text:
    James Cochran v. John R. Fogler, Admr.

      Filed at Mt. Vernon January 25, 1886.

    Former judgment—judgment in forcible detainer adverse to a purchaser on foreclosure—as a bar to a writ of assistance in the same foreclosure suit. A decree of foreclosure of a mortgage required the parties in possession, in case of a sale, on the production of the master’s deed of conveyance and a certified copy of the order of the court confirming report of sale, to surrender possession to the purchaser. The purchaser, without producing such deed and certified copy of the order, brought forcible detainer against the party in possession, and judgment was rendered therein against ■the plaintiff: Held, that such judgment was no bar to an application by the purchaser to the court for a writ of assistance to put him in possession, after complying -with, the terms of the decree. Until the purchaser had produced the master’s deed and a certified copy of the order confirming the sale, his right to possession under the decree had not accrued, and so it' could not be barred by the judgment in the prior suit.
    Appeal from the Appellate Court for the Fourth District; —heard in that court on appeal from the Circuit Court of 'Fayette county; the Hon. Jesse J. Phillips, Judge, presiding.
    Messrs. Ashcraft & Stillman, for the appellant:
    • When appellee received the master’s deed he had a legal right to the possession of the lands therein described, and to enforce that right he had various remedies. He could proceed by taking out a writ of assistance, or under the Forcible •Entry and Detainer act. Either remedy was complete and adequate. The one is no broader than the other, and establishes no rights that the other would not determine.
    To obtain a writ of possession certain facts must be proven to the satisfaction of the court or judge granting the same. (Bruce v. Roney, 18 Ill. 74; Smith v. Brittenham, 3 Bradw. 64.) The same facts, if presented in an action of forcible detainer, would entitle the plaintiff to recover. The two remedies are concurrent. (Kessinger v. Whittaker, 82 Ill. 24.) Appellee elected to pursue the latter remedy, and suffered judgment to go against him in bar of his rights, which is still in force.
    A judgment at law in any form of action is conclusive upon the parties upon all questions and rights involved in the litigation, if the court pronouncing the same had jurisdiction. Hawley v. Simmons, 102 Ill. 115; Tilly v. Bridges, 105 id. 336 ; Sturdy v. Jackaway, 4 Wall. 174; United States v. Nourse, 9 Pet. 8.
    The justice had jurisdiction and a right to decide any and every question which arose in the cause, and whether his judgment was correct or otherwise, until reversed it is binding in every other court. Elliot v. Peirsol, 1 Pet. 329 ; Zimmerman v. Zimmerman, 15 Ill. 84; Miles v. Caldwell, 2 Wall. 35; Thompson v. Roberts, 24 How. 233 ; 2 Wait’s Actions and Defences, 767; Sanger, Camp et al. v. Fincher, 27 Ill. 346; Rogers v. Higgins, 57 id. 244; Kelly v. Donlin, 70 id. 378.
    When a party has a choice of remedies, selects one, and proceeds to judgment, he can not afterwards proceed in another suit for the same cause of action. Kendall v. Stokes, 3 How. 87; Thompson v. Howard, 31 Mich. 312; Jenkins v. International Bank, 111 Ill. 462; Flowers v. Brown, 21 id. 270.
    Messrs. Carroll & Fooler, and Mr. James M. Truitt, for the appellee:
    The proceedings by forcible detainer and by writ of assistance are concurrent remedies, in the sense that they both should give possession, but not otherwise. The one is for the purpose of obtaining a judgment, and the other to obtain an execution of a decree, or judgment. Howard v. Bond, 42 Mich. 131; Burton v. Lies, 31 Cal. 87.
    The first judgment rendered, which in this case is the decree commanding appellant to surrender possession to appellee, must control. Child v. Powder Works, 45 N. H. 457; Duffy v. Lytle, 5 Watts. 130; Casebean v. Mowry, 55 Pa. St. 422.

      As there has been no satisfaction of the right of appellee to the possession of the premises in controversy, we submit that the suit before the justice of the peace can not be interposed as a bar in this case. Planters’ Bank v. Calvit, 3 S. & M. 133; Vansant v. Allmon, 23 Ill. 30.
    A purchaser ‘must comply with the decree before being entitled to a writ of possession. Oglesby v. Pierce, 68 Ill. 220; O’Brien v. Fry, 82 id. 87.
    If different proofs be required to sustain two actions, a judgment in one of them is no bar to the other. Freeman on Judgments, sec. 259.
   Mr. Justice Tunnicliff

delivered the opinion of the Court:

At the September term, 1882, of the circuit court of Fayette > county, the appellee, as administrator of the estate of Samuel Fogler, deceased, obtained a decree for the foreclosure of a mortgage given by appellant and his wife to said Samuel Fogler in his lifetime. The decree found the amount due appellee to be $2567.55, and in default of payment directed the master in chancery to sell, and apply the proceeds to the payment of the costs, attorneys’ fees and amount due appellee. The land was sold by the master and bid in by appellee for $2786.42, and not having been redeemed, a deed was made to him, in pursuance of the decree, on the 21st day of February, 1884. Appellant and his wife resided upon the land at the time of the sale, and prior thereto, and have continued to do so ever since. On the 9th of May, 1884, appellee made a demand in writing upon appellant for the possession of the premises, and on the 19th of the same month began a suit of forcible detainer, before a justice of the peace, to obtain possession of the land. Upon the trial of this action the justice found the appellant not guilty of wrongfully withholding the possession of the premises from appellee, and that appellee was not entitled to the possession thereof, and rendered judgment against appellee for costs, which was not appealed from. After the trial of the case before the justice, appellee made application to the circuit judge, at chambers, for a writ of assistance to place him in possession of the land by reason of the foreclosure proceedings, and of the order of the court in the decree of sale, which is as follows:

“And it is further ordered, adjudged and decreed, that upon the execution and delivery of the conveyance or conveyances as aforesaid, the said purchaser or purchasers, his or their representatives or assigns, be let into possession of the portion of said mortgaged premises so conveyed to him or them, and that any of the parties in this cause who may be in possession of said premises, or any portion thereof, * * * on the production of the master’s deed of conveyance and a certified copy of the order of this court confirming the report of said sale, shall surrender possession thereof to such purchaser or purchasers, their representatives or assigns, and on refusal so to do will be considered in contempt of this court. ”

Appellant resisted this application, and interposed the proceedings in the forcible detainer suit as a bar thereto. The circuit judge ordered the writ of assistance to issue, from which order appellant appealed to the Appellate Court for the Fourth District, and that court affirmed the order of the circuit judge, and appellant brings the case to this court.

The only questions presented are, whether the proceeding in the forcible detainer suit was a bar to the granting of the writ of assistance, or was a matter of such a character arising since the rendition of the decree regarding the delivery of the possession of the premises to appellee, as to make it unjust and erroneous for the circuit judge to have awarded the writ.

