text:
    George A. Johnson v. William Filson et al.

      Filed at Springfield October 6, 1886.

    1. Conveyance—whether an instrument amounts to a present convey•ance, or is only a bond for deed. A written instrument from a father to his -son, recited, among other things, that “I, W. F., of, etc., have this day bargained, and do grant, bargain, sell and confirm, unto the said,” etc., naming the son and describing the land, for the sum of $600 in hand paid, and then "bound the father, in a penal sum, to make to the son, by a time mentioned, a good and sufficient general warranty deed: Held, that the writing was operative as a present conveyance of the land, and that the agreement to make a •deed at a future day was simply equivalent to a covenant for further assurance.
    2. Partition—equitable title—whether available. Upon a bill in equity for the partition of land, an equitable title is as available as an unquestioned legal title, and if the defendant shows that he is the equitable owner of the ■entire title, this will bar the relief sought.
    3. Limitation—bill for partition. Where a bill for the partition of land •was not filed until more than twenty years after the complainant became of .•age, and his right of action, if any existed, accrued some thirty-six years ¡before, during all which time the defendants, and those under whom they •claim, have had the sole and exclusive possession, under claim of ownership, •under a conveyance from a common ancestor, it was held, that a decree dismissing the bill was proper.
    4. Evidence—admissions—of what weight. Where a party shows a •clear title of record to a tract of land, it can not be overcome by proof of his •casual admissions, made over twenty years before, to the effect that another person had some interest in the premises.
    Writ of Error to the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. Brown & Kirby, for the plaintiff in error:
    The possession of one tenant in common is constructively that of all, and to disseize his co-tenants there must be an actual ouster, or such acts as amount to one, before the limitation runs. Jenkins v. Dalton, 27 Ind. 82.

      The instrument from William Filson to William Filson, Jr., being only an executory contract for a deed, did not vest the legal title in the latter, and could not be color of title, under section 6, chapter 83, of the Revised Statutes. Dickenson v. Breeden, 30 Ill. 279; Dunlap v. Dougherty, 20 id. 397; Bride v. Wall, 23 id. 507; Rigdon v. Frye, 62 id. 507.
    Mr. Julian P. Lippincott, for the defendants in error:
    The instrument from William Filson, etc., to his son William, contains all the essentials of a deed, and upon being acknowledged and recorded, passed the title to the lands therein described. (4 Kent’s Com. 460-462; Rev. Stat. chap. 50, sees. 3, 8.) But if ajbond for a deed, it passed the equitable title. In a court of equity an equitable title is enforced and treated the same as a legal title. Buck v. Eaman, 18 Ill. 529; Smith v. Smith, 55 id. 204.
    Twenty years’ actual possession of a lot under a contract of purchase is a bar to an action of ejectment as to any part of the land within inclosure. Schneider v. Botsch, 90 Ill. 577.
    The limitation may be invoked against a claim of co-tenancy. Goeway v. Urig, 18 Ill. 238; Hinckley v. Greene, 52 id. 223.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This is a writ of error to review a decree of the circuit court of Morgan county, dismissing a bill filed by George A. Johnson, as heir of his grandfather, William Filson, Sr., against the defendants in error, as heirs of William Filson, Jr., a son of the former, for the partition and division of certain lands, of which William Filson, Sr., is charged in the bill to have died seized. It is an admitted fact, that the land in controversy, prior to and on the 9th of February, 1839, belonged to William Filson, Sr., through whom all the parties claim. On that day he executed to his son, William Filson, Jr., the following instrument:

“Know all men by these presents, that I, William Filson, Sr., of the county of Morgan and State of 111 have this day barganed and do grant, Bargen, sell and confirm to the sd William Filson, Jr., of the county and State above writen, all that tract or tracts of land hereafter named for the sum of six Hundred Dollars in hand paid, the receipt of whitch is heareby acknoladged, known and Designated as follows, to-wit: Being and lying in Morgan county and State of Illinois, and Designated on the plat of the United States survay as being the east half of the southeast quarter of section Twenty-Eight, in Township Fifteen North, of range nine West; also, forty acres known as follows, to-wit: it being the North East quarter of the North East quarter of section number thirty-three, in township Fifteen north, of range nine west, together with all and singular the heriditament and appertanence thareeunto, belonging or in anywise appertaining thereto, to have and to hold the above Described premises unto William Filson, Jr., of the county and State above written, to him, his heirs and assigns forever, &c.
“Now, for the. true performance of this, I, William Filson, Sr., of the county and State aforesd, bind myself, my heirs, ex and or administrators or assigns in panal sum of three thousand dollars, to be paid to the sd William Filson, Jr., of the second part; provided always, that if the sd William Filson, Sr.; of the first part, or his heirs, ex or administrators or assigns Dos, on or before the the first day of January in the yeare of our Lord one thousand Eight hundred and forty-six Dos, well and truly make a good and suficient Deed in fee simple or a general warrant Deed, then this penal sum to be void or else to remain in full force and virtue.
“it is further understood that the sd William Filson, Jr., of the first part, is to live in the sd house on the farm he now lives in during his natural life, and is to have the whole control of that house as his own property, and at the Death of said William Filson, Sr., and Mary, his wife, the said William Filson, Jr., is to have full and free possession of house and farm as above written.
“As witness my hand and seel this 9th day of Fabruary, in the year of our Lord, one thousand eight Hundred and thirty-nine. William Filson. [Seal.] ”

This instrument was filed for record in the proper office August 26, 1839.

We think the weight of evidence shows that the grantee took possession of the premises, under the instrument, subject to the grantor’s rights therein reserved, prior to the death of the latter, which occurred on the 27th of March, 1848. The evidence on this point, however, is not very clear, and plaintiff insists that possession was not taken until after the grantor’s death. We do not think it a matter of much, if any, importance, whether possession was taken before or after his death, as it is shown by the concurrent testimony of all the witnesses, that William Filson, the grantee, had exclusive control and possession of the premises from the time of his father’s death-to that of his own, which occurred in 1868. After the death of the latter, his widow and heirs continued to so occupy the premises until the commencement of this suit, on the 2d day of October, 1882. The complainant in the bill is the only-child and heir at law of Martha Johnson, a deceased daughter of William Filson, Sr., and, as he testifies he was born in May, 1840, consequently he was forty-two years old at the time of the commencement of the suit. From this it will be perceived that between the date of complainant’s majority and the commencement of the present suit, more than twenty years elapsed, and that the suit was not commenced until some thirty-six years after the right of action, upon complainant’s theory, had accrued. Such being the undisputed facts, we have no doubt of the correctness of the decree of the court below.

We concur in the view taken by counsel for defendants in error, that the instrument executed by William Filson, Sr., to his son, on the 9th clay of February, 1839, is something-more than a mere agreement to convey. The language of the instrument is, that “I, William Filson, Sr., * * *' have this day barganed, and do grant, bargen, sell and confirm to the said William Filson, Jr.,” etc. The words here used are the ordinary operative and technical words found in nearly all conveyances of land, and we could not hold them inadequate to pass the title without doing violence to the express-terms of the instrument. This we can not do. Nor does-the fact that -the grantor, in the same instrument, bound himself, in a penalty of $3000, to make another deed, “in fee simple,” to the grantee, on or before the 1st day of January, 1846, make any difference in this respect. The latter provision in nowise limits or qualifies the apt words of conveyanee already used in the deed. It is apparent on the face of the instrument that the party who prepared it was an illiterate person, and the parties may have been apprehensive that-it might turn out defective, and as a matter of precaution. caused the covenant to make another deed, to be inserted.. We are inclined, therefore, to the opinion, that this undertaking by the grantor to make another deed should be treated merely as a covenant for further assurance. In the view we-take of the case, however, this is a matter of but little importance, for if it be conceded the instrument in question is-a mere bond or contract for a conveyance, then it follows, as a fiiatter of course, the son became entitled to a conveyanee on the 1st of January, 1846, since which time William Filson, Jr., and those deriving title through him, are in equity to be regarded as the sole and exclusive owners of the land in controversy, and it is hardly necessary to add, that such a title, upon a bill for partition, as is the case here, is just as available as an unquestioned legal title.

In any view we are able to take of this case, we think the equities are clearly with the defendants in error. The attempt to assail their title by proof of casual admissions, made by the grantor some twenty or more years ago, to the effect that plaintiff in error had some interest in the premises, can not he permitted to prevail over a clear title of record.

The judgment of the circuit court will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Cbaig

license: Public Domain

text:
    Gideon Camp v. S. M. Simpson.

      Filed at Springfield October 6, 1886.

    1. Taxation—errors and irregularities in assessment—remedy—by injunction, or at law. A court of equity will not enjoin the collection of a tax for errors and irregularities on the part of the assessor, if the injured party neglects to avail himself of the remedy given by law.
    2. So where a person, in listing his property for assessment, declined to give in any moneys and credits when requested so to do, though he was liable to taxation on credits, and the assessor added $20,000 for moneys and credits to his assessment, and notified him of that fact, and of the time and place of the meeting of the board of review, but he failed to appear before that board and seek relief against the assessment, it was held, on bill to enjoin the collection of the tax on the moneys and credits, that having failed to avail of the remedy afforded by the law, a court of equity could not interfere.
    3. If, however, an assessor, after accepting a person’s list of personal property and fixing the valuation, should, without notice of any kind, enlarge the assessment by adding thereto an item for moneys and credits, such additional sum might be regarded as having.been assessed without authority of law, and the tax arising thereon enjoined.
    4. Same—notice to owner to appear before the board of review—whether it must be in writing. A tax-payer will not be excused from appearing before the board of review to have his assessment reduced or corrected because not notified in writing to so appear. The eighty-sixth section of the He venue law, requiring a written notice to the tax-payer, applies only to cases where complaint is made that a person has been assessed too low. In that case, written notice is required, before the board can act.
    Appeal from the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.

