author: Mr. Justice Sheldon Mr. Justice Scott : Mr. Chief Justice Mulkey :

text:
    Charles S. Simpson et al. v. Asa H. Simpson et al.

      Filed at Springfield September 23, 1885.

    1. Advancement—Z>y father to son—death of the latter in the lifetime of the former—rights of children of the son—the statute construed. The acceptance by a son of a conveyance of land from his father, in satisfaction of his share as prospective heir in the father’s estate, will not only bar his own right to share in the distribution of the father’s estate, real and personal, but also that of his children, in case he should die before his father.
    2. The fourth section of the act of 1872, to the effect that if a child receiving an advancement from his father dies before the father, leaving issue, the amount thereof shall be allowed accordingly by the representatives of the son so advanced, as so much of their share of the estate, the same as if the advancement had been made directly to them, is not confined to cases of advancements made to a son after such act took effect, but applies equally to advancements made before that time, when the party making the same dies after the law took effect.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Geoege Gabdneb, Judge, presiding.
    This is an appeal from a judgment of the Appellate Court for the First District, reversing a decree of the Superior Court of Cook county.
    The case was submitted to the Appellate Court upon the following agreed state of facts: That John Simpson, Sr., departed this life intestate, December 3, 1880, leaving him surviving, his widow, and John Simpson, Jr., Andrew Simpson, George Simpson and Charles Simpson, his sons, and Rhoda Cox and Margaret Hammond, his daughters; that Amos P. Sipipson, another son, died September 24, 1880, leaving him surviving Asa H. Simpson, Ida M. Simpson and Burnell Simpson, his children and only heirs-at-law; that Mary Pratt, another daughter of John Simpson, Sr., died during the lifetime of her father, leaving her surviving, two daughters, Elizabeth Pratt and Frances Pratt, her only heirs-at-law. John Simpson, Sr., at the time of his death owned and possessed real estate and personal property, and an administration upon his estate was had in the probate court of Cook county, Illinois. In his lifetime he conveyed to John Simpson, Jr., certain real estate, and received hack from him a release substantially like the one hereinafter set forth. He also conveyed to his sons Andrew Simpson and George Simpson certain real estate, with an express agreement between himself and them that the same was to be received by them in full of their respective shares in his estate. He also conveyed to Amos P. Simpson the land described in the following release, and the latter thereupon executed and delivered to his father said release in the words and figures following:
    “In consideration of the conveyance to me this day of the W. E. 5- of the S. E. J, and sixty rods in width taken from the E. side of the W. J of the N. E. J of section number nine, 37 N. of E. 13 E. of the third principal meridian, in Cook Co., Ill., by John Simpson, my father, and Elsie Simpson, his wife, I do hereby release all claim and right which I have or may hereafter have or acquire as heir of said John Simpson, in all his estate, real and personal, in favor of the other heirs of said estate, except John Simpson, Jr., who has received his portion of said estate in the same manner as I have,—the conveyance to me of said premises as aforesaid being intended by my father, and accepted by me, in full satisfaction of all my interest in his estate.
    “Witness my hand and seal this 29th day of January, A. D. 1855.
    Amos P. Simpson. [Seal.] ”
    It is further stipulated that the only question presented by this appeal is, whether the release above set forth is legally sufficient to bar said Asa H. Simpson, Ida M. Simpson and’ Burnell Simpson from having any share or interest in the estate of their grandfather, John Simpson, Sr. The Superior Court decided that question in the affirmative, and on the appeal of Asa H. Simpson, Ida M. Simpson and Burnell Simpson, the Appellate Court reversed the decree of the Superior Court.
    Mr. E. F. Runyan, for the appellants.
    Messrs. Van Arman & Vallette, for the appellees.
   Mr. Justice Sheldon

delivered the opinion of the Court:

It is well settled by the decisions of this court, that if Amos P. Simpson, the son of John Simpson, Sr., deceased, were now in life, he would himself, as heir, be barred of all claim and interest in his father’s estate, from the acceptance by him from his father of a conveyance of real estate in full satisfaction of his share, as heir, in his father’s estate. (Parsons v. Ely, 45 Ill. 232; Bishop v. Davenport, 58 id. 105; Galbraith v. McLain, 84 id. 379; Kershaw v. Kershaw, 102 id. 307.) Are the children and heirs of Amos P. Simpson in like manner barred, he having died in the lifetime of his father, John Simpson, Sr. ? By our Statute of Descents the estate of a person dying intestate descends “to his or her children and their descendants, in equal parts, the descendants of a deceased child or grandchild taking the share of their deceased parents in equal parts among them.” The latter clause is but the enactment of Blackstone’s fourth canon of descents: “That the lineal descendants, in infinitum, of any person deceased, shall represent their ancestor,—that is, shall stand in the same place as the person himself would have done had he been living. * * * And these representatives shall take neither more nor less, but just so much as their principals would have done. * * * This taking by representation is called succession in stirpes, according to the roots, since all the branches inherit the same share that their root, whom they represent, would have done. ” . (2 Black. Com. 216, 217.) Question might be made, as Amos P. Simpson had received full satisfaction of and given acquittance for his share in his father’s estate, whether, within the language of the statute, there was any share of the deceased parent, Amos P. Simpson, for his children to take. Without dwelling upon this, we pass to other coniderations.

At the time Amos P. Simpson received from his father this conveyance of real estate in satisfaction of his share in the father’s estate, there was this provision of the statute upon the subject of advancement: “Where any of the children of a person dying intestate, or their issue, shall have received from such intestate, in his or her lifetime, any real or personal estate by way of advancement, and shall desire to come into the partition or distribution of such estate with the other parceners or distributees, such advancement, both of real and personal estate, shall be brought into hotchpot with the whole estate, real and personal, of such intestate; and every person so returning such advancement as aforesaid, shall thereupon be entitled to his or her just proportion of said estate. ” (Rev. Stat. 1845, p. 546, see. 51.) This provision contains a clear implication that where there has been an advancement it shall debar sharing in the partition or distribution of an estate unless the advancement be returned. There appears here no offer of a return of the advancement. Under a Massachusetts statute, that where there had been advancements made they should be taken into consideration, and be deducted from the shares of the persons advanced, in the partitioning of intestate estate, it was held in Quarles v. Quarles, 4 Mass. 680, and Kenney v. Tucker, 8 id. 143, where a son received from his father a deed of real estate in satisfaction of his share in his father’s estate, and the son died in the lifetime of the father, and afterwards the father died intestate, that it was an advancement to the son in full, and that the children of the son were barred from any share in the grandfather’s estate.

But we have a statute that went in force July 1, 1872, (Laws 1871-72, p. 352,) which, by express enactment, meets the precise case at bar. Section 4 of the act is: “Any real or personal estate given by an intestate in his lifetime, as an advancement, to any child or lineal descendant, shall be Considered as part of the intestate’s estate, so far as it regards the division and distribution thereof among his issue, and shall be taken by such child or other descendant towards his share of the intestate’s estate; but he shall not be required to refund any part thereof, although it exceeds his share. ” Section 5 provides that if the advancement is in real estate, and its value is expressed in the conveyance or in the written acknowledgment thereof by the party receiving it, it shall be considered as of that value in the distribution of the estate, otherwise it shall be estimated according to its value "when given. And section 8 is: “If a child or other descendant so advanced, dies before the intestate, leaving issue, the advancement shall be taken into consideration in the division or distribution of the estate of the intestate, and the amount thereof shall be allowed accordingly by the representatives of the heirs so advanced, as so much received towards their share of the estate, in like manner as if the advancement had been made directly to them. ” This last section makes the representatives of a person advanced, to be affected by the advancement in the same manner as if the advancement had been made directly to them,—so that the children of Amos P. Simpson would, under this statute, be barred in like manner as he himself would be were he now living.