It appears from the evidence in the case, that at the time of the commencement of the forcible detainer suit the appellee had not produced to appellant “the master’s deed of conveyance, and a certified copy of the order * * * confirming. the report of said sale, ” as required by the decree of sale. We are of opinion that the action of forcible detainer was not a bar to appellee’s right to apply for and obtain this writ. That suit could not bar any right not then in existence, and in regard to which no issue was made before or tried by the justice in that proceeding. Appellee had no right to apply to the circuit judge for this writ until he had complied with the decree, by presenting to appellant the master’s deed of the premises, with a certified copy of the order of the court confirming the report of the sale. Until he had done this his right to the possession under the decree had not accrued.

' The case of Flowers v. Brown, Admr. 21 Ill. 270, relied upon by appellant, is not an authority to show that the writ of assistance was improperly granted in this case. In that case the mortgagor, after the decree of sale, had entered into a contract for the purchase of the mortgaged premises; had obtained further time for payment; had paid part of the purchase money and the mortgage. The complainant in the foreclosure suit had promised to make a deed -upon payment of the balance, and having thus acquired a new right to hold the premises, it was held erroneous to issue a writ to turn him out of possession until his right to a specific performance could be determined. In that-case, new facts had arisen after the decree, which would have rendered it unjust and inequitable, to execute that part of the decree which required the mortgagor to surrender the possession. In this case nothing has occurred since the decree which gives to the mortgagor any just grounds for withholding from appellee the possession of the premises. His right to redeem the premises from the sale had expired, and his only pretence for retaining the possession is based entirely upon the supposed advantage which the decision of the justice in the forcible detainer suit gives him. This, as we have seen, is more imaginary than real, and affords no ground for preventing a court of chancery from executing its decree, as right, and justice demand. As was said in Aldrich v. Sharpe, 3 Scam. 261: “It is a well established principle, that when a court of chancery obtains jurisdiction of the subject matter of a suit, it will retain the jurisdiction, to the end that complete justice may be done between the parties. It has the power to decree a sale of the mortgaged premises, and thereby pass the title to the purchaser, and will put him in possession, instead of driving him to his action of ejectment. It would be but partial justice to adjudicate upon the rights of' the parties, and' vest the title in the purchaser, without affording a remedy to carry the adjudication into full effect. The court having the power to dispose of the title, has the right to control the-possession. ” And it can not be objected that the case is no longer lis pendens after a decree and sale, and a conveyance executed, because the court of chancery is not functus officio until the decree is executed by delivery of possession. Kessinger v. Whittaker et al. 82 Ill. 22; Jackson v. Warren, 32 id. 340.

We find no error in the record or merits in the appellant’s case, and the judgment of the Appellate Court is therefore affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Shops

license: Public Domain

text:
    Darius C. Warren v. C. D. Cook et al.

      Filed at Mt. Vernon January 25, 1886.

    1. Appearance—what constitutes, so as to give jurisdiction of the person. The filing of objections against an application by the collector, in the county court, for judgment against a lot for taxes due thereon, by an attorney having a general authority to appear for that purpose, must be regarded as the entry of the owner’s appearance, and as giving that court jurisdiction of his person.

      2. Tax title—conclusiveness of judgment for taxes—as to what matters. A judgment of the county court against land for taxes, where there is jurisdiction of the person and of the subject matter, is of like binding effect upon the parties as any other judgment at law, and however erroneous it may be, until reversed it is as binding as if free from error.
    3. If a party appears in the county court and files an objection to the rendition of judgment against his land for taxes claimed to be due thereon, a judgment against his land for such taxes, in the absence of fraud, is conclusive, not only as to the objections interposed, but also as to all defences that might have been made.
    4. Same—owner chargeable with notice—as to extension of back taxes. In such case the owner will be chargeable with notice of whatever the record shows, and on bill to set aside the sale of his land and enjoin the taking out of a tax deed, he will not be heard to claim he did not know that back taxes had been extended against his property.
    5. Ohanoeby—relief against judgment—negligencein defending at law. A court of equity will not grant a party relief against a judgment at law which is the result of his own negligence in not making a proper defence. This rule applies to judgments against lands for taxes where the party appears and resists judgment.
    Writ of Error to the Circuit Court of Jefferson county; the Hon. Carroll C. Boggs, Judge, presiding.
    Mr. C. H. Patton, for the plaintiff in error:
    The tax judgment of the county court at the May term, 1883, is not conclusive on the complainant, because it shows upon its face it was a judgment by agreement of the parties. Wadhams v. Gay, 73 Ill. 433.
    It is only where the owner of land appears in the county court and contests the application for judgment upon the merits, and the court has decided upon the merits, that he is barred. Gage v. Bailey, 102 Ill. 11; Riverside Co. v. Howell, 113 id. 256.
    If any part of the tax was illegal, the judgment which included it -was void. McLaughlin v. Thompson, 55 Ill. 249; Riverside Co. v. Howell, 113 id. 256.
    To constitute an estoppel, it is requisite that the party to be estopped should act with full knowledge of all the facts that are to affect his interest. But here the complainant did not know of the existence of these taxes upon the books against him. He knew he had paid them. He knew it was the public duty of the collector, a public officer, to mark them off of the books. He knew the law presumes, what is usually the fact, that public officers do their duty; and he was thus lulled into a feeling of security by the mistake of the officer, and therefore for this want of knowledge can not be held to be estopped. Francois v. Maloney, 56 Ill. 399.
    For the elements of an estoppel, see Dinet v. Eilert, 13 Bradw. 99.
    Estoppels are founded upon intention. Needles v. Hanipan, 11 Bradw. 303.
    Delinquency alone is the jurisdictional fact upon which the State can ask for a judgment for taxes,—hence, if the tax has been paid, the sale is void. Blackwell on Tax Titles, 410, 652, *412, *413.
    Again, the judgment was void because R. W. Carpenter, complainant’s attorney, had no power to consent to a judgment, as defendant in error insists he did, against his client for more than the county collector claimed for taxes against this property. Wadhams v. Gay, 73 Ill. 416; People v. Lamborn, 1 Seam. 123.
    Mr. C. H. Burton, for the defendant in error:
    The judgment having been rendered in a court of record, is conclusive upon the parties to it, and can not be attacked in a collateral proceeding. Cemetery Co. v. People, 92 Ill. 622; Gage v. Bailey, 102 id. 11; Karnes v. People, 73 id. 274.
    The record shows that plaintiff in error appeared in court and filed objections to the rendition of judgment, and after-wards withdrew his objections, and allowed judgment to be entered by consent. High on Injunctions, p. 67, sec. 62.
    A decree entered by consent can not be appealed from, nor can error properly be assigned upon it. A rehearing in such case will be denied; nor can the decree be set aside by'a bill of review. Graves v. People, 11 Ill. 542.
    A judgment by agreement must stand as a final adjudication of the rights of the parties. Strubher v. Belsey, 79 Ill. 307; Haas v. Building Society, 80 id. 248.
    It is immaterial whether the agreement was in waiting or not, as a parol agreement is binding. Toupin v. Garginer, 12 Ill. 79.
    Although a judgment at law may 'be unjust, yet when a legal defence existed, and the defendant had an opportunity to make the same in' an action at law, and by his own neglect failed to do so, he can-obtain no relief in equity. Higgins v. Bullock, 73 Ill. 206.
    Though new facts should be discovered, that does not create an equity. Adams’ Eq. 197.
    A court of equity will not grant relief on the ground of accident, when it has arisen from his own negligence or fault, or that of his agent. Kerr on Injunctions, 57.
   Mr. Justice Shops

delivered the opinion of the Court:

