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    Samuel W. Lynn, appellant, v. David Lynn et al., appellees.

      •Appeal from Henderson.

    On the 18th of April, 1834, M., by a written proposition, offered to sell to S. W. L. a certain tract of land, upon certain specified terms, and allowed three months to decide upon the proposition. On the 26th of June, 1834, S. W. L. wrote to M., stating that his father, D. L., accepted the proposition, and signed the letter “S. W. L., for his father, D. L.” On the back of a copy of this letter, on the 19th of July, 1834, M. wrote and executed a covenant to convey the land to S. W. L., “in consideration of the within,” and “when he shall have fulfilled on his part the conditions of the said agreement, a copy whereof is hereto annexed.” This agreement was delivered to S. W. L., who made payments with money advanced by D. L., and took receipts as for money paid by D. L. S. W. L. took possession of and cultivated the land, D. L. residing with him till his death. D. L. died; S. W. L. paid the balance of the purchase money due upon the land, and the other heirs of D. L. then filed their bill against S." W. L. and M., alleging that the name of S. W. L. had been inserted by mistake in the contract of July 19th, 1834, instead of that of D. L., and praying for a partition of the land among the heirs of D. L., an account of rents and profits against S. W. L., &c. S. W. L., in his answer, under oath, denied the mistake, and averred that the money advanced for the land had been loaned to him by D. L., to secure the payment of which D. L. was to have a lien on the land : Held, that the averment, in the answer of S. W. L., as to the loan, was new matter, and being unsupported by proof, was not evidence; that the question for the Court to determine was, whether it was the intention of the parties that the sale and purchase should be for the benefit of D. L. or S. W. L.; that the legal construction of the letter of acceptance of the 26th of June showed a purchase by D. L., and this construction could not be explained by parol, no mistake in that letter being pretended; that the written instruments above named, as well as the parol testimony, show that the name of S. W. L. was inserted, by mistake, in the agreement of the 19th of July, instead of that of D. L., and that there was no error in the decree of the Circuit Court which directed a partition of the land among the heirs of D. L., that S. W. L. should account for the rents and and profits, that he should be paid for the lasting improvements made by him , and be refunded the purchase money paid by him since the death of D. L. with interest, and that M. should convey to the heirs according to their respective interests.
    Bill in Chancery, filed in the Henderson Circuit Court, by the appellees, as heirs of David Lynn, deceased, against the appellant, Samuel W. Lynn, a co-heir, and Stephen B. Munn, and heard before the Hon. Norman H. Purple.
    The bill sets forth in substance: that the appellant and appellees are heirs at law of David Lynn, deceased; that in 1832 Samuel W. Lynn came to Illinois from Connecticut and settled on a tract of Government land, as a squatter, and returned in 1833; that he persuaded his father David, deceased, to.remove to Illinois and purchase and settle on the S. half 1, 10 N. 5 W. of the fourth principal meridian, then owned by Stephen B. Munn ; that, influenced by Samuel, the father started, in the spring of 1834, in company with Samuel, and came through New York to ascertain of Munn the terms on which the land could be purchased by David, deceased; that Munn executed a written proposal, and allowed David, deceased, three months in which to accept or reject said proposal, which proposal was in the words and figures following: “Mr. Samuel W. Lynn may also have the S. 5 1, 10 N. 5 W., in the Military tract aforesaid, for nine hundred and sixty dollars, two hundred dollars cash down, the remainder payable by yearly instalments of one hundred dollars each, interest at the rate of six per cent, per annum on all unpaid at the payment of each instalment; I to give a contract to deliver a warranty-deed for same on payment of said seven hundred and sixty dollars, as aforesaid, with interest; money to be paid to Messrs. Tillson, Moore & Co., Quincy, Illinois ; Mr. Lynn to let me know if he takes the above sections in three months from this date.
    New York, April 18, 1834. Stephen B. Munn."
    That David was old, and left the business principally to Samuel; that the name of Samuel was inserted, instead of the name of David, in said proposition, by mistake, and without David’s knowledge, or for convenience, to permit Samuel to act as David’s agent; that in this Samuel acted merely as David’s agent; that the three months were given to enable" David to examine the land and determine whether he would purchase it: that on the 23th of June, 1834, Samuel wrote to Munn, for his father, as follows :
    “June the 26th, A. D. 1834.
    “Mr. Munn: Sir, my father has concluded to take the S. i 1, 10 N. 5 West and pay you as agreed when you send to Quincy a bond for a deed. Then your agent will send me a line and I will fulfill on my part. You ought not to be so hard with me as to charge me interest this year, for I have to sell the improvement to Jamison the same as I pay you for the lots for to keep peace with the Kentuckians and I shall get nothing from it this year. We all arrived safe ; my father enjoys good health, and the rest of us. The wood lot on the bluffs 36, 11 N. 5 W. is a poor lot and I do not want it. I think you could get $150. If you want to take this, please to write. One Elliott wants it for his farm.
    Yours, &c. Samuel W. Lynn,
    for his father David Lynn.”
    That on the 19th of July, 1834, Munn wrote a contract on the back of a copy of the above proposition, as follows :
    “In consideration of the. within, and in fulfillment of the agreement as aforesaid, I do hereby bind myself, my heirs, executors, administrators and assigns, to deliver unto the aforesaid Samuel W. Lynn a full and perfect warranty deed of Lot S. u 1, 10 N. 5 W. when he shall have fulfilled, on his part, the conditions of said agreement, a copy whereof is hereunto annexed. In testimony whereof I have hereunto set my hand and seal this nineteenth day of July in the year of our Lord one thousand eight hundred and thirty four.
    (signed) Stephen B. Munn. [seal.]
    Sealed and delivered in presence of John Tillson, jr.” That the agreement thus made was delivered to Samuel, who paid the first payment out of his father’s money, and as his father’s agent, and took a receipt from Munn’s agents— “Received of David Lynn by Samuel W. Lynn,” &c., &c.
    That in making out the agreement, Munn, by mistake, referred to the proposition of April 18th, instead of to Samuel’s letter of June 26th, and thereby made the contract to run to Samuel instead of David.
    That Samuel discovered the mistake, and requested Munn’s agents to procure another to be executed to David ; that accordingly Munn executed other articles running to David, and sent them to his agents at Quincy to be delivered, (.which articles are set out;) that David did not execute and accept the last mentioned agreement at that time, through the persuasion of Samuel.
    That Samuel made further payments on said lands witn David’s money, and took receipts in David’s name up to 20th August, 1840, when David died. That after David’s death, Samuel made payment of the balance of the purchase money with moneys belonging to David’s estate.
    That soon after the purchase, David and Samuel entered into possession of the land; David being a widower, and unable to attend to his own business, lived with Samuel as a member of his family, and permitted Samuel to attend to his (David’s) business. That Samuel, up to David’s death, always admitted that the land was David’s ; that he wrote to Munn’s agents, November 14, 1834, that the rents of the land were due to his father.
    That David Lynn made valuable improvements on the land; that Samuel has had the use of the land since David’s death, worth $640 dollars annually; that Samuel sold cattle, &c., belonging to David, and has not accounted for the proceeds.
    That in June, 1835, Ez'eldel and Samuel Lynn entered N. W. 11, 10 N. 5 W.; that David loaned Samuel $200, with which to enter the same; that on a partition thereof, Samuel had the east half; that in October afterwards, Samuel sold and conveyed said east half to David; that David retained the deed until his death; that David resided with Samuel on said east half, and made valuable improvements thereon; that Samuel got possession of said deed and still has it; that since David’s death, Samuel has enjoyed the use of this land to the value of $200 annually, and has mortgaged it to some innocent mortgagee.
    That David paid for Samuel $200 in Connecticut, which has not been repaid ; and that, on a settlement, Samuel will be found indebted to the estate several thousand dollars; that, at the time of the purchase of said land, Samuel was poor, and unable to purchase with his own means; that Munn has been willing to execute a deed to the heirs of David Lynn.

