by Mr, Burgess; and it satisfactorily appears in the record, that this package was received by Mr. Tyson in the due course of mail. In the letter which Mr. Burgess wrote, he professed to act as the legal adviser of Mrs. Tyson. It states that Isaac Tyson died seized of the real estate situate in Boone county, of which. a description was sent; that he died intestate, leaving a widow but no descendants; and that in such case, by the laws of this State, the widow inherits one half of the real and all of the personal estate, and that William Tyson, the only brother of the deceased, would inherit the other half of the real estate. ■ It also states that by the laws of this State aliens may inherit and hold lands. It suggests that William Tyson may wish to dispose of his interests in the premises, or, at any rate, that they should be divided; and points out the course, which he should pursue, should he desire to do so. The record does not contain a copy of the letter which Mr. Neely wrote for Mrs. Tyson to her brother-in-law, but in his testimony he gave the substance of it without objection. Mr. Neely states that the letter which he wrote contained in substance the same as that of Mr. Burgess. He says, I wrote to him, in this same letter, that she wanted her half of the land in controversy, which half she was entitled to. Also, in substance, that she was entitled to one half of the land, and he to the other half; and if he was disposed to give her the other, half of the land, the papers showed how it was to be done.”. No proceedings were ever instituted in any court by Mary Tyson for the purpose of making any election, nor for any other purpose, from which an election in that mode might be inferred ; but if it was competent for her to make an election in pais, I think' the proof clearly shows that she did make such election with sufficient distinctness. She wrote to the other heir, that she wanted her half of the land.” By this she certainly expressed to him, who was the only other person interested, that it was her determination and design to take, have, and enjoy one half of the land of which her husband died seized, without, it is true, manifesting a design of relinquishing her dower; for that land was the subject of both communications, and I am of opinion that if the widow was bound to elect to take one half of the land, to entitle her to hold it, that such election or choice might"be made in pais, and that here is sufficient evidence of such election, which was brought home to the party to be affected by the election, and who was entitled to the other half. I can see no necessity for the expense and delay of a formal proceeding in court against a party out of its jurisdiction and resident in a foreign country, for the purpose of signifying to him who alone could be interested in the fact, that she intended to take one half of the estate, when a direct communication to him in a tangible form, which she could not afterwards contradict or retract, of her intention and choice, had been given. Such a notice would sub-serve a much more beneficial purpose to him than would the mere imaginary notice of a proceeding in some court, of which, in all human probability, he would know nothing. If she must make her election by some legal proceeding, it may well be asked, whether the Circuit or the Probate Court is the proper forum, or in what court she should proceed ? — what sort of a suit shall be instituted?—shall it be in chancery or at common law ?—who shall be made parties, and how shall they be brought into court? I confess that I should feel unable to give safe advice on these questions.

But we think the rights of the widow stand upon higher grounds than that of any election, and upon those grounds we choose to place our decision.

The forty-sixth section of our statute of wills, which is a reenactment of the forty-third section of the act of the 23d of January, 1829, provides as follows: “ When there shall be a widow, and no child or children, or descendants of a child or children of the intestate, then the one half of the real estate and the whole of the personal estate shall go to such widow, as her exclusive estate forever, subject to her absolute disposition and control, to be governed in all respects by the same rules and regulations as are or may be provided in cases of femes sole.” This is a part of the section which regulates the course of descent in this State; and by it we all agree the widow is made the heir of the husband, from whom she inherits the one half of the real and the whole of the personal estate. Upon his decease, the title immediately vested in her, as much, and to the same extent, as did the other half in the other heirs, and this, too, without any act or even volition on her part. Nor was her right to dower in the other half in the least thereby impaired or abridged; for the last words of the section are, saving to the widow, in all cases, her dower, as provided by law.”