The plaintiff in error filed his bill in the circuit court of Jefferson county, to enjoin defendant Cook from taking out a tax deed to a certain town lot in Mt. Vernon, which Cook had purchased at a tax sale in June, 1883, for taxes for the years 1875 to 1882, inclusive. These taxes were alleged in the bill to have been paid by plaintiff in error before judgment therefor, in May, 1883, under which the property was sold. The bill also charged that the county tax included in the tax liens for those years was at the rate of one dollar on each $100 valuation, in violation of the constitution and statutes of the State, and also that the tax judgment was unlawfully and wrongfully erased, changed, and raised in amount, without the knowledge of plaintiff in error, after the judgment had been signed by the judge, and after the adjournment of the court to court in course. On hearing, on hill, answer, replication and proofs, the circuit court dismissed the bill, and plaintiff in error excepted, and now brings the record here and asks a reversal of that decree.

It appears by the evidence, that at the May term, 1S83, of the county court of Jefferson county, upon the application for judgment for taxes against delinquent lands and lots, the plaintiff in error appeared by his attorney and filed exceptions to the application for judgment as to this lot. It does not appear definitely what the objections filed were, but it is substantially conceded by both parties that they related to the method of computing the penalties, interest and costs, and ascertaining the amount of taxes due. Afterwards the objections filed were withdrawn, and judgment, as shown by the proof and by recitation in the judgment itself, was rendered by agreement. Upon this judgment the sale complained of was made. The authority of. the attorney of plaintiff in error to appear in the county court on behalf of plaintiff in error is not repudiated, but it is contended that he had no authority to agree to a judgment, etc. The same attorney had appeared in 1881 and 1882, and successfully resisted judgment for taxes against the same lot at the instance of plaintiff in error, and had at least a general authority to appear and contest-the entry of-judgment in the county court upon the application of the collector for judgment, in 1883, against the lot in question, for taxes. Under that authority he did ajipear and file objections for and on behalf of plaintiff in error. This was an entry of the appearance of plaintiff in error, and gave the county court jurisdiction of his person.

It is now claimed that there were other objections to the rendition of judgment, not urged or included in those filed before the county court, one of which is, that a portion of the taxes had been paid before judgment. Another is, that portions of’the' county tax were illegal, as stated in the bill. If this was true, he should have made such defences before the county court. He was in court, with full right to interpose any defence that existed. There is no pretence that his attorney did not fairly represent him, or that he was overreached, or any fraud or deceit practiced upon him. It is not material whether the attorney was authorized to have judgment entered by agreement or not. If he was so authorized, his act is conclusive of the rights of plaintiff in error; if not so authorized, the plaintiff in error can have no standing in equity, if through his own laches he failed to make the proper defence in the law court. Mix et al. v. The People, post, p. 265, and authorities cited.

Judgments rendered in proceedings to collect taxes, where there is jurisdiction of the person and of the subject matter, are of like binding effect upon the parties as other judgments at law, and even though the judgment be erroneous, if there was jurisdiction in the court rendering it, it is, until reversed, just as binding upon the parties to it as if it was free from error. (Freeman on Judgments, secs. 135-249; Graceland Cemetery Co. v. The People, 92 Ill. 621; Hundley et al. v. Commissioners, etc. 67 id. 559; Karnes v. The People, 73 id. 274.) It follows, therefore, that whatever defence could have been made should have been interposed in the county court, and having, by coming into court by his attorney, entered a general appearance, he can not now be heard, in the absence of fraud, to say there were other defences, and insist upon them in equity. This question arose and was fully discussed and determined in Neff v. Smyth, 111 Ill. 100.

It is said, however, that plaintiff in error did not know that the back taxes from 1875 to 1879, inclusive, had been extended against this lot with the taxes for 1880, 1881 and 1882. This would not avail the plaintiff in error. He, as we have seen, was in court by his attorney, and being in court, would be bound to take notice of whatever the record would show. But it is reasonably apparent that he did know the amount for which judgment was to be asked by the collector. He testifies that shortly after the judgment was rendered, he, with his attorney, examined it, and the judgment was for the exact amount that the collector’s advertisement of the delinquent list said judgment would be asked for against this lot. The amount thus advertised was $224.36, more than half the assessed value of the property. It could hardly have been the taxes for three years on that valuation would have amounted to such a sum. The plaintiff, in error had been fighting taxes on this lot several years, and his attorney, from year to year, as the record shows, was appearing for that purpose. He knew that his taxes were due, and his lot advertised as delinquent, and slight diligence would have admonished him what was included' in the proposed judgment, even if he was not chargeable with notice by being in court, by the entry of his appearance. He can not now come into a court of equity and ask to be relieved of the effect of his own negligence in not making his defence. If he suffers thereby, it is his own fault, and he must bear the consequences. Tone v. Wilson, 81 Ill. 529.

The evidence fully sustains the finding of the circuit court, that the record of the county court was not changed or altered after the adjournment of the term, as alleged in the bill.

There is no force in the point made that the clerk, after the sale, entered opposite this lot, on the appropriate book, the words “sold in error,” as directed by the statute to be done when the sale is in fact made in error. , Such entry by the clerk could in no way prejudice the purchaser at the tax sale.

Finding no error in this record authorizing a reversal, the judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Sheldon

text:
    The Chicago and Alton Railroad Company v. Albert Johnson.

      Filed at Springfield January 22, 1886.

