text:
    James Chaplin v. The Commissioners of Highways.

      Filed at Ottawa November 15, 1888.

    1. Appeals—-/rom an Appellate Court—in what cases, generally. If either a franchise, freehold or the validity of a statute is involved, an appeal lies from the Appellate Court to the Supreme Court, without reference to the amount involved, by virtue of the express provisions of the constitution. But when the statute does not give the Appellate Court jurisdiction of appeals involving a franchise, a freehold, or the validity of a statute, the Supreme Court can not entertain an appeal from the Appellate Court for the purpose of passing upon the merits of the case, but only for the purpose of reversing or vacating the judgment of the Appellate Court, with directions to dismiss the appeal.
    ■ 2. Same—whether a freehold is involved—easement, as being a freehold. Where the owner of land files a bill to set aside a proceeding by highway commissioners to condemn a part of the land for the purpose of establishing a permanent right to a ditch or drain over the same, a freehold is involved, and no appeal lies "from the decree of the trial court dismissing the bill, to the Appellate Court.
    3. The interest acquired by the exercise of the right of eminent domain, in lands taken for railroads, highways, streets or alleys, when the statute does not give the right to condemn the fee, is in the nature of á perpetual easement, and when such easement possesses immobility, and a sufficient legal indeterminate duration, it is a freehold interest.
    4. A perpetual easement in lands, or any interest in lands in the nature of such easement, when created by grant, or by any proceeding which is in law equivalent to a grant, constitutes a freehold. A legal interest in lands is to be deemed a freehold, not because of the kind or quantity of the interest, but by reason of its sufficient legal indefinite duration. An easement for life or in fee is a freehold.
    . 5. Same—former decision. The cases of .Lucan v. Cadwallader, 114 111. 285, and Fchhart v. Irons,.id. 469, in so far as they hold contrary to the rule above announced, are overruled.
    6. Same—validity of a statute—whether involved. A bill by the owner of land, which seeks to have condemnation proceedings by commissioners of highways for a ditch over his land for drainage set aside and vacated, on the ground that the statute authorizing the proceeding gives damages, only, instead of compensation for the land taken, and damages to land not taken, and is therefore unconstitutional, when the answer alleges the constitutionality of the law, involves the validity of a statute, and the Appellate Court will have no jurisdiction of an appeal in such case.
    7. While the mere allegation in a pleading that a given statute is unconstitutional, will not necessarily raise a question as to the validity of such statute, yet when it can fee seen that the constitutional question raised' is one which may be fairly regarded as debatable, the question of the validity of a statute becomes involved in the case, within the meaning of the statute regulating jurisdiction of appeals.
    8. Same—waiver of constitutional question. The mere act of taking an appeal to the Appellate Court is not a waiver of the question of the validity of a statute raised by the pleadings. Whether a party appealing has waived a particular error, must be determined by his assignments of error, and from his brief and argument, on appeal.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Will county; the Hon. Dorrance Dibell, Judge, presiding.
    This was a bill in chancery, brought by James Chaplin against the Highway Commissioners of the Township of Wheat-land, in Will county, to restrain said commissioners from digging or opening a ditch or drain across certain lands of the complainant. The bill alleges that the complainant is the owner of a tract of land in said township of Wheatland, lying south of and adjoining the highway running east and west between said township and the township of Plainfield; that some time in the spring of 1884, one Davis, the owner of the land adjoining the highway immediately north of the complainant’s premises, and one Shaeffer, the owner of the land immediately north of Davis’ land, laid tile drains through their respective farms, thereby conducting the water in the direction of and across the highway; that at about the same date, while the complainant was confined to his house by sickness, Davis and Shaeffer entered upon his premises and cut a ditch from the highway across the same for the alleged purpose of carrying off the surplus water brought to the highway in consequence of the construction of their tile drains; that as soon as the complainant was able to do so, he caused said ditch to be filled up; that said parties again opened it and compelled the complainant to repeat the process of filling it up, until finally in the latter part óf the spring of 1884, after said parties had opened the ditch once more, the complainant filled it up, and it has not since been disturbed.
    It is further alleged that, on the 20th day of June, 1885, the highway commissioners of the township of Wheatland commenced proceedings before a justice of the peace of said township for the alleged purpose of having the damages assessed which the complainant might sustain by reason of digging, opening and cleaning a ditch or drain on or across the complainant’s land, .and obtained a verdict of a jury assessing the complainant’s damages at $12; that said commissioners threaten and intend to dig and open said ditch or drain, and that the complainant fears and believes that they will carry their threat into execution, unless restrained by injunction.
    The bill alleges the invalidity of the proceedings before the justice of the peace on various grounds, and among them is the following: “That the section of the statute relating to roads and bridges under which said commissioners were acting or attempting to act in said proceedings ■ before said justice of the peace, is unconstitutional and void, for the reason that it makes no provision for compensation for property taken, and for other good and valid reasons.” The defendants answered denying the equities of the bill, and a replication having been filed, the cause was heard on pleadings and proofs and a decree rendered dismissing the bill at the complainant’s costs for want of equity. The complainant thereupon took an appeal to the Appellate Court of the Second District, where said decree was affirmed, and the complainant now brings the record from that court to this by appeal.

      Mr. E. Meers, and Mr. D. Gilmore, for the appellant:
    Neither the commissioners of the town, of Wheatland, nor the commissioners of highways of the town of Plainfield, separately, nor as a body, composing a-majority of the members of both boards, endeavored to obtain Chaplin’s consent to the digging, opening or cleaning the ditch, before commencing proceedings, as required by section 8 of the Road and Bridge act of this State, also as is defined by the Eminent Domain act of this State. A failure to consent must be set forth in the summons or petition. It is a jurisdictional matter. Mills on Eminent Domain, secs. 107, 108.
    Section 8, aforesaid, does not provide for compensation and damages, as required by the constitution of this State. No compensation was allowed by the jury to Chaplin in the proceedings before the justice.
    That property can not be taken or damaged without just compensation, see People v. McRoberts, 62 Ill. 38; Railroad Co. v. Smith, Ill id. 363; Railroad Co. v. Mayrand, 93 id. 591; Mills on Eminent Domain, secs. 162, 189; Angelí on Water-courses, (6th ed.) secs. 642, 643.
    The commissioners of Wheatland had no authority to take any steps toward the digging, cleaning or opening of the ditch on or across the land of Chaplin, unless acting in conjunction with the commissioners of the town of Plainfield, at a regular called meeting of both boards for such purpose, and first determined on by a majority of each separate board of commissioners, and then by a majority of the members of both boards acting as one body. Commissioners of Highways v. Bridge Co. 3 Bradw. 570; Township Organization act, clause 4; Road and Bridge act, sec. 26; Mack v. Tracy, 41 Ill. 377; McManus v. McDonald, 107 id. 95.
    The line of the proposed ditch must be described with such certainty that a surveyor could locate it from the description given in the summons. Mills on Eminent Domain, secs. 115, 117, 122.

      Discharging water upon a farm is a taking, within the meaning of the constitution. Mills on Eminent Domain, secs. 30, 31.
    Highway commissioners can not grant the right to private parties to ditch on highways, nor bind the public to furnish drainage for the land of private individuals. Johnson v. Rea, 12 Bradw. 331.
    The consent, by parol, to allow another to enter and open a ditch on his land, is merely a license, and revocable at will. Weidekin v. Snelson, 17 Bradw. 461; Woodward v. Seely, 11 Ill. 157; Kamphouse v. Gaffner, 73 id. 461; St. Louis Nat. Stock Yards v. Ferry Co. 102 id. 514; 112 id. 384.
    The water must be discharged into a natural water-course or channel. Wagner v. Chaney, 19 Bradw. 546 ; Peck v. Herrington, 109 Ill. 611.
    As to rights granted by parol license, see Angelí on Watercourses, secs. 280, 371.
    There was no pond.or slough on the highway at the point where the commissioners proposed to drain, consequently there was no necessity for a ditch -being dug by the said commissioners on the land of Chaplin. People ex rel. v. Board of Supervisors, 47 Ill. 256.
    Mr. A. E. Mather, and Mr. A. 0. Marshall, for the appellees:
    The rule is the same, whether this water, naturally passing over Chaplin’s land, flowed in a well defined “water-course,” with well defined banks, or simply a surface flow in wet weather. It is clear that the Chaplin farm is servient to the two hundred acres of land lying immediately north, and the owners of the dominant heritage have an easement in Chaplin’s land which he can not abridge. (Peck v. Herrington, 109 Ill. 611.) The same rules apply to road drainage as to farm drainage. Commissioners of Highways v. White, 15 Bradw. 318.
    There can be no cause of action for an overflow caused by the natural conformation of the land. . Kuhner v. Griesbaum, 59 Ill. 48.