That such are the provisions of the old law is too plain to require the least discussion; and the only remaining question that we shall examine is, whether this provision has been repealed by the fifteenth section of the thirty-fourth chapter Rev. Stat., entitled “ Dower.” That section was first introduced into our law in the revision of 1845, in which was reenacted the statute first quoted, in the 46th section of chapter 109 Revised Statutes, entitled “ Wills.” The 15th section of the dower act is as follows: “ If a husband die leaving a widow, but no children nor descendants of children, such widow may, if she elect, have, in lieu of her dower in the estate, of which her husband died seized, whether the same shall have been assigned or not, absolutely in her own right, as if she were sole, one half of all real estate which shall remain after the payment of all just debts and claims against the deceased husband. Provided, that, in case dower in such real estate shall have been already assigned, she shall make such new election within two days after being notified of the payment of such debts and claims.” • That this section was introduced into the Revised Statutes under a misapprehension as to what the widow’s rights were, as secured by the former law, there can be no doubt. The manifest object of this law was to extend the rights of the widow, and not to curtail them, which would be the case should this be held to repeal the former law, and to contract thetn within the limits- here prescribed. This section was introduced with the evident intention of benefiting the widow, and not for the purpose of injuring her. The phraseology in which the provisions of this section is expressed shows that it was enacted for the benefit of the widow, and that the legislature supposed1 that, without it, her rights were more limited than with it. The provison is, that she “ may, if she elect, have, in lieu of dower,” &c. Now here, it will be seen, that affirmative action on her part is made necessary to give effect to the law, or to put it in operation, with the manifest expectation that the advantages presented in the law would be sufficient, in certain cases, to prompt the widow to make the election; and that, when she did not think it to her advantage to make the election, or rather “ such new election,” her rights were to be determined by the law as it stood before. The proviso speaks of a new election, which presupposes a previous election to have been made to take dower, by which it was manifestly supposed she would have abandoned or relinquished her inheritance. Whereas, as we have already seen, that she was entitled to dower and the inheritance; nor was any election or other affirmative action, on her part, required to secure to her these rights, but they were cast upon her by force of the law itself. Nor does the 15th section of the chapter concerning dower make any allusion to, or provision concerning, the personal estate, the whole of which she inherits under the law of 1829, which was manifestly overlooked in the adoption of the new law. Had it been the intention of the legislature to deprive the widow of this or any other right already secured to her, they would have clearly expressed it by affirmative provisions, and not left it to doubtful implication. The provisions of the fifteenth section are not, that she shall have no more than is therein provided for her; but, in the event she elects to take it, she shall have that much. Supposing that there was no law authorizing the widow to take both dower and one half of the .real estate, and apprehending that she might, under the erroneous supposition that there were debts to exhaust the estate, improvidently elect to take dower, which would be unaffected by the debts, instead of the one half of the real estate which would be left after the payment of the debts, this provision was inserted, authorizing her to determine which she would take, after she was enabled to determine, upon the settlement of the estate, which was most valuable to her. Believing that, as the law then stood, sound policy required affirmative legislation to extend the widow’s rights, the law was passed granting her this much, when it is by no means certain that, had the extent of her previous rights been fully understood, that the legislature would have felt called upon to take from her what had been previously secured, and limit her rights to what was then affirmatively granted. We ought not to hold, unless compelled by some inflexible rule of law, that the legislature have undesignedly repealed the former law, and thus unintentionally abridged the widow’s rights, when it was their design to extend them. In this statute there is no repealing clause, nor any expression manifesting any design to repeal or limit any former law; and we ought not, in such a case, to hold that there was a repeal by implication. When we hold a statute to be repealed by implication, we do it as much in obedience to legislative will as where it is repealed by an express provision to that effect. The mere supposition .by the legislature, to be inferred - from a law which they have passed, that the' previous law is different from what it in truth is, does not make the law as they supposed it was, or different from what it was in truth. Because there was no intention to repeal the former law; and because there was no affirmative provison of the new law, which could not stand while the old law continued in force, there'was no repeal of the old law, the provisions of which the legislature had overlooked. This principle is illustrated in the opinion of Lord Chief Justice North and the other judges, in answer to a question put to them by the Privy Council, reported by Sir Thomas Raymond, at page 397. There a perpetual law had been passed, granting certain revenue out of strong liquors; and subsequently another law was passed, granting the same' revenue for two years ; and it was held that the last law did not repeal the first, but that the latter continued after the expiration of the former. “According to the case of the prices of wine, Hob. 215, where, by 37 Henry 8, chap. 23, a perpetual law was made for settling prices of wine; then, by the statute of 5 Edward 6, the said perpetual act (through the inadvertence of parliament) was continued, amongst other acts, till the end of the parliament, which continuance was resolved to be idle as to that act; for an affirmative continuance of a perpetual statute cannot work an abrogation thereof.” The copy of Hobart which we have does not contain a full report of this case, but this reference to it may undoubtedly be relied upon; and it is certainly a very strong case against a repeal by implication, where the legislature acted in ignorance of the provisions of the former law; for, by exj pressly providing that the old law should continue to the end of the parliament, a pretty strong implication is raised, that they did not intend that it should continue longer. But, as the new law was designed to extend the provisions. of the old one, it should not be held to restrict them. But we have a very strong case in our own reports, showing that a law passed under a misapprehension of the provisons of a former law, does not change or control the construction of the former law, and that, too, when the new law was of the highest and most obligatory character — the State Constitution. I refer to the case of Boon v. Juliet, 1 Scam. 258. By virtue of the territorial laws, the owners of slaves were authorized to introduce them into this territory, and hold them to service here, by registering those under the age of fifteen years with the clerk of the Circuit Court; but those over that age were required to enter into indentures with the master before the same clerk, and in case of their refusal to do so, the owner was allowed a certain time to remove them from the State. And the territorial laws further provided, that children born of registered servants should serve the owners of the mothers, — males till the age of thirty, and females till the age of twenty-eight years. No provision, however, was made subjecting the children of registered servants to any period of service whatever.. Thus stood the law at the time of the adoption of our first Constitution, in 1819. The third section of the sixth article of that Constitution declared, that both the registered and indentured servants should serve out the time appointed by their contracts of indenture, or the laws under which they were registered; but it provided, that children thereafter born of either class of servants should become free, — the males at the age of twenty-one years, and females at the age of eighteen years. Although here was a pregnant inference, that it was the design of those who framed and of those who adopted that Constitution, that the children of both classes of parents should serve the owners of their mothers till the ternfwhen the Constitution provided that they should become free; yet it was held that, as the Constitution was framed and adopted under a manifest misapprehension of the preexisting laws, it should not be so construed as to subject the children of registered servants to the term of service contemplated in the Constitution; and this, upon the ground that the provision in the Constitution was designed to favor the children of registered and indentured servants, and that it should not be construed so as to prove prejudicial to them. The court said, “ it was intended by the framers of the Constitution as a limitation on the supposed preexisting right of the master to the service of the children of registered servants for a greater period of time, and designed as an exception in favor of such children, founded, it is true, on the mistaken supposition that, under the territorial laws, they had been subjected to a greater period of service; and not as creating a liability to service, and rendering a class of persons, evidently free at their birth, the subjects of a laborious and extended period of servitude. It is most manifest, that this proviso was framed under such a view, and intended as a mere limitation on the imagined right of the master to the service of the children.” It must be remembered, that it had already been decided, in the case of Phebe v. Jay, (Breese, 207,) that it was competent for the State Constitution to reduce freemen to a state of slavery; so that it was as competent for the convention to make slaves of the children of registered as of indentured parents; and that the only question before the court was one of construction, and not of power. The words of the Constitution under consideration were: “ The children hereafter born of such persons, (indentured or registered servants,) negroes or mulattoes, shall become free, — the males at the age of twenty-one years, and the females at the age of eighteen years; ” and it was held that this did not make them slaves, although it was competent for the Constitution to make them so, and although it was the manifest expectation, not to say intention, of the convention, that the children of both classes of persons should be equally bound to serve the prescribed time. But this expression of intention was made under the misapprehension of the existing rights of the subjects of the provision, and with the design of relieving them from a supposed existing burden, and not with the design of inflicting a servitude upon those who were already free.