    1. Negligence—contributory and comparative. Negligence of a plaintiff which is slight as compared with that of the defendant which is gross, will not prevent the former from recovering damages for a personal injury resulting from such negligence of the defendant.
    2. Same—care required of a brakeman on a railroad. The law does not require that a brakeman upon a freight train shall absolutely know all of the defects of construction and obstructions there may be along the line of the railroad, and that he shall neglect the performance of his duties as a brakeman to be on the constant lookout for such obstructions and structures which may be dangerous.
    3. Same—duty of railway company in construction of covered bridge. Where a railway company constructs a covered bridge along the line of its road, it should build it of sufficient height so that persons employed by it as brakemen,. and who are required to gO'On top of freight cars in discharge of their duty while going over the bridge, may pass through and under the roof of the bridge without danger to their personal safety.
    4. Instruction—when omission of an essential element cured by others giving it prominence. Where, in an action to recover damages resulting from negligence, an instruction for the plaintiff is faulty in omitting the requirement of the exercise of proper care on the part of the plaintiff for his safety, the error will be harmless when that requirement is prominently set fortivas an essential element to a recovery in other instructions on both sides.
    5. Evidence—hearsay. The general rule is, that a witness shall testify only to facts within his personal knowledge, and not as to what he has or has not heard others say.
    6. Same—m rebuttal—to disprove permanent personal injury. In an action to recover damages for a personal injury, members of plaintiff’s family testified to the effect that he had not been fit for work since the injury, and was seriously injured, both bodily and mentally. Inquiry was made by defendant of eight witnesses, neighbors of plaintiff, one being his family physician, whether they had ever heard of the plaintiff having been seriously injured by the accident; and the plaintiff, after the injury, having gone to work as freight brakeman for the defendant, his conductor was asked by defendant to state whether or not he had any reason to suspect that the plaintiff was feeble in mind or body. The court excluded the question, on objection. But these witnesses did testify to the fact that they never noticed any difference in the plaintiff’s condition since his injury, or in his looks or appearance, from what they were before: Held, no error in excluding the questions, as the proof of facts furnished stronger evidence in rebuttal than would be that of never having heard of any serious injury.
    7. Practice—unprofessional remarles of counsel in argument to the jury. On the trial of an action against a railway company to recover for a personal injury from alleged negligence, the plaintiff’s counsel, in his closing argument to the jury, said: “For more than twenty years I have stood as a. humble advocate of the people against the power of such monopolies as this.” On objection thereto, the court observed, that “the remark was very objectionable, and must not be repeated, and the jury should entirely disregard it:” Held, that the remark was culpably" out of place, in violation of professional duty, and should meet a court’s pointed rebuke; but the court declined to reverse for that alone.
    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. Eeeves, Judge, presiding.
    Messrs." Williams & Capen, and Messrs. Fifer & Phillips, for the appellant:
    The evidence of appellee, and of his mother and sister, was to the effect that he was often delirious and unconscious for considerable lengths of time, and so continued up to the trial. Whatever any of them had said to his family physician, so far as it tended to show the reality or nature of his sufferings, was proper evidence in rebuttal. Elliott v. Van-Buren, 33 Mich. 49; Mattison v. Railroad Co. 62 Barb. 364.
    Every circumstance that throws light upon. the issue can be given in evidence, even though, as an independent fact, it would be wholly inadmissible. If it be a fact that a man can be a helpless imbecile, or nearly so, in mind and body, in a little village, and neither his family physician nor his neighbors be liable to hear of it, the ruling of the court was correct. For cases involving similar questions, see Biles v. Holmes, 11 Ired. L. 16; Looper v. Bill, 1 Head, 373; Edy v. McCoy, 20 Ala. 403; Pool v. Bridges, 4 Pick. 378; Newell v. Downs, 8 Blackf. 523; Towle v. Blake, 48 N. H. 42; Rex v. Clarke, 2 Stark. 241; Goodwin v. Harrison, 1 Root, 80.
    The instructions given for the plaintiff, numbered two, three and four, wrere misleading, and not based on the evidence, and the second omits to mention the care required of the plaintiff.
    Messrs. Stevenson & Ewing, for the appellee,
    made several points in view of the facts of the case, and contended that the errors assigned were not tenable.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an action against the railroad company to recover damages for a personal injury claimed to have been received in the service of the company, as a freight hrakeman upon a train of freight cars, while passing through a covered bridge, from being struck by the bridge. The plaintiff recovered. On appeal to the Appellate Court for the Third District, the judgment was affirmed, and the defendant appealed to this court.

It is insisted there was error in the exclusion of evidence. Members of plaintiff’s family had testified to the effect that he had not been fit for work since the accident; that he was delirious for some time, and had sustained serious permanent injury, both bodily and mental. Inquiry was made by defendant’s counsel of a large number of witnesses, some eight in number, neighbors of the plaintiff, and one being the family physician, whether they had ever heard of the plaintiff’s having been seriously injured by the railroad accident. A while after the occurrence, plaintiff went to work again as a freight brakeman, and his conductor was asked by defendant’s counsel to state whether or not he had any reason to suspect that plaintiff was feeble in mind and body. The qtiestions were excluded, and it is that which is the subject of complaint.

It is said that in the small village in which the plaintiff resided, if the severity of the injury had been such as described by plaintiff’s witnesses, it must have heen talked of and become known to his immediate neighbors, and their never having heard of the receipt of any serious injury would be strong evidence in disproof of the story of members of plaintiff’s family. It might have had a tendency in this direction, especially as respects the family physician, but we can not say there was error in excluding the offered testimony. It is certainly the general rule, that a witness is to testify only to facts within his personal knowledge, and not as to what he has, or has not, heard said. These witnesses did testify to the facts that they never noticed any difference in plaintiff’s condition since his injury, or in his looks and appearance, from what they were before,, and this proof of facts furnished-stronger evidence in rebuttal than would be that of never having heard of any serious injury.

Error is assigned in the giving of the second, third and fourth instructions for the plaintiff. The second was to the effect that when a railroad company constructs a covered bridge along the line of its railroad, it should build it of sufficient height so that persons employed by the railroad company as brakemen, and who are required to go upon the top of freight trains in discharging their duty as brakemen while going through the bridge, may pass through and under the roof of the bridge without danger to their personal safety. The third was, that if the plaintiff was guilty of some negligence, yet if his negligence was slight as compared with that of the defendant, and that the negligence of the defendant was gross, then plaintiff would not be prevented from recovering on account of his own negligence. The fourth was, that the law does not require of a brakeman that he should absolutely know all of the defects of construction and all the obstructions there may be along the line of the railroad, and that he should neglect the performance of his duties as a brakeman to be on the constant lookout for such obstructions and defects which may be dangerous.

The general objection made to the instructions is, that they are false and misleading. We do not perceive any material error in tile instructions. The third is, substantially, a form of instruction which has often been sanctioned by this court. We see no plausible objection to be made to the second instruction, unless it may be the omission of the requirement of the exercise of proper care by plaintiff for his own safety. But that requirement was so prominently put forth as essential to recovery in other instructions, both on the part of plaintiff and defendant, that we are satisfied no prejudice could have resulted to plaintiff from its omission in the second instruction.