      The legislature of a State may enact any and all laws on any and every subject, unless restrained by the delegation of power to the general government, or its power has been limited by the Federal or State constitution. Railroad Co. v. Warrington, 92 Ill. 157.
    The writ of certiorari may be awarded to all inferior tribunals and jurisdictions; where they have exceeded the limit of their jurisdiction, or have proceeded illegally, and there is no appeal or other mode of directly reviewing their proceedings. Savage v. Board of County Commissioners, 10 Bradw. 204.
   Mr. Justice Bailey

delivered the opinion of the Court:

This case comes here on appeal from the Appellate Court, without any certificate by the judges of that court that it involves questions of law of such importance, either on account of principal or collateral interests, that it should be passed upon by this court. It does not involve $1000. The damages awarded the complainant by the jury in the condemnation proceedings were only $12, and none of the witnesses upon the hearing in the court below estimated the complainant’s damages by reason of the digging and maintaining of the proposed drain as high as $1000. The complainant himself, in his testimony, places his damages, to both the land taken and the land damaged, at $400. It is plain then that we have no jurisdiction of the appeal unless the case involves a franchise or freehold or the validity of a statute. If either of those questions is involved, an appeal lies from the Appellate Court to this court, without reference to the amount involved, by virtue of the express provisions of the Constitution. On such appeal, however, so long as the statute does not vest the Appellate Courts with jurisdiction of appeals in cases involving a franchise, a freehold or the validity of a statute, we can not entertain the appeal for the purpose of passing upon the merits of the case, but only for the purpose of reversing or vacating the judgment of the Appellate Court and remanding the cause to that court with directions to dismiss the appeal.

It can not be pretended that any franchise is involved in the present case. , Does it involve a freehold or the validity of a ° statute? The bill was filed to restrain the commissioners of the township of Wheatland from entering upon the complainant’s land for the purpose of digging, opening and eléaning a ditch or drain to carry off the water from a public highway, and, in effect, to set aside and cancel the proceedings by which said commissioners had undertaken to acquire, by process of condemnation, the right to construct and maintain such ditch or drain across said land. Said condemnation ^proceedings were had under the provisions of the eighth section of the statute in relation to roads and bridges, which authorizes commissioners of highways to enter upon any land adj acent to any highway in their town, “for the purpose of opening any ditch, drain, necessary sluice or water-course, whenever it shall be necessary to open a water-course from any highway to the natural water-courses, and to dig, open and clean ditches upon said land for the purpose of carrying off the water from said highways, or to drain any slough or pond on said highway.” Said section provides that, in ease of the failure of the commissioners to obtain the consent of the owner of such land to the cutting of such ditches, a proceeding may be instituted before a justice of the peace of the county for the purpose of having the damages which such owner may sustain by reason of the digging or opening of such ditches or drains assessed by a jury. The mode of proceeding is prescribed, and it is provided that the jury “shall assess such damages and render a verdict therefor, which shall be final and conclusive of the amount of damages sustained by such person, and the amounts so awarded shall be paid before the commissioners of highways shall be warranted and empowered to enter such lands, and dig, open and clean such drains, ditches and water-courses, as aforesaid, for the purposes contemplated by this act.”

The circumstance which rendered it necessary to have a ditch or drain dug from the highway at the point in question across the complainant’s land, was, the construction by the owners of the land on the o'pposite side of the highway, of a tile drain running for a considerable distance across their lands, and discharging large quantities of water into the highway at that point. It thus appears that the necessity for suitable drainage by means of the ditch in question was a permanent one. It was not the case of a temporary accumulation of water demanding an outlet only for the time being, but one which required a means of drainage as perpetual as the highway itself. It can not be doubted, then, that the right sought to be condemned was that of casting a permanent burden upon the complainant’s land. The interest acquired by the exercise of the right of eminent domain, in lands taken for railroads, highways, streets or alleys, or other like purposes, where the statute does not give the power to condemn the fee, is in the nature of a perpetual easement. Mills on Eminent Domain, sec. 49. The right to construct and maintain a ditch across the complainant’s land, sought to be condemned in this case, was, in the same sense and to the same extent, a perpetual easement.

Is a perpetual easement whiph one party may have in the lands of .another a freehold estate ? An estate, to be a freehold, must possess these two qualities, 1, immobility, that is, the property must be either land or some interest issuing out of or annexed to the land, and 2, a sufficient legal indeterminate duration. Wharton’s Law Diet. As said by Mr. Wash-burn, “An easement always implies an interest in the land in or over which it is enjoyed. The interest of an easement may be a freehold or a. chattel one, according to its duration.” Washburn on Easements, 5. Blackstone defines a freehold to be, “Such an estate in lands as is conveyed by livery of seizin, and in tenements of any incorporeal nature, by what is equivalent thereto.”" 2 Black. Comm. 104. In another place he says that such equivalent mode of transferring the property in incorporeal hereditaments, or things wherein no livery can be had, is by grant. Id. 317. It is therefore said that freeholds of corporeal hereditaments lay in livery, and of incorporeal hereditaments in grant. 1 Preston on Estates, 13. The same author, in discussing the doctrine of freehold estates, says: “Hereditaments which are corporeal, as well as hereditaments which are incorporeal, are the subjects of this doctrine, and admit of the application of this term.” 1 Preston on Estates, 214. In Hewlins v. Shippam, 5 Barn. & Cress. 221, it is held that a right to construct and maintain a gutter or drain from and out on the premises of one party into and over the premises of another party, if created by a deed, is a freehold.

As we have already assumed, the proceedings by which the commissioners of highways have attempted to acquire the right to enter upon the complainant’s land for the purpose of constructing and maintaining a drain, can be justified only as an exercise of the right of eminent domain, which is the right existing in the State of taking private property for public uses on making just compensation. If the proceedings are effectual, as the defendants claim, a permanent interest in the complainants’ land, in the nature of a perpetual easement—a freehold —has been taken, and upon payment of the damages assessed, will be vested in the proper municipal authorities, for the use of the public. The decree of the circuit court dismissing the bill is an adjudication affirming the validity of said proceedings and establishing the title of the municipal authorities and the public to the property thus taken by process of condemnation. It follows, necessarily, that the ease involves a freehold, and, consequently, that the Appellate Court had no jurisdiction of the case.

It has been uniformly held that, in proceedings under chapter 47 of the Revised Statutes entitled Eminent Domain, no appeal lies to the Appellate Court, and that all appeals must be taken directly to this court. That statute was passed before the Appellate Courts were organized, and contains, it is true, an express provision for an appeal to this court. In Kankakee and Seneca Railroad Co. v. Straut, 101 Ill. 653, and Peoria and Pekin Union Railway Co. v. Peoria and Farmington Railway Co. 105 id. 110, this court, without stating the grounds of its decision, held that the section of the Eminent Domain Act relating to appeals was not repealed' by the subsequent' legislation apportioning appellate jurisdiction between the Appellate Courts and this court. That conclusion could have been reached only upon the theory that cases arising under the Eminent Domain Act were comprehended within one of the classes of cases in which, by such subsequent legislation, appeals lay directly from the circuit court to this court. The act then and still in force took from the Appellate Courts all jurisdiction of appeals in cases involving a freehold, and conferred such jurisdiction on this court, a provision manifestly broad enough to cover all cases of appeals in proceedings' arising under the Eminent Domain Act.

In Lucan v. Cadwallader, 114 Ill. 285, and Eckhart v. Irons, id. 469, this court held that a mere easement did not constitute a freehold estate. We are now of the opinion that those decisions were pronounced without sufficient consideration. A perpetual easement in lands, or any interest in lands in the nature of such easement, when created by grant, or by any proceeding which is in law equivalent to a grant, constitutes a freehold. A legal interest in lands is to be deemed a freehold, not because of the kind or quantity of the interest, but by reason of its sufficient legal indefinite duration. An easement for life or in fee is a freehold, and to this extent the cases above referred to must be regarded as overruled.

One of the grounds upon which' the bill seeks to have the condemnation proceedings vacated is, that the section of the statute under which those proceedings were had is unconstitutional and void. The specific point made is, that it contains no provision for compensation for property taken. The Constitution provides that “private property shall not he taken or damaged for public use without just compensation.” Under this provision, as is claimed, two distinct elements of compensation are contemplated, first, for property taken, and second, for property damaged. The statute in question only provides that in case the owner of the land does not consent to the construction of the ditch or drain, proceedings shall be had before a justice of the peace “for the purpose of having the damages, assessed which such owner may sustain by reason of the digging or opening of such ditches or drains.” It is urged that this is not a full compliance with the constitutional requirement, and that as the statute authorizes the taking of private-property without making compensation both for the property taken and the property damaged, it is unconstitutional and void. This unconstitutionality of the statute is alleged in the bill and denied by the answer, and the court, by its decree, found against the contention of the complainant, thereby holding that the statute was valid.

We are of the opinion that the pleadings and decree present a question as to the validity of a statute. While the mere-allegation in a pleading that a given statute is unconstitutional will not necessarily raise a question as to the validity of such statute, yet, where it can he seen that the constitutional question raised is one which may be fairly regarded as debatable, we think the question of the validity of a statute becomes involved in the case, within the meaning of the statutes regulating jurisdiction of appeals. We can not say that such is not the case here. Without intimating any opinion as to the ultimate decision of the question, we think it worthy of consideration whether the statute in this case is a full and adequate-compliance with the constitutional restriction upon the taking of private property for public use.

We are unable to-agree with the Appellate Court that the complainant, by the mere act of taking an appeal to that court, must be deemed to have waived the question as to the validity of the statute. Without holding that he might not have so far waived or abandoned his claim in this respect as to have given that court jurisdiction, so far as its jurisdiction depended upon whether the validity of a statute was involved, we think it clear that in this case he made no such waiver. Whether the party appealing has waived a particular error must be'determined from his assignments of .error, and from his brief and argument on appeal. In both of these the complainant asserted and insisted upon the invalidity of the statute. Upon his thus refusing to abandon a question which ousted the Appellate Court of jurisdiction, his appeal should .have been dismissed.

For the reasons above stated, the judgment of the Appellate Court will be reversed and the cause remanded to that court with directions to dismiss the appeal.

Judgment reversed.