      Prayer; that Samuel be compelled to exhibit all papers in his possession, &c.; that an account be taken of the amount due the estate from Samuel, for moneys advanced, interest, rents and profits, &c., and a lien on Samuel’s part of the land for the amount found due; a partition among the heirs of the real estate according to their respective interests as heirs; and that Munn be required to convey according to the partition.
    The answer of Samuel W. Lynn admits he came from Connecticut in 1832; returned in 1833; that he advised his father to make the purchase and settle on the south half of one, ten north, five west, but his father, knowing that he had, at expense, &c. been to Illinois and ascertained the location of said south half, and that it could be purchased, &c., and he (David) being old, &c., and wishing to live with Samuel in preference to his other children, proposed to Samuel that he (David) would accompany him to Illinois and examine the location, and if he (David) thought Samuel had been judicious, &c. he (David) would assist Samuel in making the purchase, and reside with Samuel in his family, provided he (Samuel) would secure him (David) for the advances; which proposal Samuel accepted, and offered to give David a lien on the land purchased, until the advance should be settled either by the repayment of the money, or from the rents and profits of the land, and to these propositions they agreed. Denies that he ever otherwise advised his father to remove to Illinois. Says he did not come through New York to ascertain the terms of the purchase, for he knew the terms long before.
    Admits the written proposal of April 18, 1834, but denies that it was made or intended to be made to David; says he (Samuel) made the application to purchase of Munn; that the three months were allowed to him and not to his father, that he (Samuel) might have his father’s advice under the agreement between them, and his father’s aid if his father approved the purchase.
    Denies that he acted for David or under his direction; denies any mistake in the name inserted in said proposition of Munn, or that Samuel’s name was inserted without David’s knowledge for convenience; yet admits that he had his father’s advice in making the purchase according to the terms of the agreement between them; and generally denies all acting under his father except as aforesaid.
    Says that he concluded to buy S. é 1, and his father agreed to advance him money for that purpose, and that he should give his father a lien upon the land until it should be settled between them, or until David should donate the same to him (Samuel); that thereupon he (Samuel) wrote the letter of June 26tli to Munn; denies that he wrote said letter as the agent of David, or that thereby he intended to give Daxrid any right in the land further tiian a right to the lien aforesaid. He says Munn knew the agreement between himself and father, and that the first instalment was to be advanced by his father, and that he could not get this unless his father approved of the location, and therefore he xvrote to Munn that David had “concluded to take the land;” and that the words “and pay you as agreed when you send to Quincy a bond for a deed,” referred to the first payment, which David was to advance, as Munn knew; and in the letter Samuel for himself, promised to fulfill on his (Samuel’s) part the residue of the contract; and Munn, so understanding it, executed the bond of July 19th, to Samuel.
    Says Munn’s agents informed him, and not David, of the receipt of Munn’s bond; that David advanced the first payment to him (Samuel,) and that he (Samuel) paid it over to Munn’s agents, not as David’s money but as his own.
    Is not informed whether Mutm referred to the proposition of April 18th, instead of the letter of June 26th, in making the bond, but denies that he should have referred to the letter for that purpose, or that, if referred to, it would have authorized a bond different from the one executed; denies that there was any mistake about it, and that he (Samuel) ex?er discovered any mistake as charged, but he says that for the purpose of securing a lien to David for his advances, he did request Munn’s agents to procure a bond to convey the land to David on the payment of the purchase money; David agreeing that he would convey the land to Samuel or devise it to-him upon a settlement, and that this agreement would have been reduced to writing, but Munn never executed the bond.
    He is not informed about the articles of agreement set out in the bill, but Munn executed a deed to David for the land and sent a mortgage to secure $760, to be executed by David, but David refused to accept the deed or execute mortgage.
    Denies that any such articles as set out in the bill were ever executed or accepted by David.
    Admits that one reason of delay in executing the writings to David to secure David’s lien on the land was, that a part of the land was in possession of another, but the more weighty reason was, that such evidences of the contract as he ( Samuel) had requested, were never furnished, and this delay continued until David became content without any lien on the land.
    Admits the payment of money and the taking receipts therefor as charged, and says that the receipts were so taken to show David the amount of money paid on the land for which David had the right to require a lien; that these advances were settled for between him and David, and as evidence thereof these receipts were surrendered to him, (Samuel.)
    Admits that he has made the payments as stated since his father’s death, but denies that it was done with David’s money or money belonging to the estate, but says it was with his own money.
    Denies that his father entered into possession of the premises, but says he (Samuel) entered into possession, and his father resided with him as a member of his family; that his father was old and infirm and that he attended to his (David’s) business; that David had little to do; had some considerable stock, &c. which Samuel took care of, fattened, &c. boarded his father, &c. and insists on this as a set-off against all the advances; that the improvements were made by himself at a cost of $3-000.

      Denies taking any of David’s papers improperly.
    Denies admitting that the land was David’s.
    Admits the writing of the letter of Nov. 14, 1835, and still admits that the rents and profits belonged to David by virtue of the agreement between him and David, but in the same ■letter he claimed possession of the land in his own right.
    Admits that David advanced $30 to aid in making improvements; admits the premises at David’s death were worth $5000; admits that since David’s death he has had the use and occupation of the premises, and appropriated the rents and profits to the yearly value of $150, and that he received the rents and profits of the improvements from the time they were made to the time of David’s death, by the consent of Daxnd, having otherwise satisfied David for his advances of money.
    Denies selling David’s cattle in 1840; says they were his own; denies in like manner selling other property of David’s for his own benefit.
    Admits that he and Ezekiel in 1835 entered N. W. 11, 10 N. 5 W., yet only in this manner: they each entered one half of S. W. 11 by pre-emption, and thereby had a float for eighty acres each, which they located on the former quarter, and Ezekiel wishing to obtain Samuel’s float, David purchased Samuel’s float for Ezekiel for $100 — the money charged to be loaned by David to Samuel to enter said land; the assignment being made before payment to the United States.
    Denies that he ever conveyed the east half of 11 to David; that he ever delivered a deed therefor to David, and that he was ever paid any consideration for so doing.
    Denies that he was poor and unable to pay his expenses when he left Connecticut; admits he borrowed $200 on the credit of David in Connecticut; that David paid the note, and that one Coe paid the note to David, and sets up the limitation against demand for the money.
    Claims that a large amount of money is due from the estate to Samuel for things therein mentioned.
    Denies his dependence on David for means, but acknowledges he was accommodated with advances as aforesaid.

      Says David sold in Connecticut for about $2000; that out of this he paid debts about $100; paid expenses here, including complainant’s expenses, $300; that during his lifetime he advanced to his five children, or. their representatives, about $200 each, making $1000, and that he advanced to Samuel $888-63, which last mentioned sum has been settled except $204-80, against which he claims a set-off, and insists on the limitation.
    Says that at his death David had personal property to about the amount of $600, which should have come to the hands of his administrator.
    The answer further sets up that the administrator obtained a judgment against Samuel for $450, in an action of trover, and insists on the judgment as a bar against all rights which might have been tried in said cause.
    To this answer there was a replication.
    The following is an abstract of the depositions.

      Stephen B. Munn.

    Has seen David Lynn Sr. once, Samuel twice. Saw David in April, 1834, in Jersey city, on his way to Illinois. Saw Samuel in 1832 or spring of 1833, onthe subject of purchasing some land owned by me; in April 1834 saw him on same business; did not see them together; sold to David Lynn south half one, ten north, five west, for $960, $200 down, balance $100 annually with interest. Sold land in May or June 1834; don’t think he had any conversation with David Lynn about the land. In April 1834 wrote a proposition to Samuel to sell him the land; no -recollection -of-the exact words of the conversation, but has no-doubt the understanding was that David Lynn Sr. was to pay for the land and own it, and not Samuel W. Lynn, and I was to be informed in three months whether Samuel’s father-would take the land; received the letter of June 26th, and-thereupon forwarded the contract.
    Has no recollection about it, but has no doubt Samuel was acting for his father; he executed a contract to David Lynn for the land; giving a copy thereof of date 26th June, 1834, (date in pencil,) [which articles are different in form from the proposition and bond set out in the bill and admitted in the answer.]
    The contract was executed in pursuance of the proposition of April 18, 1834; sent the contract to his agents at Quincy to be delivered to David Lynn; has directed his agents. to return the money received from Samuel; states the-amount of money received from David Lynn.

      Cross-examined: — Samuel’s first business-with witness, as lie believes, was to ascertain from him on what terms and at what price he would sell it; (the land); has no recollection, or belief that Francis C. Moore ever signed a letter for him, on reflection.thinks there was a communication; April 18th, 1834, gave Samuel the terms on which he would sell the land;- thinks he had given Samuel the proposition before he saw his father, and had no communication from David con-, cerning the sale at'that time; the only contract he ever made for the salé of this land is -contained in his answer to seventh interrogatory; has been advised'by his agents that they have the contract (of June 26th) in their possession; repeats that-he never made any other contract except of June 26th.
    A copy of the discharge of Samuel W. Lynn under the insolvent laws of Connecticut, first date 4th Tuesday of August, 1833, last date 25th August; 1834, was also given in evidence.

      James Uarbison..

    Knows -the parties; Samuel W. Lynn has resided on the place formerly occupied by DavidLynn, deceased, his father; is residing-there to best-.of- his knowledge; about five years ago levied on a yoke of steers as Samuel’s property; Samuel denied owning property; stated the property belonged.to his father; Samuel refused'to give up the property on the ground of the illegality of the execution, likewise on the ground of having no-property; witness was sued by David Lynn-for taking off the cattle-;-Samuel'offered himself as a witness, and wished to prove the-cattle were his father’s; there was other property on the place¡

      Cross-examined. — Saw David living there at the same time Samuel was living there; saw David living by himself in a house on the place.

      Thaddeus Eames.

    Supposes David to have been seventy years old; David lived with Samuel and died there; David Lynn claimed to own the farm; the old man told him (witness) he bought the place of Munn, (objected to.) Witness supposes the improvements on the place were made by Samuel as David’s agent; the crop was gathered on the place as if they were both one family.

      Cross-Examined. — They lived as one family, Samuel appeared to conduct the improvements as his own; Samuel furnished the work and materials as far as witness knew.

      Wm. D. Henderson.

    David Lynn and Samuel W. Lynn resided together up to the time of David’s death, on south half one, ten north, five west; Samuel still lives there; David Lynn said witness had cut two trees on his (David’s) land, and he (David) intended to prosecute him for it; Samuel was within hearing and said nothing about title; the land on which the trees were was the same half section; it was in July or August, 1835.

      Cross-examined. — Has had quarrel with Samuel W. Lynn; it was in a quarrel the conversation mentioned took place; is not friendly with Samuel; Samuel joined bis father in threatening to prosecute; Samuel said he (witness) had built a house on his (Samuel’s) land, and he (Samuel) intended to take it, meaning south half one, ten north five west, as witness presumes.

      William R. Jamieson.

    David Lynn said he had bought the land; don’t recollect whether it was in Samuel’s presence; thinks Samuel didn’t claim to own it (the land) from their first settling there; don’t think the Lynns had much money when they first came there; had the personal property together.

      Delight Camp.

    Is acquainted with the Lynns; in 1836 lived with Samuel about two months; place belonged to Samuel, so far as she has heard David express himself; has seen David sell grain raised on the place, and bring the money and give it to Samuel’s wife, and when she offered him a part back he said he had money of his own; Samuel acted as owner as far as witness could judge; old man appeared feeble, worked in the garden sometimes.

      Julia Curtis.

    Acquainted with the parties except Munn; knows the farm of Samuel Lynn;, has lived with him four months, the summer of the old man’s' death, and prior to his death; has been there frequently at other times; don’t know that she ever heard David give any directions about the farm or exercise any control over it; Samuel acted as the owner of the farm; heard Ezekiel W. Lynn (one of complainants) say that Samuel had a large farm in this country, that Samuel’s farm was on the bluff; thinks the place referred to was the place where Samuel resides; David lived with Samuel; witness was-employed by Samuel, and he paid her.