So, in the case at the bar, the legislature adopted the fifteenth section of the dower act, evidently under a misapprehension of the extent of the rights already guaranteed by law to the widow, and with the design of extending and not abridging them. This is as manifest from the reading of the act as if it had stated in a preamble that, in the opinion of the legislature, the rights of widows in certain cases were too restricted; and that it was just and proper, in such cases, that, thereafter, the rights of the widow should be so extended as to allow her to elect to take, instead of her dower, the one half of the real estate of which her husband died seized, and which should remain after the payment of the debts, and that she should have a reasonable time after the settlement of the estate to make such election; and, in that case, the body of the law would as clearly indicate, as it now does, the intention of the legislature, to prescribe the limits of the widow’s rights. It is true, that such a preamble might be resorted to, to aid in the construction of the law; but it is only for the purpose of ascertaining what considerations moved the legislature in its passage; and when those considerations can as well be ascertained from the body of the law, they are entitled to the same influence in its construction as if they had been stated in a preamble. In construing a statute, we must consider the mischief designéd to be repressed, and the remedy intended to be given, and should so construe it as to repress the mischief and to advance the remedy, and not so as to increase the mischief and retard the remedy.

In the case of the servants already referred to, while the convention, supposing they were bound to serve their masters from twenty-eight to thirty years, thought best, instead of abolishing the service altogether, to cut it down to eighteen or twenty-one years; it by no means follows that, had the convention been aware of the fact, that they were bound to no service, they would have imposed one, to the same extent to which they were willing to allow a supposed existing service to continue. So, in the case of the law fixing the price of wine, — supposing that the law would expire sooner, parliament was willing, when called upon to act affirmatively, to extend it to the end of the parliament, yet it did not follow that, had the lawmakers observed that the law was already perpetual, they would have been willing to limit its operation to the same term to which they affirmatively extended it. And the same remark may be made in the case of the revenue granted out of strong liquors. So, in this case, while the legislature, feeling called upon to extend the rights of the widow, were only willing to go so far as to allow her to take, in lieu of dower, a certain portion of the husband’s estate absolutely; it by no means follows that, had they been aware that, by the existing laws, she had even greater rights than this proposed to be secured, they would have been willing to abridge those preexisting rights to the measure prescribed in the law which did pass under a misapprehension of those previous rights. The legislature will often refuse to take away existing rights, which they would not be willing to grant if they did not exist. The legislature may, no doubt, take away rights of the existence of which they are not aware ; as if, in this case, they had said, the widow shall have so much, and no more; but there would have been a manifest intention either to abridge or to extend, as the case might be, and to fix the rule of right irrespective of previous provisions. We have an example of this in the 9th section of the dower act, which provides that, where a jointure has been provided for a wife, in lieu of dower, she may elect which she will take, “ but she shall not be entitled to both.” But here, the legislature have granted the widow certain rights which she already possessed, but have not said she shall have no others. As in the case of the children of the registered servants, and the other cases referred to, the design of the law was to confer a benefit; and it should not be so construed as to work an injury, there being no restrictive words cutting off other rights than those granted.

But, should we take a different view of this subject, and find an intentional conflict between these two sections, found in different chapters, the rule of construction prescribed by the Revised Statutes would lead to the same practical result, admitting, as insisted by the defendants, that no election was made. The 23d section of the 90th chapter provides as follows: “ If the provisions of different chapters of the Revised Statutes conflict with or contravene each other, the provisions of each chapter shall prevail as to all matters and questions growing out of the subject-matter of such chapter.” The 109th chapter of Revised Statutes, entitled “ Wills,” embraces the whole subject of the disposition of estates of deceased persons, whether testate or intestate, except only the subject of dower, which is provided for in the 34th chapter, entitled “ Dower,” which treats of that subject alone, except where others are incidentally introduced as inseparably connected with dower. The subject-matter of this suit is the inheritance, and not dower, and, therefore presents a question growing out of the subject-matter of chapter 109; and by the rule, as above quoted, we are required to adopt the rule of right, which is given in the 46th section of that chapter, and are not allowed to adopt a rule to be found in another chapter, treating of another subject-matter. By the rule prescribed in the 46th section, the widow inherited the one half of the real and the whole of the personal estate, with the right of dower in the remainder of the real estate. When called upon to determine a question of inheritance, it is plainly written that it shall be determined by this rule. Were this suit for dower, then, according to the above rule, we should look to the provisions of the 34th chapter for the governing rule ; and, by the 15th section of which, she would be entitled to dower without any election whatever, which would accord with the provisions of the 46th section of the 109th chapter, where the subject of dower is incidentally mentioned, merely for the purpose of declaring, that the taking of the rights previously granted in that section should not deprive the widow of the right of dower. In the absence of an election, which the defendants insist has not been made in this case, the widow is entitled to dower, which it is said shall govern when a question as to the right of dower is depending; and which would also be the rule under the statute of wills. Under the same circumstances, is she entitled to her inheritance by the statute of wills, which is required to govern when a question of inheritance is involved. So we see, that by adopting the rule of construction given in the Revised Statutes, we arrive at the same result, and leave the 15th section of the dower act without any practical operation different from that given in the other law.

But we choose to place our decision on what we consider higher and more substantial grounds, and hold that, as the last act was passed under a misapprehension of the rights of the widow, already secured under existing laws, and with the intention of conferring more rights than were supposed already to exist, the legislature have not, without intending so to do, repealed or restricted the operation of the former law. The old law remains unaffected by the new, and according to its provisions the rights of the parties must be enforced. The widow inherited one half of the real'and the whole of the personal estate of her deceased husband, which remained after the payment of his debts, as her individual and absolute estate; and as such, upon her decease, it descended to the complainants, who are her only heirs at law, according to the provision of our statute regulating descents. Such was the decree of the Circuit Court, which must be affirmed. Judgment affirmed.

Treat, C. J., dissented.

       I have, on former occasions, declined assenting to this principle, and am not now to he understood as approving it.


author: Treat, C. J.

text:
    Elihu Granger, Appellant, v. The Board of Trustees of the Illinois and Michigan Canal, Appellees.
    APPEAL EEOM COOK.
    A party who leased improved canal lots from the canal commissioners in 1841, and made reparations and improvements thereon prior to the 1st of December, 1842, has not a right to purchase the lots at their appraised value, under the provisions of the 13th section of the act of the 21st of Eebruary, 1843, and the 2d sect, of the act of the 4th of March, 1843.
    This cause was heard at the May term, 1851, of the Cook Circuit Court, before H. T. Dickey, Judge. The bill was dismissed, and an appeal taken to this court.
    The facts of the case are fully stated in the opinion of the court.
    ■ E. W. Tracy, for the appellant.
    N. H. Purple & E. C. Darned, for the appellees.
   Treat, C. J.