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

Mr. Justice Magruder : I concur in the conclusion reached by this opinion that the cause should be remanded to the Appellate Court with directions to dismiss the appeal, but think that such conclusion should be based solely upon the fact that the validity of a statute is involved. I do not concur in that portion of the opinion which discusses the questions of freehold and easement, and holds that a freehold is necessarily involved in this case.


source: Caselaw Access Project

author: Mr. Chief Justice Cbaig

license: Public Domain

text:
    The City of Chicago v. The Phoenix Insurance Company.

      Filed at Ottawa November 15, 1888.

    1. Eobeign insurance companies—license—power of municipal corporations—the statute construed. Cities incorporated under the general law have no.power to pass an ordinance prohibiting foreign insurance companies from insuring property therein without first procuring a license. Such power is not conferred by the proviso in section 30 of the Insurance law of 1879.
    2. The provisions of section 30 of the Insurance law of 1879 were intended to establish a plan, general in character, under which the net receipts of foreign insurance companies may be taxed in the same manner and at the same rate of taxation as other personal property in the State, and the taxes so imposed are to be in lieu of all town and municipal licenses, and its effect is to repeal any and all laws in conflict therewith. The proviso therein can not be construed to confer the licensing, power by implication.
    3. Police poweb—in cities, etc.—what subjects embraced therein—imposing license fees for reverme—legislative control. An ordinance of a city prohibiting foreign insurance companies from doing business in its limits without taking out a license, and paying two dollars upon the $100 of their gross receipts in such city, being for the purpose of raising revenue, can not be sustained as the exercise of the police power conferred by its charter.

      i. The legislature has the undoubted right, whenever it sees fit, to divest cities and villages of the police powers it may have conferred, and resume the exercise of the same itself.
    5. Statutes—proviso—of its proper office. The office of a proviso in a statute is not to confer power, but is generally to except something from the enacting clause, or to qualify or restrain its generality, or to exclude some possible ground of misinterpretation of its extending to cases not intended to be included.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.

      Mr. Ohables A. Knight, for the appellant:
    The city had the power to pass the ordinance under the proviso contained in section 30, chapter 73, of the Revised Statutes. As to the power of the city in respect to collecting license money of foreign corporations doing business in the same, see People v. Thurber, 13 Ill. 554; Firemen’s Benevolent Association v. Lounsbury, 21 id. 511; Ducat v. Chicago, 48 id. 172; Van Inwagen v. Chicago, 61 id. 31; Alton v. Insurance Co. 72 id. 328; Alton v. Insurance Co. 82 id. 45; Hughes v. Cairo, 92 id. 339 ; Farwell v. Benevolent Association, 4 Bradw. 36; 100 Ill. 197; Springfield v. Insurance Co. 21 App. R. 156.
    The ordinance is valid under the police power delegated to the city. McPherson v. Chebanse, 114 Ill. 46; Fire Department v. Helpenstein, 16 Wis. 136; Firemen’s Benevolent Association v. Lounsbwry, 21 Ill. 511; 11 Am. &. Eng. Corp. Cases, 577; Mason v. Shawneetown, 77 Ill. 533; Marion County v. Lear, 108 id. 344; Dunne v. People, 94 id. 120 ; Lake View v. Cemetery Co. 70 id. 195; Wiggins Ferry Co. v. East St. Louis, 102 id. 560.
    Messrs. Paddock, Aldis- & Weight, for the appellee:
    The ordinance sued on is void for lack of power in the city council to pass it. Springfield v. Insurance Co. 21 App. R. 156.
    The following provisions of statutory law and decided eases will be found to have a bearing upon the general subject: Act of July 1, 1869, sec. 30; Chicago Charter of 1863, see. 5; Laws of 1869, p. 208; City and Village act of July 1, 1872, arts. 5, 7, sec. 23, par. 111; Act of July 7, 1879; Laws of 1879, p. 179; Chicago v. James, 114 Ill. 479; People v. Thurber, 13 id. 554; Firemen's Benevolent Association v. Lounsbury, 21 id. 511; Ducat v. Chicago, 48 id. 172; Alton v. Insurance Co. 72 id. 328; Van Inwagen v. Chicago, 61 id. 31; Hughes v. Cairo, 92 id. 339; Alton v. Insurance Co. 82 id. 45; Walker v. Springfield, 94 id. 364; Farwell v. Benevolent Association, 4 Bradw. 36.

      As to the office of a proviso in a statute, see Boon v. Juliet, 1 Scam. 258, and Minis v. United States, 15 Pet. 423.
   Mr. Chief Justice Cbaig

delivered the opinion of the Court:

This was an action of debt, brought by the city of Chicago, against the Phoenix Insurance Company, to recover two per cent on the gross receipts of its agency in the city of Chicago, the defendant being a foreign insurance company. The action was brought under an ordinance passed by the city council of Chicago on the 15th day of July, 1886. Sections 1 and 2 of the ordinance are as follows:

“Sec. 1. That no corporation, company or association which is not incorporated under the laws of the State of Illinois, shall effect fire insurance in the city of Chicago without first obtaining a license therefor, under a penalty of not less than $50, nor more than $100, for each and every offense.
“Sec. 2. Licenses may be granted to such corporations, companies and associations not incorporated under the laws of this State, to engage in the business of effecting fire insurance in the city of Chicago, upon the paynient of the sum of two dollars upon the $100 of the gross receipts of the agency of such corporation, company or association in the city of Chicago. Said licenses shall be semi-annual, and shall expire, respectively, on the thirtieth (30th) days of June and December in each year; and there shall be paid for the same the amount of two per cent upon the gross receipts of such agency for the preceding half year. Said license fee shall be paid' to the city collector, and 'shall be accompanied by a statement, under oath, as to the amount of said gross receipts for said preceding half year. Upon the receipt given by the collector, the license shall be issued by the mayor.”

There is but one question presented by this record., and that is, whether the city of Chicago had the power to pass the ordinance. The city is organized under the general Incorporation law of the State, but it is not claimed that any -special provision of the Incorporation act confers the power. Nor is it -claimed that the power exists under any act of the legislature relating to the subject under consideration, passed prior to the session of the legislature of 1879, but it is claimed that the city had the power to pass the ordinance under the proviso found in section 30 of an act approved May 31, 1879, (Public Laws •of 1879, p. 179,) which section is as follows:

“Every agent of any insurance company incorporated by the authority of any other State or government, shall return to the proper officer of the county, town or municipality in which the agency is established, in the month of May, annually, the amount of the net receipts of such agency for the preceding year, which shall be entered on the tax-lists of the county, town and municipality, and subject to the same rate of taxation for all purposes,—State, county, town and municipal,—that other personal property is subject to, at the place where located, said tax to be in lieu of all town and municipal licenses; and all laws and parts of laws inconsistent herewith are hereby repealed: Provided, that the provisions of this section shall not be construed to prohibit cities having an organized fire department from levying a tax or license fee, not exceeding two per cent, in accordance with the provisions of their respective •charters, on the gross receipts of such agency, to be applied •exclusively to the support of the fire department of such city.” It will be observed, by an examination of that part of the ■section of the statute which precedes the proviso, that the legislature intended to establish a plan, general in character, under which the net receipts of foreign insurance companies might be taxed in the same manner, and at the same rate of taxation, as other personal property in the State, and that the taxes so imposed should be in lieu of all town and municipal licenses. The language employed is so plain, and the intent •so manifest, that any attempt to elaborate the subject is uncalled for. Had the proviso been omitted from the law, it will not be contended that any power existed on behalf of the city to enact an ordinance under which a municipal license might be imposed upon the corporation, as the act, in clear terms, declares that the assessment- of the net receipts, and the taxation which follows, shall be in lieu, of all town and municipal licenses.

But the question recurs, what bearing has the proviso on the point involved ? The proviso, when the language used is given its natural and ordinary meaning, does not undertake to confer any power. It does not profess to confer power on a city or incorporated town. There is nothing contained in the language used which can, by any proper, legitimate construction, be held to mean a grant of power. ■ But, independent of this, we do not understand that it is the office of a proviso in a section of a statute to confer power. In Huddleston v. Francis, 124 Ill. 196, we held that the office of. a proviso,.generally, is either to except something. from the enacting clause, or to qualify or restrain its generality, or to exclude some possible ground of misinterpretation of its extending to cases not in-; tended to be included. - The same rule was announced by the Supreme Court of the United States in Morris v. United States, 15 Pet. 423. In Boon v. Juliet, 1 Scam. 258, this court, at an early day, held, that a proviso in a statute is intended to qualify what is. affirmed in the body of the act, section or para•graph preceding it.

Under the rule of construction above indicated, we perceive no ground upon which it can be held that the proviso confers power, especially as no language is contained in the proviso, which, either expressly or by implication, undertakes to confer power upon the city'.

But it is insisted, that if the city had no power to pass the ordinance under the proviso of section 30, still the ordinance is valid under the police power of the State. Subdivision 66, of section 62, article 5, of the act to provide for the incorporation of cities and villages, confers the power “to regulate the police of the city or village, and pass and enforce all necessary police ordinances.” It might be a difficult task to formulate a general rule which would determine definitely the character and scope of every ordinance which a city might pass under this clause of the statute, and we shall not in this case undertake to do so. It will be sufficient here to determine whether the passage of the ordinance in question was a proper and legitimate exercise of the police power conferred by the statute.