It is objected that this statute does not apply because the advancement was made to Amos P. Simpson January 29, 1855, and that the legal effect of the advancement must be determined by the statute in force at the time it was made. But why so ? The statute, in allowing it operation here, in nowise affects, to their injury, the rights of Amos P. Simpson, or his father, in respect of the advancement which had been made, nor the contract which they had made. It was their contract that this land conveyed by the father to the son should be in full satisfaction of the son’s share in the father’s estate. Their purpose was, that neither the son nor his children should have any further interest in the father’s estate, and that the remainder of the father’s estate should all go to the other children unprovided for. The intent was, that this share of the estate should be extinguished .as to all claimants. The statute provision that the son’s children should be bound by the advancement received in the same manner as the son, was in aid of the contract between the father and son in giving it the precise effect which they intended. No rights of the son’s children, he being then living, were affected by the passage of the act, with its application to advancements theretofore made. Such children had then, in their father’s lifetime, no rights to be affected. It was entirely competent for the legislature, as respects any rights of appellees, to have enacted at that time that grandchildren should not inherit at all from grandparents; and it surely was not only unobjectionable, but highly proper legislation, that where a son had, by contract, received an advancement in full of his share in his father’s estate, the children of the son, equally with himself, should be barred from inheritance in such estate. The statute is not, in terms, made in any way prospective in its operation,—to relate to cases of advancement thereafter to be made,—but it is enacted for the case of “any real or personal estate given by an intestate in his lifetime, as an advancement. ” When the grandfather, here, came to his death intestate, there was presented the case, under the statute, where a child, who had been advanced by the intestate in his lifetime, had died before the intestate, leaving issue; and we are of opinion the statute had operation as to such issue, without regard to the fact whether the time of making the advancement was before or subsequent to the passage of the statute. The statute had respect to the amount, lessening it, which grandchildren, in a certain condition,—where an advancement had been made,—should inherit from grandparents, and was operative, we think, with respect to all grandchildren whom it found under such condition as named in the statute, at the time it was passed. The statute operated upon the existing state and condition of appellees at the time of the grandfather’s death, and in so doing had no objectionable retroactive effect. This is the reasonable construction, in accordance with the terms of the statute, injurious to no existing rights at the time of the passage of the act, and the one which justice requires should be adopted.

It is claimed further that this court has decided that such a transaction as that between John Simpson, Sr., and Amos P. Simpson, is not an advancement, and reference is made to Bishop v. Davenport, and Kershaw v. Kershaw, supra, as so deciding. This is a misapprehension of those decisions. The question in those cases was, whether children who had received property under such an express contract as in this case, could, in disregard of their contracts, bring into hotchpot what they had received, and come in and share in the distribution of the estate,—and it was held they could not; that those were not such cases of advancement, under the statute, that the children who had thus received property upon an express contract that it should be in full satisfaction of their shares in their father’s estate, could, after the death of the father intestate, bring what they had received into hotchpot, and claim the right to share in the distribution of his estate; that they were barred by the express contract which they had made, from all share in the estate. This was all that was, in fact, decided in those cases, or intended to be decided. There are not in the present case, as in the former ones, persons claiming to share in an estate in opposition to their express contract by which they had received property in full satisfaction of their shares in the estate. The conveyance of land which Amos P. Simpson received from his father, was, in truth, an advancement,—something received from his-father in anticipation of what he might receive by inheritance,—differing from a simple advancement in that it was an advancement in full, made such by the superadded express-contract of the parties; and under the circumstances of this case, the advancement being regarded as one in full, the property conveyed can not be brought into hotchpot, and appellees can in nowise share in the distribution of the estate of John Simpson, Sr., deceased. As against the children of Amos P. Simpson, in order that they may be brought within the operation of this section 8 of the statute, we can have no-doubt that what he thus received from his father should be regarded as an advancement, and that this is not inconsistent-with any former holding of this court.

We are of opinion the Superior Court decreed rightly, and the judgment of the Appellate Court will be reversed, and the cause remanded for further proceedings in conformity with this opinion.

Judgment reversed.

Mr. Justice Scott :

I do not concur in this decision.

Mr. Chief Justice Mulkey :

While I concur in all that is-said in the opinion in this case, I go further, and hold that notwithstanding the father of the grandchildren died before the intestate, the grandchildren must nevertheless take, if they take at all, per stirpes, and consequently their supposed rights are not and can not be superior to those of the father if he were living. As it is conceded if the father were now claiming instead of his children he would have no standing in-court, it follows the situation of the latter is no better. The conclusion, then, to me, seems irresistible, that the statute-relating to the subject is merely declaratory of the common law, and that in no view of the case are the grandchildren entitled to participate in the proceeds of the estate.


source: Caselaw Access Project

author: Mr. Justice Shops

license: Public Domain

text:
    Michael Johnson v. Sarah C. Johnson.

      Filed at Springfield November 14, 1885.

    1. Divoboe—in case of a void marriage—former husband living. A decree of divorce can not be had by the wife on the ground of desertion, if the complainant, at the time of the alleged marriage in respect of which the divorce is sought, had a husband then living, and the prior marriage had not been dissolved by divorce, although the former husband may have deserted her and had not been heard of by her for six years before her second marriage. In such case the second marriage is a nullity.
    2. Mabbiage—its validity—presumptions in respect thereto—long continued absence of former husband. Where a marriage in fact is shown, the' law raises a strong presumption in favor of its legality, and the burden of proof is on the party contesting its validity to show that it is not valid.
    3. So, although the presumption in favor of the validity of a marriage in fact, and of the innocence of the contracting parties, may conflict with that of the continued life of a former husband or wife not heard from for a period less than seven years prior to the second marriage, yet if neither presumption is aided by proof of facts or circumstances cooperating with it, the presumption of the validity of the second marriage must prevail over the other»
    4. Where a woman, six years after her husband was last heard from, is-married to another man, and the validity of the latter marriage is brought im question many years afterward, on the presumption that her former husbandi was living at the time of such last marriage, the court may take into consideration the fact that the former husband has not since that -time been heard from; and in such case the dissolution of the former marriage by death or divorce before her second marriage will be presumed.
    5. The general presumption is that life continues for seven years after am absent party is last heard from, and after the lapse of that time, death is presumed; but the presumption is not conclusive, and maybe rebutted by proof.' of facts and circumstances inconsistent with and sufficient to overcome it.
    6. Death—presumption from long continued absence—evidence. Mere-rumor, however, that an absent party not heard from for several years, is-dead or living, is not admissible in evidence, either to aid or rebut the presumption of his life or death at a particular time after he ,was last heal'd from-
    7. Seven years must elapse before the presumption of death arises. After-that length of time death is presumed; but there is no presumption that the-life continued through the entire period, or that it was not extinguished at any particular time within it.

      8. A jury may find the fact of the death of a party from the lapse of a much shorter period than seven years unheard from, when the circumstances of the case raise the presumption of death. The age, state of health and habits of the absent party, and many other circumstances, may be shown to aid or rebut the presumption of the continuance of life.
    9. Abatement—plea of prior suit for the same cause—requisites of the plea, as to the pendency of such suit. A plea to a bill for divorce, showing that prior to the filing of the same the complainant had exhibited her bill for a divorce in another court, alleging as cause therefor the same matters as in the latter bill, is bad on demurrer, if it fails to show that the former suit is still pending.
    10. Abdesations and decked—as to matters in defence in chancery. A defendant in a chancery suit is bound to apprise the complainant, by his .answer, of the nature of the defence he intends to set up, and he can not avail himself of any matter in defence not stated in his answer, even though it may appear in the evidence.
    11. Chanceby—striking from the files an amendment to answer in chancery—discretion. In a suit by a wife for divorce, on the ground of desertion, upon which an issue of fact was submitted to a jury, the defendant, by leave of court, after the jury had retired, filed an amendment to his answer, setting up that the marriage was void for the reason that the complainant, at the time of her alleged marriage with him, had a husband then living, the court, after the verdict, on motion, ordered this amendment to be stricken from the files: Held, that the motion to strike the amendment from the files was addressed to the discretion of the court, and that the action of the court could not be the subject of review unless it was made to appear that the defendant- was thereby deprived of some substantial right.
    12. Instruction—not applicable to any issue. On bill by a wife for divorce, where the only issue by the pleadings was, whether the husband had deserted her for two years prior to the filing of the bill, the defendant asked the court to instruct the jury, that if they believed, from the evidence, that the complainant had a husband living at the time of her marriage with defendant, they should find for him, which the court refused: Held, properly refused, for the reason there was no such issue.
    13. Evidence—proving the same fact twice. On the trial of a suit for divorce, the complainant testified to the fact of a former marriage with another man who had not been heard from for six years before her marriage with the defendant, and it was held, no error to refuse in evidence the certificate of her former marriage to prove the same fact.
    Writ of Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of Cass county; the Hon. Cyrus Eplee, Judge, presiding.

      Mr. R. W. Mills, for the plaintiff in error:
    The circuit court of Cass county had no jurisdiction of the suit, for the reason that at the time it was commenced the circuit court of Menard county had acquired jurisdiction. Two courts can not have jurisdiction of the same cause at the same time. 1 Bouvier’s Law Dic. p. 770, sec. 4.
    A second marriage while the first subsists undissolved by death or divorce, is an absolute nullity. Bishop on Marriage and Divorce, secs. 201, 205; 1 Blackstone’s Com. 436; 2 Kent’s Com. 79.
    The court erred in striking the amended answer from the files. Rev. Stat. chap. 110, sec. 24.
    Whether our courts can annul a void marriage as the ecclesiastical courts do, is a question that does not arise here. The only question here is, can the court dissolve a void marriage.
    Messrs. Ketcham & Gridley, for the defendant in error:
    The wife was not a competent witness to prove her former marriage. 4 Bishop on Marriage and Divorce, sec. 327.
    The presumption in favor of innocence and the legality of a marriage is such as to throw the burden of proving that complainant had a living, undivorced husband, upon the defendant. Harris v. Harris, 8 Bradw. 57; Dijon v. People, 18 Mich. 84; Hull v. Rowls, 27 Miss. 471; Chapman v. Cooper, 5 Rich. 452; Candy v. George, 6 id. 103; Rex v. Twyning, 2 B. & Al. 385.
    The plea to the jurisdiction was bad. (Garrick v. Chamberlain, 97 Ill. 620.) But by answering over, defendant is estopped from raising the question of the sufficiency of the plea. Gould’s Pleading, (4th ed.) p. 441, chap. 9, sec. 43.
    The instruction as to a former marriage was properly refused, as there was no such issue presented.
   Mr. Justice Shops

delivered the opinion of the Court:

This was a bill for divorce, filed by Sarah- C. Johnson, «defendant in error, against Michael E. Johnson, plaintiff in error, in the Cass circuit court, where a decree of divorce was rendered. The cause was taken by writ of error, by defendant below, to the Appellate Court for the Third District. The decree of the lower court was there affirmed, and the present writ of error is prosecuted to this court from that order of affirmance.