      Mr. Francis M. Wright, for the appellant:
    In this case appellant had not refused to make a schedule, and therefore the assessor had no power, under section 24, to do what he did. He did not offer to examine appellant under oath, and there was no refusal under oath to make a full discovery, and therefore the assessor-had no power, under section 26, to list the property.
    A court of equity will restrain the collection of taxes in cases of fraud, or where the assessment or levy is made without the authority of law. McConkey v. Smith, 73 Ill. 313; Drake v. Phillips, 40 id. 388; Vieley v. Thompson, 44 id. 9; Cleghorn v. Postlewaite, 43 id. 428; National Bank v. Cook, 77 id. 622.
    It is not claimed that the appellant was notified that his assessment was to be increased until the fourth Monday of June,—the day of the meeting of the town board,—and that ■was only verbal, to appear and object to an increase of his assessment. Rev. Stat. chap. 120, sec. 86.
    Mr. R. C..Wright, for the appellee:
    It was the duty of appellant to have furnished a correct and truthful schedule of his personal property, and failing to do so, the assessor was authorized to make one for him. (Rev. Stat. chap. 120, sec. 83.) He was notified that his schedule was not satisfactory, and requested the assessor not to make his credits too much.
    Appellant having notice of the action of'the assessor, and of the meeting of the board of review, and failing to appear and complain of such action, a court of equity will not interfere in his behalf.
    No notice in writing was necessary. That applies o'nly on complaint that a person’s assessment, as'returned by the assessor, is too low.
   Mr. Justice Cbaig

delivered the opinion of the Court:

This was a bill in equity, to enjoin the collection of a tax. assessed for the year 1884, against appellant, under the head, “Credits of others than bank, banker, broker or stock-jobber,. $20,000.”

There is no substantial disagreement between the parties, in regard to the facts upon which the decree of the circuit-court was rendered. In May, 1884, the assessor of the town of Ludlow, in Champaign county, as appears from the evidence, called on appellant for the purpose of assessing his. personal property for that year. The appellant gave the' assessor a list of his personal property, which was inserted, in a blank prepared for that purpose by the assessor. The-list or schedule of property was signed by appellant, and valued by the assessor at $857. This list included no money or credits whatever. A few days after the list of property had been furnished, the assessor learned that appellant owned a large amount of notes which had not been given in. He-then called upon appellant, and informed him what he had learned, and requested him to list this property. Appellant-did not deny that he had money and credits, but claimed that they were assessable in Paxton. The appellant declined to-'list the property, and the interview terminated, the assessor-informing appellant if he did not give in the property he-would assess it. Accordingly $20,000 was afterwards added to appellant’s assessment.

In Felsenthal v. Johnson, 104 Ill. 21, where a bill was filed, to enjoin the collection of taxes, it was held that the party aggrieved had a legal remedy, and to entitle a party to equitable relief where he has not availed of his legal remedy, he-must have used every reasonable effort to obtain the remedy provided by law. In Humphreys v. Nelson, 115 Ill. 46, where a like bill was filed to enjoin the collection of a tax, on the ground of an erroneous assessment, it was held that the party complaining had a remedy at law for the correction of the errors resulting in the injury sustained, and as he had neglected to resort to that remedy, a court of equity would not grant relief.

It is not a material inquiry here, whether the assessor proceeded strictly in conformity to the statute in making the assessment. If, as held in the cases cited, appellant had a complete remedy at law, and neglected to avail of that remedy, then he has no standing, in a court of equity, although errors may have intervened in the assessment. If the appellant had listed his personal property with the assessor, and the assessor had made the assessment at $857, and then, without notice of any character to appellant, enlarged the assessment by adding thereto $20,000, such additional assessment might be regarded as without authority of law, and a tax arising from such an assessment could not be collected or sustained in any court. But such is not this case. After the appellant had given in his property, but before the assessor had completed the assessment of his town, he notified appellant that he had not listed all of his property, and that his assessment would have to be increased. Appellant, as appears from the evidence, did not object to the assessor enlarging the assessment, but requested that it should not be made too much. It appears that the assessor then added $20,000 to the assessment, and on the morning of the fourth Monday in June, 1884,—the day upon which the town board of review met to review the assessments of property made by the assessor in the town,—the assessor notified appellant what he had done, and informed him, if he was not satisfied, that he could go before the board of review, which met on that day, and have the assessment corrected. But appellant made no effort whatever to obtain a correction of the assessment.

Section 86 of the Revenue law provides, that “the assessor, clerk and supervisor of the town shall meet on the fourth Monday in June, for the purpose of reviewing the assessment of property in the town, and on the application of any person aggrieved they shall review and correct the same, as shall appear just.” Here was a complete remedy provided, where appellant might, if his assessment was too high, on application, obtain complete relief. He knew what the assessment was before the meeting of the board, and was notified to appear, if he desired relief, but he neglected to take any steps whatever to obtain relief. Under such circumstances equity -can not interfere. Appellant had a remedy, and a complete •one, by following the course pointed out by the statute, where the assessor has made an erroneous assessment.

It is, however, insisted in the argument, that appellant was not bound to appear before the board of review, because he was not notified in writing. Under section 86, where complaint is made to the board that a person has been assessed too low, the board can not act on such a complaint until the person assessed, or his agent, has been notified in writing; but this part of the statute has no application whatever to a case where a person appears before the board and asks for the correction of an erroneous assessment. In such a case no written notice is required. It was only necessary that appellant knew, or by the exercise of proper diligence might have known, what his assessment was in time to appear before the board and ask for relief.

We perceive no error in the decree of the circuit court dismissing the bill, and it will be affirmed.

Decree affirmed.


author: Mr. Justice Sheldon

text:
    The Wabash, St. Louis and Pacific Railway Company et al. v. Isaac McDougall et al.

      Filed at Springfield October 6, 1886.

    1. Eminent domain—damages—by whom recoverable—as, in ease of a subsequent sale and conveyance of the premises. The damages to land not taken for a right of way by a railway company, caused by the construction of a railway over adjoining lands of the same owner, both present and future, become fixed and determined when the railroad is constructed, and the owner of the lands at that time is the only person entitled to hare damages assessed in his favor. The purchaser from him can not recover, either in an action at law or in a proceeding to condemn, for any damages caused by the proper construction and operation of the railroad.
    2. Damages for the taking and injury to land belong to the owner at the time of the injury, and do not pass to a subsequent vendee. The owner Slone can take advantage of a claim for damages, and if he does not claim, his subsequent vendee can not. The doctrine here announced is not in conflict with the ruling in the case of Chicago and Iowa Railroad Co. v. Hopkins, 90 Ifl. 316.
    3. SAME^rights of purchaser in respect to subsequently accruing dam-1 ages. While the purchaser of land can not recover damages for an injury thereto by the construction of a railroad over the same, or a part thereof, before his purchase, yet if the railway company, after his purchase, adopts a new feature in the construction and operation of its road in the future, as, by making an opening in an embankment for the passage of water and constructing a bridge over the opening, such purchaser will, in a proceeding to condemn, be entitled to just compensation for any damages growing out of the change or alteration in the nature of the work.
    Writ of Error to the Circuit Court of Menard county; the Hon. Cyrus Epler, Judge, presiding.
    The plaintiffs in error instituted this proceeding in the circuit court of Menard county, to condemn a right of way; one hundred feet wide,, for their railroad, over and across lands of McDougall and Hamilton, described as part of the north-west, quarter of section 11, township 19 north, range 8 west, and part of the north fractional half of section 10, same township. The petition represents that the plaintiffs were the owners of and operating a railroad between the city of Springfield and Havana, that was formerly owned by the Springfield and Northwestern Bailroad" Company; that the embankment of the railroad was already constructed and placed on the lands above described, and alleges that McDougall and Hamilton are the owners of the land, and that Fisk is interested as mortgagee.
    The defendants in error filed their cross-petition, alleging •that McDougall and Hamilton were also the owners of the south-west quarter of said section 10, containing 132 acres; the north-east quarter of the south-east quarter of said section 10, containing 40 acres; the west half of the south-east quarter of said section 10, containing 80 acres. The 40-acre tract lies one-fourth of a mile, the SO-acre tract one-half mile, and the 132-acre tract three-fourths of a mile from the railroad. It is alleged in the cross-petition that the three tracts therein described, and the two tracts described in plaintiffs’ petition, comprise one compact body of land, and constitute a single farm of 548 acres; that the strip of land sought to be condemned contains 10 acres, and runs .diagonally through the farm in a south-easterly direction, dividing and separating about 160 acres from the rest of the farm, thereby greatly injuring all portions of the farm not sought to be taken; that by the construction of the railroad, and the embankments thereof, the natural and accustomed flow of the overflowed waters of Sangamon river and Lake Bun have been obstructed in their natural course, and thereby a portion of said land has been submerged and damaged; and that in divers other ways set out, damage is caused to the land from such overflowed water by reason of the railroad and such embankments, and praying that these damages may be assessed, and paid to defendants.
    Previous to the commencement of the trial, the parties entered into a stipulation in writing, as follows:

      “It is stipulated in the above entitled cause, that the railway over the tracts of land sought to be condemned in this proceeding, was constructed by the Springfield and Northwestern Railroad Company; that at the time the land described in plaintiffs’ petition was appropriated by said Springfield •and Northwestern Railroad Company, the title to said land was in John T. Bennett; that subsequent to the building of said road, to-wit, in 1872, McDougall and Hamilton, defendants herein, acquired a fee simple title to said lands, and are now, and ever since have been, the owners of said.land in fee simple, and also at said time acquired title to all the land ■described in the cross-petition herein, and still have title "thereto. ”
    The evidence shows that the land sought to be taken is about seven acres in quantity, and of the value of $10 to $20 •an acre; that the whole acres is subject to annual ■overflow, and was so subject to overflow before the railroad ■was constructed. When the defendants offered evidence to prove the damages claimed in their cross-petition, the plain-stiffs objected thereto, upon the ground that defendants did not own the land at the time the railroad was constructed, ■and that the damages sought to be proved, if any, accrued to Bennett, who owned the land at the time the road was constructed, and not to defendants; but the court overruled the •objection, .and permitted defendants to prove the difference in the value of the land before and since the construction of the Toad, and also damages sustained by them by reason of a washout in the railroad embankment, and other damages sustained by the land by the construction of the railroad upon it.
    It appears from the testimony- of Hamilton, one of the ■owners of the land, that after he and McDougall got it, they .agreed with Thompson, Grigg & Co., who at that time operated the railroad, to give the right of way across the land on condition that they be permitted to join their levee to the embankment of the railroad, and that the latter be kept intact, without any opening; that in pursuance of this agreement, McDougall and Hamilton built a levee around that portion of the land lying below the railroad, and attached the end of it to the embankment, thereby, with the levee- and railroad embankment, forming a bank of earth around 38SJ acres of the- land, and protecting it from overflow, but McDougall and Hamilton did not convey the right of way. -Also, that the embankment of the railroad was maintained, without any openings, until 1875, when a portion of it was washed away, and that McDougall and Hamilton, under an agreement with Col. Williams, who then had the road, filled up the break, and continued to use the embankment as a part of their levee until 1882, two years after the Wabash company purchased the road, when another break was made in the embankment by the high water, destroying the usefulness of the-levee, when McDougall and Hamilton proposed to the Wabash company to carry out with it the .agreement made with Thompson, Grigg & Co., provided the former would repair the break in the embankment and maintain the latter, but" the Wabash company, instead of filling the break with earth, put in piling- and a bridge, leaving an opening in the embankment for the water to pass through. There was evidence that a proper construction and maintenance of the road-bed. required- the break in the embankment to be filled; that if the embankment was properly constructed and maintained, the railroad would not be a damage to the acres.
    The court refused to instruct the jury, at the instance of .plaintiffs in error, that McDougall and Hamilton, not being the owners of the land described in the cross-petition at the time of the construction of the railroad, were not entitled to-have the damages therein claimed, assessed in this proceeding. The court also refused to instruct the jury that the only-damages to the land described in the cross-petition, which, the owners'were entitled to recover, were such as resulted. from the proper construction and maintenance of the railroad, and if by the proper construction and maintenance of the road the owners would sustain no damage, then they could, not recover damages claimed in their cross-petition in this proceeding, although the railroad company, since the construction of the road, negligently and wrongfully suffered and permitted the embankment to be washed away, and to remain out of repair, whereby the land was depreciated in value.
    The jury assessed the just compensation to be paid by the plaintiffs to the defendants, at the sum of $4134.50. Judgment was entered upon the verdict, after overruling a motion for a new trial, and the plaintiffs bring this writ of error.
    Mr. George B. Burnett, for the plaintiffs in error:
    McDougall and Hamilton are not entitled to damages occasioned by the overflow of the land described in this cross-petition, because they were not the owners of the land at the time the railroad was constructed. Whatever the land was depreciated in value, by reason of the construction of the embankment, was a damage which accrued to their grantor, and not to them. Railroad Co. v. Allen, 39 Ill. 205 ; Railway Co. v. Hunter, 50 id. 325; Saw v. Morgan, 72 id. 155; Railroad Co. v. Maher, 91 id. 312; Railway Co. v. McLaughlin, 77 id. 275; Dupuis v. Railroad Co. 115 id. 97; Railroad Co. v. Hatfield, 5 Dutch. 206; Commomoealth v. Sheppard, 3 Pa. 509; McFadden v. Johnson, 72 Pa. St. 335; Tenbroke v. Johke, 77 id. 392; Verder v. Railroad Co. 15 Shands, (S. C.) 476; Cotterill v. Myers, 12 Me. 222; Mills on Eminent Domain, sec. 66 ; Pierce on Railroad Law, 185 ; 2 Wood on Railway Law, 864, 865.
    The damages to be assessed in a proceeding to condemn a right of way for a railroad, are only such as arise from a proper construction of the road. The circuit court therefore erred in permitting defendants in error to recover in this proceeding, damages resulting from the improper or negligent maintenance of the road-bed. King v. Railroad Co. 34 Iowa, 538; Nelson v. Railroad Co. 58 Wis. 516; Lyon v. Railroad Co. 42 id. 538; McCormick v. Railroad Co. 57 Mo. 433; Railroad Co. v. McKinley, 33 Ind. 274; Railroad Co. v. Daniels, 20 Gratt. 344; Cotterill v. Myers, 12 Me. 222; Sargent v. Machias, 65 id. 591; McLendon v. Railroad Co. 54 Ga. 293; Pomeroy v. Railroad Co. 25 Wis. 641; Rand v. Townsend, 26 Vt. 670; Mills on Eminent Domain, sec. 220.
    Mr. N. W. Branson, and Mr. Edward Laning, for the defendants in error:
    This is a proceeding instituted by plaintiffs in error, under the Eminent Domain act, to condemn a right of way over lands owned by defendants in error, McDougall and Hamilton. Defendants in error are entitled to the just compensation prescribed by the constitution and the law, notwithstanding the lands now sought to be condemned were actually entered upon and appropriated by the railroad company while the title to the same was in defendants’ grantor. By the averments of their petition in this case, and by virtue of the mere fact of filing their petition, plaintiffs confess that they have no right of way, either by condemnation or otherwise, over the lands in question, which had been previously taken by them. Not having acquired a right of way, either by con-destination or otherwise, the taking and retaining the land used is a continuing trespass, and on sale and conveyance, the whole land, including the so-called right of way, passed to the defendants in error, McDougall and Hamilton, and they •are entitled to compensation for the land taken, and damages for any injury to the part not so taken, in a proceeding to condemn. Railroad Co. v. Hopkins, 90 Ill. 316; Railroad Co. v. Pfeuffer, 56 Texas, 66; Carli v. Railroad Co. 16 Minn. 260; Schermeely v. Railroad Co. id. 506; Caldwell v. Bank, 20 Ind. 294; Cunan v. Shattuck, 24 Cal. 427.
   Mr. Justice Sheldon

delivered the opinion of the Court:

As the lands described in the petition and cross-petition were owned by one Bennett at the time the railroad in question was constructed, and the defendants in error purchased them from Bennett subsequent to the building of the road, it is insisted that whatever damage was done to the lands •described in the cross-petition by reason of grading the roadbed and constructing the railroad, was to Bennett, and that, in the absence of all evidence on that subject, it may be presumed the railroad company adjusted the damages with him; that if Bennett did not insist upon the payment of these damages, defendants in error can not.

In Dupuis et al. v. Railroad Co. 115 Ill. 97, an instruction which declared the law to be that the cash market value of the land taken is the proper measure of damages for land taken by a railroad, and as to lands damaged, the measure of damages is the difference between the value of the land before and after the construction of the road, was held to be correct. And in Page v. Chicago, Milwaukee and St. Paul Railway Co. 70 Ill. 328, such measure of damages was expressed to be the difference between what the whole land would have sold for unaffected by the railroad, and what it would have sold for as affected by it, and the court there ■say, the damages must be for an actual diminution of the market value of the land. This being the measure of damages to land not taken, it would seem to follow that the damages thereto became fixed and determined when the railroad was constructed. The railroad was then upon the land, a permanent structure. Its damage to the land for all time was then assessable, and would have been assessed in a condemnation proceeding. The damage was then done to the land, and sustained in the depreciated value of it by reason of the railroad, and the injury was suffered by Bennett, the then owner of the lands. When the defendants came to buy the land of Bennett, they bought with the disadvantage of the railroad upon it, and with the deduction, as must be supposed, of the amount of that disadvantage. They paid the market value of the land, it must be presumed, as it then was, with the railroad upon it, and not its market value without the railroad upon it. In addition to such presumption, there is the testimony of Hamilton himself, that at the time they purchased, the land would have been worth, without the railroad upon it, $20 an acre, or at least $15; that they purchased the ,548r5Jff acres for $6500, so that if it was worth, at the time they purchased, $20 an acre without the railroad upon it, they paid $4470 less than that value; or, if the land was worth $15 an acre without the railroad upon it, there was paid $1727.50 less than such value. Defendants have been compensated for the damage of the railroad in the reduced price which they paid for the land because of the railroad being upon it, and to allow their claim for damages in this proceeding, would be giving them pay for the damages a second time, and compensation for an injury which was done to another, viz., Bennett, the former owner of the land, and who sustained the damage from it in the depreciated price which he received for the land because of the railroad.