McPherson v. Village of Chebanse, 114 Ill. 46, has been cited as an authority sustaining the power. In the case cited, the village had passed an ordinance prohibiting persons from keeping open their places of business for the purpose of vending goods, wares and merchandise on Sunday, and it was held that the village had the power to pass the ordinance under the section of the statute cited. But the case cited has no application here. The power to regulate or prevent the transaction of business on the Sabba,th in a city or incorporated town is entirely different from a power to license or tax insurance companies who may desire to transact business during the working days of each week. The ordinance passed by the city of Chicago, is one passed, as is apparent from its language, for the purpose of raising revenue,—a subject foreign to the police power conferred on incorporated towns and cities by the statute.

But if it should be conceded that the passage of the ordinance was authorized by the section of the City and Village act, as that act was originally framed, the legislature had the undoubted right, at such time as it saw proper, to divest cities, towns and villages of the power, and resume the exercise of the power itself. The act of 1879 is a clear and direct exercise of the power to license and tax foreign insurance companies doing business in this State. It is the exercise of the very power which it is claimed was conferred upon cities and villages by the act of 1872. As heretofore shown, it is provided in the act of 1879, that the tax thereby created shall,be in lien of all town and municipal licenses, and all laws and parts of laws inconsistent therewith were thereby repealed. This repealing clause is an express repeal of any and every law in the State which is found to conflict with the provisions of the act of 1879. If, therefore, the city of Chicago ever had the power to pass the ordinance under the police power conferred by the City and Village act, that power was taken away by the act of 1879,—it was divested by a later act. We think the ordinance, was unauthorized.

The judgment of the .Appellate Court will therefore be affirmed.

Judgment affirmed.

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

      City of Chicago v. Case.
      Per Curiam: This case is governed by the preceding case,—City of Chicago v. Phoenix Insurance Co., decided at the present term,— and for the reasons there given the judgment of the Appellate Court will be affirmed.

        Judgment affirmed.

      Mr. Justice Bailey took no part in this decision.


author: Per Curiam:

text:
    Fan Burns et al. v. The People of the State of Illinois.

      Filed at Ottawa November 15, 1888.

    1. Exceptions and bides of exceptions—exception must be talcen. A ruling in the trial court in respect to instructions will not be considered on error unless proper exception is taken.
    2. Same—bill of exceptions—what it should contain. If a defendant on trial upon a criminal charge, wishes to assign for error the refusal of the court to exclude attorneys employed to assist the prosecution, from taking any part in the case, he should enter a motion to that effect, procure a decision of the court on the motion, except to the ruling, and then make the motion, ruling and exception a part of the record by bill of exceptions. H the bill of exceptions fails to show what disposition was made of such motion, and that an exception was taken to the ruling of the court, the point will not be considered.
    3. If a party desires to assign for error the fact that the court erred in not sustaining challenges to jurors, and in ordering the sheriff to call bystanders to act as jurors, the bill of exceptions must show the ruling of the court on the subject, and an exception thereto, otherwise the assignment can not be considered.
    4. In order to present the question whether the modification of an instruction asked is erroneous, it is not sufficient that the record shows that the instruction was modified. The bill of exceptions should show in what manner it was modified.
    5. Instruction—argumentative. Although an instruction asked may contain correct propositions of law, yet if the propositions are so stated as to render the instruction argumentative, there will be no error in its refusal.
    ■ 6. New trial—newly discovered evidence. A new trial will not be granted on newly discovered evidence'»'which1 is merely cumulative.
    Writ oe Error to the Circuit Court of Bureau county; the Hon. Charles Blanchard, Judge, presiding.
    Messrs. Girons & Girons, for the plaintiffs in error:
    It is error to allow counsel employed and paid by private parties to prosecute in a criminal case, against the objection of the defendant. Meister v. People, 31 Mich. 99; Commonwealth v. Knapp, 10 Pick. 477; Commonwealth v. Williams, 2 Cush. 585.
    When a juror states he has formed an opinion as to the guilt or innocence of the defendant, but believes he can give the parties an impartial trial, he is incompetent; and it was error to call jurors from the bystanders, who are usually attracted through curiosity.
    The court erred in refusing, a new trial, and in modifying the first instruction of plaintiffs in error, and in refusing their sixth instruction. 1 Starkie on Evidence, 571, 573, 575; 1 Greenleaf on Evidence, sec. 13; McMahon v. People, 120 Ill. 581; Marlatt v. People, 104 id. 364.

      Mr. George Hunt, Attorney General, and Mr. M. U. Trimble, State’s Attorney, for the People:
    The bill of exceptions fails to show that plaintiffs in error excepted to the ruling of the court allowing James S. Eckels and B. M. Skinner to assist in the prosecution. All motions and decisions thereon are made a part of the record only by bill of exceptions. Hay v. Hayes, 56 Ill. 342; Snell v. Church Trustees, 58 id. 292; Gaddy v. McCleave, 59 id. 183.
    A statement by the clerk, in the record, that the party excepted, is not sufficient. Boyle v. Levings, 28 Ill. 314; Tarble v. People, 111 id. 120; Graham v. People, 115 id. 566.
    If the ruling and exception thereto are not made a part of the record by bill of exceptions, the ruling can not be assigned for error. McClurkin v. Ewing, 42 Ill. 283; Earll v. People, 73 id. 329; Holmes v. People, 5 Gilm. 478.
    There was, however, no error in allowing assistant counsel for the prosecution. State v. Fitzgerald, 49 Iowa, 260; State v. Montgomery, 65 id. 483; Tolin v. State, 14 Neb. 540; State v. Bartlett, 55 Maine, 260; Bradshaw v. State, 17 Neb. 147.
    , No exception was taken to the ruling of the court in respect to the. selection and challenge of jurors. The evidence fully justified the verdict.
   Per Curiam:

On the night of January 17, 1888, the bank of Stevens & Welsh, of Tiskilwa, was entered, the safe blown qpen, and $5000 in money stolen. Fan Burns and Thomas Watson were indicted for the offense, and on a trial before a jury they were found guilty, and their term of imprisonment fixed at ten years in the penitentiary. The court denied a motion for. a new trial, and rendered judgment on the verdict of the jury, and this writ of error is sued out to reverse the judgment.

Two members of the bar were employed by the parties interested in the bank, to assist the county attorney of Bureau county in the trial of the cause. The defendants entered a motion to exclude the two attorneys who had been retained to assist the prosecution, from taking any part in the trial of the' cause. The court denied the motion, as it is said, and the decision is relied upon as error. The bill of exceptions contained in the record fails to show what disposition was made by the ■court of the motion, nor does the hill of exceptions show that ■ ■defendants excepted to any ruling of the court on the question. Under such circumstances, the point attempted to he raised is not presented by the record, and can not he considered. If the defendants desired to raise the question, they should have ■entered the motion, procured a decision of the court, excepted io the ruling of the court, and then made the motion, ruling ■and exception a part of the record, by hill of exceptions. This, .however, was not attempted.

It is next urged, in the argument, that the court erred in not sustaining challenges to jurors, and in ordering the sheriff io call bystanders to act as jurors in the case.- We find no ruling on this subject, or exception thereto in the bill of exceptions. There is, therefore, no question in regard to jurors presented by the record.

It is next claimed, that the evidence is not sufficient to authorize the verdict. The testimony introduced to establish ■ the guilt of the defendants, was, in the main, circumstantial ■evidence, and while it was not as clear and positive in its character as we might desire, still we are not prepared to say, after a careful examination of all the evidence, that the jury was not justified in finding the defendants guilty.

It is next urged, that the court erred in modifying defendants’ first instruction. It appears, from the record, that the instruction was modified, but in what manner it was modified does not appear from the record, and hence it is impossible to determine whether the modification was correct or incorrect.

The court refused defendants’ instruction No. 6, and the ruling is claimed to he erroneous. The instruction contains propositions of law that may be correct, but the manner in which they are stated rendered the instruction argumentative, and being argumentative, it was not error for the court to refuse to give it to the jury. But' aside from this, it does not appear, from the bill of exceptions, that the decision of the court in refusing the instruction was at the time excepted to by the defendants, and if they failed to except to the decision of the court, then they can not complain now.

Exception was taken to the giving of instructions for the People, hut we find no exception as to the action of the court on defendants’ refused instructions.

On the motion for a new trial, a large number of affidavits were read in support of the motion. It will, however, be remembered, that on the trial the defendants relied as a defense upon the proof of an alibi, the defendant Watson claiming that on the night the burglary was committed he was in Evansville, Indiana, and the defendant Burns claiming that he was in Clinton, Iowa. Evidence was introduced by the respective parties to prove that neither defendant was at Tiskilwa on the night the crime was committed, hut one was in Evansville, and the other in Clinton. From an examination of the affidavits filed on the motion, it will he found that the newly discovered evidence is merely cumulative, and, under the repeated decisions of this court, such newly discovered evidence is not ground for a new trial.

The judgment of the circuit, court will be affirmed.

. Judgment affirmed.


author: Mr. Justice Bakes

text:
    J. Irving Pearce et al. v. The Village of Hyde Park.

      Filed at Ottawa November 15, 1888.

    1. Special assessments for local improvements—of the ordinance— its requisites, as descriptive of tKeimprovement proposed. An ordinance for a local public improvement by special assessments is not required to set forth the details and all the particulars of the work. A substantial compliance with the statute is all that is required.
    2. An ordinance for the raising of funds by special assessment to pay the cost of establishing a system of drainage by means of sewers, well and pumping works, provided that the man-holes therein required should be “furnished with iron covers of the size and weight of those now in use on the man-holes in” a certain boulevard in the village: Held, that as the shape and size of the man-holes were given,'it would have been sufficient if the ordinance had merely required them to be furnished with iron covers the tops of which should conform to the face of the street grade, and that the statement that the covers should be of equal quality with those used at another place did not invalidate the description.
    3. A provision in such ordinance that the fronts of certain boilers and arches should be furnished with a cast-iron boiler front of a pattern similar to one then in use at a designated place, instead of giving the figure, dimensions, pattern and weight of the fronts, is held sufficient. It would have been sufficient if the ordinance had simply required that the front of the boilers and arches should b'e furnished with a cast-iron boiler front.