In his closing argument for the plaintiff, plaintiff’s counsel said: “For more than twenty years I have stood as a humble advocate of the people against the power of such monopolies as'this.” Upon objection thereto, the court observed that “the remark was very objectionable, and must not be repeated, and the jury should entirely disregard it.” The remark was culpably out of place, in violation of professional duty, and should meet a court’s pointed rebuke. But we are disinclined to allow the effect to it that it alone should reverse the judgment.

The judgment is affirmed.

Judgment affirmed,.

Mr. Justice Scott, dissenting.


author: Mr. Chief Justice Mulkey

text:
    The People ex rel. Bernard Wernsing v. Samuel Winter et al.

      Filed at Mt. Vernon January 25, 1886.

      1. Taxation—remedies for collection—by personal action, and in rem— whether concurrent—rights of holder of certificate of sale under personal judgment—subrogation. In 1879 a personal judgment in favor of the People ■was recovered against a party for taxes due on his land for the years 1870 to 1878, inclusive, and a transcript thereof filed in the office of the circuit clerk, and execution sued out and levied on the defendant’s homestead, which was stricken off to the county upon a bid for the full amount of the judgment. The county sold the certificate of purchase, whereby all the taxes were received and paid over. The purchaser of the certificate took out a sheriff’s deed, and finding the sale was invalid, as being of a homestead, filed a bill and lyid the sale and satisaction of the judgment set aside, and was by the decree subrogated to the rights of the county. After this personal judgment these taxes were dropped from the collector’s books from 1879 to 1884, when they were again entered on the tax books, and in May, 1885, the collector applied for judgment against the same land for these taxes, but on objections interposed, the county court refused judgment: Held, that the judgment was proper, there being no taxes due on the land for those years, and that application for judgment could not be had for the use of the purchaser of the certificate of purchase and equitable owner of the personal judgment.
    2. A purchaser of land under execution issued upon a personal judgment in favor of the State for taxes, failing to acquire any title, and who is by the decree subrogated to the rights of the State to collect the judgment for his use, will not have the right to proceed in rem in the name of the State to enforce collection of the judgment. The right to proceed in personam against a person for taxes due on his land, and in rem against his land, belongs exclusively to the State, and can not be exercised by private persons.
    Appeal from the County Court of Effingham county; the Hon. S. F. Gilmore, Judge, presiding.
    Mr. Henry B. Kepley, for the appellant:
    The same land involved in this suit was sold under a judgment in personam for the same taxes sought to be collected here, and this court held the sale void for the reason the land was the homestead of Winter. Douthett v. Winter, 108 Ill. 330.

      Since that decision a decree was entered setting aside such sale, the sheriff’s deed, and the satisfaction of that judgment. This left the matter, so far as the rights of Winter are concerned, and so far as relates to the right to replace said taxes on the collector’s book and add them to the tax on said land for the year 1884, just the -same as if no sale under the personal judgment had been made. That sale being void ab initio, the right to replace the taxes on the collector’s book and add the same to the taxes on the land for 1884, is given by section 277 of the Bevenue law. Hosmer v. The People, 96 Ill. 58.
    The fact that a personal judgment had been rendered against Winter for the said taxes, does not satisfy the demand, nor release the land from such tax, nor bar the right to have said taxes placed on the collector’s book and have a judgment for the same. The People v. Stahl, 101 Ill. 346.
    The demand for taxes on real estate continues till the taxes are paid. Almy v. Hunt, 48 Ill. 45.
    The sale and assignment of the certificate of purchase, and payment thereof, was a matter between Ella Douthett and the county, and in no way concerned Winter. He' has not paid his taxes, and no objection is urged against their justness.
    Mr. B. F. Kagay, for the appellees:
    The objections to the application for judgment against the land, are: First, that the said taxes were dropped from the collector’s book in the year 1879, by direction of the People, by their attorney, H. B. Kepley; second, that there has been personal judgment obtained against Samuel Winter for the said back taxes on said land, and that the same has been fully paid and satisfiedand third, that said land has been sold on a personal judgment against said Samuel Winter, and taxes paid to the county treasurer, and the money duly distributed.

      The record shows that each one of the objections is true. It is a general rule, subject to few, if any, exceptions, unless it be when fraud is practiced upon the purchaser, that the doctrine of caveat emptor applies in all judicial sales, for the reason that the officer selling has no power to warrant title or impose terms or conditions on the sale, beyond those required by law, because the purchaser is presumed to have examined the title and to know what he is acquiring by his purchase. Bishop v. O’Connor, 69 Ill. 431; Wing v. Dodge, 80 id. 564; Conwell v. Watkins, 71 id. 488; Holmes v. Shaver, 78 id. 578; Roberts v. Hughes, 81 id. 130; Bond v. Ramsey, 89 id. 29.
   Mr. Chief Justice Mulkey

delivered the opinion of the Court:

The collector of Effingham county applied to the county court of that county for judgment and order of sale of the north-east quarter of the north-east quarter of section 32, town 7 north, range 5 east, for the taxes of 1870 to 1878, inclusive. Samuel Winter, the owner of the land, appeared and filed written objections thereto, which the court, upon due consideration, sustained, and entered an order accordingly. From that order the People have appealed to this court, and ask a reversal.

It appears that in 1879 the county recovered a judgment before a justice of the peace, in the name of the People, against Winter, for the same taxes now in dispute; that a transcript of the proceedings and judgment before the justice was filed in the office of the clerk of the circuit court, and thereby became a judgment of record in said circuit court; that the land in question was regularly sold under that judgment as the property of the said Winter, and was bid off by the county for the full amount of said judgment and costs, and the county thereupon received the usual certificate of purchase, which it afterward sold and assigned to Ella Douthett. The proceeds of the certificate of purchase were distributed by the collector among the various municipalities entitled thereto, in the same manner as taxes collected on sales of land. Ella Douthett subsequently received a sheriff’s deed for the premises, but on learning they were subject to the right of homestead, and that consequently no title passed by the sheriff’s deed, she thereupon filed a bill in the circuit court, against Winter and the county, and obtained a decree setting aside the levy, execution, sale and sheriff’s deed under the previous proceedings, and reversing the judgment; also subrogating Ella Douthett to all the rights of the county in respect to such judgment. After obtaining the judgment in question, the taxes for which it was rendered were dropped from the collector’s books, and so remained from 1879 to 18.83, inclusive. In November, 1884, they were again entered upon the tax books as delinquent taxes against said land, and the collector, at the May term, 1885, applied to the county, court for judgment, with the result already stated.