Toledo, Wabash and Western Railway Co. v. Morgan, 72 Ill. 155, supports this view. The court there say: “It is charged the company wrongfully constructed its railroad on the lands of appellee, across the natural drains and outlets, so as to obstruct the same, whereby large bodies of water accumulated, and rendered the lands unfit for cultivation. There is a total want of evidence to support a recovery on either of these counts. The appellee did not own the lands when the company graded and constructed its road at that point. Whatever damage was done by reason uf the grading of the road-bed, was to his grantor. In the absence of all evidence on that subject, it may be presumed the company adjusted the damages with him. If the former owner did not complain, certainly his grantee can not. He purchased the land with the incumbrance of the railroad embankment upon it. It was open and visible. He could see exactly how the farm was affected by the construction of the railroad. ” Mr. Mills, in his work on the Law of Eminent Domain, sec. 66, says: “The claim for damages and of title to land may be distinct. Damages for taking and injury to land belong to the owner at the time of the injury, and do not pass to a subsequent vendee. The owner alone can take advantage of a claim for damages, and if he does not claim, his subsequent vendee can not.” And see Chicago and Eastern Illinois Railroad Co. v. Loeb, ante, 203; Kutz v. McCune, 22 Wis. 628 ; Memmert v. McKeen, 112 Pa. St. 315.

It is answered to the Morgan case, that the rule there announced does not apply here, because that was an action on the case. The principle of that decision was, that the owner of land can not recover for damages which accrued to it before he purchased the property, and would seem to apply to any case where such damages were sought to he recovered, whether in a proceeding to condemn or any other form of action.

The case of Chicago and Iowa Railroad Co. v. Hopkins, 90 Ill. 316, is relied upon by defendants in support of their claim. In that case, land was advertised for sale under a decree of court against the heirs of one Ward, and pending the advertisement of sale under the decree, and a few days before the sale took place, the railroad company entered upon the land and constructed its road over it. Hopkins purchased the land at the sale, and in the subsequent condemnation proceeding he was allowed compensation for the taking of the land by the railroad company. The court there say: “The title of the Ward heirs was unincumbered by any right of way in the company, and their title to the whole land, including the so-called right of xvay, passed by the judicial sale and deed to Hopkins. ” The title which Hopkins acquired at the sale related back and vested in him as of the date of the decree under which he purchased, so that it was his land upon which the railroad company entered and constructed its railroad, and of course it was he who was entitled to the compensation therefor. We do not consider that that case at all overrules or conflicts with the decision in the Morgan case, or is at variance with our present decision.

But what has been said is with reference to the railroad as it was then constructed, at the time defendants purchased the land. At that time the embankment of the railroad was solid and continuous over the land, or a portion of it; but since then, and after the plaintiffs came into possession of the road, there occurred a break in the embankment, which, instead of filling up, plaintiffs left as a permanent opening for the passage of water, and put in a bridge. The evidence tends to show that this opening and bridge in the embankment have been adopted by plaintiffs as a permanent feature in the construction and maintenance of their road, and that it is a cause of additional damage to the land. For any increase of damage which results to the land from this alteration in the embankment, we think the defendants are entitled to recover, and that they may do so in this proceeding, and not be put to another action for such damage, as contended for by defendants’ counsel, on the ground that a proper construction and maintenance of the embankment required the break in question to be filled up. There was not a mere negligent maintenance of the embankment, but, as the evidence tended to show, an alteration in the method of the permanent construction of the embankment by the adoption of this opening in it. And no matter whether that would be a proper construction of the embankment or not, if that was the plan of construction which the railroad company had adopted, the assessment of damages in a condemnation proceeding should be upon the basis of a road thus constructed. We think it may be treated, here, as if the application were to have the damages assessed because of the alteration in. the embankment, of this opening in it.

It follows that there was error in the court below, in not. restricting the inquiry and assessment 'of damages to the particular damages which resulted from the alteration in the construction of the railroad embankment by the adoption and. maintenance of this opening in it.

The judgment is reversed and the cause remanded.

Judgment reversed.


author: Mr. Justice Magbudeb

text:
    The People ex rel. Abraham Brokaw v. The Commissioners of Highways.

      Filed at Springfield October 6, 1886.

    1. Mandamus—whether .awarded,—generally. The relator must show a clear right to the relief sought, before the writ of mandamus will be awarded. If the right be doubtful, the court will not grant the writ.
    2. Same—as to matters resting in the discretion of an officer. Where-the performance of an act by a public officer is discretionary, and depends upon the exercise of his judgment as to its necessity or propriety, the court-will not interfere, by mandamus, to determine how or when he shall exercise the power, but will leave him in the free exercise of his discretion, to act 01-not, as he shall deem proper.
    3. Same—to compel highway commissioners to take steps towards the building of bridges. Where commissioners of highways had exhausted! their powers of taxation under sections 13 and 15 of the Road law of 1883, and the taxes so raised had been expended for other purposes, so that the only means of raising money with which to build certain bridges was by asking county aid, under section 19, or by a levy under section 14' of the Road law, and the law giving them a discretion as to proceeding under sections 14 and 19, it was held, that the court would not, by mandamus, compel the commissioners of highways to take the necessary steps to construct such bridges.
    4. Roads and bridges—application of money raised by taxation— discretionary power. The commissioners of highways have the discretionary-power, by the law, to first apply the taxes raised under section 13 of the Boad law of 1883, to the ordinary repair of roads and bridges, before they can be compelled to apply it in the construction of new bridges.
    5. Same—applying for county aid^-matter of discretion. Under certain circumstances, the commissioners of highways are authorized to apply to the county board for aid in building a bridge which the public necessity requires, but the law does not make it their imperative duty to do so. It is a matter of discretion with the commissioners whether to proceed under section 19 of the Boad and Bridge act, by seeking county aid.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of McLean county; the Hon. O. T. Beeves, Judge, presiding.
    Mr. John M. Hamilton, and Mr. Frank Y. Hamilton, for the appellant:
    The duty of commissioners of highways to keep roads and bridges in repair, is imperative, and not discretionary. Bev. Stat. chap. 121, secs. 2, 5.
    The imposition of a fine or penalty by section 89 does not take away the right to compel the commissioners to do their duty, by mandamus. Hall v. People, 57 Ill. 307; People v. Village of Crotty, 93 id. 186.
    We are aware that the relator must show a clear right to have the thing sought by it done, and by the person or body sought to be coerced, and such person or body must have the power and be obliged to do the act. People v. Railroad Co. 55 Ill. 95; People v. Cline, 63 id. 394; Comrs. of Highways v. People, 66 id. 339.
    When a specific, full and complete duty is imposed, with powers adequate to discharge it, and means that appear ample for its accomplishment, in labor, taxes, fines, etc., an indictment lies for neglect. (Browning v. Springfield, 17 Ill. 147.) By much greater strength of reasoning will mandamus lie. It is the duty of a town to build bridges over streams within its-limits. (Town of Harlem v. Emmert, 41 Ill. 519.) Mandamus lies to compel commissioners to do their duty. People v. Commissioners, 1 Cow. 22; People v. Collins, 19 Wend. 65.

      The office of the writ of mandamus, when addressed to ministerial officers, is to compel them to do the act which they are charged with unlawfully refusing to do. People ex rel. v. Taylor, 30 How. 78.
    ■ Even where there is a discretionary power, in cases where there is a clear and undeniable abuse of such discretion, as, where the freeholders should refuse to build a bridge which1 was absolutely necessary for the enjoyment of an ancient highway by the public, this court may exercise its power in enforcing that duty. State v. Freeholders of Essex, 3 Zabr. 214.
    But if subordinate public agents refuse to act or entertain the question for their discretion, in cases where the law enjoins upon them to do the act required, the court may enforce obedience to the law by mandamus. Judges of Oneida C. P. v. People, 18 Wend. 96.
    Messrs. Tipton & Beaveb, for the appellees:
    When a duty is imposed to perform a specific act, and there remains no discretion to be exercised, mandamus will generally lie against an officer to compel its performance; but when a duty is general, depending on judgment and discretion, the writ does not lie. St. Clair County v. People, 85 Ill. 400.
    The commissioners can not exercise any powers not conferred on them by statute. Brunas v. Town of Peoria, 82 Ill. 11.
    The commissioners have no power to borrow money,, and are powerless to incur a debt beyond the tax levied by them. Commissioners v. Newell, 80 Ill. 587.
    The sources of revenue to be raised and used by the commissioners are such only as provided by statute. Brunas v. Town of Peoria, 82 Ill. 11.
    As to the limitation of the power of taxation, see People v. Suppinger, 103 Ill. 434; Mee v. Paddock, 83 id. 494; Lemont v. Stone Co. 98 id. 94.

      The ¡petition is insufficient. The rule is inflexible that mandamus will not lie when the right sought to be enforced is-doubtful. The principle is, that the party praying the writ-must show a clear right to do it. People ex rel. v. Trustees of Schools, 86 Ill. 613; St. Clair County v. People, 85 id. 398; Comrs. of Highways v. People, 66 id. 339; People v. Village of Crotty, 93 id. 180; People v. Keokle, 92 id. 134; People v. Davis, 93 id. 133; People v. Johnson, 100 id. 537; People v. Cline, 63 id. 394; Lovalle v. Sincy, 96 id. 467; People v. Glann, 70 id. 232.
    That the petition is insufficient, see People v. Village of Crotty, 93 Ill. 186.
   Mr. Justice Magbudeb

delivered the opinion of the Court r

On October 6, 1884, appellant filed a petition, in the circuit court of McLean county, for a writ of mandamus against appellees to compel them to repair a certain road, running north and south near the centre line of section 27, town 23, range 2; etc., in Bloomington township, and, as a part of such repairs, to reconstruct two bridges of said road over the Little Kickapoo creek. The circuit court rendered a decree, ordering the-repairs to be made, and money to be raised, for that purpose, by taxation, which decree, on appeal to the Appellate Court, of the Third District, has been reversed, and a further appeal is prosecuted to this court.