      4. So a provision that upon certain beds of concrete described, “brick masonry of suitable shape to support the pumping engines therein provided for" shall be constructed, is held sufficiently descriptive as to the shape and style of the foundation for the engines.
    5. And a provision that the sewers extending along a certain street shall be provided with house connection slants of four inches of internal diameter opposite every lot fronting that street, on both sides of such street, sufficiently indicates the number of such slants. This means that one connection slant shall be provided for each lot fronting on the street along the sewer, without any regard to the size of the lots.
    6. Same—reference to maps, plans, etc., in aid of the ordinance. Since the amendment of 1887, of section 19, article 9, of the General Incorporation act, the nature, locality and description of the improvement may be specified, either by reference to the maps, plats, plans, profiles and specifications of the proposed improvement on file in the office of the proper clerk, or by setting the same forth in the ordinance itself, or both modes of giving the information may be adopted. If both modes are adopted, each will aid and cure defects and omissions in the other.
    7. Same—confirmation—presumptioninits support. Where the record •does not purport to contain the whole of a petition for the confirmation of special assessments, but only the ordinance, which refers to plans and specifications on file in the village clerk’s office, it will be presumed that the petition and exhibits contained all the data necessary to show a strict compliance with the statute, in favor of the judgment of confirmation.
    8. Same—commissioners to levy assessment—interest, as a disqualification. The mere fact that one of the commissioners appointed to levy a special assessment for a local improvement, was an employe of persons who were agents of the owners of some of the property assessed in his employer’s name, will not be such an interest as to disqualify him from acting, there being no claim that the assessment is not fair, just' and impartial.
    Appeal from the' County Court of Cook county; the Hon. Bichard Prendergast, Judge, presiding.
    Messrs. Doolittle & McKay, for the appellants:
    The ordinance does not specify the “nature, character, locality and description” of the proposed improvement, “either hy setting forth the same in the ordinance itself, or by reference to maps, plats, plans, profiles or specifications thereof on file in the office of the proper clerk, or both, ” with the certainty required by section 19, of article 9, of chapter 24, of the Devised Statutes, as amended by the act of 1887. Levy v. Chicago, 113 Ill. 650; Jacksonville v. Railway Co. 114 id. 562; City of Sterling v. Galt, 117 id. 11; Village of Hyde Park v. Spencer, 118 id. 446; City of Kankakee v. Potter, 119 id. 324; Ogden v. Town of Lake View, 121 id. 422.
    F. K. Boot, one of the commissioners appointed to make, and who did make, the assessment upon the property claimed to be benefited, was disqualified by interest. He was a trusted employe of Bogue & Hoyt, in whose name, as owners, are assessed several hundred lots and tracts of land, as appears on the assessment roll.
    As to appointment and duties of such commissioners, see 2 Starr" & Curtis, chap. 24, art. 1, secs. 23, 24, 26, 27, 28, pp. 494-497.
    As to interest disqualifying, see Hunt v. Chicago, 60 Ill 183.
    Mr. James E. Mann, for the appellee:
    The ordinance is very specific. It describes carefully and accurately the nature of the work, the character of the work, its locality and description. Eev. Stat. chap. 24, art. 9, see. 19.
    The commissioner Eoot had no such interest as to disqualify him, and there is no claim that the assessment is not fair, just and impartial.
   Mr. Justice Bakes

delivered the opinion of the Court:

This is an appeal from an order of the county court of Cook county, confirming a special assessment levied for the purpose of paying the cost of establishing a system of drainage, by means of sewers, well and pumping works, in a certain drainage district created by the ordinance under which the assessment was made.

Two grounds are urged for the reversal of the judgment of confirmation rendered by the county court. The principal point relied on is, that the ordinance upon which the proceedings were based, is invalid, because it does not sufficiently specify the nature, character, locality and description of the proposed improvement. In this regard appellants make five objections to the ordinance. One is, that it provides that the forty-six man-holes mentioned therein are “to be furnished with iron covers, of the size and weight of those now in use on the man-holes in the sewer in Garfield boulevard, from South Park avenue to State street,” instead of specifying in the ordinance itself the size, weight, and other details of such covers. Another . is, that it provides that the fronts of certain boilers and arches “shall be furnished with a cast-iron boiler front, of a pattern similar to the one now in use at the Hyde Park water-works, at Sixty-eighth street, in the village of Hyde Park,” instead of giving, in express words and figures, the dimensions, pattern , and weight of these cast-iron boiler fronts. Another is, that ■ it provides that upon certain beds of concrete described in the ordinance, “brick masonry, of suitable shape to support the pumping engines herein above provided for, shall be eon- . structed.” .Another is, that the well is not located, and therefore the length of the connecting sewer provided for can not be determined. And the other is, that the ordinance provides that “said sewers extending along the line of Sixty-third street shall be provided with house connection slants, of four inches . internal diameter, opposite every lot fronting said Sixty-third ' street, on both sides of said street,” and that this does not sufficiently indicate the number of such connection slants.

In our opinion, the objections urged to the validity of the ordinance are not tenable. Section 19, of article 9, of chapter 24, of the Revised Statutes, since the amendment in force July 1, 1887, reads as follows: “Whenever such local improvements are to be made, wholly or in qiart, by sqieeial assessment, the said council in cities, or board of trustees in villages, shall pass an ordinance to that effect, specifying therein the nature, character, locality and description of such improvement, either by setting forth the same in the ordinance itself, or by reference to maps, plats, plans, profiles or specifications thereof, on file in the office of the proper clerk, or both.” In City of Kankakee v. Potter et al. 119 Ill. 324, this court said: “It is not expected that an ordinance of this kind should set forth the details and all the particulars of the work. Indeed, this is not contemplated, and the statute requires nothing of the kind. A substantial compliance with its provisions is all that is required.” In the late case of City of Springfield v. Mathus, 124 Ill. 88, the ordinance was much less specific than the ordinance here in question, and yet the assessment was sustained, and it was there held, that a provision the sewer should be constructed “with necessary man-holes and inlets,” was a sufficient compliance with the requirement of the statute. ' The courts should not place so narrow a construction upon the statute as would prevent all improvements by special assessments. We regard the ordinance which we find in this record as in most respects very specific, and think that as a whole it sufficiently sets forth the nature, character, locality and description of the contemplated work.

In respect to the particulars wherein it is claimed the ordinance is defective, it is not so defective as to render it void. We think it would have been all that was essential if the ordinance had only required that the fronts of the boilers and arches should be furnished with a cast-iron boiler front; and as the shape and size of the man-holes were expressly designated, if it had merely required them to be furnished with iron covers, the tops of said covers to conform to the surface of the street at grade. It surely did not invalidate the descriptions to state that the cast-iron front and iron covers should be similar or of equal quality to those used in other designated public improvements in the village. Assuming it is true, as suggested by appellants, that there are probably no two manufacturers of steam pumps and engines who could use the same style and shape or size of foundation for engines of the capacity required by the ordinance, a valid reason is disclosed why the ordinance merely provided for brick masonry of “suitable shape,” without disclosing what such shape should be. It is manifest, further description was utterly impossible until contracts had been made for the engines, and that until then the exact size and shape of the foundations could not be known. Section 1 of the ordinance says, in express terms, that the well shall be constructed on lots 1, 2, 3 and 4, of block 4, of‘0. A. Bogue’s subdivision; and the same section provides that the connecting sewer shall connect with the main sewer in the center of the alley lying west of and adjoining the west line of the Illinois Central Railroad Company’s right of way in said block 4, of 0. A. Bogue’s subdivision. We think this sufficiently identifies the localities both of the well and the connecting sewer. The plain intendment, from the language, that the house connection slants extending along the line of Sixty-third street should be “opposite every lot fronting Sixty-third street, on both sides of said street,” is, that one house connection slant should be provided for each lot fronting on said street, along the line of the proposed sewer, without any regard to the size or width of such lot.

There is another reason why the ordinance should not be held invalid upon the record before us. Since the amendment of 1887 to section 19, of article 9, of the general Incorporation act for cities and villages, the nature, character, locality and description of the improvement may be specified, either by reference to the maps, plats, plans, profiles and specifications of the proposed improvement on file in the office of the proper clerk, or by setting the same forth in the ordinance itself, or both modes of giving the information may be adopted. Either or both of these modes are now sources of information which the law recognizes in these matters, and if both modes are adopted, each will aid and cure defects and omissions in the other. In this case, the clerk of the county court certifies that the transcript of the record “is a true, correct and complete copy of ‘ordinance,’ being pari of petition filed March 27, A. D. 1888,” etc. The ordinance refers to the plans and specifications on file in the office of the village clerk. As the transcript does not purport to contain the entire petition, or the exhibits attached to or set forth in the petition, other than the ordinance itself, we must presume, in favor of the validity of the order and judgment of the county court, that such petition and exhibits contained all the data necessary to show a strict compliance with the statute.