From this simple narration of the facts it is manifest there is nothing due the State, county, or other municipality, on account of the so-called taxes now sought to be collected. They were all fully paid and discharged by the proceeds of tie sale of the land or certificate of purchase, and if they were paid again, it is very clear neither the .State,- county nor other municipality, for whose use and benefit the levy was originally made, would receive a cent of the money thus to be collected. For whose use or benefit, then, is the money proposed to be raised ? This question is not in express terms answered by the record, but it may reasonably be assumed the suit is conducted in the interest of Ella Douthett, for if it is not, it has not even the shadow of merit in it. Assuming, then, the proceeding is brought in her interest, we are unable to perceive upon what principle it can be sustained. The State obtains a judgment at law against,Winter. Douthett, seeking to obtain title to Winter’s homestead, pays the judgment. Finding that she failed to acquire any title to the latter’s homestead, she then goes into a court of equity and asks that her worthless title be set aside, and that she be subrogated to the rights of the State under that judgment, and it was so decreed. By virtue of the decree she became the equitable owner of the judgment, the legal title of which still remains in the State, which it holds for her use, and her rights under it and relations to it are precisely the same as if she had bought the judgment directly from the county on the day it was recovered, and the county had applied the proceeds to the payment of the taxes for which it was rendered. She now has a right to enforce its collection as is done in other eases. But if it can not be collected in this manner, and the defendant in the judgment has equitable assets subject to its judgment, she may go into a court of equity and have them so applied. Her rights in these respects are the same as they would be in the case of any other judgment. To hold otherwise would be in direct conflict with the case of Douthett v. Winter, 108 Ill. 330. The proceeding in rein is one for the collection of taxes, strictly so-called, and can not be prosecuted in the interests of mere private persons after the taxes have once been paid. The State may well proceed against the tax debtor in personam, and in rein against his land, at the same time; but when the taxes are once paid, by whatsoever means, the proceeding in rein is not available for the purpose of enforcing the rights, real or supposed, of third parties who may have paid such taxes. The case of The People v. Stahl, 101 Ill. 346, is entirely in harmony with this view of the subject.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Magruder

text:
    Henry Ebert et al. v. Anna M. Gerding et al.

      Filed at Ottawa January 25, 1886.

    1. Fraud —impeaching decree for fraud in obtaining —effect of delay in taking default on bill to foreclose. The failure of a party seeking to foreclose a mortgage, to take the default of the mortgagor and his wife for over five years after service, does not show a fraudulent intent in taking a decree of foreclosure, especially when, during such period of time, the complainant is taking testimony upon issues raised by another defendant claiming a prior judgment lien.
    2. Witness—competency of a parly in suit by one defending as heir. On bill by the heirs of a mortgagor against the heirs of a mortgagee, to review and set aside the decree foreclosing the mortgage rendered during the life-' time of the mortgagors and mortgagees, one of the complainants, being one of the heirs of tie mortgagor, is not a competent witness to disprove the sheriff’s return of service of summons upon the mortgagor’s wife, which occurred in the lifetime of the ancestor of the defendants, the mortgagee.
    3. Mortgage—of a sale and conveyance under a power—whether to operate as a discharge of the mortgage, or only as an assignment of it. Where a mortgagee, under a power of sale, sold and conveyed the mortgaged premises to another, to enable the latter to raise money on the same for the former, there being nothing paid for the conveyance, and the mortgagee agreed with the mortgagor that the latter might redeem after such sale, it was held, that the mortgage was thereby virtually kept alive, and in equity the sale and conveyance by the mortgagee was to be treated as an assignment of the mortgage to the' grantee, who became the agent of the mortgagee.
    4. Same —junior incumbrancer discharging prior mortgage—right of subrogation—as to homestead, where it is released in the prior mortgage, but not in the other. Where a junior incurfibrancer, in order to protect his own security, is compelled to discharge a prior mortgage, he will in equity become subrogated to the rights of the holder of the prior incumbrance. In such^case the person discharging the superior lien will be treated as its purchaser or assignee, unless the facts show that it was intended as an absolute payment.
    5. And although the prior mortgage may stand discharged of record, instead of having been assigned to the junior incumbrancer, he is nevertheless entitled, in equity, to indemnify himself for such payment out of the mortgaged estate.
    6. So where the holder of a prior mortgage, under a power of sale sold and conveyed the premises to one who paid nothing, but before such sale agreed with the holder of a junior mortgage that the equity of redemption should not he thereby cut off, but that the latter should have a reasonable time in which to redeem to protect his lien, and he afterward paid the purchaser the amount necessary to redeem from the prior mortgage, and received a deed from such purchaser, it was held, that the junior mortgagee, on bill to foreclose his mortgage, had the right to be subrogated to the rights of the prior mortgagee, and have the prior mortgage foreclosed for his benefit.
    7. And where the prior mortgage releases the homestead of the mortgagors, and the second mortgage fails to release the homestead, and the junior mortgagee, to protect himself, pays off the sum due on the first mortgage, and obtains a decree of foreclosure of both mortgages in his favor, finding the sums due on each, under which the premises are sold and conveyed to the second mortgagee, he will acquire the title to the premises free of the homestead.
    8. Same—where the homestead has terminated. After the death of the mortgagors, husband and wife, and the youngest child has attained his or her majority, a decree of foreclosure and sale made in the lifetime of the mortgagors of the mortgaged premises will not be set aside on bill of review by reason of the premises having been the homestead of the mortgagors. In such case the heirs have nothing of which to complain.
    9. Bilik 03? review—what is to be considered. On a bill to review a decree for errors apparent on the face of the decree, the decree sought to be reviewed will be taken to include not only the final judgment of the court, but the pleadings also; and in passing upon any such errors assigned, the court will look through the bill and answer.
    10. Under such a bill the question whether the facts found in the decree under review are in accordance with the evidence, is not involved, but only whether the court has correctly applied the law to the facts as found by it. If the findings of fact are not supported by the proofs, the remedy is by appeal or writ of error.
    Appeal from the Circuit Court of LaSalle county; the Hon. Josiah McRoberts, Judge, presiding.
    Messrs. Fowler Bros., and Mr. J. B. Rice, for the appellants :
    The payment of the prior mortgage debt to some other person than the mortgagee, unless ratified by him, did not entitle Gerding to be subrogated to the rights of the prior mortgagee. Beaver v. Slanker, 94 Ill. 175; Bispham’s Eq. 315; 1 Smith’s Leading Cases, 634.