It is well settled, that a relator must show a clear right, before the writ of mandamus will be awarded. If the right be-doubtful, the court will not grant the writ. It is also well settled, that, where the performance of a duty by a public-officer is discretionary and depends upon the exercise of his-judgment as to its necessity or propriety, the court will not. interpose to determine, how or when he shall exercise the-power, but will leave him in the free exercise of his discretion, to act or not, as he shall deem proper.

It is clear, from the pleadings and evidence in this case, that the repairs, for which appellant prays in his petition, are not the ordinary repairs, contemplated by section 2 of chapter 121 of the Revised Statutes, entitled “Roads and Bridges. ” (Hurd’s Rev. Stat. of 1885, page 1047.) The petition, in this case, is, really, to compel appellees to construct two new bridges over Kickapoo creek. It alleges, that the two bridges, which had formerly existed, had been “washed out, ” or, as counsel for appellant put it in their brief, “washed away,” in the year 1882. The relator says, in his testimony: “the bridges are gone on the north end. ” The witness Orendorff says: “the bridges are down. ” The petition states, that appellees had been requested, in writing, to repair the road, and refers to an attached copy of the written notice, served on appellees, before the filing of the petition. That notice, addressed to the commissioners of highways, is as follows: “You are hereby notified to build two bridges across the Little Kickapoo, creek in the public highway * * * and put said road in a condition to be used and traveled, as a public highway. ”

If, under all the circumstances of this case, it is a matter of discretion, with appellees, to determine, whether the bridges shall be built or not, they can not be compelled, by mandamus, to construct them.

The proof shows, that it would have cost $2500 or $3000 to build the bridges, with their necessary approaches. Appellees had exhausted their powers under sections 13 and 15 of the Road law. (Hurd’s Rev. Stat. of 1885, pages 1049 and 1050.) They had made a levy, under section 13, of sixty cents on each one hundred dollars of the taxable property of the town, for road and bridge purposes, and for the payment of outstanding orders. They had, also, made a lewy of twenty cents on each one hundred dollars of the taxable property of the town, under section 15, for the purposes, therein named. They could use none of the fund, raised. under section 15, for the construction of the bridges in question, because that fund was for paying damages allowed and awarded for laying, out and vacating roads, and for ditching to drain roads. The amount, raised under section 13, was needed for the ordinary repairs of roads and bridges, and for paying outstanding orders. The commissioners had levied all the taxes they had power to levy, and the proof is clear, that they had expended all the money in their hands. The a’oad and bridge tax for 1884-1885 amounted to something over $4400, and had all been expended, leaving unfinished work and unpaid bills, to the amount of about $400, to go forward to the account of the coming year.( That the highway commissioners have the discretionary power to first apply the money, raised under section 13, to the ordinary repair of roads and bridges, before they can be compelled to apply it to the construction of new bridges, is apparent from the language of section 19 of the Eoad law. One of the conditions, upon which the commissioners are authorized by section 19 to petition the county board for aid, is, that “the major part” of the funds, raised by the levy provided for in section 13, “is needed for the ordinary repair of roads and bridges.”

As the testimony in the record shows, that the cost of building the bridges would have been “more than twenty cents on the one hundred dollars on the latest assessment roll, and the levy of the road and bridge tax for that year in said town was for the full amount of sixty cents on each one hundred dollars, allowed by law for the commissioners to raise, the major part of which was needed for the ordinary repair of roads and bridges, ” appellees might have proceeded to “petition the county board for aid, ” under the provisions of section 19; and counsel are right in claiming, that appellees had the power so to do. But, besides the fact, that the petition in this case is not framed with reference to the provisions of section 19, it is very clear, that the duty of proceeding under that section is a matter of discretion with the commissioners, and is not imperatively enjoined upon them. Before any bridge can be constructed or repaired thereunder, they must “make a careful estimate of the probable cost of the same, and attach thereto their affidavits, that the same is necessary, and will not be made more expensive than is needed for the purpose desired.” They can not make the affidavits, here contemplated, unless, in their judgments, the necessity, which they are required to swear to, actually exists. Where the performance of an act depends upon the previous formation of an opinion, as to its necessity, the exercise of discretion must, of course, be involved. It is apparent from the record, now before us, that the commissioners, in this case, did not regard the construction of the bridges in question, as necessary; and the proof tends to establish the correctness of their opinions upon the subject.

There is but one other section of the Boad law, under which it is claimed by appellant, that proceedings should have been taken for the building of these bridges, and that is section 14. The latter section, (Starr & Curtis’ Stat. chap. 121, page 2140,) provides, that, “if, in the opinion of the commissioners, a greater levy is needed, in view of some contingency, * * * an additional levy may be made of any sum, not exceeding forty cents on the one hundred dollars of the taxable property of the town.” As the need of the levy, here provided for, was dependent “upon the opinion of the commissioners, ” the question of making it was a matter of discretion with them, and mandamus will not lie to compel them to make it. Without discussing the other points, presented in0 the arguments, we are of the opinion, that, for the reasons here indicated, the circuit court erred in making the decree, entered by it. The judgment of the Appellate Court, reversing such decree, is, therefore affirmed.

Judgment affirmed*


author: Mr. Chief Justice Scott

text:
    Frank G. Jaques v. John B. Lester.

      Filed at Springfield October 6, 1886.

    1. Notice—by possession of land, under unrecorded deed. The possession of land, under an unrecorded deed, at the time of a convej'ance by a devisee of the former grantor, is notice of the rights of those holding under such unrecorded deed.
    2. Cloud upon title—subsequent conveyance, as against a prior unrecorded deed, with possession. The owner of land conveyed the same in 1845, and in 1855 a devisee of that grantor conveyed the same premises by deed, which was first recorded, but at the time of making such second deed the land was in the possession of those holding under the prior and then unrecorded deed, and who have ever since held actual and exclusive possession, being a period of over twenty years, under a valid paper title: Held, on bill by a remote grantee holding under such prior unrecorded deed, against the holder of the title under the deed made by the devisee, that a decree setting aside such last named deed, and the transfers thereunder, was properly entered.
    Writ of Error to the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.
    Mr. J. 0. Cunningham, for the plaintiff in error:
    A party seeking, by bill in chancery, to remove a cloud from the' title to certain real estate, where such title is controverted by the answer, must, by evidence adduced, show title in himself to such real estate, or he has no standing in a court of equity. Hopkins v. Granger, 52 Ill. 504; West v. Schnebly, 54 id. 523; Wing v. Sherrer, 77 id. 200; Emery v. Cochran, 82 id. 65; Hutchinson v. Howe, 100 id. 11; Ritchie v. Pease, 114 id. 353.
    The recitals in a deed from a person under whom one does not claim, are not evidence against him. Graves v. Colwell, 90 Ill. 612.
    Where a usurper enters upon land, he acquires possession, inch by inch, of the part which he occupies, and the mere naked possession, without color of title, is adverse only to the ■extent of the actual inclosure. Bristol v. Carroll County, 95 Ill. 84.
    Mr. Francis M. Wright, for the defendant in error:
    A plaintiff in a suit to quiet title is not bound to show a perfect title against all the world, as in case of a party seeking to recover possession. It is immaterial to the defendants who show themselves in no way connected with the property. Rucker v. Dooley, 49 Ill. 377.
    Where a person is in the possession of land under an "unrecorded deed, that possession is notice to all subsequent purchasers or incumbrancers of whatever title is held by the person in possession, to the same extent as if his deed were •duly recorded; and a subsequently acquired title, although first on record, will be held subject to the title which the person in possession may have to the property. Brainard v. Hudson, 103 Ill. 218; Coari v. Olsen, 91 id. 273, and cases there cited.
    It has always been held that a plaintiff in ejectment may recover on a prior possession, as title, unless overcome by proof that the title is in some one else. The proof that defendant in error was in possession, therefore, answered the requirement that he must prove title in himself before he •could obtain the relief sought. Gage v. Schmidt, 104 Ill. 106.
    Where the purchaser of land takes actual possession before recovery of judgment against the vendor, a subsequent sale of "the property and a sheriff’s deed will be set aside as a cloud "upon the title of the prior purchaser,—and this, too, where the title is only an equitable one. Walsh v. Wright, 101 Ill. 178.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

The bill in this case was filed in the circuit court of Champaign county, by John B. Lester, against Frank G. Jaques. «Complainant alleges he is the owner in fee simple of the lands described in the bill, and the relief sought is to have a title, claimed by defendant to the same lands, removed as a cloud upon his title. It will be seen, on looking into the bill, that complainant claims title to the lands in controversy from the United States, through P. S. Loughborough, and successive conveyances to himself, and avers that such lands, since they were conveyed by Loughborough to William J. Graves, oru May 24, 1845, have been continuously in the actual possession of Graves, and his donees and grantees. The cloud sought to be removed, the bill charges, was created by a deed from Elizabeth Loughborough, devisee of P. S. Loughborough, of date June 2, 1855, to James F. Gamble and others, and through them to defendant,—the deed from Elizabeth Lough-borough having been recorded June 7, 1855. The answer of defendant is not under oath, and simply denies that complainant had title to the lands named, and asserts title in himself, under Elizabeth Loughborough, free from any claim under the Graves title.