The second ground of objection insisted upon by appellants is, that F. K. Boot, one of the commissioners who made the assessment of benefits, was disqualified from acting as such commissioner by reason of interest. The affidavits which were read at the hearing of the objections filed to the confirmation of the assessment, show that Boot is an employe of Bogue & Hoyt; that a portion of the property described in the assessment roll is assessed in the name of Bogue & Hoyt; that they did not, either at the time of the assessment or of the hearing, own any of the property assessed or liable to be assessed, but were agents for the property assessed to them; that the rate of assessment of the property assessed in their name was the same as the rate upon other property in like location and situation ; and that Boot was not interested in ■ any way in the assessment, or in any of the property. In Hunt v. City of Chicago, 60 Ill. 183, relied upon by appellants in this behalf, the commissioners owned property affected, and had a personal pecuniary interest, and, besides, there was a statute in force in Chicago which disqualified one who was specially interested in a special assessment, from serving, as a commissioner in making such assessment, and so the case is not here in point. In the matter at bar, Boot was not the owner of any property affected, and had no personal pecuniary interest, and the mere fact of his being an employe of persons who were agents of other persons who were the owners of some of the property involved, was a connection with such property that was too remote to disqualify him, on that ground alone, from acting as a commissioner. In this case there is no claim made or intimated that the assessment was not fair, just and impartial. We think the ground of objection in question was properly overruled in the county court.

' We find no error' in the record, and the order and judgment of confirmation are affirmed.

Judgment affirmed.


author: Mr. Justice Magbudee

text:
    The Louisville, New Albany and Chicago Railway Company v. The Diamond State Iron Company.

      Filed at Ottawa November 15, 1888.

    1. Contract—division of commissions between brokers of buyer and seller—effect upon the validity of the sale as between the principals. The mere fact that brokers, respectively, of a buyer and seller of a certain commodity, agree that as between themselves they will divide the commissions earned in the transaction, will not invalidate the contract of sale as between the principals.
    2. In a suit by the seller against the buyer for non-compliance with the terms of the sale, where such agreement between the brokers of the respective parties was interposed as a defense, it was considered, that in the absence of anything to show the seller had knowledge of such agreement, or used any improper means to induce the broker of the buyer to act against the interest of his principal, the defense could not prevail.
    3. Same—contract of sale—non-acceptance by purchaser—shipping directions omitted. A contract for the purchase of a quantity of railroad spikes, provided that the spikes were to be delivered at the mills of the seller, to be shipped, a part on a given date, and the residue at a subsequent time mentioned, shipping directions to be given by the buyer. The lot first to be shipped was received by the buyer, but the remaining part was not accepted. By reason of such non-acceptance the seller brought suit. It was held, that the withholding of proper shipping directions by the buyer, exonerated the seller from any duty to make the shipment, and the plaintiff’s right of recovery was not affected by his failure to do so.
    4. Shipping directions had been given at one time, but, before any shipment was made, were countermanded by the buyer, with the request that the seller would delay action under them. The-buyer could not complain that his request was complied with.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.

      Mr. William Armstrong, for the appellant:
    Cherrie & Co. and Levis & Co. being brokers, respectively, for the seller and buyer, an agreement between them to divide the commission of the latter with the former company, rendered the contract fraudulent and void, unless it Was done with the knowledge and consent of the principal of Cherrie & Co., and of this there is no evidence in the record. Adams Mining Co. v. Center, 26 Mich. 73; Caldwell v. Iron Co. 36 id. 51.
    The only condition precedent to be performed by the buyer was to give shipping directions. This was done on April 15, 1880, and it then became the duty of the seller, as a condition precedent to the receipt of the price, to deliver the spikes to some carrier, and draw a sight draft for the price. Filley v. Pope, 115 U. S. 220; Rolling Mill v. Rhodes, 121 id. 255.
    The plaintiff, asserting that the contract was still in force, was hound to show such performance as entitled him to demand performance on their part, and having failed to do so, can not maintain this action. Norrington v. Wright, 113 U. S. 205.
    If a request to withhold the shipment amounted to a withdrawal of the shipping directions, they could only be withdrawn by the consent of the plaintiff, and such consent amounted to the rescission of the contract. If the contract was rescinded, an action could not be maintained thereon, but the plaintiff would be forced to sue upon a quantum meruit for what it had done under the contract. Cutter v. Powell, 2 Smith’s Leading Cases, (7th Am. ed.) 43; Planch v. Colburn, 8 Bingh. 14.
    Mr. Frank J. Loesch, for the appellee:
    An agent or broker acting for both principals, unknown to them, can not recover for services from either; but this will not render the contract of the principals void. Merritt v. Clason, 12 Johns. 102; Everhart v. Searle, 71 Pa. St. 256; Meyer v. Hanchett, 39 Wis. 419.
    The appellee need not have called for shipping directions, since, “where the vendee is by the terms of the contracts to designate' a place of delivery, the vendor is bound to be ready to make delivery at the place designated. If the vendee omits to designate the place, the, vendor is guilty of no breach of contract if the articles are ready for delivery at the time fixed by the contract.” Lucas v. Nickols, 5 Gray, 309.
    In cases of prevention by the party, or of tender and refusal, the plaintiff has a right of action on the special contract, prevention or refusal being equivalent, for that purpose, to perfornqance. 2 Smith’s Leading Cases, 53.
    When it is conceded that shipping directions were a first requisite to the performance of plaintiff’s part, it necessarily follows that in default of, or upon a withholding of such directions, the plaintiff could not ship and compel acceptance of the spikes. The railway company might be willing to respond in damages .for its breach of the contract, but not want the spikes, and it could not be forced to pay for the spikes and freight added, when the goods were not shipped by its directions, under the contract. Tascott v. Rosenthal, 10 Bradw. 630; Clark v. Marsiglia, 1 Denio, 317.
    Where the action of one party has resulted in a breach, the other can not insist upon performing the contract to the end. Clark v. Marsiglia, 1 Denio, 317; Bishop on Contracts, secs. 839, 842. .
    Whether the suspension and then renewed shipping directions as to part of the contract was a rescission, depends entirely on the parties. If they did not consider it or act on it as a rescission, the law does not insist upon making it a rescission in spite of their intenti.ons to the contrary. Roberts v. Benjamin, 124 U. S. 64.
   Mr. Justice Magbudee

delivered the opinion of the Court:

This is an action' of assumpsit, brought in the Superior Court of .Cook. County by the appellee against the appellant to.recover the.amount of loss .claimed to have been sustained by the appellee on account of the alleged failure of the Chicago and Indianapolis Air Line Bailway Company to accept 2000 kegs of railroad spikes sold to it by appellee. The cause was submitted to the court for trial without a jury; verdict was rendered for the plaintiff for $3000.00 and judgment on verdict. Upon appeal to the Appellate Court of the first district the judgment was affirmed, and appellant prosecutes its further appeal to this Court.

The appellee is a corporation organized under the laws of Delaware and doing business at Wilmington in that state. In Fébruary, 1880, it made a contract with said Air Line Bailway Company to sell to the latter 2500 kegs of railroad spikes of 150 lbs. each, of the best quality, of its own brand, at 4J cents per pound, payable by sight draft, with bill of lading attached, upon Henry Crawford, President of the Air Line Bailway Co. at Chicago, the spikes to be delivered at the seller’s mill in Wilmington, to be shipped one half about April 15, 1880, and balance early in May, 1880, shipping directions to be given by the buyer, and the seller guaranteeing that the freight from their mill to any point in the west should not exceed the rate from Philadelphia to same point. The contract was made and the negotiations and correspondence were carried on between Cherrie & Co. of Chicago, as brokers for' the Air Line Bailway Co., and Levis '& Co. of Philadelphia as brokers for appellee. On May 31st, 1880, 500 kegs of the spikes were shipped and received by Crawford, and paid for by him after considerable delay. The remaining 2000 kegs were never accepted by the Air Line Bailway Co., and it is on account of such failure to accept them, that this suit is brought.

The Chicago and Indianapolis Air Line Bailway Company was consolidated with the Louisville, New Albany and Chicago Bailway Company, the appellant herein, and was taken charge of by appellant and adopted the latter’s name. It is not claimed, that, if the Air Line Bailway Co. is liable, the appellant Company is not also liable.

The proof tends to show that, at the date of the refusal to A I accept the spikes, the market price had declined, entailing upon appellee a loss of $1.50 per keg or $3000 for the 2000 kegs.

The only errors assigned by appellant and insisted upon by its counsel grow out of the refusal of the trial court to hold as law certain propositions submitted to it.

The proof tends to show, that an agreement was made between Cherrie & Co., brokers of the Air Line Railway Company, and employed by that company to buy the spikes, and- Levis & Co., brokers of appellee, by the terms of which Levis & Co. were to divide with Cherrie & Co. the commissions to be paid them by appellee for selling the spikes. The second of the refused propositions holds that, if, during the pendency of the negotiations for the purchase of the spikes, such an agreement was made without the knowledge or consent of the Air Line Co., the contract sued upon in this case is fraudulent and void as against such company. The proposition is erroneous and was properly refused.

If this were a suit by Cherrie & Co. against the Air Line Co. to recover compensation for services in making purchase of the spikes, the Company might urge such an agreement as a defense. But this is a suit by appellee as principal upon the contract with the Air Line Co. There is no evidence that appellee knew of any agreement .by its brokers to divide commissions with Cherrie & Co. It used no improper means to induce the brokers of the purphaser to act against the interest of their principal. .We know of no principle, upon which the Contract can be held fraudulent and void as against appellee by reason of the arrangement between the brokers made as it' was without appellee’s knowledge.