This was a suit in chancery, brought by Elihu Granger against The Board of Trustees of the Illinois and Michigan Canal. The bill was filed in May, 1849, and alleged, in substance, that complainant, in May, 1841, took possession of lots two, three, four and six, in block four, in the original town of Chicago, and has ever since had the exclusive possession of the same; that during the spring and summer of that year, he built a soot-house on lots three and four, also a large wooden building on lots two and three, and placed therein an engine and other machinery, and put in operation a foundery and finishing shop, also a building of wood on lot two, and put two forges therein, and has since used it as a blacksmith’s shop; that during the year 1841, he put lots three and four in cultivation, and has since continued to cultivate the same; that he inclosed lot six, which he has since used as a yard for horses, and for stacking hay and piling lumber; that he took up his residence on lots three and four, in 1841, and resided there till 1847, since which time he has used the dwelling-house standing thereon, as a boarding-house for his workmen; that prior to December, 1842, he built a large out-building on the lots, an addition to the stable, an out-door oven, an aqueduct to the soot-house, repaired and painted the dwelling-house, added a portico and kitchen thereto, made new fences, and sunk a well and constructed an aqueduct from the river to the same; that he entered on the lots with the intention of becoming the purchaser thereof, and has expended large sums of money in making permanent improvements thereon; that the lots form a part of the lands granted by the United States to the State of Illinois, to aid in the construction of the Illinois and Michigan Canal, and were included in the grant made by the State to the board of trustees, and have been appraised at the sum of $11,450; that complainant has the right to purchase the lots at their appraised value, by virtue of the 13th section of the act of the 21st of February, 1843, and the 2d section of the act of the 4th of March, 1843; that, on the 10th of May, 1849, he made application to the trustees to purchase the lots, presented full proof to his right of preemption, and tendered the amount of the appraisement, but the trustees refused the application, and are about to sell the lots at public auction. And the bill prays, that the trustees may be compelled to convey the lots to the complainant, on payment of the appraised value. An injunction was granted, restraining the trustees from otherwise disposing of the lots.

The answer admits, that the lots are a part of the canal property, and were appraised at the amount stated; that complainant entered into possession of the lots in 1841, and has since retained possession of the same, and made improvements thereon ; that he applied to purchase the lots, and offered to pay the appraised value ; and that the application was refused, and the trustees intend to sell the lots at public auction.

The answer alleges, that in the year 1835, the canal commissioners, at an expense of $2,500, inclosed the lots with a substantial fence, put up two stables, and erected a canal office, and that the same were used for canal purposes, until November, 1837; that the commissioners then rentéd the premises to H. L. Rucker, who occupied them till 1841 ; that the complainant then acquired the possession of the lots, with the permission of the canal commissioners, under an agreement to pay them rent therefor; that in September, 1845, complainant leased the premises of the trustees for two years, at an annual rent of $225; that he paid a portion of the rent, and the trustees have recovered judgment against him for the balance of the rent at that rate, up to the 26th of June, 1849; that complainant received the possession of the lots as tenant, and continued in possession as such, and made the improvements for his temporary conven- • ience, and for the purpose of carrying on his business; and the answer denies that complainant went into possession with a design of becoming the purchaser of the lots, or that he has any right of preemption to the same. There was a replication to the answer.

It appeared, in evidence, that, in 1835, the canal commissioners inclosed the lots with a substantial board fence, and erected a house and two stables thereon; the house was used for a canal office, the stables for the canal horses, and the other parts of the lots for a garden and pasture; the premises were thus used for canal purposes until November, 1837, when the canal office was changed to Lockport, and. the lots were leased to H. L. Rucker, who occupied them as tenant till 1841; the improvements on the lots were then worth about $1,000.. Rucker made' repairs and improvements at the cost of $150. In 1841, the complainant rented the premises from the canal commissioners, and went into possession of the same, which he has ever since retained; prior to November, 1842, complainant, at an expense of about $1,500, made various improvements on the lots, consisting of a blacksmith’s shop, in which were two forges and a vice-bench, a coal-house, a soot-house, a large building for a foundery and machine-shop in which was a steam-engine on a stone foundation, a well and aqueduct connecting it with the river, some new fencing, a porch and kitchen, a side-walk, and repairs, painting, plastering and papering of the canal office, which he occupied for a dwelling-house ; since that time he has resided on the premises, and carried on his business there. He executed the following paper: Jacob Fry, acting commissioner of the Illinois and Michigan Canal, is hereby authorized and requested to take out of the back money due on section forty-six of said canal, or any other money due for work on said section, the sum of two hundred dollars, which sum is for rent of the old canal office at Chicago, up to the first of November, 1843. Loekport, Nov. 11th, 1843. Elihu Granger.” On the 4th of September, 1845, a lease was executed by the trustees and complainant, by the terms of which the trustees leased the lots to complainant for two years from the 26th of June, 1845, and complainant agreed to pay them an annual rent of $225, in half-yearly instalments. The lease contained this stipulation: “ And it is expressly understood, that the party of the second part does not hereby waive any preemption right he may have in the above premises or any part thereof.” The first half-year’s rent was paid when due, and judgments have been recovered for all of the rent due at that rate up to the 26th of June, 1849, part of which have been paid.

On the final hearing of the case, the Circuit Court dissolved the injunction, and dismissed the bill; and the complainant prosecuted an appeal to this court.

The 13th section of the act of the 21st of February, 1843, is as follows : “ Provided, that in all cases where improvements were made upon the said canal lands or lots, previous to the first day of February, eighteen hundred and forty-three, the owner of such improvements shall be entitled to purchase the said lands or lots on which said improvements are situated, at an appraisement to be made as aforesaid, without reference to said improvements.”

The 2d section of the act of the 4th of March, 1843, provides, that “Any settler on canal lands who has not made his improvements previous to the first day of December, 1842, shall not be entitled to the preemption rights granted by the provisions of an act for the completion of the Illinois and Michigan Canal. Approved, February 21st, 1843.”