The bill alleges, in the usual form, the residence of complainant, her marriage with defendant, and charges willful desertion by him for more than two years, etc. At the August term, 1884, of said circuit court, the defendant appeared and filed a plea, averring, in apt words, that before the filing of, her bill" in said court the complainant had exhibited her bill in the Menard circuit court against the defendant, for divorce, and alleging, as cause therefor, the same matters, etc., set up in her bill here filed, but failed to aver that such former proceeding was still pending. To this plea a demurrer was interposed, and sustained by the court, and this ruling is, among others, assigned for error. The demurrer was properly sustained. The plea, to have been sufficient, should have averred that the former cause was pending. Garrick et al. v. Chamberlain et al. 97 Ill. 620.

The defendant, by leave# of the court, answered, denying the allegations of the bill.' Replication being filed thereto, the cause was tried by a jury, resulting in a verdict for complainant. A motion by defendant for a new trial was overruled, and on a subsequent day of the term a decree of divorce entered. After the jury had retired to consider of their verdict, the defendant, by leave; filed an amendment to his answer, in which it was averred “that at the time of the pretended marriage of the complainant with the defendant, the complainant was a married woman, and was then and there the wife of one Albert Thurber, who was then and there alive. ” ' After the return of the verdict this amendment was, on complainant’s motion, stricken from the files, and this ruling is also assigned for ■error. This motion was addressed to the sound discretion ■of the court, the exercise of which will not be the subject of review unless it appears that some substantial right has been lost to the defendant, or some legal or equitable .defence denied him. In the view we take of this ease, as will be seen hereafter, this amendment could have been of no avail to the defendant upon the ease made by the evidence introduced or ■offered in the court below.

That the evidence is sufficient to warrant the verdict and ■decree in favor of complainant is not denied by counsel for defendant, if her marriage with the defendant was a valid marriage. The serious contention is, that at the time of the marriage of complainant with defendant she had a former husband living, and therefore her marriage with defendant was void,—that whatever her rights under a bill properly framed for that purpose might be, no relief could be granted under this bill. This position of counsel would be undeniable if the evidence warrants the assumption that complainant had a former husband, who was living at the second marriage, and from whom she had never been divorced. The only evidence contained in the record tending to establish that at the time of her marriage with defendant the complainant had a husband living, is that given by complainant on cross-examination by defendant’s counsel. This evidence was, in substance, that complainant was married to one Albert Thurber in Menard county, Illinois, on the 26th day of July, 1866; that they lived together three months; that said Thurber then deserted her and went away; that about a year after the separation, and some time in 1867, she received a letter from him, and that from that time to the trial, in August, 1884, she had not seen him or heard from him; that she had heard rumors at one time that he was dead, and another that he was alive, and another that he was married again. No-other witness testified in regard to the matter under consideration, or to any circumstance having any bearing thereon, and no other evidence was offered.

The marriage of complainant with the defendant is shown to have been solemnized in the month of February, 1874,— over six, but less than seven, years after the last knowledge of the former husband,—and it is contended, that as the law presumes the continuance of life where the time of the absence has not extended to seven years, this presumption must control, and therefore the marriage in issue is void. It has been repeatedly held that mere rumor that the absent party is dead or living can not be received in evidence, either to aid or rebut the presumption of life. The case of the defendant, as made by his amendment to his answer, therefore rests solely upon this supposed presumption of the living of the former-husband at the time of the last marriage. The general presumption is, that life continues for seven years after the-party is last heard from, and after the lapse of that time death is presumed; but the presumption is not conclusive,— is presumptio juris only,—and may be rebutted by proof of facts and circumstances inconsistent with and sufficient to-overcome it. Under the rule, seven years must elapse before the presumption of death arises. When the seven years have elapsed, the fact of death is presumed; but there is no presumption that the life continued through the entire period, or that it was or was not extinguished at any particular time within it,—that is, the law raises no presumption as to the-time when, within the seven years, the death in fact occurred. (1 Greenleaf on Evidence, sec. 41; Bishop on Marriage and Divorce, secs. 452-456.) It is also clear that the jury may find the fact of death from the lapse of a much shorter period than seven years, when the circumstances of the particular case raise the presumption of death. 1 Greenleaf on Evidence, supra.

But if the law raises the presumption that the former husband was alive at the date of the last marriage, from the fact that seven years had not then elapsed since the last knowledge of him, it also, in the absence of proof to the contrary, presumes- that the parties in contracting such marriage, and in subsequently cohabiting, were innocent of immorality or crime, and that there was no legal impediment to. its consummation. ‘When a marriage is shown, in fact, the law raises a strong presumption in.favor of its legality, and the burden is with the party objecting to its validity to prove that it is not valid. (Bishop on Marriage and Divorce, secs. 457, 458.) Presumptions of this class are not conclusive, but are sufficient, in general, to shift the burden of proof. (1 Greenleaf on Evidence, secs. 33-35.) These presumptions of innocence, and of the validity of the marriage, conflict with the presumption of life, and if neither presumption is aided by proof of facts or circumstances cooperating with it, the presumption of the validity of the marriage has generally been held to be the stronger, and to prevail over the presumption of the continuance of the particular life,—and this is so held although the time elapsing between the last knowledge of the former husband and the second marriage is much less than seven years.

Rex v. Twyning, 2 B. & Al. 386, was a case where these conflicting presumptions came under consideration. The wife of a soldier who went abroad, married again in a little over a year, and the question was as to the legitimacy of the children of this second marriage. The court said: “The law presumes the continuance of life for seven years, but it also presumes against the commission of crime. It is contended that the death of the husband ought to have been proved, but the answer is, that the presumption of law is that he was not alive, when the consequence of his being so is that another person has committed a crime. ”

In Yates v. Houston, 8 Texas, 449, four years only had elapsed after the disappearance of the wife before the husband and another woman appeared as husband and wife, under circumstances raising the presumption of marriage, and in considering the subject of the conflicting presumptions, the court held that “the rational presumption, after this lapse of time, is, that the former wife is dead. The ordinary presumption of the continuance of human life should not, under the facts in this case, outweigh the presumption in favor of the innocence of their cohabitation, and that there was no legal impediment to their contracting the matrimonial relation.”

In Dixon v. The People, 18 Mich. 84, the prosecution, desiring to use a witness who claimed to be the wife of the defendant, produced evidence of her marriage to one Phillips in 1859. Thereupon she was put on the stand, and admitted her marriage .with Phillips, and stated that she last heard from him in April, 1860, and supposing he was dead, married the defendant in 1865. The Sourt below permitted her to testify, against the objection of the defendant. The Supreme Court of that State, in reviewing the case, said: “The presumption of innocence,—that she would not commit the crime of "bigamy by marrying the defendant while Phillips was .alive,—rendered it obligatory on the court, in the absence of testimony to the contrary, conclusively to presume the death of Phillips and the validity of her marriage with defendant.”

In Senser et al. v. Bower et al. 1 Pa. 450, the court, in determining the validity of a second marriage, say: “But there is said to be the same evidence of a precedent marriage of the mother with another man, who was alive at her second marriage, and hence a supposed dilemma; but the proof being ■equal, the presumption is in favor of innocence. And so far is this carried in the case of conflicting presumptions, that the one in favor of innocence shall prevail.”

In Hull v. Rawls, 27 Miss. 471, the widow of Bawls petitioned for dower, which was resisted upon the ground that her marriage with Bawls was void, for the reason that he had a wife living at the date of his marriage with the petitioner. The proof showed that petitioner and Bawls were married December 6, 1848, and that in 1844 Bawls was living with another woman whom he recognized as his wife. The court said: “The fact that the deceased (Bawls) was living in 1844 with a woman believed to be his wife, is no evidence that she was living on the 6th of December, 1848. The marriage having been solemnized according to the forms of law, every presumption must be indulged in favor of its validity. ”

The case of Chapman v. Cooper, 5 Rich. 452, was where five or six years only had intervened between the time the former husband was last heard from and the second marriage of the wife, and the court held that under the facts of that case (the ease having been brought many years afterwards,) the presumption of innocence ought to prevail.