      Samuel Darnell.

    Is acquainted with the parties except M-unn; knows the land; always supposed before this suit that Samuel was the owner of it; he had entire control of the farm, hired hands, did all the business, so far as witness knew anything about it; witness helped Samuel about the building of the barn, and sent hands, and Samuel paid for them; witness rented ground on the farm, and nobody had anything to say about it but Samuel; tlie old man went to borrow money for Samuel to pay part on the place, as witness understood; witness’ brother agreed with Samuel to let Samuel have it; as to the heirs of David, deceased, Cook had a claim on the land where he lives; Ezekiel had a claim where he lives; John A. Lynn had a claim on a piece of land south of Ezekiel’s; David, administrator, bought a claim of Lewis which cost $75, as witness understood, and knew David to be in possession of it; Asa Brainard also had a claim where Riessel now lives, and Samuel lived where he now resides, each cultivating or improving his own; has as .good reason to believe that Samuel was improving for his own benefit as that the others were for theirs; as far as witness knows, David Sr. had no more control over Samuel than the others; all the heirs lived in the neighborhood of witness except David, who moved to Iowa two or three years; David Sr. appeared to live with Samuel; thinks Samuel took possession of the place in 1833.

      Cross-examined. — Thinks the money was borrowed of his brother to pay on the land; does not know who signed the note except what his brother said; witness presented the note to the administrator, but he said if any money was borrowed Samuel borrowed for himself.

      Orrin Camp.

    Knows the land; thinks he heard all the heirs say they made selections of land, and David Sr. assisted them, to pay for it; has heard David Sr. say he helped all of "them to pay for their land; Samuel selected south half ten north, five west; Samuel has continued to improve his; the old man said if Samuel would build the barn near the house he would help him, otherwise he would not; heard David Sr. say his other children (except Samuel) had got every d — d cent they would ever get; don’t think he meant to include John A. Lynn (deceased.) .

      Jessee Cornell.

    Acquainted, &c. David Sr. lived with Samuel; knows the land; loaned money to pay for the land; Samuel first spoke about it; David Sr. came down and got it; brought an order authorizing witness to sign Samuel’s name to a note for the money, which was done, and the money loaned; note has been taken up by Samuel, to best of witness’ recollection; David said he had assisted Samuel more than his other children, because he lived with Samuel, and expected to live with him for life; witness understood that the money was borrowed by Samuel to pay for the land.

      Daniel Putnam

    David Lynn Sr. said he had given all his children money to buy land, with the exception of Mr. Brain ard; understood Samuel’s land was the land where he lives; understood the land belonged to .Samuel when paid for;- David lived with Samuel.

      Cross-examiued. — Witness, in that conversation, understood that David liad" given all his children money to buy land, but to one he had not given so much as the rest, or had not given any; David Sr. said in reference to the land (S. i 1,). what is here is mine,'but at my death all is Samuel’s; that he lived with Samuel, and at his death all was Samuel’s.

      Re-examined. — David Sr. said Samuel had not yet paid, for it, but it was his when paid for.

      Peter Butler

    Was sheriff of Warren from 1832 to 1S34; surveyed the land; recorded survey in the name of David-; Samuel paid for-surveying.

      Patrick R. Haley.

    Collected taxes 1835 and 1836; called at old man Lynn’s and collected some taxes; cannot tell whether old man paid taxes, on that land or not; the tax on the land was paid by Samuel; the receipt given in David’s name.
    There was also given in evidence a tax.receipt for 1836,. given to Samuel W. Lynn, for south half one.
    At the September term, 1848; the "Circuit Court pronounced a decree in substance as follows:
    That the south half one be partitioned" among the heirs, David Lynn having been equitable owner thereof;
    That Samuel' pay the rents and profits of the land while in his possession;
    That Samuel be paid for the lasting and valuable improve-, ments made on the land by him;
    That Samuel be refunded that part of the purchase money-paid by him since his father’s death, with interest;
    That the cause be referred to a Master to ascertain the-value of the rents and profits, and improvements; a lien decreed on the land in whosesoever favor a balance should be found;
    That Munn should convey to the heirs according to their respective portions.
    As to all other matters that the bill be dismissed, and each party pay half the cost.
    The defendant, Samuel W. Lynn, appealed.'

      Julius Manning for appellant:
    1. Implied trusts and when implied. 2 Story’s Eq. Jur. 439, § 1195; 443, § 1201.
    2. Resulting trusts are admitted with great caution. The proof should be clear. Boyd v. McLean, 1 Johns. Ch. R. 590, per Kent, Ch’r, “An arbitrary implication raised, to stand until some reasonable proof brought to the contrary.”
    2 Blackf. 214. Proofs must be very clear. 3 Sug. on Vend. 257;. 8 N. H. 196; 10 Vesey, 517'; 3 Sug. on Vend. 178, § 6; 4 Gilm. 218-19.
    3. It is essential that the money when paid should have been the money of the person in whose favor the trust is set up. Steere v. Steere, 5 Johns. Ch. R. 1; 8 N. H. 197.
    4. “ It seems doubtful whether parol evidence is admissible against the answer of the trustee, denying the trust.” 3 Sug. on Vend. 257, § 2. Bartlett v. Pickersgill, 4 East, 577, in note. But if admissible, it should be received with great caution. Boyd v. McLean, 1 Johns. Ch. R. 582; Snelling v. Utterback, 1 Bibb, 609.
    5. An equitable presumption may be rebutted by parol. 10 Vesey, 367. And parol evidence is admissible to show the intention that the person to whom the conveyance was made should take beneficially. 2 East, 534, note b; 1 Vesey, 57; 2 Ch’y 416; 1 P. Williams, 112, 113.
    6. An express trust, though by parol, prevents a resulting trust. 3 Sug. on Vend. 260, § 10. A payment after the purchase will not raise a trust; the estate can only be charged pro tanto for the amount actually paid at the time of the purchase. Steere v. Steere, 5 Johns. Ch. R. 1; 2 do. 414.

      7. If the money was paid for the purpose of vesting the title in the grantee, no trust resulted to the person paying the money. Elliott v. Armstrong, 2 Blackf. 214.
    8. Where a parent purchases land in the name of his son, the purchase is to be deemed prima facie an advancement, so as to rebut the presumption of a resulting trust. 2 Story’s Eq. Jur. 446, §§ 1202, 1203; Lord C. J. Eyre, in Dyer v. Dyer; ib. note 3; 3 Sug. on Vend. 266, et seq.; ib. 261, et seq.; Grey v. Grey, 2 P. Williams, 628; Murless v. Franklin, 1 P. Williams, 13; Mumma v. Mumma, 2 Veron’s Ch. R. 19; Lampleigh v. Lampleigh, 1 P. Williams, 111; Crabb v. Crabb, 7 Eng. Ch. R. 147; Kelpin v. Lamb, ib. 150; Finch v. Finch, 15 Vesey, 43; Sidmouth v. Sidmouth, 17 Eng. Ch. R. 467; 2 Beavan, 447; Taylor v. Taylor, 4 Gilm. 303.

      Charles Gilman, for the appellees.
    Samuel W. Lynn, acting as the agent of his father, David Lynn, with means furnished by his father from time to time as the instalments fell due, purchased of Munn the land in controversy, taking receipts in the name of the father, (see the various writings signed by S. W. and by Munn, as also the receipts for the several payments.) After the father’s death, the son paid an instalment with his own means. S. W. admits that the money was so furnished, and alleges that the receipts were so taken to give his father a lien on the property for such advances until a settlement between them, which he affirmatively asserts did take place, and in evidence thereof further says that the receipts, were delivered over to him. It did not appear, however, that the receipts taken by him on the payments ever went out of his possession, except by inference from his statement that they were delivered up to him. He further states that these several amounts coming from his father, were intended as advancements or donations; affirmative allegations, not responsive to the charges of the bill, and therefore not evidence unless supported by other proof. There is nothing in the whole case to show affirmatively that these payments were intended as advancements, nor are there circumstances from which such an intention is to be inferred. The whole case shows that S. W. had no. means — was obliged to hire money to come to the State, which his father was security for and subsequently paid. It further appears that he -did not claim -the land, but, while his father was li-ving, was willing, to say the least, that it should be considered as his father’s. The only conclusion legitimately to be drawn from all the circumstances of the case, is that David Lynn, the father, was the purchaser and equitable owner of the land in question, and, had he have lived, would have paid the remaining instalment and taken the title from Munn, and the land, at his death, would have descended to the complainants.
    On ihe whole, the decree of the Circuit Court is in accordance with the strict equity of the case, and ought not to be reversed, or modified in any respect.
   The Opinion of the Court was delivered by

Caton, J.

On the l'8th of April, 1834, Stephen B. Munn made a written proposal, by the terms of which he-offered to sell to Samuel W. Lynn the, premises in question, upon certain specified terms, and allowed three months within which to accept the proposition. On the -26th of June, 1-834, S. W. Lynn wrote to Mr. Munn, stating that his father, who was David Lynn, now deceased, accepted the proposition, with perhaps some slight modifications, and signed the letter “Samuel W. Lynn, for his father, David Lynn.” On the back of a copy of -this letter, on the 19th of July, 1834, Munn wrote and executed a covenant to convey the premises to S. W. Lynn, upon the payments being made according to the terms as specified in the letter of acceptance, "which agreement was delivered to Samuel, who made the first payment with the money, as is alleged, of David Lynn, and a receipt was taken specifying that the money was received of David by the hands of Samuel. Similar receipts were taken for all the balance of the purchase money, which was paid prior to the death of David. The balance, $286-10, was paid by Samuel W. to the agents of Munn. Some time after the execution of the agreement of the 19th of July, at the suggestion of Samuel W. Lynn, Munn executed in New York, and forwarded to his agents in Quincy,-a more formal indenture for the conveyance of the land to David Lynn, which was probably never seen or executed by. David, but still remains in the agents’ hands.