In our opinion, these provisions must be so construed as to apply only to cases where persons entered on vacant and unappropriated canal lands, and made valuable improvements thereon prior to the first day of December, 1842. It is indeed, immaterial, whether a party entered as a trespasser or under a license from the canal commissioners. But he must have acquired the possession for the purpose of making a settlement on the land, and with the intention of purchasing the same when it should be offered for sale. Such a party could properly be considered as a settler, and the owner of the improvements put upon the land. The right of preemption is confined to settlers and owners of improvements. The term settler, denotes one who has personally, and in his own right, occupied and improved canal land, or caused it to be occupied and improved by another for his benefit; and the term owner applies not only to a settler, but to one succeeding to the rights of a settler, by the purchase of his improvements. The sole object of these provisions was to secure to the settler or his assignee the benefit of the improvements, by allowing him to purchase the land at a valuation made irrespective of the improvements. He has the privilege of purchasing the land on which his improvements are situated for what it would be worth, if no settlement had been made upon it. This was the entire scope and design of these provisions. And no broader construction was given them, in the case of The Trustees v. Brainard, 12 Ill. 487. It was not the intention of the legislature, that a party should acquire a right of preemption to lands set apart; or reserved for canal purposes. Nor was it intended, that an agent or servant of the State, intrusted with the possession of improved canal lands, should be permitted to purchase the same at the appraised value, and thereby obtain the benefit of improvements made at the expense of the canal fund, as well as the advantage of an increase of value beyond the appraisement, merely because he had made repairs or put improvements on the property for his own convenience. Nor was it designed, that a lessee of improved canal lands should accomplish the same result, because he had made reparations to the demised premises, or put fixtures or other improvements thereon, for purposes of trade or manufacture. It was the settled purpose of the legislature, that the canal lands should be exposed to sale at public auction, so that the State might realize the full benefit of any advance upon the appraisement. And that is the only mode in which canal lands can be purchased, except where a right of preemption exists in favor of a settler or his assignee, as before indicated. This right to purchase at the appraisement, forms the only exception to the general mode of disposing of the canal lands; and a party claiming the right, ought clearly to show that he is within the exception. It remains to be considered, whether the complainant occupies such a position.

As early as the year 1835, the lots in question were set apart for canal purposes. The same were improved by the canal commissioners, and occupied by them until the canal office was removed from Chicago. Although the lots, were no longer actually used for canal purposes, the improvements were not abandoned or relinquished by the commissioners. On the contrary, they leased the premises to Rucker, and received compensation for the use of the improvements. The improvements made by him became the property of the State, inasmuch as he did not remove them before he gave up the possession. In 1841, the complainant leased the lots from the canal commissioners, and from that time he occupied them as tenant, paying rent therefor. In a legal sense, his possession was the possession of the State. He did not occupy the premises in his own right, but as the tenant of the State. Under these circumstances, he made repairs for his own convenience, and erected additional improvements, for the purpose of carrying on his business. He made the reparations and improvements, as the lessee of the lots, and not as a settler. Improvements put on demised premises by a tenant, to promote his convenience, or for the purposes of trade or manufacture, and which can be detached without material injury to the estate, may be removed by him during the term. If not removed before he surrenders the possession, they become the property of the landlord. The complainant made the improvements with reference to his right as a tenant to remove them, and not with the design of acquiring a right of preemption to the lots. And he may yet assert this right of removal before he quits the premises. He cannot be regarded as a settler on the lots, for they were occupied and improved long before he obtained the possession. Nor is he, in any sense, the owner of the improvements made by the canal commissioners and Rucker, for he never acquired any interest in them, by purchase or otherwise. These improvements have never been abandoned by the State, but on the other hand, have always been claimed and treated as part of the canal property, by the canal commissioners and their successors, the board of trustees. The complainant did not enter on the lots for the purpose of making a settlement, nor with the view of acquiring a permanent residence thereon. He obtained the possession of improved premises as a tenant, and for the purpose of a temporary occupancy only. He must rely on his right to take away the improvements erected by him, or trust to the chances of obtaining the lots at public sale.

The decree is affirmed. " Decree affirmed.


text:
    Luke Woods, Plaintiff in Error, v. John Devin, Defendant in Error.
    ERROR TO PEORIA.
    A common-carrier of passengers, by receiving the baggage of a traveller who has engaged his passage, becomes immediately responsible for its safe delivery at the place of destination.
    A common-carrier of passengers is liable for the loss of a pocket-pistol and a pair of duelling-pistols, contained in a carpet bag of a passenger, which is stolen out of the possession of the carrier.
    This was an action on the case brought by Devin against Woods in the Circuit Court of Peoria county. Atrial was had in that court May 20, 1852, which resulted in a verdict for the plaintiff. The facts of the case are fully stated in the opinion of the court.
    H. O. Merriman, for plaintiff in error.
    As to the liability of a common-carrier for the baggage of a passenger, see 9 Wend. 85.
    N. H. Purple, for defendant in error,
    Cited 1 Wheaton’s Selwyn’s N. P. 301, note 1; 10 Ohio R. 150; 9 Wend. 115; 2 Story’s C. C. R. 35; Story on Bailm. 362; 3 Watts & Serg. R. 25; 12 Metc. R. 47; 21 Wend. 354; Clark v. Spence, 10 Watts, 337; Brigham v. Rodgers, 6 Watts & Serg. 499; Laing v. Colden, 8 Barr, 481.
   Treat, C. J.

This was an action on the case brought by Devin against Woods. The declaration alleged, in substance, that the plaintiff, on the 7th of August, 1851, delivered on board the steamboat Governor Briggs, then lying at Peoria, and owned by the defendant and used by him in the transportation of passengers and freight on the Illinois River between Peoria and La Salle, a carpet-bag containing one case of duellingpistols, one pocket-pistol, and various articles of wearing apparel, of the value of $200, to be carried on said boat from Peoria to La Salle for a certain reward, and that the defendant received the same for the purpose aforesaid; yet the defendant, not regarding his duty in the premises, did not deliver the carpet-bag and contents at La Salle, but, on the contrary, lost the same. The plea was, not guilty.