The only case of this character determined in this State, that we are aware of, came before the Appellate Court for the Second District for consideration,—Harris v. Harris, 8 Bradw. 57. That was a bill for divorce, filed by the husband against the wife, seeking to declare the marriage void because the wife had a former husband living at the time of the marriage of these parties. That court, in an able opinion by Pillsbtjby, J., after reviewing many of the authorities here cited, said: “In cases like this at bar, where nine years had elapsed (at the trial) from the time the first husband was last heard from or seen by any witness testifying in the cause, the law will not presume the continuance of life to the time of the second marriage, but will require the complainant to introduce direct evidence to prove that the former husband was alive at the date of the second marriage. There being no sufficient evidence of this character to sustain the verdict, find as the instructions permitted the jury to find Lowry (the former husband) was living at the time of the marriage between these parties, from the presumption of life, alone, thereby changing the burden of proof from complainant to-the defendant, the case will be reversed.”

Further citation of authorities will be unnecessary, as those-cited sufficiently show the trend of judicial determination on this subject. It will be seen that many of the cases, like Rex v. Twyning, supra, seem to lay down the proposition as a strict rule of law, and hold that the presumption of innocence will prevail whenever the presumption of the continuance of life would impute crime. This appears to be the chief ground for criticism of the case last named, in Rex v. Harborne, 2 A. & El. 540. We think, however, that the weight of authority is, that it is a question of fact to be determined upon the circumstances of the particular case,—that there is no-rigid presumption to be inflexibly followed, aside from the considerations of such circumstances. In Rex v. Harborne, supra, the circumstances being that the wife had been seen within twenty-five days of the second marriage of the husband, it was held that the presumption of the continuance of life should prevail, while in Greenborough v. Underhill, 12 Vt. 604, (afterwards questioned in Northfield v. Plymouth, 20 id. 582,) it was held that after an absence of two years not heard from, the presumption of innocence would prevail over the presumption of life. So, also, the age, condition of health; habits of the absent party, and many other circumstances, may be brought in to aid or rebut the presumption of the continuance of life. Therefore, no absolute rule can be laid down to determine when or, in what particular case the presumption of life should prevail over the presumption of innocence, or the reverse; but the question, like any other question of fact, must be determined upon consideration of the attending facts and circumstances. It may, however, be safely said, that where, there are no circumstances to aid the presumption of the continuance of life, the presumption of innocence and of the validity of the second marriage should, in general, prevail.

It is always material to consider, in cases like the one at bar, not only the time that intervened between the last knowledge of the former husband or wife and the second marriage, but also between such last knowledge and the trial of the cause; for if the full period in which death is presumed, has elapsed at the time of the litigation, and there is no presumption as to when, within the seven years, the death, in fact, occurred, it may as well be held to have taken place before as after the second marriage, and there will, in that event, be “no great need of help from the presumption of innocence to sustain the second marriage. ” (Bishop on Marriage and Divorce, sec. 456 ; Kelly v. Drew, 12 Allen, 107.) In the case last cited, a woman had married four years after her former husband was last heard from. Sixteen years afterwards the validity of her second marriage was called in question. The court held it valid, and said: “No evidence was offered that the first husband had been heard from for twenty years, or that he had not died, or been divorced from her before her second marriage. Under the circumstances the presumption of the wife’s innocence in marrying again might well overcome any presumption that a man, not heard from for four years before the marriage, or for sixteen years afterward, was alive, and her lawful husband, when she married the second time.” At the trial of this cause over sixteen years had elapsed since the last knowledge of the former husband, and we see no reason why these principles do not apply. We think the complainant might safely rely upon the presumption of the validity of her marriage. The law did not impose on her, under the circumstances of this case, the duty of preserving the evidence of the dissolution of her former marriage, and producing it on the trial, but the burden was on the defendant to prove such facts and circumstances as would establish the invalidity of his marriage with complainant.

It is urged that the circuit court erred in refusing an instruction asked by the defendant, to the effect that if the jury believed, from the evidence, that the complainant had a husband living at the time of her marriage with defendant, then they should find for the defendant. The bill and answer presented no issue at that time to which the instruction was applicable, and it was properly refused. The rule in chancery is stated to be, “that a defendant is bound to apprise the complainant, by his answer, of the nature of the case he intends to set up, and that a defendant can not avail himself of any matter in defence which is not stated in his answer, even though it should appear in the evidence. ” (1 Daniell’a Chancery Practice, 726.) The defendant could not, by an amendment after trial, make the refusal of an instruction error, which was not so at the time of its refusal.

It is also insisted that the court erred in giving an instruction for complainant. We have carefully examined the instructions, and under the issues as presented by the bill and answer, at the time of the trial, find no error. Holding, as we do, that the case was determined correctly on the merits, there is, in our opinion, no error in giving or refusing instructions for which the decree should be disturbed.

There was no error in rejecting the certificate of marriage offered by defendant. All it tended to prove had already been admitted in the presence of the court and jury by complainant, and if it had been competent evidence, the defendant could not have been prejudiced by its rejection.

Finding no error in the record, the judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    Edmund S. Holbrook, Devisee, etc. v. Mary M. Gouveneur, Devisee, etc.

      Filed at Ottawa November 14, 1885.

    1. Limitation—under act of 1839, as to vacant and unoccupied land— entry under color of title—evidence—presumption. Where a defendant in ejectment shows the payment of all taxes on the land, under color of title, for seven consecutive years while the land was vacant and unoccupied, and he is found or shown to be in possession when the action was brought, it will be presumed that his possession was under his color of title, especially when that fact was not disputed on the trial.
    2. And where a party, as a condition to his being let in as a defendant in an action of ejectment brought in 1866, was required to admit by his plea that he was in possession of the premises when the suit was brought, and it was admitted that the land was vacant until the year 1862, when the plaintiff, without objection, read in evidence the return on the declaration, which showed that the defendant, another party, was then in possession, and judgment was for the defendant, it was held, that the judgment should not be reversed on the ground of the slightness of the evidence showing the defendant’s actual possession under color of title before suit brought.
    Writ of Error to the Circuit Court of Will county; the Hon. Francis Goodspeed, Judge, presiding.
    Mr. Edmund S. Holbrook, pro se:

    To make a defence under the ninth section of the Conveyance act of 1845, the defendant is required to establish three points: First, color of title; second, payment of taxes for seven years as to vacant lands by him, having color of title; and third, a reduction to actual possession of such vacant land. . There is no proof as to the time defendant took possession, or that he came into possession under the color of title shown by him.
    This suit was brought on February 24, 1866, against Peter Eickey, who, on February 14, 1871, withdrew his plea of not guilty, on the ground that he was not interested in the defence, being a tenant of one Joseph I. Burton, who had notice of the suit, and refused to appear and defend. On the 15th of February, 1871, leave was given to Gouveneur to enter his name and appearance, and to defend as to the west half of the quarter section; but the court required him in his plea to admit possession of the premises at the time of the commencement of the suit. This admission so made, and for such a purpose, can not be construed as an acceptance of the truth of the plea by the plaintiff as a fact in evidence.
    The rule that a pleading is to be construed most strongly against the pleader, should apply here. The court below construed it in his favor as an admission of the plaintiff. If Gouveneur took possession of Rickey, he would have acquired and held it, the same as Rickey, as tenant of Burton,—one not having color of title. It was held in Dewley v. Van Court, 21 Ill. 462, that the color-of-title man could not appropriate to himself a payment of taxes made by a stranger. It would be equally unreasonable that he should appropriate to himself a possession had by a stranger.
    Messrs. Gilbert & Eckels, for the defendant in error:
    Under the general issue in ejectment, the plaintiff must prove, first, that he had the legal title in the premises at the time of the demise laid in the declaration; second, that he also had the right of entry; and third, that the defendant, or those claiming under him, were in possession of the premises when the suit was brought. 2 Greenleaf on Evidence, sec. 304.
    From this it is apparent the plaintiff could not recover without proving possession in the defendant at the time of the commencement of the suit, and consequently could not be in a position to urge the want of proof of that fact as a ground for a reversal. On the other hand, the failure to make that proof entitled the defendant to a judgment. This rule is not changed by our statute.