The third of the refused propositions asserts that, if, after the 500 kegs were shipped, plaintiff below did not ship the remaining 2000 kegs, the finding should be for the defendant. This proposition is erroneous as leaving out of view the question whether or not the Air Line Co. gave the shipping directions, which it was bound to give before the plaintiff could be compelled to forward the balance of the kegs.

By the terms of the contract the buyer was to give shipping directions. Cherrie swears that Crawford, the president of the Air Line Co., “gave us directions at one time for 500 kegs; said he would give us the order as to the rest later.” Todd says: “It was not until the latter part of May that we had shipping instructions for the first shipment; on May 31st we shipped the 500 kegs of spikes,” etc. The proof shows that the sight draft, drawn by the plaintiff on Crawford for $3187.50, the price of the 500 kegs, in accordance with the terms of the contract, was not paid until August 16, 1880, and then only $500 in cash and the balance in Crawford’s 30 day note, which was protested for non-payment at its maturity. The proof also shows, that, during this period while plaintiff was trying to collect the money due for the 500 kegs, its brokers were continually calling for shipping instructions as to the remaining 2000 kegs, which instructions, however, were not forthcoming. On June 15, 1880, Levis & Co. write to Cherrie & Co.: “We will also be pleased to receive any instructions or suggestions as to' future shipments, if you have any to make.” On June 17, 1880, Cherrie"& Co. write to Levis & Co.: “We saw Mr. Crawford and he said very frankly that he intended to pay for the spikes, but could not do so just now, and could not say definitely when he could, and that he would like them held a little while.” On June 29, Levis & Co. telegraph to Cherrie: “shall we ship the balance at once”? On August 10, Levis & Co. write to Cherrie & Co.: “Let us know when he proposes to take the balance of the spikes.” On August 16, Levis & Co. write to plaintiff: “They (Cherrie & Co.) write in reply to our inquiry that as yet they have not been able to ascertain anything in regard to Mr. Crawford’s intentions as to the balance of the contract,” etc.

The sixth, eighth and tenth of the refused propositions proceed upon the assumption, that on April 15,1880, the Air Line Co. gave shipping directions for all of the 2500 kegs and were not bound thereafter, to give any further directions, and that the obligation was thereby imposed upon the plaintiff to proceed with the shipment of the whole lot of 2500 kegs. The refusal of these propositions was clearly right, as they ignore a very material part of the evidence.

As already stated, there is proof to the effect that Crawford directed only 500 kegs to be shipped at one time. The eorrespondence shows, that, on April 15, 1880, his brokers, in answer to a telegram from Levis & Co. dated April 13 and asking for shipping directions, wrote to Levis & Co. to begin, to ship on May 1st, although, by the terms of the contract, one half were to be shipped April 15 and the balance early in May, 1880. Before May 1, towit: on April 28, plaintiff was told: “after May 15, you may ship the 2500 kegs,” etc. .Before May 15, to wit: on May lé, Crawford telegraphed: “Present freight rates from East excessive; pending new arrangements, desire nothing shipped; when, we will advise you.” On May 25, plaintiff was again told that it was “advisable not to ship the spikes for a few days.” After the Air Line Co. thus changed and modifiéd its original instructions of April 15 and requested plaintiff to delay action under them, it can not complain that plaintiff complied with its request. ' The evidence is clear that the Air Line Bailway Co. did not have the money to pay for the spikes and was trying to gain time and yet not to lose the benefit of the contract.

We see no error in the record. The judgment of the Appellate Court is affirmed.

Judgment affirmed.

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


author: Mr. Justice Bailey

text:
    Emma A. Strong v. William W. Strong et al.

      Filed, at Ottawa November 15, 1888.

    1. Mortgage—of a deed absolute in form—whether a sale or only a mortgage. Where a conveyance is in form absolute, in order to change its character to that of a mortgage the proof must clearly and satisfactorily show that such was the contract and intent of the parties.
    2. The owner of a lot of ground, desiring to make sale of it, but finding it impracticable to do so except in connection with certain premises adjoining, which he did not own, applied to the owner of the latter premises to convey them to him for a certain sum mentioned, a part to be paid in cash on the sale of the entire premises, and certain deferred payments to be seemed. The conveyance was made, and the grantee sold the entire property, but did not make the cash payment as agreed, nor did he secure the deferred payments. On the question whether the transaction relating to the conveyance of the adjoining premises, as had been sought, was a mere mortgage, or a sale, it was held to be an absolute sale. The failure on the part of the grantee to perform, did not convert the deed into a mortgage, nor change his estate into a mere naked trust. The interest remaining in the grantor was merely that of a vendor’s lien.
    3. Vendor’s lien—estoppel to assert it. Where the owner of a lot conveys the same to another, for the purpose of placing it in the power of the latter to sell or mortgage the property to enable him to raise money for his own use, with no intention of claiming a lien as against the mortgagee or purchaser, and the grantee sells the premises, such prior grantor will be estopped from asserting a vendor’s lien against the subsequent purchaser.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. T. A. Moran, Judge, presiding.
    This was a hill in chancery, brought by Emma A. Strong against William W. Strong, Philo Carpenter and Amos J. Snell, for an accounting in relation to the moneys in the hands of Carpenter arising from the sale of certain lots of land by him to Snell, and for the payment out of said moneys of a certain claim in favor of the complainant. The bill was afterward, on the complainant’s motion, dismissed as to Snell. Defendant Strong was defaulted, and defendant Carpenter having answered and a replication having been filed, a hearing was had on pleadings and proofs, resulting in a decree dismissing the bill at the complainant’s costs for want of equity. Said decree was affirmed by the Appellate Court on appeal, and the record comes here on appeal from that court.
    The bill alleges, in substance, that on the 15th day of February, 1878, the complainant was the owner of the west eighty feet of lot 29, in McNeill’s re-subdivision, etc., in Chicago, defendant Strong, who is the complainant’s brother, being at the same time the owner of the residue of lot 29 and all of lot 28 in said re-subdivision; that said Strong represented to her that said Snell had offered to purchase the two lots and pay $5000 therefor, which purchase would be consummated within sixty or ninety days from that date; that he, said Strong, was then laboring under financial distress which compelled him to sell his interest in said lots, and that he could not sell said lots unless he could purchase the complainant’s part of lot 29, and that if she would convey to him her part of that lot at that time and before the sale to Snell was consummated, he could borrow money on said lots of Carpenter; that complainant had all her life been on intimate and confidential terms with her said brother, and had depended on him to transact all her business, and that she dealt with him fully believing in his ability to perform whatever he should agree to do; that Strong was a son-in-law of Carpenter, and that they were on friendly terms and acting together in business matters; that the complainant, being desirous of selling her part of lot 29, and knowing the friendly relations between Strong and Carpenter, and relying solely upon the representations and agreement of Strong to obtain for her the consideration for her lot, made and delivered to Strong a deed of said lot, such conveyanee being solely in trust and in consideration that when sold, he would pay her $2000 as follows, viz., $1000 as soon as the sale to Snell should be made, and the remaining $1000 to be secured on some good and sufficient security to be provided her by Strong.
    The bill further alleges that February 28, 1878, and before the time fixed for the completion of the sale to Snell, Strong entered into an arrangement with Carpenter, by which the latter agreed to loan him $4000 upon his conveying said lots to Carpenter, said loan to be repaid as soon as the proposed sale to Snell should be effected; that in pursuance of said agreement Strong and wife conveyed said lots to Carpenter by warranty deed expressing a consideration of $5000, but that said deed was intended and delivered as a mortgage; that Carpenter at the time knew that the complainant was the real owner of the west eighty feet of lot 29, and was informed of the purpose for which she had made said conveyance to Strong; that the consideration of $5000 named in the deed was never paid, but that Carpenter afterwards, in pursuance of his arrangement with Strong, advanced to Strong various sums of money amounting to $4000; that by agreement between Strong and Carpenter the payment of said loan was subsequently extended until Carpenter should be required to pay his taxes for the year 1879, and that Strong thereupon, in consideration that the complainant would consent that the title of her lot should remain in Carpenter, agreed with her that on sale of the lots by Carpenter, she should have in payment of her $2000 and interest all the surplus remaining after the payment of the Carpenter loan; that about September 1,1881, Carpenter and Strong consummated a sale of said lots to Snell for $7500, of which $1500 was paid in cash and the residue was secured by Snell’s notes and a deed of trust on the lots, and that Carpenter had received said sum of $7500 in cash and securities for the lots.

      The bill prays for an accounting and for a decree requiring Carpenter, out of the surplus in his hands, to pay the complainant the amount due her for said lots and interest.
    Carpenter’s answer, among other things, denies all knowledge of any agreement between Strong and the complainant in relation to the west eighty feet of lot 29, or any arrangement between them in relation to the payment to the complainant of the consideration therefor. It also denies that the deed from Strong and wife to Carpenter was a mortgage or the transaction between Strong and Carpenter a loan, but alleges that said deed was and was intended to be an absolute and indefeasible conveyance of said lots, and that the transaction was an absolute purchase and sale of the lots. It admits the sale of the lots by Carpenter to Snell for $7500, and that Carpenter had received therefor in cash and securities said sum of $7500.
    Messrs. Millard & Smith, for the appellant:
    The deeds from appellant, Emma A. Strong, to William W. Strong, and from the latter and wife to Carpenter, were, in equity, a mortgage to secure the $4000 advanced by Carpenter.
    When a deed is shown to have been given as security for a loan of money, it is a mortgage. Clark v. Finlon, 90 Ill. 245 ; Campbell v. Worthington, 6 Vt. 448; Baxter v. Willey, 9 id. 276; Jones on Mortgages, pars. 274, 329, 600.
    The existence of a debt is the test. Either a pre-existing debt, or one created at the time, makes the agreement a mortgage. Jones on Mortgages, pars. 265, 266, 268; Delahay v. McConnel, 4 Scam. 156; Tillson v. Moulton, 23 Ill. 610; Ethington v. Harper, 3 J. J. Marsh. 354.
    The transaction of February 20, 1878, was treated by the parties to it as a mortgage.
    The mortgagor is not allowed to renounce, beforehand, his privilege of redemption. Jones on Mortgages, sec. 251,-chap. 22; Story’s Eq. Jur. sec. 1019; Smith v. Cremer, 71 Ill. 187.