It appeared, in evidence, that on the 7th of August, 1851, the plaintiff was about to take a journey from Peoria to the city of New York, and engaged his passage for La Salle in the steamboat Governor Briggs, then owned by the defendant, and run by him on the Illinois River between Peoria and La Salle for the conveyance of passengers and freight; that the plaintiff sent his trunk and carpet-bag to the boat as she was about to leave Peoria for La Salle, and the same were received on board by the direction of the defendant; that the plaintiff left the boat temporarily, and while absent on shore the carpet-bag was stolen and rifled of its contents, and the same were never recovered by him; that he did not proceed on Bis journey in consequence of the loss of the carpet-bag; that the plaintiff did not pay his fare for the passage, nor was there any express contract for the carnage of the trunk and carpet-bag; that the carpet-bag contained articles of wearing apparel of the value of $36, a pair of duelling-pistols of the value of $25, and a pocket-pistol of the value of $15.

The court refused to give the following instructions asked by the defendant: “ That if the carpet-bag was merely baggage as is usual for passengers to carry, and was designed as such by the plaintiff, the plaintiff cannot recover under this declaration, and the jury will find for the defendant. If the carpet-bag was for the purpose and use of carrying clothing, &c., the plaintiff cannot recover for the contents of the bag, except for such articles as are usually earned by travellers; and the jury are the judges whether or not the pistols mentioned are usually a portion of the baggage of a travelling gentleman, and if not, th'e jury will not allow any amount for the pistols.”

The jury found the issue in favor of the plaintiff, and assessed his damages at $73.75. The court overruled a motion for a new trial, and gave judgment on the verdict.

A common-carrier of passengers is responsible for the baggage of a passenger. His duty in this respect is the same as that of a common-carrier of goods; and he can only excuse himself for the non-delivery of the baggage of a passenger by showing that it was lost by the act of God or of the public enemy. His responsibility commences when the baggage is delivered to him or his authorized agent. The Camden and Amboy Railroad v. Belknap, 21 Wend. 354. His compensation for carrying the baggage is included in the fare of the passenger. The Orange County Bank v. Brown, 9 Wend. 85; Hawkins v. Hoffman, 6 Hill, 586. Prepayment of the fare is not necessary in order to charge the carrier for the loss of the baggage. The Citizens’ Bank v. The Nantucket Steamboat Company, 2 Story’s R. 16. He has a remedy by action on the implied contract of the passenger to pay the customary fare; and he has also a lien on the baggage, which he is not compelled to deliver until the fare is paid. Angell on Carriers, § 375; Story on Bailments, § 604. By not requiring the fare to be paid in advance, he relies for remuneration on the remedies indicated.

In the present case, the defendant was a common-carrier of passengers. The plaintiff engaged a passage to La Salle, and sent his baggage to the boat. The moment it was received on board the defendant became responsible for its safe delivery at the port of destination, loss occasioned by inevitable accident or the public enemies only excepted. The carpet-bag was stolen from the boat and never recovered by the plaintiff. Loss by theft is not within either of the exceptions to the risk of a common-carrier. The defendant is therefore chargeable with the value of the articles in the carpét-bag, unless they are not to be regarded as forming a párt of the baggage of a traveller. It is conceded that the articles of wearing apparel were properly baggage; and the only question is in respect to the pistols. What constitutes the baggage of a traveller, for the loss of which a common-carrier is liable, is a question of some practical importance, and one that has been much considered in reported cases. It is argued in all the cases that the term baggage includes the wearing apparel of the traveller. In the Orange County Bank v. Brown, supra, the trunk of a passenger containing $11,250 in money belonging to the bank was lost; and the bank sought to recover the amount of the carrier, on the ground that it was part of the baggage of the passenger. But the court decided that the money did not fall within the term baggage ; and that the attempt to carry it free of reward under cover of baggage was an imposition on the carrier. In Pardu v. Drew, 25 Wend. 457, where a trunk containing valuable merchandise, and nothing else, was taken on board of a boat by a passenger, and deposited with the ordinary baggage, it was held that the carrier was not chargeable for its loss. In Hawkins v. Hoffman, supra, it was decided that the term “ baggage ” did not embrace samples of merchandise carried by a passenger in his trunk for the purpose of enabling him to make bargains for the sale of goods. In Cole v. Goodwin, 19 Wend. 251, and Weed v. The Saratoga and Schenectady Railroad Company, Ib. 534, the court held that a carrier was liable for money in the trunk of a passenger not exceeding a reasonable amount for travelling expenses. In Jones v. Voorhees, 10 Ohio, 145, a carrier was made liable for the value of a gold watch lost from the trunk of a passenger. In McGill v. Rowand, 3 Barr, 451, the husband was permitted to recover of the carrier the value of his wife’s jewelry which had been taken from her trunk on the coach in which she was a passenger. In Porter v. Hildebrand, 2 Har. 129, the court held that a carpenter might recover from a carrier the value of tools contained with clothing in his trunk, which the carrier had lost, the jury having found that they were the reasonable tools of a carpenter.

The principle of the authorities is, that the term “ baggage ” includes a reasonable amount of money in the trunk of a passenger intended for travelling expenses, and such articles of necessity and convenience as are usually carried by passengers for their personal use, comfort, instruction, amusement, or protection ; and that it does not extend to money, merchandise, or other valuables, although earned in the trunks of passengers, which are designed for different purposes. And regard may with propriety be had to the object and length of the journey, the expenses attending it, and the habits and condition in life of the passenger. A more definite rule cannot well be laid down. The remarks of Benson, J., in Hawkins v. Hoffman, supra, are pertinent. He says, “ It is undoubtedly difficult to define with accuracy what shall be deemed baggage within the rule of the carrier’s liability. I do not intend to say that the articles must be such as every man deems essential to his comfort; for some men carry nothing, or very little, with them when they travel, while others consult their convenience by carrying many things. Nor do I intend to say that the rule is confined to wearing apparel, brushes, razors, writing apparatus, and the like, which most persons deem indispensable. If one has books for instruction or his amusement by the way, or carries his gun or fishing-tackle, they would undoubtedly fall within the term 1 baggage,’ because they are usually carried as such.”

We think the articles in question formed a part of the baggage of the plaintiff, and as such come within the risk of the carrier. They were not "carried for purposes of .sale or traffic, but for the personal use and protection of the passenger; and it is not unusual for such articles to be carried in the trunks of travellers.