      On the question of limitation by seven years’ payment of taxes on vacant land under color of title, see Newland v. Marsh, 19 Ill. 380; Harding v. Butts, 18 id. 506; Robb v. Bowen, 9 Pa. 71; Paullin v. Hale, 40 Ill. 177; Hinchman v. Whetstone, 23 id. 190; Hale v. Gladfelter, 52 id. 93; Hardin v. Crate, 60 id. 217.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action of ejectment, brought by Seth W. Hardin, in the circuit court of Will county, against Peter Bickey, to recover the south-east quarter of section 19, town 33 north, range 10, east of the third principal meridian. A copy of the declaration was served on the defendant on the 19th day of February, 1866. The declaration was filed in court on the 24th of the same month, and on the 27th a rule was entered requiring the defendant to plead. On the back of the declaration will be found an affidavit of service, which'contained the following: “He gave a copy of the within declaration and notice to the within named defendant, who was then in the actual occupation of the premises within described. ” To the declaration the defendant interposed two pleas: First, the general issue; and second, that he was not, when the action was commenced, in the possession of the west half of said quarter section of land in the declaration described. On the 14th day of February, 1871, the respective parties appeared in court by their attorneys, and defendant, Bickey, asked leave to withdraw his plea, on the ground that he was not interested in the defence, and the attorney for the defendant asked leave of court to enter the name of Samuel M. W. Gouveneur in the place of Bickey, and to defend as to the west half of the tract of land described in the declaration. The court, on the application, made the following order: “It is ordered by the court that the said Bickey have leave to withdraw his said plea, which is done; and that the said Gouveneur have leave to enter his name and appearance, and to defend as to the said west half, ” etc. A default was then taken against Rickey as to the east half of the quarter section in litigation, and the substituted defendant filed a plea of the general issue, in which he admitted possession of the premises at the time of the commencement of the suit. After the filing of this plea, and on the 27th day of February, 1871, a jury having been waived, a trial was had before the court, which resulted in a judgment in favor of the defendant. The plaintiff appealed to this court, where the judgment was reversed, and the cause remanded. (Hardin v. Gouveneur, 69 Ill. 140.) After the remanding order had been filed, a second trial was had on the 10th day of June, 1878, before the court, without a jury, which also resulted in a judgment in favor of the defendant, to reverse which the plaintiff sued out this writ of error.

On the trial before the court the plaintiff read in evidence deeds which established a prima facie title in himself, and the defendant established color of title and seven successive years’ payment of taxes while the land was vacant and unoccupied. But it is contended by plaintiff in error that the evidence before the court was not sufficient to establish possession by defendant under color of title and payment of taxes, and for the want of such proof he claims that the judgment was erroneous. The sufficiency of the evidence to establish possession of the land under the color of title read in evidence is the only question presented by the record.

We have given the question involved that consideration Avhich its importance demands, and while there is much force in the argument of counsel for plaintiff in error, yet we are of opinion that under all the facts before the circuit court the judgment was correct. It will be remembered that the action was brought against the defendant, Rickey, who was alleged in the declaration to be in possession of the land. The return, under oath, of the person intrusted with the service of the declaration, shows, also, that Rickey avbs in the actual occupation of the land when service was had upon him. These facts appearing in and upon the plaintiff’s pleading, may be regarded as admissions by him, which may be availed of by the defendant. It is true that the name of the original defendant, Rickey, had been dismissed out of the case, and Gouveneur had been substituted as a defendant; but this change .in the parties could not affect the question here involved. After the substitution of Gouveneur for Rickey, the action then stood precisely as it would if it had in the first instance been brought against him. He had the same rights and incurred the same liabilities as he would if the action had originally been brought against him.

But in addition to the facts alluded to, there is another admission which is entitled to much weight in the determination of the question. On the trial before the court, after the defendant bad established, payment of taxes from the year 1851 to the year 1861, both inclusive, by the production of tax receipts, the bill of exceptions shows that “the plaintiff, at the request of defendant, admitted that the land was vacant and unoccupied until the year 1862.” After this admission the plaintiff then read in evidence the return on the declaration, which showed that the defendant, when the action was brought, was in the actual occupation of the land in controversy. Whether this return would have been regarded as legitimate evidence if it had been offered by the defendant, need not now be determined. It was offered and read by the plaintiff without objection from any quarter, and he is estopped from claiming that the testimony is not competent. If, then, the land was vacant, as is conceded, until the year 1862, and the defendant, who held color of title and paid all taxes for a period of seven years while it was vacant, was afterwards, when the action was brought, found in the possession of the land, it will be presumed that he was in possession under the color of title.

It does not appear that the question here raised was one in dispute or controversy before the circuit court. If it had been, doubtless more proof on the subject would have been introduced. Indeed, the defendant admitted, by his plea, that he was in possession of the land when the action was brought. There was, therefore, no necessity for the plaintiff to prove a fact which was admitted by the pleadings, and the defendant doubtless relied upon the pleadings, and implied understanding that he was in possession, and hence called no proof. But however that may be, we think there was evidence enough before the court to sustain the judgment, and it will be affirmed.

Judgment affirmed.


author: Mr. Chief Justice Mulkey

text:
    Stephen J. Williams et al. v. George W. Potter et al.

      Filed at Ottawa November 14, 1885.

    1. Elections—town elections—restriction as to number of precincts in a town. While under the general Election law, for other purposes, there may be several precincts in a township, yet for the purpose of a town election; merely, there can be but one precinct, which is co-extensive with the boundary of the town.
    2. Same—of several polling places for town purposes. While for annual town elections the whole town constitutes but one precinct, yet under certain circumstances there may be several polls or voting places where votes may be lawfully received in the same town. But they must all be regarded as constituting one precinct, and each polling place is open to all voters of the town alike, subject, only, to the limitation that no one shall vote at more than one place.
    3. Same—by whom the polling places may be established—prerequisites to the establishing of more than one in the same town—as to designating the places. The township authorities have no power to establish their polling places where more than one is required. That can only be done by the county board, and it can not establish more than one, except where it appears from the last preceding general election the number of voters in the township exceeded three hundred, and their order creating an additional polling place must designate the place where it is to be held.
    4. In this case a petition was presented to the county board, setting forth that there was but one election precinct in a town, and that a large number of the voters of the town resided and worked south and east of a certain river, who were not able to bear the expense of transportation across the river to the then existing precinct, and that the public interest required there should be two precincts in the town, and prayed for a new one to be established for all voters south and east of the river. This petition ivas referred to a committee, who reported recommending that the prayer thereof be granted, and the report, on motion, was adopted. No place for holding the polls was designated and no further action taken, and it did not appear that over three hundred votes had been cast in the town at the preceding general election. The town clerk, in giving notice of the succeeding annual town election, named a school house in district No. 9, as the place for holding the election in the territory south and east of the river: Held, that the school house named was not designated by the county board as a polling place, and that votes cast at such place could not be counted, they being cast at a place unauthorized by laiv.
    5. Same—establishing a new precinct—whether the precinct thereby becomes a town polling place. The county board has ample authority to make additional precincts in a town, for general election purposes, whenever it thinks the public convenience so demands, without regard to the number of the voters in the town. But the establishment of such new precinct will not make it an additional poll for receiving votes at town meetings unless the county board shall so designate it, and fix the place at which the polls shall be held.
    6. Same—canvassing votes—as to town elections, and elections under the general Election law. In the canvassing and returning of votes under the general Election law, each precinct is wholly independent of the others, and makes its own returns directly to the county clerk, while, in the case of mere polling places for town elections, after the close of the polls, the ballot boxes of the subordinate polls are taken to the chief polling place, where the town clerk officiates, and they are all then opened and canvassed, the same as if the ballots had all been deposited in one box.
    Appeal from the County Court of Will county; the Hon. Hiram T. Gilbert, Judge, presiding.
    Messrs. Olin & Phelps, and Messrs. Haley & O’Donnell, for the appellants.
    Mr. C. W. Brown, and Mr. A. F. Mather, for the appellees.
   Mr. Chief Justice Mulkey

delivered the opinion of the Court:

At the spring election held in the township of DuPage, Will county, on the 7th day of April, 1885, the appellants, Stephen G-. Williams, Christian Flugga and John Burkhardt, were, respectively, candidates for the offices of supervisor, collector and justice of the peace of said township, and the appellees, George W. Potter, Seymour Buel and Albert M. Armstrong, were, respectively, opposing candidates for said offices. Upon a canvass of the votes the appellants were all declared elected. The appellees thereupon filed their several petitions in the county court to contest the election of appellants. As the same questions were involved in all the cases, by consent of parties they were consolidated, and tried as one case. Upon the hearing the county court found such irregularities had occurred in calling and conducting the election, as to vitiate it altogether, and entered a decree accordingly. This appeal is prosecuted by the defendants in the petition to reverse that order.

The rights of the successful candidates, as declared by the canvassing board, are assailed on a number of grounds, two of which, only, are necessary to be considered, as they fully cover the frictional points in the case. It is claimed, first, that the votes cast at district No. 9, one of the polling places at said election, are void for the reason there was no authority for holding an election at that place; secondly, that the officers conducting the election were guilty of such improper conduct and irregularities, particularly after the closing of the polls, as to render the election void.