The bill charges, that it was -the design and intention of all parties, that the sale of the land should be and was to David, and not to Samuel W.,and that the name of the latter was inserted in the original proposition, and in the agreement of the 19th of July, by mistake, and that all the payments which were made up -to the time of David’s death, were ¡made with his money.

Samuel W. in his-answer denies the alleged mistake, and insists that the sale was intended to be made to him, and that although the money with which the payments were made came from his father, yet it was advanced to him as a loan, and that the receipts were taken in his father’s name as an evidence of the amount of money paid, and for which David was entitled to a lien upon the laud. The answer admits that Samuel W., after-the agreement of the 19th of July, requested Munn’s agents to get a bond for a deed running to David, as he says, in order that David might hold the land? who was to obligate himself to convey the land to Samuel W. or devise -it to him, upon settlement, and that this agreement would have been reduced to writing, but that Munn never executed the bond. It may be here remarked that if Munn never executed such a bend, he did execute and forward to his agents an agreement or indenture, the effect of which was the same, which, in all human probability, was executed in pursuance- of the suggestion made by Samuel W. to Munn’s agents, that his father should have abend for a deed. Samuel went into possession, made improvements, and cultivated a farm upon the premises, and David resided there with him till the time of his death. David was old and infirm, and able to do but little manual labor at least.

Munn swears that he sold the land to David, and to no other person, and pertinaciously insists that he never made any contract for the sale of the land, except the one which which he sent on to his agents, and which appears never toll ave been executed or accepted by David. A good deal of evidence is adduced, showing the circumstances of Samuel, and his conduct and professions, as well as those of David, in relation to the purchase and ownership of the land.

It is not a question of so much real as apparent difficulty, • to determine for whose benefit this contract and purchase were really made, and to whom, in equity, this land really belongs. Upon a careful examination of the whole record we are satisfied with the decree of the Circuit Court. Were David alive, and this claim set up by him, instead of his heirs, there can be little doubt that his right should be sustained, and yet his legal representatives occupy precisely the same position.

Strictly speaking, it cannot be said that here is a resulting trust, for that is raised by implication or operation of law, from a particular state of facts evidencing the equitable rights of the parties, and does not depend upon a contract for its existence: as where land is purchased by the money of one and the title is conveyed to another, or perhaps where one trustee receives a title from another. In such a state of facts a trust is created by law, and not by .the agreement of the parties. Bottsford v. Burr, 2 Johns. Ch. R. 405. In case of a resulting trust, there should be a transfer of the legal title to one, while another is possessed of the equity. Here there has been no transfer of the legal title, but that still remains in Munn, whose liability to transfer it grows out of this contract of sale, and does not depend upon the simple fact of his having received the purchase money. The true character of this bill is for the specific performance of that contract, and not to compel the performance of a resulting trust. In cases of resulting trust it is frequently competent to inquire into the agreements of the parties, but then it is for the purpose of ascertaining with whose money the purchase was made. Samuel W. Lynn does not hold the legal title, and cannot be considered a trustee. Munn still holds the legal title, which he has agreed to transfer, and the question is, to whom he shall specifically perform the agreement. Thus the whole case is reduced to this one question; was it the intention of parties, that the sale and purchase should be for the benefit of David or Samuel? It will not do to rely upon the last formal indenture, running to David Lynn, which was executed on the part of Munn, but never executed by David on his part, as the contract of sale, for that was never executed or took effect. We must, therefore, look to the antecedent negotiations and transactions, together with the circumstances of the case as explanatory thereof, in order to determine to whom the sale was actually intended to be made.

So far as the written evidence shows, the first is a proposition for the sale of the land, in terms running to Samuel. This is answered by Samuel accepting the proposition for and in the name of his father. Upon the back of a copy of this letter of acceptance, Munn executed an undertaking: “in consideration of the within, and in fulfillment of the agreement as aforesaid,” he bound himself to convey to Samuel, “when he shall have fulfilled, on his part, the conditions of the said agreement, a copy whereof is hereunto annexed.” These three papers constitute the only evidence of the contract of sale upon which we can rely, except so far as it is competent for a Court of Equity to look to the other evidence to correct any mistake which was committed in drawing up the written evidence of the contract. For that purpose parol evidence is competent, but not to explain the meaning of the parties as expressed in the writings.

If we are to look alone at these papers, no doubt can exist that it was the intention of Samuel W. Lynn, only to occupy the position of an agent, and not of a purchaser. He intended to bind'his father and not himself for the payment of the purchase money. ' He proposed to purchase for his father, and not for himself. Such is undoubtedly the legal construction of that letter of acceptance, and as we have before seen, it is not competent to explain its .meaning, either by parol evidence or the defendant’s answer, or in any way to alter it, except by showing a mistake, which is not pretended. Munn could have maintained no suit against Samuel for the purchase money, for he- never undertook to-pay it. Samuel’s attempt, in his answer, to- explain away the effect of this letter must' be unavailing, for he does not pretend there was any mistake in its terms, and- hence the letter alone must evidence "that intent. But if-i-t-were proper to look at the other evidence in the case,-we think it abundantly proved, even in-opposition to any thing contained-in his answer, that it was his-intention that the sale should be made to his father, and that it was his understandingthat it was so made. After he saw 'that M:unn had- agreed to convey to himself, he requested that a bond for a deed1 to his fáther-should be given.

The purchase money was all advanced by his father, in whose name the receipts wer-e taken. His father lived with Samuel upon the land, and claimed to own it during his life time, although he sometimes manifested an intention to donate or devise it to Samuel, and once or twice even expressed himself as if it actually belonged to his son. Indee d the personal property upon the farm, when it was taken to satisfy Samuel’s debts, was claimed by David, and Samuel offered to swear that it belonged to him.

These circumstances, which tend so strongly to prove that the purchase was made by -and'fcxr David, and so understood and intended by Samuel, the latter attempts to explain awayin his answer by insisting-'that'the purchase money thus advanced by his father was really intended as a loan to him, and that the- conveyance-was to go to his father- as-a security, David agreeing to convey to Samuel upon a settlement of the advances so made, or to devise the land to him. But it must be remembered- that this allegation of a- loan is a new averment set up in the answer, and which is not proved by it, but must be sustained by affirmative evidence. Such evidence is wanting in this record; We are of opinion that this record shows, that it was the -intention and understanding of both David'and Samuel W.'Lynn, that the purchase was made by and for David, who alone was bound to pay the purchase money. Such is both the-legal and equitable construction of this contract óf purchase. Such being the ease, under the circumstances -as presented, even if Munn intended to sell, and supposed he was selling to Samuel instead of David, most probably the latter, or his heirs, would be entitled to a specific execution of the contract in their favor. But we think it equally clear that Munn intended to sell and supposed he was selling to David, and that Samuel’s name was inserted in the instrument indorsed on the copy of the letter of acceptance, instead of David’s, by mistake. By that letter Munn’s proposition to sell the land was accepted by Samuel as the agent of David, and for him and in his name. The covenant to sell and convey was indorsed on the back of a copy of this, and referred to it as the consideration of the undertaking and professes to be in fulfillment of it, and says the land shall be conveyed “when he shall have fulfilled, on his part, the conditions of said agreement, a copy whereof is hereunto annexed.” No man can read this covenant without being convinced that it was the intention of Munn to make his covenant, which[was his part of the contract of sale, conform to the other part, which was contained in the letter referred to, which bound David Lynn to purchase and pay for the land. It took both of these papers to constitute the contract of sale and purchase of this land, and Munn could have had no other design than to make his part of the agreement conform to the other, if he intended to avail himself of the obligations contained in it. We, therefore, think that the papers themselves furnish sufficient evidence of the alleged mistake. But more than this : Munn swears that he never intended to sell and never did sell the premises to Samuel W. Lynn, but that he sold them to David alone. It is true he does not state directly, that the name of Samuel was inserted by mistake in that contract, for it seems impossible to make him recognize that agreement at all, and he insists that the subsequent indenture, which does not appear to have been executed by David, contains the only evidence of the sale. In this, however, he is evidently mistaken, for the other papers stand here undisputed, and, as we have,already seen, -show-a complete contract. At any rate his testimony seems to show that at no time did he ever intend to sell to Samuel, and conse-: quently, if, by the terms of the agreement, he proposed to sell to him, it was by mistake.-

The decree very properly provides for reimbursing Samuel for whatever permanent improvements he may have made upon the land, as well as for the purchase money which he has paid since his father’s death, and with this he must be content. It may be true that it was the intention of his father to donate or devise the land to him, perhaps as a consideration, in part, for the care which he took of him in his old age, but until such intention was carried out by a conveyance or bequest, it could create no legal or equitable right which the Court can recognize. If he is entitled to any compensation for taking care of or providing for his father, we cannot award it to him in this proceeding, but he must seek his remedy elsewhere.

The decree of the Circuit Court is affirmed and & procedendo awarded to the Circuit Court.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Scott Scholfield and Mulkey, JJ.:

license: Public Domain

text:
    Francis Hutchinson v. Albert R. Howe.

      Filed at Ottawa June 20, 1881

      Rehearing denied September Term, 1881.