There was no substantial variance between the declaration and the evidence. The declaration alleged that the defendant received the carpet-bag, to be carried from Peoria to La Salle for a reward. The proof clearly sustained the averment. It indeed showed in addition, that the plaintiff engaged a passage for the same destination, and that he had other baggage. But as the only cause of complaint against the defendant was the loss of the carpet-bag, it was not necessary to state the additional matter in the declaration, especially in an action on the case for the breach of the common-law duty of the carrier. It might perhaps be otherwise in an action of assumpsit on the contract of the carrier. See Weed v. The Saratoga and Schenectady Raihoad Company, supra.

The judgment is affirmed.

Judgment affirmed.


author: Mr. Chief Justice

text:
    John Allison v. I. N. Perry et al.

      Filed at Ottawa

      October 31, 1889.

    . 1. Chancery—consideration of testimony—presumption. Although the record of a chancery suit may contain much testimony that is irrelevant, it will be presumed, in the absence of anything showing the contrary, that the master and the chancellor acted only upon such as was properly admissible.
    2. Same—evidence—on exception to master’s report. A second deposition of a party, taken after the filing of the master’s report, is not competent evidence on the hearing of exceptions to such report.
    3. Same—production of documents—after examination before master —notice. Some months after the examination of one of the parties before the master, the other party moved the court to require the party so examined to produce certain letters, based on affidavit of materiality and want of copies: Held, that the motion was properly overruled. If the letters were admissible, notice should have been given to produce the same, and upon refusal to do so, secondary evidence of their contents would have been admissible.
    4. Partnership in lands—Statute of Frauds—relations between the partners. The law does not require that the agreement of co-partnership shall be in writing, to enable the firm to purchase lands. Where the partnership is formed under a parol agreement, it may be shown that its property consists of land.

      5. Partners may buy lands for the joint account of all, but the legal title need not be made to all. By consent, the title to land bought by the firm may be conveyed in trust, to one of the partners, and the partners not invested with the legal title can not, under the Statute of Frauds, defeat a note given by them to the other partner for their share of the price advanced for them.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Ogle county; the Hon. William Brown, Judge, presiding.
    John Allison filed his bill against I. N. Perry and M. D. Hathaway, setting forth, among other things, the purchase of about six hundred acres of land, known as the “O. J. Booth land,” by the three parties to the suit, in equal shares, and as partners, and charging that Perry promised the complainant to take into the partnership, as assets, the “Royal lands,” (about one hundred and ten acres belonging to him, Allison,) at $55 per acre, or as much of said land as Allison might be able to perfect the title'to, which was estimated'at something over one hundred acres; that the title to the Booth land was taken in the name of Perry and Hathaway, who advanced all the purchase money paid; that complainant gave his notes to Perry and Hathaway for his one-third of the purchase money, which were afterwards renewed January 8, 1883, the aggregate amount then being $5301.31, and bearing seven per cent interest; that he had taken title to the Royal land in the name of his son, W. S. Allison, and that ever since February 28, 1883, he has been ready and willing and able to convey said Royal land, and that Perry and Hathaway refused to accept said lands and give him credit therefor, and prayed for an accounting, and for a decree that the defendants pay him what is found to be due him from them or either of them, that said notes be cancelled and delivered up, and for general relief.
    The defendants filed their answer, admitting and averring the partnership and the purchase of the Booth land; averring the purchase for the partnership of the “Waters tract,” of three and one-half acres, in addition to the Booth land, but denying that the defendants at any time promised or agreed that the partnership should purchase, or that they would take into the co-partnership, the Boyal land, or any part thereof, as partnership assets; averred the making of the notes by Allison for his one-third of the first and second payments on the Booth contract, and the making of the new notes for the principal and interest on renewal of the old notes, one of said notes being for $5000, at six months, and the other for $301.31, at one day, both bearing seven per cent interest.
    At the time of filing their answer, the defendants filed their cross-bill against Allison, setting up the general dealing of the partnership, the property and assets by it owned, and praying for a dissolution of the partnership, the sale of its assets, and adjustment of partnership accounts. Each of the bills was amended by setting up the Statute of Frauds. Beplications were filed, and the cause referred, by agreement, to the master, to take proofs and state the account. The master filed his report January 11, 1887, finding that the partnership embraced only the Booth and Waters lands, and stating an account between the parties to December 6, 1886. Each of the parties filed exceptions to the report, which the court overruled.
    Allison e-xcepted to the report, first, because it did not find that he was to have eight per cent on $500 paid to one Thayer for an option, to purchase certain lands for the partnership, and on moneys advanced for expenses in testing lands, etc., instead of seven per cent; second, because it stated that Perry did not agree with Allison to take any of the Boyal lands, when it should, from the evidence, have found that he did so agree; third, and that part of the report wherein it is stated that “Allison finally accepted the proposal to form a partnership, as made by Perry to him, under the authority given him by Hathaway;” fourth, and to that part of the report that finds “the partnership at that time included nothing but the O. J. Booth land and the expenses incurred on account of the same; fifth, and also excepted to the allowance of $81.28 personal expenses paid by Hathaway, and of $96.75 personal expenses paid by Perry; sixth, because the report found that Allison agreed to take a one-third interest of the Booth farm, and failed to find that such agreement, if made, was void, under the Statute of Frauds, for want of any memorandum thereof in writing; and seventh, because the master allowed Allison no interest on the item of $400 for his services, allowed by the master. At the hearing he was allowed to file further exceptions, that the master had not properly charged Perry and Hathaway with certain notes in their hands at the time of filing said report.
    The court overruled each and all of said exceptions, and found that on December 6, 1886, there was due to the defendants from Allison, on account of advances in the purchase of co-partnership lands, and expenditures in the course of the partnership business, $5526.28, payable to Perry, and that there was due from Allison to Hathaway $6105.01, and allowed interest on said sum to the date of the decree, making the amount due from Allison to Perry $5891.87, and to Hathaway $6497.69. The court decreed a dissolution of the firm and sale of partnership assets, and directed the master to take an account of the rents and profits since December 6, 1886, and report the same with his report of sale. The decree also found there was, December 6,1886, due from Perry to Allison, on account of the business between them prior to the formation of the partnership, and disconnected therefrom, the sum of $452.57, which, at the date of the decree, amounted to $481.61; ordered the same to be set off and deducted, leaving the balance due Perry $5410.57, and ordered the same paid out of the proceeds of Allison’s share in the partnership property. Allison appealed to the Appellate Court for the Second District, whére the decree was affirmed, and he prosecutes this further appeal. Other facts necessary to the understanding of the case are stated in the opinion.