It appears that prior to the 15th of September, 1884, the only polling place in the town was at the Sprague school house, in school district No. 4. On that day the following petition, signed by one hundred voters, was presented to the board of 'supervisors:

“The undersigned, citizens, property owners and tax-payers of the town of DuPage, in said Will county, show unto your honorable body that there is but one election precinct in said town; that a large number of the voters of said township reside and work south and south-east of the Des Plaines river-as laborers in the stone quarries in that location, who are not able to bear the expense of transportation across the river to the present precinct; that we believe that the interests of the voting population of said town require that there should be two election precincts in said town, and that a new election precinct should be established for all voters of said township south and east of the Des Plaines river. We therefore pray your honorable body to establish a new and second election precinct for said town, to embrace all the voters south and east of the Des Plaines river. Elections to be held at the school house of school district No. 9.”

The petition was referred to a committee, who, on the 17th, made a report recommending that the prayer thereof be granted. It was thereupon moved by one of the members of the board that the report be adopted, which motion, upon a vote being taken, was declared passed. No further action was ever taken by the board in respect to the petition, but the record shows that the town clerk, on the 26th day of March, 1885, published the following notice:

Annual Town Meeting.—Notice is hereby given to the citizens, legal voters of the town of DuPage, residing south and east of the Des Plaines river, in the county of Will, and State of Illinois, that the annual town meeting of said town will be held at the school house, district No. 9, in said town, on Tuesday, April 7th, 1885, being the first Tuesday in said month, for the purposes following, viz:”

Then follows a specification of the objects of the meeting, and the signature of the clerk, in his official character. If the votes cast at the polling place specified in this notice are -to be counted, the appellants received a majority of the legal votes east.

Paragraph 51, chapter 139, of the Revised Statutes, fixes the time of holding the annual town meetings for the election of officers, etc., on the second Tuesday of April in each year, at the places appointed for such meetings. Paragraph 52 provides for notice of town meetings, and specifies the kind of notice, the manner of giving it, and the person or persons by whom it is to be given. Paragraph 53 provides that for the purposes of town meetings each town'shall constitute an election precinct. Paragraph 54 declares that “the place of holding elections shall be some convenient place in the town, to be fixed by the electors at their annual town meetings.” Paragraph 55 provides for the manner of changing the place of holding town meetings, which can only be done on petition, and by a majority vote at a town meeting, after due notice of such contemplated change and of the time of voting thereon. Paragraph 56 makes the supervisor, assessor and collector ex officio judges of elections in their town, except as otherwise provided by law. Paragraph 61 provides for the election of town officers at the annual town meeting. Paragraph 62 points out the time and manner of organizing such meetings. Paragraph 67 provides as follows: “The town shall supply a suitable ballot box or boxes, to be kept and used in like manner as ballot boxes in other elections. In * * * any organized town where the number of votes at the last preceding general election exceeded three hundred, the county board may require one or more additional ballot boxes and places for the reception of votes to be provided, which places shall be selected with reference to the convenience of the electors of the -town, and shall designate at which of said polling places the town clerk shall act as clerk of the election; and such polling place, when so designated, shall be the place of transacting the miscellaneous business of the town; and when several places are so provided, the electors present shall choose from their number, one assistant moderator and one assistant clerk for each additional ballot box, to receive the votes therein, who shall take the same oath and he subject to the same penalties as the moderator and clerk, and shall he under the direction of the moderator. At the closing of the polls, all the said ballot boxes shall be brought together at the polling place where the town clerk acts as clerk of the election, and the votes shall be canvassed at the same time and in the same manner, and return thereof made the same, as if all the votes had been cast in the same box; * * * and it shall be the duty of the town clerk, or if there be no town clerk it shall be the duty of the county clerk, to post up in three of the most public places in the town, a notice of each of the places in the town luhere the county board have directed and required the election to be held.”

The foregoing provisions, it is believed, are all that have any special bearing on this ease. They apply to town elections exclusively, and this fact must be kept constantly in view in the consideration of this case. Elections for other purposes, such as for State and county officers, are governed by the general Election law applicable to counties under township organization, which consists of different and independent statutory provisions, and the whole difficulty in this case has evidently arisen from confounding the two systems pertaining to elections in counties under township organization.

The record conclusively shows there was but one legal voting place in the township for town officers, and that was at Sprague school house, district No. 4. While, under the general Election law, for other purposes there may be several 2)recincts in a township, yet for the purposes of a town election, merely, there is but one precinct,—or, in other words, but one territorial boundary limiting the right to vote, and that is co-extensive with the township itself. While this is so, there may, under certain circumstances, be several polls or places where votes may be lawfully received, in the same township, but they are all to be regarded as in the same precinct. They are established for the convenience of the voters, and each polling place is open to all the voters alike, subject to the limitation, of course, that no one is permitted to vote at more than one place at the same election. The town authorities, however, have no power to establish these polling places. That can only be done by the county board, and it can not establish more than one, except where it appears, from the last preceding general election, the number of votes in the township exceeded three hundred. This clearly appears from paragraph 67, above cited. The record in this case, however, affirmatively shows there was not the requisite number of votes in the township to warrant the establishing of more than one place for receiving votes at such town election. But suppose we might say that whether such number existed or not was a quasi judicial question, the determination of which, under the statute, devolved upon the county board, and that that tribunal having decided it, we must accept its decision as conclusive,—without expressing any opinion upon the soundness of this proposition, the question then arises, did the county board designate the school house in district No. 9 as an additional poll or place to receive votes. The only ground for such a claim is the petition above set forth, the report of the committee approving it, and a vote by the board approving the report of the committee and accepting the same. But suppose we could say this was equivalent to ordering what the petitioners had asked, which, to say the least of it, is by no means free from doubt, did such order establish an additional polling place for township purposes ? If so, it certainly accomplished something the petitioners had not asked to be done. What the petitioners asked was the establishment of a new election precinct. But that is quite a different thing, and is something with which the township had nothing to do. The establishment of new or additional precincts is provided for under the general Election law. (See paragraph 32 of chapter 46.) The county board has ample authority to make such additional precincts for general election purposes whenever it thinks the convenience of the voters requires it, without regard to their number, and the establishment of such a precinct would not make it an additional poll for receiving votes at town meetings unless the county board should so designate it. As to polling places for town purposes, merely, the town itself selects where there is but one, and if additional ones are required, the county board designates the places and the town provides them, together with the additional ballot boxes, in conformity with paragraph 67, chapter 139, above cited. But as to providing voting places or additional ballot boxes in the new precincts, the town has nothing to do with' it. Moreover, the mode of conducting the election, canvassing and making returns thereof, at a mere polling place for township purposes, is altogether unlike that which the law requires for a precinct election. In the latter case each precinct is wholly independent of all the others, and makes its own returns directly to the clerk of the county court. In the case of mere polling places, as soon as the polls are closed the ballot boxes of the subordinate polls are taken to the chief polling place where the town clerk officiates, and they are all there opened and canvassed just as if they had all been deposited in one box, and the result declared and recorded in the presence of the assembled voters.

It is clear, then, beyond all question, that the school house in district No. 9 was never designated or appointed by the county board as a polling place for township purposes, and it is a conceded fact there was not a sufficient number of voters in the township to warrant such appointment by the county board. The case made by the record, then, is simply this: A number of voters of the township assemble at a place unauthorized by law, organize, and hold an election for town officers,—and the question is, shall the votes cast at such election be counted. The question is too plain to admit of serious argument. It is clear, upon the plainest principles of law, they can riot be so counted. The whole thing, however well intended, ivas, in contemplation of law, illegal and void,—indeed, a mere farce,-—and we agree with the trial court in holding that it was such a grave departure from the requirements of the law as to vitiate the election altogether. The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Scott

text:
    Barbara A. Green v. George V. Dietrich.

      Filed at Ottawa November 14, 1885.

      1. Vendob and ptjbchaseb—fight of the latter to buy in, outstanding superior title. The purchaser of land, while in possession uhder his contract of purchase, is under no obligation to maintain his vendor’s title, and the law does not forbid him from buying an outstanding title to the premises, and asserting it against his vendor.
    2. So where the purchaser entered into possession under an agreement that the purchase money was not to be paid unless the vendor should, within three years, make him a warranty deed conveying a perfect title, and in case of failure to make him such conveyance the purchaser was to remain in possession of the premises for the period of three years, and pay a reasonable rent for the time he could hold peaceable possession, and before the expiration of the three years he acquired the title from other parties, it was held, that there was nothing in the relation of the parties, under the original contract or otherwise, that prevented the purchaser from yielding to the superior title and purchasing the same, and in that way secure his peace.
    3. Landdobd and tenant—whether the relation exists — as between vendor and purchaser. In such case the relation of landlord and tenant did not exist between the parties after the expiration of the three years. The purchaser was not bound to pay rent after that time, he having in the meantime acquired title to the premises from another source independent of his vendor, and the “reasonable rent" the purchaser was to pay on failure of his vendor to make a deed, was intended as compensation for the use of the land for such period as he might peaceably hold possession during the three years.