    1. Freehold—whether involved—as affecting right of appeal to Supreme Court. On bill to have an agreement for the exchange of lands cancelled, and to recover $1000 liquidated damages for a neglect or refusal to perform the contract, where the defendant filed a cross-bill asking the same relief' against, the complainant, but afterwards by amendment prayed either for the specific performance of the agreement or a personal decree for. the liquidated damages, both bills treating the contract as an alternative one, giving the parties each a right to perform by conveying, or by paying the agreed damages, and the circuit court dismissed the original bill and rendered a.decree on the cross-bill, that the complainant convey the lands l¡e agreed to within a certain time, and that in default of such conveyance he pay to the' defendant $1000, the liquidated damages: Held, on appeal by the complainant in the original bill, that no freehold was involved, and therefore the appeal did not lie directly from the trial court to the Supreme Court.
    2. A decree which gives a defendant an election to convey land to the complainant in pursuance of his agreement, or to pay a certain sum of money in lieu of such conveyance, in no sense affects the lands of the party against whom it is. rendered, and no appeal lies directly to the Supreme Court.
    3. In a bill to remove a cloud from the title to real "estate, a freehold may or may not be involved, depending upon that which is claimed to create the cloud. When the litigation concerns an executory or conditional contract which is alleged to create a cloud, a freehold is not necessarily involved. If the cloud is a mere incumbrance, a freehold is not involved.

      4. Bemovaxi op oiiOtrD—party seeking must have a title. Unless a party shows title to land in himself, he can not complain that there is a cloud upon it. He must have a title to the land to give him a standing in court before he can contest a cloud upon the title, whether it is created by an incumbrance or an adverse title. In such case the real contest is as to that which creates the cloud, and not the title of the party complaining, unless it. is put in issue by the pleadings.
    Appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    Messrs. Bbawley & Dunne, for the appellant:
    1. It was essential for Howe to show, on February 1, 1879, power to make the title. Pomeroy on Spec. Per. secs. 315, 317, 380, 394-5, note 1; Kent v. Humphrey, 13 Ill. 573; 1 Sugden on Vend. 444, 577, 578; 2 Story’s Eq. Jur. 776; Andrews v. Sullivan, 2 Gilm. 327; Ditto v. Harding, 73 Ill. 117; Murphy v. Lockwood, 21 id. 611; Nolte v. Lowe, 18 id. 437; Morgan v. Herrick, 21 id. 496 ; Tyler v. Young, 2 Scam. 446; 3 Parsons on Cont. 383, 386; Bingham on Sales, 802; Benedict v. Lynch, 1 Johns. Ch. 370, with note in 7 Am. Dec. 484, and 17 cases there cited; Richmond v. Gray, 3 Allen, 10; Butler, v. O’Hear, 1 Des. (S. C.) 382, in 1 Am. Dec. 671; Milnor v. Willard, 34 Ill. 41; Heckard v. Sayre, 34 id. 142; Stow v. Russell, 36 id. 38; Phelps v. Illinois Central Railroad Co. 63 id. 468; 77 id. 180; Bastmeek v. Hess, 80 id. 138; Glover v. Fisher, 11 id. 673; Chrisman v. Miller, 21 id. 227; Wynkoop v. Cowing, 21 id. 585; Levin v. Cleary, 75 id. 349; 36 id. 18; 26 id. 643.
    2. Howe did not, on February 1, 1879, show proper title.

      a. A contract to furnish an abstract showing good title is a contract to tender record title. Pomeroy on Spec. Per. sec. 353; 1 Chitty on Cont. 429; Pomeroy v. Drury, 14 Barb. 418, and cases there cited.

      b. Abstract did not show record title.
    3. Howe did not show power to make a title, at time of decree.

      a. Under a contract for record title, possessory title will not suffice. Page v. Greeley, 75 Ill. 400, and supra under 2 a.

      b. Howe did not show even a good possessory title. Note to Lewis v. Herndon, 14 Am. Dec. 72; Angell on Lim. p. 3, sec. 5, p. 576, sec. 384.
    4. Hutchinson was not in default February 1, 1879. Wenne v. Reynolds, 6 Paige, 407; 1 Ves. 567.
    5. Decree in alternative form was bad. Shields v. Barrow, 17 How. 130; Pomeroy on Spe. Per. secs. 469 to 481; Kent v. Humphreys, 13 Ill. 573.
    Messrs. Palmer & Denkeb, for the appellee,
    made the following among other points not herein given:
    This court has no jurisdiction to entertain the appeal, as a freehold is not necessarily involved. Act of 1879; Akin v. Lloyd, 28 Ill. 331; Gage v. Busse, 94 id. 590.
    He who seeks equity must do equity. The doctrine of courts of equity is compensation, not forfeiture. Murphy v. Lockwood, 21 Ill. 611; Andrew v. Sullivan, 2 Gilm. 334; Mix v. Beach, 46 Ill. 316.
    Delivery of abstract is not material. Fry on Spec. Per. secs. 706, 712; Pom. on Con. 466; Hilliard, 203, 204; Seton v. Slade, 7 Ves. 265; Helpwell v. Knight, 1 You. & Coll. 419; Roberts v. Berry, 16 Beav. 31; affirmed, 3 DeG. M. & G. 284.
    Party seeking to rescind must offer and be ready to perform. Davison v. Hill, 1 Bradw. 70; Peck v. Brighton, 69 Ill. 203; Bishop v. Newton, 20 id. 178; Baker v. Bishop, 45 id. 270; Mix v. Beach, 46 id. 311; Murphy v. Lockwood, 21 id. 617.
    Party in default has no right to say the contract is at an end. Myer v. Gross, 59 Ill. 453; Crabtree v. Levings, 53 id. 530; Snyder v. Spaulding, 57 id. 487; Peck v. Brighton Co. 69 id. 203.

      Messrs. Bkawley & Dunne, for the appellant, in reply: -
    As to what is a freehold. 4 Kent’s Com. sec. 55, *24; 2 Washb. Real Prop. 250.
    In a good bill to remove a cloud, a freehold is necessarily involved, because in such a bill the complainant must show title. Emery v. Cochran, 82 Ill. 65; Wing v. Sherrer, 77 id. 200; Hopkins v. Granger, 52 id. 504; West v. Schnebly, 54 id. 523.
    The Appellate Courts have uniformly held to the same effect. Young v. Stearns, 3 Bradw. 498; Patterson v. McKenny, 6 id. 394; Fitzgerald v. Fitzgerald, 7 id. 191; Robenson v. Peterson, id. 398; Sperry v. Young, id. 402; Whitehead v. Alexander, id. 506; Gage v. Bailey, id. 619; Gage v. McLaughlin, id. 623.
   Mr. Justice Scott

delivered the opinion of the Court:

The original bill in this case was brought by Francis Hutchinson, in the Superior Court, against Albert B. Howe, and the object was to have.a certain agreement of the date of November 1, 1878, between complainant and defendant, in relation to the exchange of lands, 'declared null, and can-celled, as being a cloud upon the title of complainant’s property therein described, and to have a decree for the sum agreed upon as damages in case either. party should fail to perform the contract.' The contract is set out.in the bill,' from which it appears complainant was to convey certain real estate owned by him in Chicago to defendant, subject to certain incumbrances named, and in consideration of which defendant was to convey to complainant certain.lands situated in the State of Mississippi, subject to incumbrances. By the 'terms of the contract complainant" was to 'have the privilege of examining the property of defendant, and upon making such. examination, if it. proved to be satisfactory, complainant was to write across the face of the contract “satisfied,” and from thence it was to be binding on both parties. After making a personal examination of the property of defendant proposed to be exchanged, complainant, on December 1, 1878, indorsed on the contract “satisfied.” Each party was to furnish abstracts showing good title to their respective property. The "contract was to be performed within fifteen days after its acceptance by complainant. Either party failing to comply with his part of the contracwas to forfeit and pay to the other party the sum of $1000, which amount was agreed upon as being in full of liquidated damages that would be sustained by failure to comply with the contract. The time in which the contract should be performed was several times extended by mutual consent, until it was agreed it should be closed on the first of February, 1879. Defendant placed the agreement on file in the recorder’s office of Cook county, where complainant’s property is situated; but it does not appear it was recorded in Mississippi, where defendant’s property is. It is alleged by complainant, in his bill, that he furnished proper proof of his title to his lands, and that he was ready and willing to carry out the contract, but that defendant failed to show good title to his lands, and still failing to do so, on February 1, 1879, he refused to exchange' property, for the reason defendant had not shown good title to his lands. On account of such failure it is alleged defendant became liable under the agreement to pay complainant $1000, being the amount of damages agreed upon for the failure of either party to perform it. After making a full answer to the original bill, denying all the principal allegations, but not under oath, defendant filed a cross-bill, in which he recited the substance of the original bill and his answer thereto, and then set forth his compliance with the terms of the agreement on his part to be kept, and that he was always ready and willing to perform the contract, but that complainant was not ready and willing to perform it. The prayer of the cross-bill was, that the agreement between the parties be cancelled, and that complainant be decreed to pay defendant $1000 damages, as for the breach of such contract. Complainant demurred to that part of the cross-bill asking a cancellation of the agreement, because it was a part of the relief prayed for in the original bill, and answered the residue of the cross-bill. On leave obtained of the court for that purpose, defendant afterwards amended his cross-bill, alleging that on February 1, 1879, he was, and still is, ready to perform the agreement, and asked that complainant be decreed to perform it. Replications were filed to the answers to the original and cross-bills, and after the issues were thus formed the cause was referred to the master to inquire whether on February 1, 1879, the parties had good titles to their respective lands mentioned in the agreement, and whether on or before that date the parties furnished abstracts showing good titles. The report of the master is quite elaborate, and presents a very clear view of the testimony submitted. His conclusion was, that neither abstract showed good title to the lands the parties proposed to exchange. Exceptions were taken by defendant, Howe, to the report of the master, but complainant seems to have acquiesced in his findings. On the final hearing of the cause the court dismissed the original bill, and sustained the exceptions taken by defendant to that portion of the master’s report not in harmony with the decree rendered oh the cross-bill. As the court found complainant in the cross-bill had exhibited evidence of such title to the lands as he had covenanted to make, it Was decreed defendant in the cross-bill should, at his election, either perform the agreement, or, in default thereof, pay complainant in the cross-bill $1000, the sum agreed upon as liquidated damages in case of a failure to perform the contract. Complainant in the original bill brings the case directly to this court to obtain a reversal of the decree of the Superior Court, and now defendant moves to dismiss the ajipeal for want of jurisdiction in this court in the first instance to hear and determine the appeal. It is conceded that unless a freehold is involved in the litigation the appeal can not be maintained under the recent Practice act, in force since July 1, 1879. It is not apprehended how any freehold is or can be involved in this litigation, under any allegation contained in the original bill. No relief was asked that could in any manner affect the real estate of either party. Complainant had elected not to perform the contract, because of the failure of defendant to produce satisfactory evidence of his title to the property to be exchanged. The specific relief demanded was, that the agreement might be cancelled, and that complainant might have a personal decree against defendant for the sum agreed upon as liquidated damages in case of a failure to perform the contract. Certainly no decree was asked affecting the lands of defendant, and according to the theory of the bill complainant’s lands were not involved. Defendant, by his original cross-bill, invoked the same relief for himself in regard to the agreement that complainant had asked by his bill, and nothing more. It is plain, therefore, that unless the amended cross-bill, which prays for a specific performance of the agreement, introduced a freehold into the litigation, none is involved. The original and cross-bills are all framed on the theory either party could refuse to convey the lands he proposed to exchange, and only be subject to the alternative contained in the agreement, viz: the payment of the liquidated damages agreed upon. Each party had an election as to which he would do. Electing to perform one part of the contract in that respect absolved him from any further obligation to perform the other. The decree of the court follows the construction given to the contract by both parties, and gives defendant in the cross-bill an election whether he will comply with that part of the agreement in relation to conveying the land or not, and on his electing not to convey the lands, the decree in that regard is not binding on him; but the decree for the payment of the liquidated damages in consequence of such election became absolute. The decree does not make it the duty of defendant in the cross-bill to convey his lands in performance of the agreement. He is left perfectly free to do it or not to do it, at his voluntary election. Such a decree in no sense affects the lands of the party against whom it is rendered. The only conclusive part of the decree is a personal decree for the payment of money, and nothing else. It is not understood either party claimed, by his pleadings, the other was under any absolute obligation to convey the lands concerning which the agreement was made. Either party could elect to pay the liquidated damages agreed upon, and be absolved from further performance of the agreement. How can it be said, then, a freehold is involved in this litigation? No duty is imposed upon defendant in the cross-bill by the decree, in regard to his lands, he might not of' his own volition elect to perform,—that he could do or omit, independently of the decree. It neither imposed nor removed any restrictions in that respect.