      Henry Ebert, one of the complainant’s, was a competent witness for the defendants. The fact that the parties may have derived their interest by devise or descent, did not affect the character in which they prosecuted or defended. Pigg v. Carroll, 89 Ill. 205.
    As to the proper construction of the statute relating to the competency of parties as witnesses, see Langley v. Dodsworth, 81 Ill. 86; Boynton v. Phelps, 52 id. 219; Martin v. Jones, 72 Mo. 24; 1 Wharton on Evidence, (2d ed.) sec. 470.
    If the witnesses were incompetent as general witnesses, they were competent under the first exception to the statute, to prove all matters occurring after the death of Heinrich Herding. Steward v. Kirk, 69 Ill. 509.
    At the date of the Herding decree the premises were not worth to exceed $1000, and the Herding mortgage was not signed by the wife of the mortgagor. Herding, therefore, by said decree, acquired no lien on the premises, and it did not affect the homestead right, as it was not put in issue. Asher v. Mitchell, 92 Ill. 480; Parrott v. Kumpf, 102 Ill. 426.
    Herding obtained no right in the premises in question by his decree, or by the sale, and master’s deed thereunder. Hartwell v. McDonald, 69 Ill. 293; Hartman v. Shultz, 101 id. 437.
    Messrs. Bull, Steawn & Buger, for the appellees:
    The bill of review was properly dismissed, because the facts which the court found to be established from the evidence are nowhere stated in the record. Evans v. Clement, 14 Ill. 206 ; Garrett v. Moss, 22 id. 363.
    Solyman Bell, who had become the creditor in place of Charles, received full satisfaction of the prior mortgage debt. The court found that Herding advanced the money to protect his second mortgage, and this entitled him to be subrogated to the rights of the first mortgagee or his assigns. Young v. Morgan, 89 Ill. 199; Beaver v. Slanker, 94 id. 175.

      On bill of review for errors of law, questions of fact are not open to discussion. Garrett v. Moss, 22 Ill. 363; Griggs v. Gear, 3 Gilm. 2.
    As to the competency of a party as a witness, see Bruner v. Bartlett, 83 Ill. 317; Stiger v. Bent, 111 id. 328; Mueller v. Rebhan, 94 id. 142; Kershaw v. Kershaw, 102 id. 307.
    Complaint is made that an ordinary decree of foreclosure was made, when of the $3116.31 due Gerding, but $881.61 of it was due on the first mortgage which waived the homestead, and appellants have shown that the mortgaged premises are not worth over $700 or $800. If, then, the first mortgage was sufficient to exhaust the property, what ground of complaint have they, especially as they are still occupying the premises ?
    Under the the law of 1851, the homestead was a mere exemption, and the creditor had a legal right to sell property worth over $1000, without setting off the homestead. Hewitt v. Templeton, 48 Ill. 367; McDonald v. Crandall, 43 id. 231; Finley v. McConnell, 60 id. 259.
   Mr. Justice Magruder

delivered the opinion of the Court:

The bill in this case is of a two-fold character. It is a bill of review for errors apparent upon the face of the decree sought to be reviewed, and an original bill in the nature of a bill of review impeaching such decree for fraud. The latter aspect will be considered first.

On February 21, 1865, William Ebert, and Magdalena, his wife, executed a mortgage, with power of sale and waiving homestead rights, to Charles Bell, to secure a note for $975, due three years after date. The property mortgaged was the west half of the south-west quarter of lot 7, in block 12, in Ottawa. The title was in William Ebert, and the mortgage was recorded February 22, 1865. On October 26, 1866, the said Ebert alone, his wife not joining, made a mortgage to mie Heinrich Gerding, on the same lot, to secure a note for $1000, due in three years after date. The latter mortgage was recorded November 5, .1866. In May, 1871, Heinrich Gerding filed his bill in the circuit court of LaSalle county, to foreclose the second mortgage, setting up that in order to protect his lien he had paid the amount due on the first mortgage, and had thereby become subrogated to the rights of the parties owning the same. He makes defendants to the bill, William Ebert, Magdalena Ebert, Solyman Bell and Charles II. Beckwith, the latter having obtained judgment against Ebert in July, 1868, and levied upon these premises on April 14, 1871, and prays for a decree of foreclosure for the amount due on the second mortgage, and the amount advanced on account of the first mortgage. It is the decree on this foreclosure proceeding which is attacked by the bill in the case at bar, as erroneous in law and fraudulent in fact.

Many charges of fraud are made, but none are proven. One circumstance appearing upon the face of the record is urged as indicating a fraudulent intent, and that is the fact that although the bill was filed on May 21, 1871, and the defendants were served on May 37, 1871, no default was entered against William Ebert and Magdalena Ebert until January 15, 1877. It is difficult to see how Gerding committed any fraud against Ebert and his wife by allowing them a period of- more than five years in which to answer his bill. The return of the sheriff shows that they were duly served, and if they had desired to contest the suit they should have come in and answered, and in case complainant proceeded too slowly, should have moved to dismiss for want of prosecution. The record, however, shows that Gerding was not idle during all the time from the beginning of the suit until the final decree on July 20, 1877. Beckwith answered the bill, and proofs were taken upon the issue made by such answer. There was a contest between the mortgagee and the judgment creditor, and the order pro confesso against the defendants not answering, was postponed until that contest was ended.

It is charged, however, that the court had no jurisdiction to render any decree against Magdalena Ebert, by reason of an alleged failure to get service upon her. The return of the sheriff upon the summons shows that she was duly served by a delivery to her of a copy of the summons; but it was proposed, upon the trial below, to contradict the return. Appellants offered to prove by Henry Ebert, one of the complainants below, that he was present when a copy of the writ was delivered to his father, William Ebert, by the sheriff, but that his mother, Magdalena, was up-stairs, sick, and that no copy .was left with her, or with any member of the family for her, and so, that she was not served. Objection was made to this testimony, which the court below sustained. Henry Ebert was not a competent witness, under the second section of chapter 51 of the Eevised Statutes, entitled “Evidence and Depositions.” William Ebert, and Magdalena Ebert, and Heinrich Gerding, all died before this bill was filed. Appellants are heirs and devisees of said William and Magdalena, and appellees are heirs of said Heinrich. Appellees are adverse parties, defending as heirs of their deceased father. Henry Ebert is a party to the suit, and directly interested in its event, and the matters about which he was called to testify occurred before the death of Heinrich Gerding. The rule in Pigg v. Carroll, 89 Ill. 205, does not apply to this case. That was a proceeding for partition of land between heirs, and for an adjustment of matters of advances made to some, and the husband of one of the parties was held to be a competent witness in behalf of his wife. The matters there involved were the relative rights of heirs or devisees as to the distribution of an estate, in proceedings by which the estate itself was in no event to be reduced or impaired. In Mueller v. Rebhan, 94 Ill. 142, this court, in explaining Pigg v. Carroll, said that the statute “was intended to protect the estates of deceased persons from the assaults of strangers, and relates to proceedings wherein the decision sought by the party testifying would tend to reduce or impair the estate. ” Here appellants are strangers assaulting the estate of Heinrich Herding. The decision sought by Henry Ebert would tend to reduce and impair the estate inherited by appellees from their deceased father. Kershaw v. Kershaw, 102 Ill. 307.