It will be observed, both parties claim the title that was in P. S. Loughborough. The difficulty in the case all comes from the fact the deed from P.'S. Loughborough to William J. Graves, from which complainant claims title, although made-on the 24th day of May, 1845, was not filed for record until December 14, 1855. In the meantime, Elizabeth Lough-borough, sole devisee under the will of P. S. Loughborough, on the 2d day of June, 1855, conveyed the same lands the testator had previously conveyed to William J. Graves, to J amesF. Gamble and others, through whom defendant claims title.. The deed from Elizabeth Loughborough seems to have been filed for record June 7, 1855, which was before the deed from P. S. Loughborough to William J. Graves was recorded. It is-evident, however, that Graves, or other persons under him, had such possession of the lands prior to the making of the deed! from Elizabeth Loughborough, that would put purchasers, from lier on inquiry as to the rights of persons then and now claiming title to these lands under the prior deed from her testator. It is also clear, that at the time of the' death of P. S. Loughborough he had no interest whatever in these lands that could pass to his devisee. He had parted with all his title and interest, by deed, ten years before his devisee assumed to convey such lands. Thus it is seen, the grantees from Elizabeth Loughborough have no equities that should prevail over the superior equities of the grantees holding under the deed from the testator himself. It is proved, P. S. Lough-borough, from whom both parties claimed title, on the 24th day of May, 1845, conveyed the lands in controversy to William J. Graves. It also appears, past all doubt, since the date of that deed, Graves and his grantees or donees have had the possession of such lands down to the time of filing this bill, and during all that time have exercised acts of dominion over them, as an absolute owner would do. There is not a scintilla of evidence that shows, or even tends to show, an adverse possession in any one. No question is made as to the deed from P. S. Loughborough to William J. Graves, from whom complainant attempts to deraign title. Apparently, the title claimed by complainant is paramount, but without examining to ascertain whether every link in the chain of title from Graves to complainant has been proved, by competent evidence, so as to show a perfect title, it is sufficient the proof shows that since the time Graves took possession of these lands, under a valid paper title, to which no objection is taken, either he or his grantees, or their donees, have been in the actual and exclusive possession, and as that possession has continued uninterruptedly for a period of more than twenty years, the title of complainant, now in the actual possession, must be regarded as the superior title, both in law and in equity.

The decree of the circuit court will be affirmed.

Decree affirmed.


text:
    Indianapolis, Decatur and Springfield Railroad Company v. Rice Ervin.

      Filed at Springfield October 6, 1886.

    1. Railroads—unjust discrimination in freight charges—of a contract for a rebate. A contract between a railroad company and a shipper, that the latter shall pay the regular and established rates of freight, the same as all other shippers, and that the company shall pay back to him, by way of rebate, a certain portion of the freight so charged and paid, whereby such shipper will pay a less rate for transportation than that paid by others, and the public generally, for like services, under similar circumstances and for like distances, is void, as being against public policy at the common law, and in violation of the statute against unjust discriminations.
    2. Same—former decision—on the same subject. The case of Toledo, Wabash and Western Railway Go. v. Elliott, 76 111. 67, holding that a contract for a rebate of freight paid to a railway company was not in violation of the statute against unjust discrimination, was made under a different statute from the present one. That case was under the act of 1871, which provided only against unjust discriminations between places, and not between individuals, as does the act of 1873. That case, and the case of Erie and Pacific Dispatch v. Cecil, 112 HI. 185, under the present statute, are not authority.
    Writ of Error to the Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of Douglas county; the Hon. J. W. Wilkin, Judge, presiding.
    Mr. James A. Eads, for the plaintiff in error:
    The public policy of this State upon the question of railroad transportation is, that the rates shall be-reasonable, and open to all shippers upon the same terms for similar services under the same circumstances,—in other words, that'there ■shall be no favored shippers and no unjust discrimination. To this the records of the executive, legislative and judicial departments bear ample witness. We claim these contracts are in violation of this public policy. If so, they are void, and the courts will not enforce them. Neustadt v. Hall, 58 Ill. 172; Jerome v. Biglow, 66 id. 452; Craft v. McConoughy, 79 id. 346.
    We also insist that these contracts are void at common law. Messenger v. Railroad Co. 36 N. J. 407, affirmed in 8 Vroom, 531; 2 Rorer on Railroads, 935-938, 1223-1230; New England Ex. Co. v. Railroad Co. 57 Maine, 188; Sandford v. Railroad Co. 24 Pa. 378; Railroad Co. v. People, 67 Ill. 16.
    - If a part of the consideration is illegal, the whole contract is void. Henderson v. Palmer, 71 Ill. 579 ; Tenny v. Foote, 95 id. 99; Railroad Co. v. Mather, 104 id. 257.
    We submit that these contracts are in violation of the constitution and statutes of the State. Const, of Illinois, art. 11, sec. 15; Eailroad and Warehouse Commissioners’ act, sees. 110-114.
    Courts will not enforce contracts prohibited by law. Penn v. Bornman, 102 Ill. 523; Banking Co. v. Rautenberg, 103 id. 464.
    The rule is now well established that no agreement to do an act forbidden by a statute, or to omit to do an act enjoined by a statute, is binding. 7 Wait’s Actions and Defences, 64.
    Although the statute may not say the contract is void, yet it is void if in violation of the statute. 1 Parsons on Contracts, 382; 2 id. 186.
    At common law a common carrier is not allowed to exercise any unjust or injurious discrimination between individuals in their rates of tolls. Railroad Co. v. People, 67 Ill. 16; People v. Railroad Co. 55 id. Ill; Vincent v. Railroad Co. 49 id. 33; Railroad Co. v. Parkes, 18 id. 464; Railroad Co. v. Coal Co. 79 id. 121; Railroad Co. v. People, 56 id. 383.
    Mr. C. C. Clark, and Messrs. Nelson & Harnsberger, for the defendant in error.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This action was brought by Rice Ervin and John Ervin, against the Indianapolis, Decatur and Springfield Railway Company, to recover for certain rebates claimed to be due them on certain contracts for the shipment of grain over the defendant’s railroad, from Tuscola, Illinois, during the years 1879, 1880 and 1881. The general issue, and a special plea setting out these contracts were filed by the railway company. A demurrer was sustained to the special plea. On the trial of the case in the court below, the defendant offered to prove, under the general issue, that at and before the time of making the contracts sued on, defendant had established a schedule of reasonable rates and tolls for the transportation of grain and other property over its railroad, in accordance with the schedule of rates that had been prepared for it by the Railroad and Warehouse Commissioners of the State of Illinois; that plaintiffs resided at Tuscola, Illinois, and were engaged in buying grain and shipping it over defendant’s railroad, and that plaintiffs and the general freight agent of the defendant entered into a secret agreement that the grain and other property of plaintiffs to be shipped over the railroad should be billed out and charged at the regular schedule rates, and that the same should be paid by plaintiffs the same as was charged to and paid by the public generally for similar services, under similar circumstances and for like distances, and that the company should pay back to plaintiffs, by way of rebate, a portion of the freight so charged and paid, from two to eight cents per hundred pounds on all grain shipped by them over the road, giving to plaintiffs a less rate for transportation than was given to the public generally for like services, under similar circumstances, and for like distances; that the rates so given to plaintiffs were private and not open to the public generally, and less than were charged to the public generally, less than the schedule rates, and than any other shipper had, except Davis & Finney; that plaintiffs and Davis & Finney did the bulk of the grain business on the railroad; that no other grain shippers had such special rates, and could not compete with plaintiffs. This evidence was all excluded by the court, and exception taken. The special plea sets out substantially the same facts, with the addition that the president of the company had instructed the freight agent not to allow plaintiffs less than the regular rates, of which plaintiffs had notice, and that they had notice of the regular schedule rates. Judgment went for the plaintiffs for $6711.73, after the overruling Of a motion for a new trial, and was affirmed by the Appellate Court for the Third District. Defendant sued out this writ of error.

It is insisted the contracts, as set out in the special plea, and offered to be proved at the trial, are void, as in violation of the statute of the State against extortion and any unjust discrimination by railroad companies in freight and passenger rates, and as against public policy. This question, as respects the statute above named, then in force, was presented before this court in Toledo, Wabash and Western Railway Co. v. Elliott, 76 Ill. 67, where a contract for such a rebate was held not to be in violation of the statute to prevent unjust discrimination in charges by railroad carriers. This ruling was followed and affirmed in Erie and Pacific Despatch v. Cecil, 112 id. 185.