•In a bill to remove a cloud from the title to real estate, a freehold may or may not be involved. That depends on what it is that is said to be a cloud upon the title. When the litigation concerns an exeeutory-or conditional contract which is alleged to create a cloud upon the title to real property, a freehold is not necessarily involved. It may be a mere incumbrance, and yet a cloud upon the title it may be desirable to have removed. In proceedings to foreclose a mortgage, it has uniformly been held a freehold is not included by any logical construction. Primarily the mortgage indebtedness is the subject of the litigation, and the title to the mortgaged premises is seldom called in question. But where the cloud is created by an executed contract, as, a deed purporting to convey the title to the estate, and the question is made whether it is a valid deed or a mere cloud upon the title, a freehold would seem to be necessarily involved. It is the title itself that is a matter of contention. Keeping these distinctions in mind, the previous decisions of this court on this subject will be found to be in entire harmony. A principle recognized in all the cases is, that unless a party shows title to land in himself, it is not for him to complain there is a cloud upon it. He must have a title to the land to give him a standing in court before he can contest a cloud upon the title, whether it is created by an incumbrance or an adverse title. Hopkins v. Granger, 52 Ill. 504; West v. Schnebly, 54 id. 523; Emery v. Cochran, 82 id. 65. In such cases the real contention concerns that which is said to create the cloud, and not the title of the party complaining, unless it is put in issue by the pleadings. A clearer understanding of the rule that obtains will be had by an examination of some of the previous decisions.

No discussion was had in Akin v. Lloyd, 28 Ill. 331, whether a freehold was involved, and the case furnishes no aid in arriving at a conclusion in the present case. The only question raised and discussed in the opinion of the court is, whether a suit in equity, the object of which was not to affect real estate, could be commenced in a county where the defendant could be found, as was the case in actions at law. It was held, that under the second section of the Chancery Code, which prescribed the mode of commencing suits in equity or chancery, the jurisdiction of the court is confined to the county of the residence of the defendant, and that is all that is decided in that case.

In Wing v. Sherrer, 77 Ill. 200, that which was said to be a cloud upon the title to the property was a deed made by a stranger, who represented himself to be the party owning the land. The object of the bill was to set aside the deed made by the stranger, as a cloud upon the title of the party claiming to be the true owner. By the pleadings, the title complainant insisted was the paramount title, as well as the adverse title which defendant undertook to maintain was the better title, and which was obtained under the deed from the stranger, were both distinctly put in issue, and it is apparent a freehold was involved in the litigation.

In Gage v. Busse, 94 Ill. 590, the bill was to remove a cloud from the title to lands created by certificates of purchase obtained at the sale of lands and lots for taxes. No deed had been made, and it was held no freehold was involved, and the court refused to take jurisdiction to hear the appeal for that reason. Neither in the opinion of the court nor in the statement of the case by the report, is there to be found any full recital of the facts. If the arguments of counsel are to be regarded, it would seem the controversy was measured by the amount the owner- would be required to pay to discharge his lands from the liens of the taxes. Regarding it in that light, it was a mere incumbrance, like a certificate of purchase at a mortgage sale, that might or might not mature into a title.

The ease at bar is within the principle of the case last cited, and is a stronger case for the application of the rule. That which is the subject matter of the controversy here, is which party shall be decreed to pay the other the sum agreed upon as liquidated damages for a failure to comply with the agreement between them, and the sum of money in contention is not even an incumbrance upon the property of either party. It seems quite clear, therefore, that no freehold is involved in this litigation, and the appeal must be dismissed.

Appeal dismissed.

Scholfield and Mulkey, JJ.:

We do not concur in that portion of this opinion which assumes to lay down a rule by which to determine whether in bills to remove clouds from titles a (freehold is involved. It is decided no freehold is involved in the present case, and the question what may be involved in other and different cases is not before us. What is said, it is true, will not be conclusive on this question in other eases where the precise question may be presented, but it will tend to foreclose discussion, and may be insisted upon as res judicata. Moreover we do not, with all due respect to our brother who wrote the opinion, believe the rule as laid down to be accurate.


author: Mr. Justice Sheldon

text:
    Lake Shore and Michigan Southern Railway Company et al. v. Chicago and Western Indiana Railroad Company.

      Filed at Ottawa May 14, 1881

      Rehearing denied September Term, 1881.

    1. Eminent domain—damages by taking right of way not limited to part appropriated. In a proceeding to condemn a right of way by one railroad company across the right of way of another company upon certain blocks, the company whose franchise is sought to be taken in part will not be restricted in its compensation to the damage to its right of way or railroad property within the blocks. In such case it will be competent for the defendant company to show and recover for damages it would be subjected to by placing obstructions upon its right of way, in maintaining and operating the proposed new road, whereby access to different parts of its line would be interfered with, and its capacity for the transaction of business destroyed or impaired.
    2. Same—injury to entire right of way interfered with, a proper element of damage. Although a light of way of a railroad company is limited to the use of the land for the construction, maintenance and operation of a railroad upon it, this limited use is property, and any interference with it at any point, by condemnation for another railroad, whereby the use is impaired, may be considered in connection with and as affecting its use as an entirety.
    3. Same—damages when property is adapted only to a special use. Where land has no market value, from the fact of its being used as a right of way for a railroad, and devoted to a special use of' making railroad transfers, estimates of its value with reference to such use, by those competent to speak in that regard, should be received on the question of compensation to be paid for its condemnation for the use of another railroad company for its right of way, and it is error to refuse such evidence,
    4. On proceedings to condemn a strip of land across the right of way of a railroad company, a limitation of the damages to those for physical injury to the land sought to be condemned for another railroad, will be too restricted. The defendant should be allowed to recover for the obstruction of the use of its remaining property, and for all damage to it resulting from the operation of the second railroad on the strip so taken.
    5. Appeal—what embraced in. An order of the county court made in a proceeding to condemn land for a right of way after the allowance and perfecting of an appeal from the final judgment to this court, authorizing the petitioner to enter on the premises pending the appeal, will not be involved in the appeal.
    6. An appeal brings up for review only such matters as precede the entry and perfecting of the appeal, and not any matter occurring subsequently; and a refusal of an appeal as to such subsequent proceedings will not have the effect of bringing them up for hearing on the first appeal.
    Appeal from the County Court of Cook county; the Hon. Mason B. Loomis, Judge, presiding.
    Mr. Thomas F. Witheow, Mr. C. D. Boys, Mr. J. L. High, and Mr. Geo. W. Kretzingeb, for the appellants :
    The extent of the exercise of the power of eminent domain is á question for judicial determination, and the extent of the taking must he limited to the necessities of the case. Cooley’s Const. Lim. pp. 538-540.
    Where all the purposes of the later organization can be effectuated without invading the property rights and franchises of the former, no implication will be tolerated by which the uses and purposes of the former can in any manner be infringed or impaired. Matter of the City of Buffalo, 68 N. Y. 175; City of Chicago v. Quimby, 38 Ill. 278.
    A necessity created by the company for its own convenience, or for the sake of economy, will not justify an interference with or extinction of previously granted franchises. Packer v. The Railroad Company, 7 Har. 211; Milwaukee and St. Paul Railway Company v. City of Faribault, 23 Minn. 167; Inhabitants, etc. of Springfield v. Connecticut Railroad, 4 Cush. 63; N. Y. C. Coal Co. v. G. C. C. Co. 37 Md. 503; R. S. R. R. Co. v. Davis, 43 N. Y. 137; Angell and Ames on Corp. sec. 192; Mills on Em. Domain, secs. 46, 47.
    While the legislature has the right, under the constitution, to provide for the appropriation of the property and franchises of incorporated companies in case of “public necessity,” it has failed to do so, and the constitutional provision is not self-executing. It requires appropriate legislation to make it available.
    A petitioner for the condemnation of land for right of way is not entitled to enter and take possession, pending the determination of the ease on appeal to this court, by giving bond. A statute authorizing this is unconstitutional. See People v. Williams, 51 Ill. 63; Cook v. South Park Comr's, 61 id. 115; People v. McRoberts, 62 id. 38; Sanborn v. Belden, 51 Cal. 256; Vilhac v. Stockton and I. R. Co. 53 id. 208; San Mateo Water Works v. Sharpstein, 50 id. 284; Thompson v. Grand Gulf R. and B. Co. 3 How. (Miss.) 240.
    The court erred in excluding all testimony as to damages to the property and business of appellants by the proposed taking, and in excluding the testimony offered upon their cross-petition as to damages sustained to their property injured but not taken. Mills on Em. Domain, sec. 173; Haslam v. G. and S. W. R. R. Co. 64 Ill. 355; St. L., V. and T. H. R. R. Co. v. Clapp, 67 id. 614; Jones v. Chicago and Iowa Railroad Co. 68 id. 383; Keithsburg and East. Railroad Co. v. Henry, 79 id. 292; South Park Com’rs v. Dunlevy et al. 91 id. 49; Chicago and Alton Railroad Co. v. Hopkins et al. 90 id. 316; R., R. I. and St. L. R. R. Co. v. McKinley, 64 id. 338; Wilson v. R., R. I. and St. L. R. R. Co. 59 id. 273; Chapman et al. v. Kirby, 49 id. 217.
    The compensation allowed should be sufficient to cover the actual damage occasioned by the actual construction of the road, for the land taken, for all physical injury to the residue, and for all inconveniences of any character actually produced. Jones v. Chicago and Iowa Railroad Co. 68 Ill. 383; 1 Iowa, 393; 2 id. 300; Sherwood v. St. Paul and Chicago Railway Co. 21 Minn. 127; Bangor Railroad Co. v. McComb, 60 Me. 290; St. Louis, Vandalia and Terre Haute Railroad Co. v. Mollett, 59 Ill. 236.