      4. Trust—sufficiency of evidence to show land was bought for another. Where a person, after taking possession of land under a contract of purchase, by which he is not required to pay the contract price unless his vendor shall acquire the title to the same within .three years, purchases from others the superior title, under which he claims the property as his own, in order to show that his subsequent purchase of, the title was for his original vendor under a verbal contract to that effect, it is incumbent on the party claiming the trust to establish the existence of such verbal contract by a clear preponderance of evidence.
    5. So after the lapse of many years, and after the death of the party so purchasing, the testimony to establish a verbal contract that the purchase was made for another, should be of the most satisfactory character, and evidence of the admissions and statements of the party, in casual conversations, shown after his death, are too unreliable to justify a decree divesting the title of his heirs long after his death.
    6. Laches—as against a claim of a trust in land. Where a person purchased in the outstanding titles to land in his own name, presumably for his own use, and for several years after and until his death held the land under such title as his own, and his widow and heir held the same for thirteen years after his death, and expended considerable sums in improvements upon the property before bill was filed by another claiming that the purchase was made for his benefit, it was held, that the laches was such as to prevent equitable relief.
    Appeal from the Circuit Court of Knox county; the Hon. Arthur A. Smith, Judge, presiding.
    Messrs. Willoughby & Dougherty, for the appellant:
    This was a contract for the payment, by Alfred Thurman, of $3500 three years from its date, November 2, 1864, provided S. B. Allen should, within that time, make a deed to Thurman conveying a perfect title to the land in controversy. This he could not do, for the reason that at no time during the three years did he have even color of title.
    It is claimed that Thurman bought the titles for the benefit of S. B. Allen, he to be credited on the purchase price of whatever they cost him. To this we reply, that such agreement is not shown by the proofs, and if made, was void, as being an agreement in parol concerning an interest in land. Sheldon v. Harding, 44 Ill. 73.

      Thurman and those claiming under him have been in the possession of this land since August 17, 1865, claiming adversely to S. B. Allen. If Thurman was a tenant, at the close of the tenancy he could disclaim and set up adverse title in himself. McGuffie v. Carter, 42 Mich. 499; Page v. Kinsman, 43 N. H. 328; Despard v. Walbridge, 15 N. Y. 377; Insurance Co. v. McKenzie, 10 C. B. (N. S.) 1870; 1 Taylor on Landlord and Tenant, sec. 629; 1 Washburn on Real Prop. 369.
    Thurman took possession as a purchaser and not as a tenant, and a purchaser in possession is not estopped to set up an adverse title. Bright’s Lessee v. Rochester, 7 Wheat. 547; Jackson v. Johnson, 5 Cow. 74.
    Whatever equities, if any, ever existed against the appellant, have been lost by gross laches. Rose v. Swann, 56 Ill. 40; Wilson v. Walkins, 3 Pet. 43.
    Messrs. Saneord & Carney, for the appellee:
    The contract between the parties, dated November 2,1864, was more than a contract of purchase. It provided that if Allen failed to make the title, Thurman owes Allen a reasonable rent. If Thurman was á tenant of Allen, the appellant, succeeding in the possession, was also a tenant. Angeli on Limitations, sec. 442; Hardin v. Forsythe, 99 Ill. 312.
    The titles which Thurman acquired under the sheriff’s deed and the Boylin deed were acquired by him in the interest of Allen, and as a part compliance on the part of Thurman. He was to be credited on his contract for the same.
    Owing to the relations of the parties the contract was not within the Statute of Frauds. Moon v. Titman, 44 Ill. 367; O’Hallaran v. Fitzgerald, 71 id. 53.
    Owing to the trust and relations of the parties, laches can not avail as a defence. McNamara v. Garrity, 106 Ill. 384; Angeli on Limitations, secs. 437-447; Lowe v. Emerson, 48 Ill. 160; Rigg v. Cook, 4 Gilm. 351; Zellar's Lessee v. Eckhart, 4 How. 295; Hancock v. Harper, 86 Ill. 445.
   Mr. Justice Scott

delivered the opinion of the Court:

The bill in this ease was brought by George V. Dietrich, in the circuit court of Knox county, against Florence Green and Barbara A. Green, and is to compel a specific performance of a contract made by and between Stephen B. Allen and Alfred Thurman, since deceased, for the sale to Thurman of the premises involved in this litigation. One of the defendants, Barbara A. Green, is the widow of Alfred Thurman, and the other, Florence Green, is his only child and heir-at-law. Whatever title Alfred Thurman had in the premises is now claimed by defendant Barbara A. Green. Complainant alleges that whatever title Stephen B. Allen had to the property in controversy, has since been acquired by him through certain mesne conveyances, and he asks by his bill to have the written contract between Alfred Thurman and Stephen B. Allen, in regard to the land, performed by defendants in his favor, if they shall elect to do so, and on their failure to perform such contract, that certain titles which it is alleged Thurman acquired to the property, be declared to have been held by him in trust for Stephen B. Allen and his grantee, and that defendants be decreed to convey such titles as they have, by inheritance or otherwise, to complainant, and for other relief. On the hearing in the circuit court, it was decreed substantially according to the prayer of the bill, and defendant Barbara A. Green brings the ease to this court, and assigns numerous errors on the record.

The agreement between Allen and Thurman, concerning the land, was entered into on the 2d day of November, 1864. It recited that Allen had sfeld to Thurman the land described in the bill, for $3500, to be paid within three years from the date of the contract, with interest at the rate of seven per cent per annum, but the purchase money was not to be paid until the vendor should make and deliver to the vendee or his legal representatives a good and sufficient warranty deed therefor, with a perfect title to the premises. The agreement contained the following paragraph: “It is further agreed between the said parties hereto, that in case the said Stephen B. Allen or his legal representatives shall fail to make, execute and deliver unto the said Alfred Thurman or his legal representatives said deed of conveyance, as before stated, the said Thurman shall have full and continued possession of said premises until the expiration of three years, to pay all taxes which may be hereafter assessed on said premises; and in case of the failure aforesaid of the party of the first part to make said deed, the said Thurman is to pay the said Allen a reasonable rent for said premises so long as he can hold peaceable possession of the same. ” It may be necessary further on to give a construction to this clause of the contract. At the time this contract was made there is no pretence that Allen had any legal title to the land. All he had was possession, and that he delivered to Thurman. Nor is it claimed he was in a position, at any time within three years after the date of the contract, to make a perfect title of the land to Thurman. It is clearly proved that Stephen B. Allen did not then have any legal title to the land, nor has he since acquired such legal title. Whether he had any equitable title that he could convey to complainant, must depend on what conclusion shall be reached as to the titles subsequently acquired by Thurman from other sources,—that is, whether Thurman acquired such titles for himself in his own right, or as trustee for Allen and his grantee.

It seems Everett Messenger and William H. MeWhirter were sureties for Stephen B. Allen in some matters, and in, order to indemnify them, he made to them an equitable assignment of his contract with Alfred Thurman, concerning this tract of land. After the death of Everett Messenger, to make that assignment more effective he made a deed of the land to M. J. Messenger, the administrator of Everett Messenger, deceased. Since then, Frank S. Murphy bought of M. J. Messenger whatever interest in the land he obtained by his deed from Allen, for the sum of $1000, and for his convenience had the deed made to complainant. In his deposition Stephen B. Allen distinctly states he derived title to this land from his brother, Elisha B. Allen, by a deed sent to him from Oregon, and that he never had any title to the land until he received that deed. All the title complainant has to the land in controversy is the title that was in Stephen B. Allen, which he derived from his brother, Elisha B. Allen. No other title is insisted upon.

Both parties seem to concede that prior to February 25, 1858, John Comstock owned the entire quarter section now in dispute. On that day he conveyed the undivided half of the quarter section to Benjamin F. Allen. Afterwards, on the 3d day of March, 1859, Benjamin F. Allen, his wife, Mary, not joining with him, conveyed this quarter section, with other lands, to his son, Elisha B. Allen. This deed was recorded April 14, 1862. Prior to that date,—that is, on the 15th day of October, 1859,—John Comstock had conveyed the other undivided one-half of the quarter section to Andrew Crawford. This latter deed was recorded August 16, 1861, which was before the recording of Benjamin F. Allen’s deed to his son, Elisha B. Allen. In May, 1862, by virtue of an execution issued on a transcript judgment in favor of Owen Conlin, against Elisha B. Allen, the interest of defendant in execution, in the land, was levied upon and sold to the plaintiff in execution, for $318. There was no redemption from that sale by any one, and afterwards the sheriff made Alfred Thurman, as the assignee or holder of the certificate of purchase, a deed for the land that had been sold to Conlin. The title to the undivided half of the quarter section that was in Crawford, afterwards, through certain mesne conveyances, came to Alfred Thurman. That title he held at the timé of his death. Since the death of Alfred Thurman, defendant, Barbara A. Green, purchased from the widow of Benjamin F. Allen, for the sum of $1000, her dower in this quarter section, and in other lands claimed to have been owned by her late husband, and took a conveyance of the same to herself and her daughter, Florence Green. Subsequently to the making of this latter deed, Barbara A. Green and Florence agreed to a parol partition of the land, in which it was agreed Barbara. A. Green should have the quarter section in controversy in this suit, and that Florence Green should have certain lands, that had been conveyed to her by Alfred Thurman, and his. wife, Barbara A. Green, and in consideration of that agreement Florence relinquished and gave to her mother all her interest and title to the land in dispute. That was in 1875, and since then Barbara A. Green has been in the exclusive-possession, and Florence has claimed no interest in this particular parcel of land adverse to her mother, and does not now claim any.