It is contended by appellee’s counsel that these cases should control the present decision. The statute under which the Elliott decision was made, was different from the present statute which applies here. The contract in the Elliott case was made in February, 1872, and the statute which applied there was the act which went in force July 1, 1871, entitled “An act to prevent unjust discriminations and extortions in the rates to be charged by the different railroads in this State for the transportation of freight on said roads. ” (Laws 1871-72, p. 635.) That act provided only against unjust discrimination between places, and not between individual shippers, so that it was well said in the Elliott case: “We do not understand the contract is at all in violation of the-statute to prevent unjust discrimination in charges by railroad carriers. ” But a subsequent statute, approved May 2, 1873, which went in force July 1, 1873, (Eev. Stat. 1874, p. 816,) and is the one applying to this case, provides against unjust discrimination between individual shippers, as well as between places. The second section of the act provides, in general terms: “If any railroad corporation in this State shall make any unjust discrimination in its rates or charges of toll for the transportation of passengers or freight upon its road, it shall be deemed guilty of having violated the provisions of the act, and be subject to its penalties.” Section 3, after-speaking as to discrimination between places, provides further: “Or if it (railroad corporation) shall charge, collect or receive from any person or persons, for the transportation of any freight upon its railroad, a higher or greater rate of toll or compensation than it shall at the same time charge, collect or receive from any other person or persons for the transportation of the like quantity of freight of the same class, being transported from the same point, in the same direction, over equal distances of the same railroad, or if it shall charge, collect or receive from any person or persons a higher or greater amount of toll or compensation than 'it shall at the same-time charge, collect or receive from any other person or persons for receiving, handling or delivering freight of the same-class and like quantity at the same point upon its railroad, ”' or shall make the like discrimination between persons for the-use and transportation of any railroad car, “all such discriminating rates, charges, collections or receipts, whether made directly, or by means of any rebate, drawback, or other-shift or evasion, shall be deemed and taken, against such railroad corporation, as prima facie evidence of the unjust discriminations prohibited by the provisions of this act. * * * This section shall not be construed so as to exclude other-evidence tending to show any unjust discrimination in freight and passenger rates. ” The fourth section provides, that any such railroad corporation guilty of making any unjust discrimination as to passenger or freight rates, or the rates for the use and transportation of railroad cars, or in receiving, handling or delivering freights, shall, upon conviction thereof, be fined in any sum not less than $1000, or more than $5000, for the first offence, and in increased sums for subsequentoffences.

The aim of this statute is against favoritism,—against-charging one shipper more than another for the like service, under like conditions. The statute regards this as unjust, discrimination, and denounces and punishes it as such. Unjust discrimination by common carriers was not sanctioned by the common law. In the case of Chicago and Alton Railroad Co. v. The People, 67 Ill. 16, this court say: “The duties- and liabilities of a common carrier are clearly defined by the common law, and have been so defined for centuries. * * * Another well settled rule of the common law in regard to common carriers is, that they shall not exercise any unjust or injurious discrimination between individuals in their rates of tolls. ” In Messenger et al. v. Pennsylvania Railroad Co. 36 N. J. Law, 407, it was decided that an agreement by a-railroad company to carry goods for certain persons at a. cheaper rate than they will carry, under the same conditions, for others, was void, as creating an illegal preference. The-plaintiffs in that case had made shipments at the regular-rates, under an agreement that they should be allowed such drawbacks as would bring their freights twenty and ten cents per hundred lower than the lowest rate given to any other person. The suit was to recover such drawbacks. The contract was held, upon the principles of the common law, to be illegal, and on that ground a demurrer to the declaration was-sustained. Whenever the contract which the party seeks te enforce, be it express or implied, is expressly or by implication forbidden by the common or statute law, no court, either of law or equity, will lend its assistance to give it effect. (2 Chitty on Contracts, 971.) This is the well settled rule of law.

The evidence offered and excluded, tended, in our opinion, to make a case of unjust discrimination, under this statute of 1873,—to prove a contract to give the plaintiffs an undue preference over others, in charging them lower rates on their shipments. Such a contract appears to us to be one in contravention of this statute. As the matter stands, plaintiffs have paid the regular rates, and have been treated alike with other shippers not having had any undue advantage. To enforce such a contract as above, and adjudge defendant to pay the rebates claimed, would be to compel defendant to make an unjust discrimination in favor of plaintiffs, and require the company to do what the statute forbids their doing. Such a result the law will not aid in accomplishing. In the Cecil case, the contract was made in 1881, and was one for a rebate on a single shipment of corn. The principal questions there controverted and discussed, were as to the making of the contract and the authority of the agent. There was no discussion of the validity of the contract. There was merely an extract from the opinion in the Elliott case, and then this observation: “What was there said is equally applicable here, and under the authority of that case we must hold the agreement in this, valid and binding. ” It was mistakenly remarked, that what was said in the Elliott case was equally applicable in the Cecil case. The contract in the former ease was made when the statute of 1871 was in existence, and the decision there was with reference to that statute. The contract in the Cecil case was made while the statute of 1873 was in force. But the difference between the two statutes was not brought to the attention of the court, and it was supposed the same statute was involved in both cases, so that the Cecil case really affirmed nothing more in this regard than that the decision in the Elliott case, with reference to the statute of 1871, was correct. Neither of those cases, therefore, should control the present one. -

We are of opinion the circuit court erred in sustaining the demurrer to the' special plea, and in excluding the offered evidence.

The judgments of the Appellate and circuit courts will be reversed, and the cause remanded to the circuit court.

Judgment reversed.


author: Mr. Justice Mulkey

text:
    Elizabeth Rendleman v. Jerome T. Rendleman.

      Filed at Mt. Vernon October 7, 1886.

    1. Homestead—divorce—effect on the right of homestead. The effect of a decree of divorce of a husband from his wife, for her fault or misconduct, is the forfeiture of her right of dower and any estate of homestead she may have had in his lands.
    2. The homestead right of a husband or wife acquired by the desertion of the other, is held subject to a condition of forfeiture upon the marriage relation being dissolved by a divorce granted on account of the fault or misconduct of the one having such right. Section 2 of the act relating to exemptions must be construed with section 14 of the Dower act, so that both may stand, and have full force and effect given to each.
    3. Foreign divorce—presumption as to jurisdiction. Where the record of a suit for divorce in another State appears to be regular on its face, and shows the appearance of the parties, and a final decree dissolving the marriage relation, it will be presumed such court had the power to render the decree.
    Writ of Error to the Circuit Court of Jackson county; the Hon. 0. A. Harkbr, Judge, presiding.

      Mr. R. J. Young, 'and Mr. R. J. Stephens, for the plaintiff in error:
    In case of desertion, the exemption continues in favor of the one remaining in occupancy of the premises. Rev. Stat.. chap. 52, sec. 2.
    The homestead is a statutory estate and right, purely, and. it can be aliened or incumbered only in the manner prescribed by the statute, (Eldridge v. Pierce, 90 Ill. 474,) and neithei" fraud nor the commission of a crime -works its forfeiture Leupold v. Krause, 95 Ill. 440.
    We submit, also, that defendant’s homestead in the premises was a vested estate, and that the decree of the District-Court of McPherson county, Kansas, in the divorce proceeding, was incompetent, and powerless to affect it. Says this-court, in the case of City Insurance Co. v. Commercial Bank, 68 Ill. 348: “No doctrine is better settled by authority than,, that the title to real estate or immovable property can only be affected in the mode recognized by the laws of the State-within whose territory it is situated.” See, also, Harris v. Pullman, 84 Ill. 20; Wharton on Conflict of Laws, secs. 272-291.
    Adultery alone does not work a forfeiture of dower. The-statute applies only to a case where the party leaving the-other, commits adultery. (Chap. 41, sec. 15.) Here, the wife-did not leave the husband, but he left her. Besides, the-statute does not apply to homestead.
    The words, “any estate granted by the laws of this State,”' (sec. 14,) following particular words, apply only to things of the same class as dower or jointure. Sedgwick on Construction of Statutes, 361.
    By section 5 of the act relating to homesteads, the court,, in case of a divorce, is authorized to dispose of the homestead according to the equities of the case. This power of disposition excludes the idea of forfeiture under section 14 of the? Dower act.

      The only divorce contemplated by section 14 is an' Illinois divorce. A court of another State can not divest an estate here. There is no recital of such jurisdiction, and while it is a general rule that the presumption is in favor of the jurisdiction of a court of record, yet it is also to be presumed, and, in the absence of proof to the contrary, this court will presume, that the common law is in force in the State of Kansas. Crouch v. Hall, 15 Ill. 263.
    But by the common law, only the ecclesiastical courts had jurisdiction of the subject matter of divorces, and in this country statutory authority is necessary to confer jurisdiction over that subject upon the ordinary courts of law. 1 Bishop on Marriage, and Divorce, secs. 30, 31, 71; 2 id. sec. 291.
    Mr. W. W. Baer, and Mr. W. J. Allen, for the defendant, in error:
    It is obviously essential to the effectual operation of the-design of the constitution, that the records of the judgments of other States,- duly authenticated, should not merely prove-themselves, but give rise to a presumption that the court possessed the authority which it assumed to exercise. Freemani on Judgments, sec. 565.
    During the pendency of a suit by a husband for a divorce, the wife will have the right to remain in an apartment of his; house, in virtue, alone, of the marriage relation, but after decree of divorce, her rights to any and all parts of it will cease, and if she continues to remain against the will of the. husband, she will be a mere intruder. Brown v. Smith, 83 Ill. 291.
    A decree which dissolves the marriage absolutely, and destroys the marriage status indirectly, puts an end to all rights dependent upon a coverture. Stewart on Marriage andi Divorce, sec. 427.
    A divorce a vinculo matrimonii, absolutely dissolves all marriage ties, and destroys the relation of husband and wife-After the date of the decree the man has no wife, the woman no husband. The woman is a feme sole. With such a divorce all estates during coverture cease. Stewart on Marriage and Divorce, sec. 430.
    After a divorce a vinculo, the wife is an intruder in her husband’s house. He can shut it up and bar her out. o Stewart .on Marriage and Divorce, sec. 435.
    A decree of divorce, unless otherwise provided by local law, puts an end to all obligations of either party to the other, :and to any right which either has acquired, by the marriage, in the other’s property. Barrett v. Sailing, 111 U. S. 523.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This was an action of ejectment, brought by Jerome T. Rendleman, in the circuit court of Jackson county, against Elizabeth Rendleman, for the recovery of the south half of 'the south-east quarter, and the north-east quarter of the south-east quarter of section 35, town 10 south, range 1 west, in said county, the plaintiff claiming the same in fee. The defendant set up a right of homestead and of dower in the premises, and this was the only defence relied on. The cause was tried upon the merits, resulting in a judgment for the plaintiff, to reverse which this appeal is brought.