      That a riparian owner is entitled to compensation for any interference with his right of access to his premises over navigable waters, which are public highways, is established beyond question. Delaplaine v. Chicago and Northwestern Railway Co. 42 Wis. 214; McCarthy v. Metropolitan Board of Works, L. R. 8 C. P. 209; Sinnickson v. Johnson, 2 Hare, 147; Hoffman v. Hoffman, 2 Dutcher, 175; Brayton v. Fall River, 113 Mass. 218; Haskell v. New Bedford, 101 id. —; Chicago and Pacific Railway Co. v. Stein, 75 Ill. 44.
    Interference with the right of access from a public road to abutting premises, to the injury of the latter, though such interference be located exclusively in the public highway, must be followed by compensation. See Glover v. North Staffordshire Railway Co. 16 Q. B. 923; East India and West India Docks and Junction Railway Co. v. Gattke, 3 Mac. & G. 155; London and Northwestern Railway Co. v. Bradley, id. 336; Caledonian Railway Co. v. Ogilvy, 2 Macg. 229; Chamberlain v. West End of London and Crystal Palace Railway Co. 2 B. & S. 605; Wood v. Stourbridge Railway Co. 16 C. B. 236; Cameron v. Charing Cross Railway Co. 16 Q. B. 430; Ricket v. Metropolitan Railway Co. L. R. 2 H. of L. Cas. 187; Regina v. Eastern Counties Railway Co. 2 Q. B. 347; Iveson v. Moore, 1 Ld. Raym. 486; Gooclall v. City of Milwaukee, 5 Wis. 32; Stetson v. Faxon, 19 Pick. 147.
    Mr. Henry C. Crawford, for the appellee:
    The assignments of error which relate to the order of the county court authorizing the appellee to enter upon the premises pending the appeal, are not cognizable on this record, and are also without merit.
    The appellee paid the compensation assessed by the jury, and having given bond with good security for the payment of such damages as might be awarded, had the right, under the statute, to enter pending the appeal. See Mills on Eminent Domain, sec. 322; People v. McRoberts, 62 Ill. 45; Chi

      cago v. Barbian, 80 id. 486; Mitchell v. Illinois and St. Louis Railroad and Coal Co. 68 id. 287; I. and C. R. R. Co. v. Brower, 12 Ind. 374; Ney v. Sweney, 36 id. 460; Ray v. A. and N. R. R. 4 Neb. 440; Lee v. N. W. U. Ry. Co. 33 Wis. 224; Matter of N. Y. Cent. and H. R. R. R. Co. 60 N. Y. 118.
    The measure of compensation was properly restricted, to the actual land, damages for the easement taken, and the physical injury occasioned to the residue of the blocks. Burt v. Brigham, 117 Mass. 308; Edmunds v. Boston, 108 id. 544; Searle v. L. and B. R. R. Co. 63 Pa. St. 93; Boone v. Patterson, 98 U. S. 407; Haslem v. Galena and Southern Wisconsin Railroad Co. 64 Ill. 355; Lafayette, Bloomington and Mississippi Railroad Co. v. Winslow, 66 id. 219; South Park Com’rs v. Dunlevy, 91 id. 49.
    The principle on which the instruction was based is, that if the whole tract, when considered together, is not damaged or depreciated in market value, then the just compensation must be confined to the value of the easement in the strip of property actually taken.
    It has been frequently declared that this method of determining the damages is not liable to the objection that it is deducting benefits contrary to the statute. Chicago and Pacific Railroad Co. v. Francis, 70 Ill. 238; Page v. Chicago, Minnesota and St. Paul Railway Co. 70 id. 324; Dunham v. Hyde Park, 85 id. 569; Chicago, Minnesota and St. Paul Railway Co. v. Hall, 90 id. 42; Shawneetown v. Mason, 82 id. 337.
    The county court properly excluded the. evidence offered as to the value of the right of way, or the probable damage from interference with traffic.
    Damage to business or trade not taken do not fall within the inquiry. Biggs v. Corp. of London, 15 Eq. Cas. 381; S. and C. R. R. v. Vincent, 49 Cal. 140; Treadwell v. Boston, 123 Mass. 23.

      When lands have been taken for public use, the value of the land itself, and such damages as result directly from the taking to other lands of the owner not actually taken, must be assessed, and both price and damages paid. Stetson v. Chicago and Pacific Railroad Co. 75 Ill. 77; Mix v. Lafayette, Bloomington and Mississippi Railroad Co. 67 id. 319. See, also, Chicago and Pacific Railroad Co. v. Francis, 70 id. 240; Stone v. Fairbury, Pontiac and Northwestern Railroad Co. 68 id. 396; Chicago, Burlington and Quincy Railroad Co. v. McGinnis, 79 id. 273; Chicago v. Rumsey, 87 id. 363.
    It has been many times decided that the only damages which will entitle the owner to compensation, are those inflicted upon “contiguous” or “adjoining” land. Mix v. Lafayette, Bloomington and Mississippi Railroad Co. 67 Ill. 322; Jones v. Chicago and Iowa Railroad Co. 68 id. 380; Chicago and Pacific Railroad Co. v. Stetson, 75 id. 74; Fleming v. C. D. and M. Ry. Co. 34 Iowa, 356.
    A railroad corporation across whose road another railroad is laid out, has a right to recover damages for the injury occasioned to its title or right in the land occupied by its road, but is not entitled to damages for the interruption and inconvenience occasioned to its business, nor for increased liability to damages for accidents, etc. Mass. Cent. R. R. Co. v. B., C. and F. R. R. Co. 121 Mass. 126; Boston and Worcester R. R. Corp. v. Old Colony and New York, 12 Cush. 611; 3 Allen, 147; Commonwealth v. Boston and Maine R. R. 3 Cush. 25; Old Colony v. Plymouth, 14 Gray, 155; C., C. and F. R. R. R. v. Plymouth, 14 id. 162.
    Under the condemnation of a right to cross, nothing will be acquired but a mere right of way, and the place of crossing will remain in common use of the parties for the exercise of their several franchises. The condemnation leaves the franchises unimpaired. State R. R. v. E. and A. R. R. 36 N. J. (L.) 187; N. J. S. R. R. v. Com'rs, 39 id. 33; M. and E. R. R. v. Cent. R. R. 31 id. 213.
   Mr. Justice Sheldon

delivered the opinion of the Court:

On March 15, 1880, tho Chicago and Western Indiana Railroad Company filed its petition in the county court of Cook county, praying to condemn “a strip of land fifty feet in width, running across the following tracts of land in the city of Chicago, described as blocks 34 and 35,” etc., except the right of way of the St. Charles Air Line Railroad. It was alleged that the said fifty feet strip was exclusively on the right of way of the respondent railroad companies, and across their tracks, as more fully described in a plat annexed, and that it desired to make such appropriation without prejudice to .the rights which defendants now have in regard to said premises, not inconsistent with the .construction and operation of said main tracks of petitioner. The plan of the proposed improvement showed four tracks.

The defendants, the Lake Shore and Michigan Southern Railway Company and the Chicago, Rock Island and Pacific Railroad Company, filed their answer, denying the necessity of the appropriation and the power of the petitioner to make it, and also filed a cross-petition for the purpose of obtaining their damages incurred to their other property injured but not taken by such proposed condemnation, setting out particularly the manner in which it would be injured. The verdict of the jury found the compensation for the property taken to be $19,000, and $13,500 as damages to the property not taken, upon which judgment was entered, and the defendants appealed.

Various rulings of the court below, as to the admission and' rejection of testimony, and as to instructions, are complained of as erroneous, which are too numerous to notice in detail, and we regard it as sufficient to consider them generally, and express our views as to the theory of the case upon which it appears to have been tried.