From this statement of the evidence it is apparent the title-that was in Comstock, who seems to have been the source of' title claimed by both parties, was vested in Alfred Thurman, and since his death, by the parol partition of land made by the heir and the widow, the land in controversy is now the-property of Barbara A. Green, unless it shall be held the titles-acquired by Alfred Thurman in his lifetime were taken in his-name in trust for complainant’s remote grantor, Stephen B.. Allen. That is really the only question of any moment in the case. Preliminary to the examination of that question it may be necessary to inquire what were the exact relations between Allen and Thurman,—whether they were that of' vendor and vendee, or lessor and lessee.

It is assumed in the argument, the relation of lessor and lessee existed, and that as the defendant, Green, came into-possession under her husband, she is still a tenant, and can not dispute the lessor’s title without first surrendering possession of the premises to him or his grantee. The determination of this question involves a construction of that clause-of the contract between the parties before noticed. It can hardly be said the relation existing between them, during the three years the contract had to run, was other than that of vendor and vendee. Obviously no rent was to be paid during that period, and Thurman occupied the premises as purchaser, and not otherwise. It will be noted the titles bought in by Thurman were so bought during the period the relation of vendor and vendee existed. The vendee is under no obligation to maintain his vendor’s title, and there is no policy of law that forbids the vendee in possession to buy in an outstanding title to the premises and assert it against his vendor, otherwise it might be asserted by the owner, or a stranger might buy it, and it would be lost to both. (Bright’s Lessee, 7 Wheat. 535 ; Jackson v. Johnson, 5 Cow. 74.) But what was the relation that existed between the parties after the expiration of the three years in which the vendor had to perfect his title ? Was it that of landlord and tenant ? If so, how long was that relation to endure ? If at all, it might be perpetual, and it seems most unreasonable that the parties in this case were contracting for such a lease. A demise of real property in perpetuity would seem to be equivalent to an absolute conveyance, and is perhaps so regarded in law. That clause of the contract which is said to create the relation of landlord and tenant, provides in case of the failure of Allen to make the deed as stipulated in the agreement, then Thurman was to pay him “a reasonable rent for said premises so long as he can hold peaceable possession of the same. ” Does this mean after the expiration of the three years allowed for the making of the deed ? Surely not. After Thurman had purchased in the outstanding titles as he did, it does not appear, from anything in this record, there was any one who could contest his right of possession, and it might be perpetual in him, his heirs or grantees. If Thurman was, by this agreement, a tenant after the expiration of the three years, then, as before suggested, that might be equivalent to a perpetual tenancy, for there was none that could dispossess him. Such a construction is unreasonable, and can not be adopted. Bead in the light of the evidence and attendant circumstances, as should be done, all this clause of the contract means is, that in ease of the failure of the vendor to make the vendee a deed such as his contract obligated him to make, within three years, then- the purchaser bound himself to pay a compensation for the possession he enjoyed, denominated “reasonable rent,” for such period as he could hold possession during that time. It will be observed nothing was to be paid until after the contract had expired by its own terms, or unless the vendee had been sooner dispossessed by a superior title, Before that could occur, all relations, whether of vendor or vendee, or otherwise, would have ceased. Strictly speaking, the relation of landlord and tenant never did exist, and never could exist, between Allen and Thurman under their written contract. So there is nothing in the relation of the parties, under the contract or otherwise, that would forbid Thurman to yield to a superior title and buy it in, and in that way secure his peace.

Becurring now to the principal question, whether Thurman bought in the outstanding titles to the property for himself, or under an agreement to buy them for Allen, it will be seen the testimony is as to a verbal contract, if any existed. The written contract contains nothing whatever in regard to buying any outstanding titles or removing incumbrances on the property, by Thurman or any one else. The testimony as to the existence of any contract on the part of Thurman, comes mostly from the witness Cooley. There is but little evidence in the record in support of his statements. Several witnesses gave casual conversations with Thurman concerning these matters, but no great importance ought to be attached to such evidence. It is too unreliable to be made the basis of a decree divesting the legal representatives of a party long since dead, of their title to the property. Had he lived he might have given some explanation to the conversations or admissions given in evidence, or detailed other parts of the same conversations, that would have made his meaning better understood. Most important of all the testimony introduced on this branch of the case, is that given by the witness Cooley. It is to the effect that after the contract between Allen and Thurman had been executed, the parties came to his office, and it was verbally agreed witness was 'the agent of Allen to perfect the title by getting in any outstanding claim there might be against the property, and for the purpose of paying for the outstanding claims, Thurman was to furnish the money, and receive a credit as for so much money paid on the purchase price of the land. In pursuance of that arrangement, the witness says he conducted the negotiation which resulted in the purchase of the Crawford title, and which was conveyed to Thurman, for which he paid $700. It does not appear the witness had any connection whatever with the buying in of the Conlin title, which was purchased by Thurman and paid for by him, or that he did anything by way of securing a deed to Stephen B. Allen from Elisha B. Allen, then residing in Oregon. But Stephen B. Allen himself, in his deposition, states the only contract between himself and Thurman was the original or written one, and says distinctly, “Thurman did not agree'to buy any title for me. ” He also testifies the witness Cooley told him “there were no claims worth paying attention to; that he spoke of the Comstock title, which he said wasn’t worth anything. ” According to his testimony he was advised by Cooley the Comstock title was “no account, ” and he added, “Thurman and I never agreed to buy up that title.” Treating these witnesses as of the highest respectability and as of equal credibility, it can not be said it proved the existence of even a verbal contract on' the part of Thurman to buy in any outstanding titles for the benefit of Allen. In coming to a conclusion it ought to be regarded as a circumstance of great weight, that now that Thurman is dead his version of what the witness said occurred between the parties can not be obtained. If living, he might corroborate Allen in saying he “didn’t agree to buy any title” for him. That would be in harmony with his interest and his subsequent conduct, and it is not unreasonable to presume he would so testify. After the lapse of so many years, and since the death of the party most interested, the testimony to establish a verbal contract to the effect insisted upon, that would unsettle the title to property long after the death of the party in possession, and who claimed in his lifetime to be the absolute owner, ought to be of the most satisfactory character. Conflicting as the testimony is, it does not, satisfactorily at least, prove the existence of such a contract. It was incumbent on complainant to establish the existence of that contract by a clear preponderance of the evidence, and failing to do so, he can have no standing in a court of equity. If it shall be conceded, as must be done under the evidence, that Thurman bought in the Boylin and Conlin titles for himself, as he had a legal right to do, and not for Allen, under a contract to do so, then the title now held by Barbara A. Green seems to be the better title. At least no reason is perceived, either in law or equity, why defendant in possession should be required to surrender to complainant the title she has, whatever it may be, and if complainant is advised he had a better title, he should have tested it in a court of law, where legal titles are properly cognizable, and not in a court of chancery.

AVithout resting the decision on that ground, there is much force in the argument that Allen has been guilty of such laches as would bar any relief, either to him or to his grantees. The written contract between Allen and'Tlmrman was made in 1864, and the latter did not die until 1870. This suit was not brought until 1883. Thurman was in possession of the premises six years before his death, and several years after he had bought in the outstanding titles in his own name, presumably with an intention to hold them adversely to Allen, •and if the latter intended to insist the titles so acquired by Thurman were1 for his benefit, he should have asserted that -claim in the lifetime of Thurman, that he might have better defended than can now be done by his legal representatives. •Since the death of Thurman the grantor of the parties now ■claiming adversely to him had been guilty of laches in not asserting claim, if they had any, against his legal representatives. Since then the party in possession, resting under -the confident belief she was the owner, has been permitted to buy in the dower interest that incumbered the property, and do make permanent improvements thereon, and it would seem to be inequitable now to permit him or his grantees to assert a claim to the property she has improved by the outlay of her money, under the claim of ownership.

Under no view that can be taken is complainant entitled to relief, and the decree of the circuit court will be reversed as to Barbara A. Green, who is the only one of defendants that now claims any title to the land involved in this suit or who has assigned errors on this record, and as to her the bill will be dismissed.

Decree reversed.