As appears from plaintiff's affidavit in the record, both parties claim through George Rendleman, formerly the husband of the defendant. On the trial, the plaintiff put in evidence, without objection, a deed for the premises from George Rendleman and wife, acknowledged on the 10th day of March, 1882, and recorded on the 31st of July of the same year, the deed itself being without date. The defendant was then examined as a witness in her own behalf, and from her testimony it appears, that in 1854 she and the said George Rendleman, her then husband, moved upon and occupied the premises in controversy as a homestead until 1869, when they temporarily moved to Makanda, a distance of two and a half miles, where they lived from October of that year until the month of April following, when he left for Kansas, and she and their two then minor children returned to the homestead premises, which she has ever since occupied, either by herself or by her tenants. To meet the case thus made by the defendant’s testimony, the plaintiff introduced in evidence an authenticated copy, of the record of a suit for a divorce, brought by George Bendleman, against the said Elizabeth, to the September term, 1877, of the District Court of McPherson county, Kansas, wherein the latter was charged with adultery. The transcript of the record in question shows that both parties appeared in person, and by attorney, and that the court made in said cause the following special findings:

“First—That ^defendant had sexual intercourse with Norman J. Schultz, on or about the 20th day of May, 1871, at the city of Centralia,.......county, Illinois.
“Second—That plaintiff and defendant were not living together at the time of commission of said act of adultery with Schultz by defendant, but plaintiff had abandoned her and separated from her in-the month of April, 1870, by leaving-her and their children in the State of Illinois, and going to the State of Kansas, on the promise of returning, and for the planned purpose of traveling for his health; that just before starting for Kansas he sold and deeded, without knowledge of defendant, to one of his brothers residing in Illinois, the only tract of real estate owned by him in said State. He received $2000 from such sale, and with it, on arriving in Kansas, located himself here, and never returned to defendant, or sent for her, or supplied her with any means of support, save that he lived with and supported her for about three weeks, in 1876, on her visiting him in Kansas, and he left her in custody of $300 to $400 worth of personal property, and the defendant, after litigation, has had possession of, and the use, for a portion of the time, of the said real estate sold by plaintiff; that defendant is now residing with her father; that plaintiff did not so leave defendant wholly of his own fault, but partly for and on account of the fault of the defendant, in her mistreatment of him and the children, and making his home unhappy by reason of an ungovernable disposition, and had at times (for how long does not appear) refused to cohabit with him as a wife.
“ Third—That the reputation of defendant for chastity and virtue, in the community in which she has lived in Illinois, is, and has been for four years last past, bad, and that she probably committed an act of adultery with John Waters, in Carbondale, State of Illinois, in the year 1875, about the month of April.
“Fourth—That defendant has no property at this time; that plaintiff has, in the State of Kansas, an equitable interest in lands and personal property, of the value of $2000 or more; that plaintiff has secured or supplied defendant, on application to the court, for counsel fees in this cause, $50.
“Fifth—That the marriage of the parties is admitted by the pleadings, and that cohabitation followed such marriage up to about the time of plaintiff’s leaving defendant and coming to Kansas. i
“Sixth—That two children are now living, as the fruits of such marriage,—a boy of about the age of twenty-one years, and a girl of about the age of thirteen years,—both living with and in the care and custody of defendant, in the State of Illinois.”

The court then found, as conclusions of law, first, that the defendant was guilty of adultery with Norman L. Schultz, as charged in plaintiff’s petition; second, that $650 was a reasonable amount to allow as alimony to the defendant, under the circumstances. The final decree then dissolves the marriage between the parties, on the ground of the wife’s adultery, awards her the sum of $575, “in full of all claims, right of dower, or otherwise, in the property, whether personal or real, of the husband, now or hereafter to be acquired, and the costs of suit. ” The plaintiff in this suit also introduced in evidence a quitclaim deed for the premises, from Martin .Rendleman and wife, to the plaintiff, dated February 28, 1882, and filed for record July 31, 1882.

This was all the evidence in the case, whereupon the jury found the issue for the plaintiff, upon which the court rendered final judgment, as has already appeared.

We perceive no difficulty in this case. The 14th section ■of the Dower act we regard as conclusively settling the rights ■of the parties. It is as follows: “If any husband or wife is ■divorced for the fault or misconduct of the other, except where the marriage was void from the beginning, he or she shall not "thereby lose dower nor the benefit of any such jointure, but if such divorce shall be for his or her own fault or misconduct, such dower or jointure, and any estate granted by the laws of this State in the real or personal estate of the other, shall be forfeited. ”

The record of the divorce proceeding in Kansas conclusively -shows that George Rendleman was, in 1878, on his petition, ■divorced from plaintiff in error, for her fault and misconduct. If, therefore, she had “any estate” in his lands, “granted by "the laws of this State, ” at the time of rendering the decree, such estate in her husband’s land, by the express terms of ihe above section, became forfeited, and consequently afforded mo defence to the present action. It is not pretended that ihe appellant ever had any interest in or claim upon the land, ■except such as accrued to her as the wife of George Rendleman. The homestead right, as well as the paramount title and ownership, were in him until 1870. At that time, in the ■exercise of a right which every owner of a homestead has, he ■deliberately abandoned the right of homestead, but the paramount title and ownership of the land continued in him. At ihe same time he abandoned the right of homestead, he deiserted his wife and children. The wife having thus become the head of the family, the law at once clothed her with a right of homestead in the same premises. This right of homestead is expressly declared by the legislature to be an estate in the lot of ground and building to which the right attaches. Like all other estates, it must be supported by a title. This title may be in fee, for life, or even for years, in the ease of an extended term. In all cases the title must be either in the owner of the homestead right, or in one who sustains or has sustained some special relation to such owner, or in the assignee of one sustaining or having sustained such special relation to the owner. The relations here alluded to are, of course, that of husband and wife, and parent and child. With respect to the former, it is unimportant whether the title to the homestead premises is in the husband or in the wife. Whether in the one or the other, the holder of the title can not wrongfully deprive the other of the enjoyment of the home-. stead premises. Thus, it is expressly provided by the second section of the act relating to exemptions, that “in case the husband or wife shall desert his or her family, the exemption shall continue in favor of the one occupying the premises as a residence. ” This provision, however, must be construed in connection with the section above cited from the Dower act, so as to give effect to them both. This can only be done" by holding that a homestead right of husband or wife, acquired by the desertion of one by the other, is held subject to a condition of forfeiture upon the marriage relation being dissolved by a divorce granted on account of the fault or misconduct of the one having such right, which we think is a proper construction of the two provisions of the statute.

The point is made by counsel, that the section cited from the chapter on divorces, is an instance of legislation where a specific enumeration is followed by general words, which, according to a well settled rule of construction, will be extended to such things only as are of the same kind as those specifically mentioned, and that as an estate of homestead is unlike that of dower or jointure, the section in question has no application to the right of homestead. We do not think this view is sound. If the section does not extendj to an estate of homestead, which is certainly nearer like the estate of a dowress than any other interest in land, particularly where it arises from desertion, as it does in this case, there'is no interest or estate in land outside of dower and jointure to which it can extend, and that would be to make the concluding part of the section wholly inoperative. This we can not do. To say that the words, “and any estate granted by the laws of this State in the real or personal estate of the other, ” are but another expression for dower and jointure, is to do violence to the words used, and to defeat the manifest legislative intent. The use of “and, ” instead of “or, ” after the word “jointure,” strongly negatives the construction contended for. We regard the branch of the sentence commencing with the word “and,” just cited, as a distinct, substantive provision, adopted and inserted in that connection for the purpose of including any and every possible interest that the husband or wife for whose fault or misconduct divorce is granted, may have in the property of the other of which no disposition is made by the decree itself. Of course, the court, in making the decree, is authorized, under the statute, in settling alimony and providing for the children, to make any just and equitable disposition of the property of either, which the facts and circumstances in the case require. Rev. Stat. chap 40, secs. 17 and 18.

It is also objected that it does not affirmatively appear, from the record offered in evidence, or otherwise, that the District Court of Kansas had jurisdiction of the subject matter of the suit, and that for that reason the defendant is not to be affected in this proceeding by the adjudication in that court. We do not concur in this view. The record in question is authenticated in strict conformity with the act of Congress, and there is nothing upon the face of it, or otherwise, to indicate a want of such jurisdiction. The suit, as appears from the record, was entirely regular, and according to the usual course of judicial proceedings in such eases. Such being the case, we must presume that the District Court of Kansas possessed the powers which it assumed to exercise. This view, while it may not be in accord with some of the earlier eases on the subject, is believed to be sustained by the current of recent decisions, and by the most approved text writers. Abbott on Trial Evidence, 545; Freeman on Judgments, 565; 4 Wait’s Actions and Defences, 193; Rae v. Hulbert, 17 Ill. 572.

The other points made by counsel for appellant we regard as equally untenable.

The judgment of the circuit court will be affirmed.

. Judgment affirmed.