      Mr. S. C. Stough, and Mr. J. C. Seyster, for the appellant.
    Mr. William Lathrop, and Mr. M. D. Hathaway, for the appellees.
   Mr. Chief Justice

Shops delivered the opinion of the Court:

The principal question presented by this record is one of fact. We shall not undertake to review and analyze the evidence, which is very voluminous. It is enough to say, that we have given it careful consideration, and agree with the Appellate and circuit courts in their findings of fact. There is much of the evidence that is irrelevant, but it will be presumed, in the absence of anything showing to the contrary, that the master and the court below acted only upon such as was properly admissible under the issues.

The evidence is amply sufficient to show the formation of a partnership between the parties for the purchase of coal lands, and to develop the same with a view to profit. It is probably true that Allison expected that the Boyal lands, or as much as he might acquire good title to, would be taken in as assets of the firm, at $55 per acre, and he credited therewith, and it was doubtless in view of this expectation that he entered into the partnership. The title to the Booth land was, by mutual consent, taken in the names of Perry and Hathaway, to be held in trust for the firm, and it was so tre'ated by all the parties. Upon the first payment of $5000 made to Booth by Perry and Hathaway, Allison gave his note to them for his one-third part thereof, and when, in March, 1882, the second payment of $10,000 was made, he likewise made his note to Perry and Hathaway for one-third of that sum. On the 9th of January, 1883, Allison obtained a renewal of these notes, and gave to Perry and Hathaway his note for $5000, payable in six months, for the principal sum, and also his other note for $301.31, being for accrued interest on his former note, due ,one day after date.

There can be no question that Allison was an equal partner with Perry and Hathaway in the Booth lands. The principal point of contention, however, is, whether the Boyal lands, held by Allison, or any part thereof, were to be taken in as assets of the firm. Allison testifies that they were; Perry is equally positive that they were not. He claims that he had no authority from Hathaway to make any agreement to purchase the Boyal lands, and so informed Allison. If the agreement was as Allison contends, his giving his notes could only be accounted for upon the theory that he was to clear the title of record to the Boyal lands. This, it is apparent, was done before the execution of the notes given in renewal, as before mentioned. It will be seen that Allison claims that the title to the Boyal lands was clear before January 9, 1883. On that day he wrote a letter to Perry, in which he transmitted said renewal notes, which is as follows:

“Mr. I. N. Perry, Cashier, Rochelle, Ill.:

“Dear Sir—You will find note signed by me, $5000, and one for $301.31 int. one (1) day. We have had some hard luck with our B. B. work, and compelled to pay several thousand that we did not expect to, is why I don’t send draft for this interest. I hope you and Mr. Hathaway will take in our Boyal land, and if you will, it would help me out, and I am sure it is as good coal land as any of it, and as well, as some small pieces of the Boyal land is surrounded by the Booth land, and all is close enough, and will not lessen the value of the Booth land; then if you could fix it so I could only own one-fourth or one-sixth, I could get along with it. Please consider this.”

Shortly afterward, May 30,1883, he again wrote, directing to “Messrs. Perry & Hathaway,” as follows:

“Gents:—I wish you would do one of two things for me: either take my Boyal lands, or let me out as a partner with you on the Booth land. I am not in shape to pay my part unless you take in my land, and to pay interest will only make it worse for me. If there was no coal there I should not have asked you men to do either. Think of this, and let me know.
Truly yours, John Allison.”

If any doubts had before existed in respect of the partnership, or as to whether or not Perry and Hathaway had agreed to take the Boyal land of Allison into the partnership assets, they must be dissipated by these letters. If such a contract had in fact existed, it seems incredible that these letters should have been written. It is true that Allison testifies that he was induced to write them by Perry, with a view of hastening action on the part of Hathaway; but in this he is flatly contradicted by Perry, and would seem to lack corroboration from any other source. We are of opinion that the trial court was justified in its finding, and that no error has intervened in the affirmance thereof by the Appellate Court.

It is also assigned for error that the court erred in excluding the second deposition of Allison, taken after the filing of the master’s report. This deposition was not competent upon the hearing of exceptions to the master’s report. Cox v. Fierce, 120 Ill. 556.

gome ten months after Perry’s examination before the master, appellant moved the court to require Perry to produce before the master certain letters he had received from appellant, based on affidavit that the same had been written by Allison and mailed to Perry, that each of said letters contained material and relevant matter, etc., and that Allison had no copies thereof, which motion was denied. This ruling is assigned for error. If such letters were admissible in evidence, Perry should have been given notice to produce them, and upon his refusal so to do, secondary evidence of their contents would have been admissible.

The master, in allowing Allison seven per cent interest on the sums paid out by him, did not err. In this he was justified by the proofs and the averments of the bill and answer. The allowance of the personal expenses of Perry and Hathaway in looking after the firm business was. fully justified by the evidence.

It is also urged that the decree does not provide for the collection of notes due the firm for rents, one for $500, due October 1, 1885, and one for a like sum due January 1, 1886. The rent collected was reported up to December 6, 1886, only, and these notes' were not then collected. The decree approves the report of the master, provides for the collection of these notes, and the rents subsequently accruing, for the benefit of the firm, and requires the master to make report thereof. In this there was no error.

The law does not require that the agreement of co-partnership shall be in writing, to enable the firm to purchase lands. Where a partnership is constituted under a parol agreement, it may be shown that its property consists of land, and it may own, possess and enjoy the same. By consent of all the parties here, the title to the Booth land was conveyed to Perry and Hathaway, and was in fact held in trust for the firm, and the Statute of Frauds can not be invoked by Allison to defeat a recovery on the notes given by him to his partners for his share of the purchase price of the land. Wallace v. Carpenter, 85 Ill. 590; York v. Clunans, 41 Iowa, 95.

We find no substantial error, and the judgment of the Appellate Court is affirmed.

Judgment affirmed.