It appears from the map in the case, and otherwise, that these two blocks, 34 and 35, over which petitioner proposes to lay its tracks, are bounded on the east and west .by Clark street and the Chicago river, and on the south by Sixteenth street; that what is known as the St. Charles Air Line Bailroad runs east and west through the blocks, dividing the one from the other. The strip proposed to be taken runs diagonally through the blocks, from Sixteenth to Clark streets, crossing the St. Charles Air Line Bail-road, and the main tracks and other tracks of defendants. The defendant companies own a right of way extending from Van Burén street, north of these blocks, to Englewood, a few miles south, thence on diverging lines to Buffalo, in the State of New York, and to Council Bluffs, in the State of Iowa,—the first named portion jointly, the rest separately. Their general passenger depot is at Van Buren street, north of the blocks, and all of their freight depots and warehouses in the city of Chicago are situated north of the blocks, while nearly all of their lines extend south-easterly and westerly from said blocks. Their main lines are not only located across these blocks, but can not be constructed in any other place, or in such manner as to avoid crossing them. They have several Y tracks on the blocks, which, with their main tracks, are used almost constantly in making transfers between the several railroads operated within the city of Chicago. These main tracks cross, and the Y tracks intersect, the St. Charles Air Line Railroad, which is the channel of transfer for all railroads in Chicago, and the only one available to the defendants, because it is 'the only railroad crossing their lines or connecting them with others. These blocks also connect defendants’ lines with the Chicago river, and through it with the navigation of the Great Lakes. It appears that these blocks, because of their proximity to the St. Charles Air Line Railroad, are especially adapted to use for the purpose of making transfers from defendants’ own tracks, of freight cars to the tracks of the other railroads in Chicago and between themselves, and that the effect of the construction and operation of the proposed four main tracks of a railroad on this fifty feet strip, would be to greatly impair the value of the property and its adaptability to such uses.

Such being the situation, numerous offers of proof were made and rejected as to the effect which the construction and operation of the proposed tracks on this strip, with the amount of traffic requiring the use of four tracks, would have upon defendants’ property, thé manner in which they would interfere with its use, as to the depreciation in value which would be caused thereby, and the amount of such depreciation, and particularly the effect in this respect as regards the interchange of business between defendants and other roads, there being the offer and rejection of proof that the effect in this one particular would be to compel the defendant companies to make their transfers with other railroads operated in Chicago at some other place outside of the city, at an increased expense to them exceeding $250,000 per year.

The jury were instructed, “that in law the right of a corporation to use any property, real or personal, necessary to effectuate the objects of its creation, is a franchise, and that any interruption of that right is an injury to the franchise of such corporation; ” “the defendants can not recover in any way in this action for the damages to or interference with them franchise; ” that the verdict of the jury must be limited “to such actual and direct damages to or diminution of the market value of the remaining portions of blocks 34 and 35, as land, and the structures thereupon, by reason of such direct physical injury as is or will be occasioned to such adjoining lands or structures by the construction and operation of the petitioner’s road;” and refused to instruct, on request of the defendants, that the jury “should consider all evidence showing or tending to show actual and direct damage and injury to the railroad right of way and railroad property, as such, of the defendant companies.”

It will thus be seen that the defendants were debarred an right of recovery of damages for the obstruction of the use of their remaining property, and of all damage to it which would result from the operation of petitioner’s railroad on the strip taken.

We deem such ruling of the court too confined in its scope, and erroneous. Our present constitution of 1870 declares, that “private property shall not be taken or damaged for public use without just compensation.” Art. II, § 13. And “the exercise of the power and the right of eminent domain shall never he so construed or abridged as to prevent the taking hy the General Assembly of the property and franchises of incorporated companies already organized, and subjecting them to the public necessity, the same as of individuals.” Art. XI, § 14.

In The C. and A. R. R. Co. v. The S. and N. W. R. R. Co. 67 Ill. 147, (in reference to the condemnation of a railroad crossing,) we said: “It would be a presumption of law that the appellants receive, by means of the judgment and award of damages, not only just compensation for the land taken, hut for all such incidental loss, inconvenience and damage which might reasonably be expected to result from the construction and use of this crossing in a legal and proper manner. This is the true measure of just compensation contemplated by section 13 of the Bill of Rights, as respects natural persons, and the 14th section of Article II of the constitution places corporations upon the same footing.” The crossing there was under the road.

In Jones v. The Chicago and Iowa Railroad Co. 68 Ill. 380, (in regard to damages to the land owner,) we said: “The amount allowed should be sufficient to cover all the actual damage occasioned by reason of the construction of the road, for the land taken, for all physical injuries to the residue, and for all inconveniences of every character actually produced but nothing should be allowed for imaginary or speculative damages, or such remote or inappreciable damages as the imagination may conjure up, and which may or may not occur in all the future. ” And in Keithsburg and Eastern Railroad Co. V. Henry, 79 Ill. 292: “In ascertaining the extent of such damages, they (jury) must assuredly look to all the facts which contribute to produce these damages. They may consider the fact that it puts the farm in worse shape for cultivation or pasturage; that it renders some portion of it less convenient, or more dangerous for use; that there may be inconvenience or danger in crossing the road with stock to water, * * * and all other actual inconvenience and damage the property may sustain in its use, and consequently its value, not only in the present, but for the future. These all produce damage to the property, and are proper for the consideration of the jury. ” And see Mix v. The Lafayette, Bloomington and Mississippi Railroad Co. 67 Ill. 321.

Upon the principle of these decisions there was surely error here in the ruling of the court, unless there is to be a different rule applied to corporations seeking such condemnation as this, than to individuals, which there is not. As we have heretofore said, they .stand upon the same footing in this respect. And see further, to similar effect, The Seneca Road Company v. The Auburn and Rochester Railroad Co. 5 Hill, 174; The Old Colony and Fall River Railroad Co. v. The County of Plymouth, 14 Gray, 155; The G. R. N. and L. S. R. Co. v. The G. R. and I. R. Co. 35 Mich. 265.

The defendant companies were the owners of this right of way, and although the right is limited to the use of the land for the construction, maintenance and" operation of a railroad upon it, this limited use is property, and as much so as if the use were an absolute one. This use was exclusive in the defendants, and had the petitioner entered upon the right of way and placed any obstruction upon it, it would have been a trespasser. By the present proceeding the petitioner acquires the right to enter upon the premises described, and construct and operate thereon four main tracks of a railway. Property is thereby taken from the defendants, and they must have just compensation. Their use, which was before exclusive, is now reduced, it only being a right to use the premises when petitioner is not using them; so the use is impaired. The record discloses that all evidence as to damage to any of the right of way, or railroad property, beyond the boundaries of blocks 34 and 35, was excluded, and the damage allowed restricted to these blocks. The right of way is a right of user extending the whole length of the railroad, and any interference with it at any point, we think, may be considered in connection with and as affecting it as an entirety. We think it was competent to show, as was attempted, and to recover for, damages to which the companies would be subjected by placing obstructions upon their right of way, whereby access to different parts of their lines would be interfered with, and their capacity for the transaction of business impaired or destroyed. We do not see why it may not be admitted as well as in the case of a farm, where a railroad interferes with access between its different portions.

Some of the rulings of the court are attempted to be justified on the ground that the subject matter involved the business of-the roads. Evidence as to amount of traffic was legitimate, to show the extent of. the use to which this strip of land would be subjected in the operation of the road, and to what extent it would injure the adaptability of the two blocks for transfer uses, as affecting the questions of depreciation of their value, and' damage to the other railroad property. There evidently was no claim for or purpose to show mere damage to business, but damage to the capacity of the property for the use. The franchise in these blocks is a property right held with regard to them, and the volume of the úse of the franchise is material in ascertaining its value,' and the damage which interference with it will cause.

While some witnesses were permitted to state that the two blocks had a special adaptability to railroad use, it appears that no one was permitted to make any estimate as to its value with regard to such use. The ordinary rule as to stating the market value would not seem to apply here. In its situation the land was not available for use for general arid ordinary purposes. It could not be said to have any market value as such property that it was. It was devoted to a special use, and the most valuable use to which it could he applied, as shown by'the evidence, was that special use of making railroad transfers; and estimates of its value with reference to such use, by those competent to speak in that regard, should have been received. See I. and W. R. R. Co. v. Von Horn, 18 Ill. 258.

As expressed by Welles, J., in Beckett v. The Midland Railway Co. L. R. 3 C. P. 82: “The property is to be taken in statu quo, and to be considered with reference to the use to which any owner might put it in its then condition.”

The limitation of the recovery of damages to those for the direct physical injury to the land was too restricted under the above cited decisions of this court, which are to the effect that there should be compensation for all such incidental loss, inconvenience and damage which may reasonably be expected to result from the construction and use of the crossing. And we think the above refused instruction asked by the defendants should have been given.

As to the rejected testimony, speaking of it on the score of materiality, without reference to any objection otherwise, we think it should generally have been admitted for the consideration of the jury, as tending to show injury to the right of user, the extent thereof, and the depreciation of value caused thereby to such property right.

As to the necessity of the appropriation and the power of the petitioner to make it, those questions have been determined in the case of L. S. and M. S. R. R. Co. et al. v. C. and W. I. R. R. Co. 97 Ill. 506,—an injunction suit brought to restrain the prosecution of this very proceeding.

As to the order of the county court, complained of, authorizing the appellee to enter on the premises pending this appeal, it was made after the entry of the final judgment, from which alone this appeal was taken, and after the appeal was perfected; and as we view it, the appeal brings up for review only such matters as preceded the entry and perfecting of the appeal, and not any matter which occurred subsequently in the lower court. The present appellant prayed a second appeal from this order, which was disallowed. The disallowance of this second appeal would not have the effect of bringing up this order to be reviewed on the hearing of the first appeal.

The judgment is reversed and the cause remanded.

Judgment reversed.

Mr. Justice Scott : I can not concur in the opinion of the majority of the court.