      If one receives a conveyance of lands or other property, absolute in form, but really as security for a debt, he will hold the legal title in trust for the grantor, after the payment of the debt, and before reconveyance. Maverick, etc., Society v. Lovejoy, 6 Allan, 183; Baldwin v. Bannister, 3 P. Wms. 251; Wilkinson v. Stewart, 30 Ill. 48 ; Perry on Trusts, sec. 243.
    Messrs. Comstock & Hess, and Mr. Frank J. Crawford, for the appellees:
    This court has often held, that where a conveyance is in form absolute, in order to change its character to that of a mortgage the proof must show clearly such was the contract and intent of the parties. Dwen v. Blake, 44 Ill. 136; Price v. Karnes, 59 id. 277; Remington v. Campbell, 60 id. 516; Magnusson v. Johnson, 73 id. 156; Bartling v. Brasuhn, 102 id. 441; Pitts v. Cable, 44 id. 103 ; Wilson v. McDowell, 78 id. 517; Hancock v. Harper, 86 id. 445; Knowles v. Knowles, id. 1.
    To convert an absolute deed into a mortgage, the evidence must be clear, and free from doubt. Sutphen v. Cushman, 35 Ill. 196 ; Lindauer v. Cummings, 57 id. 200; Sharp v. Smitherman, 65 id. 154.
    It must be a mortgage from the beginning. Sweetland v. Sweetland, 3 Mich. 482; Kerney v. Macomb, 16 N. J. Eq. 189; Freeman v. Baldwin, 13 Ala. 246 ; Lund v. Lund, 1 N. H. 41; Kelly v. Thompson, 7 Watts, 404; Mason v. Moody, 26 Miss. 184.
    There must be a debt. Henly v. Hotaling, 41 Cal. 28; Robinson v. Cropsy, 7 Edw. Ch. 143; Horn v. Ketelsas, 46 N. Y. 605; Flag v. Mann, 14 Pierce, 467.
    The obligations must be reciprocal. Williams v. Owen, 10 Sim. 386; Longfellow v. Moore, 102 Ill. 289; 1 Hilliard on Mortgages, 98.
    The intention of the parties must govern. Shays v. Norton, 48 Ill. 102; Pitts v. Cable, 44 id. 103 ; Carr v. Rising, 62 id. 14; Weathersby v. Weathersby, 46 Miss. 462.

      The fact that full value was given, furnishes a presumption that it was not a'loan. Carr v. Rising, 62 Ill. 14; Turner v. Kerr, 44 Mo. 429; Conway v. Alexander, 7 Cranch, 218; Davis v. Thomas, 1 R. & M. 514; Saxton v. Hitchcock, 47 Barb. 226; Macaulay v. Porter, 71 N. Y. 177; Baker v. Thrasher, 4 Denio, 493; Holmes v. Grant, 8 Paige’s Ch. 255; Glover v. Payn, 19 Wend. 518.
    One who purchases without notice of an equity, is not affected by it. Moore v. Hunter, 1 Gilm. 317.
   Mr. Justice Bailey

delivered the opinion of the Court:

Testing the complainant’s rights by the averments of her bill, what were her relations to the west eighty feet of lot 29 after conveying it to her brother, William W. Strong, under the circumstances alleged? Some confusion on this subject; seems to exist, arising, apparently, from a want of a well defined theory as to her rights on the part of the pleader. Some expressions of the bill seem, though not very distinctly, to treat her grantee as a mere trustee holding the legal title for her benefit, while others assume for her the relation of mortgagee-, under a deed absolute on its face, but really intended as a-mortgage. The general scope of the bill, however, altogether excludes both of these relations. The case made by the bill is ■ neither that of a cestui que trust nor of a mortgagee. The material allegations are, in substance, that her brother, being in financial distress which made it necessary for him to sell his interest in the two lots, and finding it impracticable to do so-unless he could sell the whole of the two lots together, applied to her to convey to him her part of lot 29; that she was desirous of selling her part of said lot, and that she thereupon conveyed it to her brother for a price or consideration of $2000, to be paid to her by him, of which sum $1000 was to be paid in cash upon the completion of the sale of the lots to Snell, and the payment of the remaining $1000 was to be secured to her by some good and sufficient security to be furnished her by him. This transaction clearly was an absolute sale and conveyance of the property for a definite consideration to be paid by the vendee to the vendor. It is true the consideration was never paid, but that circumstance could not convert an absolute conveyance into a mortgage, nor was it sufficient to change the estate of her vendee into a mere naked trust. It is clear that her interest in the premises conveyed, even between her and her grantee, was that of a vendor’s lien, and nothing more.

The complainant is seeking by her bill to have her vendor’s lien satisfied out of the proceeds of the sale of said lots by Carpenter, who obtained title thereto by conveyance from the complainant’s grantee. She bases her right to relief upon the allegation, 1, that Carpenter took title with notice of her equities, and, 2, that the deed from Strong to Carpenter, though absolute on its face, was intended for and in fact was a mortgage, and that by sale of the premises to Snell, Carpenter had realized a sufficient sum to satisfy his mortgage and leave a surplus to be applied upon the complainant’s lien.

We think there was a failure to prove that Carpenter, at the time of the conveyance to him, had notice of the complainant’s equities. He positively denies having had any knowledge or notice on that subject, and there seems to be no witness who testifies to the contrary, and no facts' are shown which are clearly sufficient to charge him with notice. His chain of title of course notified him that the complainant had been the owner of a part of the premises conveyed to him, but following that -was an absolute conveyance from her to his grantor, and after finding that such conveyance had been made, there was nothing upon the face of his chain of title making it his duty to inquire further. Especially was this so in view of the fact that the deed from the complainant to his grantor contained an express acknowledgment of the receipt of the purchase money and a clause forever releasing and discharging her grantee therefrom.

But as we are inclined to view the case, it does not seem to be very material whether Carpenter had notice that the complainant had not been paid for her lot or not. By the admissions of her bill it appears that she conveyed her part of lot 29 for the purpose of placing it in the power of Strong to either sell or mortgage both lots for the purpose of raising money for his own use. In case of his obtaining a temporary loan from Carpenter before consummating the sale to Snell, it was not in the contemplation of the parties that she should receive any part of the money borrowed to apply upon her purchase money. And in case of an absolute sale, it was manifestly not their intention that her lien for the purchase money should have priority over the title conveyed. Such being the case, she is clearly estopped to set up her vendor’s lien as against the title of Strong’s vendee or mortgagee. On the other hand, if the deed to Carpenter was only a mortgage, she is entitled to enforce her vendor’s lien against the equity of redemption, irrespective of whether Carpenter took with notice or not. 1 Jones on Mortgages, sec. 200.

It is thus apparent that the complainant’s right to relief must depend altogether upon whether the deed from Strong to Carpenter was intended as an absolute conveyance or as a mere mortgage to secure a loan of money. This presents a question of fact upon which the evidence is to a large degree conflicting. The deed upon its face is absolute, and the burden is on the complainant to prove by clear and satisfactory evidence that it was in fact a mortgage. This court has often held that where a conveyance is in form absolute, in order to change its character to that of a mortgage, the proof must clearly and satisfactorily show that such was the contract and intent of the parties. Bailey v. Bailey, 115 Ill. 551; Darst v. Murphy, 119 id. 345; Workman v. Greening, 115 id. 477; Clark v. Finlon, 90 id. 246; Bartling v. Brasuhn, 102 id. 441; Knowles v. Knowles, 86 id. 1; Hartnett v. Ball, 22 id. 43.

We have patiently considered the evidence, with the aid of such light as counsel have been able to throw upon it, and are disposed to concur with the conclusions reached by the circuit judge and the Appellate Court. So long as we agree with those courts, an extended discussion of the evidence becomes unnecessary. The testimony of Carpenter is positive and unequivocal that the deed was intended to be an absolute conveyance and not a mortgage, and that the transaction between him and Strong was a purchase and sale of the lots and not a loan of money. Strong himself does not claim and never has claimed an equity of redemption in said lots since the execution of the deed. In a proceeding in the nature of a creditor’s bill brought against him some time after the deed was executed, he seems to have based his defense, so far as said lots were concerned, upon an allegation that he had no equitable interest in them. Much of the evidence adduced on behalf of the complainant is equivocal in its character and leads to no certain oi satisfactory conclusion. It is sufficient to say, that the entire evidence taken together, viewing it in the light most favorable for the complainant, leaves the mind in serious doubt as to what was the real transaction. It thus falls entirely short of the measure of proof required by the decisions of this court in order to hold a deed which on its face is an absolute conveyance, to be a mortgage. We are of the opinion that the decree is warranted by the evidence, and the judgment of the Appellate Court will be affirmed.

Judgment affirmed.