The first error complained of by appellants under their bill, as a bill of review, has reference to the subrogation of the second mortgagee to the rights of the first mortgagee. The decree rendered in Gerding’s favor finds that Charles Bell, under the power of sale contained in his mortgage, sold the lot in question on August 10, 1868, to Solyman Bell, and executed a deed to him on September 12, 1868, in pursuance of such sale; that before the sale Charles Bell agreed with the mortgagor, William Ebert, that the equity of redemption should not be cut off, but that Ebert should, notwithstanding the sale, have a reasonable time within which to pay the mortgage, in such sums as he might be able, from time to time, to raise ; that Solyman Bell paid no money at the sale, and it 'was understood between him and his brother Charles that he was not to pay any purchase money, the deed being made to him to enable him to raise funds by mortgaging the lot, in case Ebert should fail to redeem by discharging his indebtedness, as agreed; that on August 10, I860, Herding paid to Solyman Bell the amount necessary to discharge the first mortgage, and thereupon Solyman Bell conveyed all his interest in the property to Ebert; and the decree adjudged that Ebert pay the amount due on the second mortgage, and the amount advanced by Herding on account of the first mortgage.

It is claimed that Herding was not entitled to be subrogated to the rights of the first mortgagee, because his payment was not made to Charles Bell, nor ratified by him, but was in fact made to Solyman Bell. By the agreement between Charles Bell and Ebert, which gave the latter the right to redeem and discharge his. indebtedness, even after the sale was made, the mortgage was virtually kept alive, and equity will regard the deed from Charles to Solyman Bell as an assignment of the incumbrance to the latter. The conveyance to him was made to enable him to borrow money in case Ebert should fail to pay up. Gerding came forward and paid up for Ebert. Charles, by putting the title in Solyman, under the circumstances found in the decree, thereby constituted Solyman his agent. Gerding, being a junior incumbrancer, was forced, in order to protect his own security, to discharge the prior lien of the Bell mortgage, and thereby became subrogated to the rights of Bell under that mortgage. In such cases the person discharging the superior lien is treated as its purchaser or assignee, unless the facts show that it was intended as an absolute payment. (Bishop v. O’Conner, 69 Ill. 431.) According to the English practice the substance of the pleadings was recited in the decree, arid so in bills of review for errors apparent on the face of the decree, the decree is understood to include not only the final judgment of the court, but the pleadings also, and in passing upon any such errors in bills of this character the court will look through the bill and answer. (Griggs v. Gear, 3 Gilm. 2.) Beading the pleadings and the decree together, in the proceedings here under review, it is evident that the discharge of the first mortgage by Gerding was not intended to be an absolute payment. Where a mortgagee has been compelled, for his own'protection, to pay the amount' of a prior mortgage upon the property, and the latter is discharged of record instead of being assigned to him, he is nevertheless entitled to indemnify himself for this payment out of the mortgaged estate. (Jones on Mortgages, sec. 878.) It has been held that a party loaning money on a trust deed, and paying off a prior trust deed to make his security good, would be subrogated to the rights of the holder of such prior trust deed, although the same was formally released and not assigned. Tyrrell v. Ward, Receiver, 102 Ill. 29.

Appellants claim that in some particulars, which it is not necessary here to detail, the findings of the decree complained of are not sustained by the evidence. But in bills of review the question is not whether the facts found in the decree under review are in accordance with the evidence, but whether the court rendering such decree has correctly applied the law to the facts as found by it. (Evans v. Clement, 14 Ill. 206.) If the findings of the court upon matters of fact are not supported by the proofs introduced in the case, the remedy is by appeal or writ of error, not by bill of review.

The next error complained of has reference to the subject of homestead. In the mortgage to Charles Bell there was a waiver of homestead and dower rights, but in the mortgage to Gerding there was no waiver of the homestead. The objection is made that the decree treats the latter mortgage as though it contained such a waiver. The defendant Ebert is decreed to pay a total amount, which is made up of the amount due on the second mortgage, and oalso of the amount paid on account' of the first mortgage; but the decree specifically states, in separate figures, first, the sum advanced by Gerding on account of the Bell mortgage, and next, the sum due on his own mortgage. • The decree is one which foreclosed both mortgages—the one containing the waiver, and the one which does not contain the waiver. When Gerding paid the amount due on the Bell mortgage, and became subrogated to all the rights of Bell thereunder, he acquired the right to cut off the homestead by his foreclosure, just as Bell himself could have done.

In Silsbe v. Lucas, 36 Ill. 462, a bill was filed to foreclose two mortgages,—one, which had been executed prior to the passage of the Homestead law, and not being subject to its provisions, was the same as though it contained a waiver; and the other, which had been made after the passage of the law, and did not contain a release of the homestead. In that ease this court says: “What, then, were Noble’s rights in this eighty-acre tract ? He had foreclosed under a mortgage executed long before the Homestead law was enacted. It is true that he also foreclosed, at the same time and in the same suit," a junior mortgage on the same property, which was given after the adoption of that act; but the sale having been made in satisfaction of that mortgage, as well as the other, and defendants in error having failed to redeem from the sale on the elder mortgage, it passed a title free from all claim to the homestead exemption. If the junior mortgage had not been foreclosed and a sale made under a foreclosure of the elder mortgage, no person would doubt that the sale would have been free from all claims of a homestead exemption. Then, as it was sold under the prior mortgage and free from such a claim, we are unable to perceive how the foreclosure of a mortgage which was subject to the homestead exemption could in any manner affect the rights of the holder of the prior mortgage, or those purchasing under it. ”

As to the deed dated January 17, 1877, from Solyman Bell "to Magdalena Ebert, the grantor and grantee therein were parties to the suit under review, and the grantee, if a purchaser at all, was a purchaser pendente lite. Moreover, the decree finds that Solyman Bell had previously deeded his interest in the premises to William Ebert. The validity of the deed of January 17, 1877, could only be sustained upon the theory that the mortgagee’s deed from Charles Bell to Solyman Bell was valid, and made in pursuance of a bona fide sale, under the power in the Bell mortgage; but the record shows that on June 29, 1869, William Ebert, the father of appellants, filed a bill in the La Salle circuit court attacking the sale under the Bell mortgage, claiming the deed from Charles to Solyman to have been null and void, and setting up the same agreement made between himself and the mortgagee, to the effect that he should have time to redeem the lot after the sale, as is found by the decree herein complained of. Magdalena died April 13, 1881, and her rights of dower and homestead died with her. William Ebert died June 2, 1881, and his right of homestead died with him. They lived nearly four years after the decree of July 17, 1877, and were both parties to it, and yet, during their lives, they made no attack on it. Appellants allege in their bill and have proven that they are still in the occupancy of the premises as a. homestead. No one has disturbed their possession, although the master’s deed made under the decree of July 17, 1877, and in pursuance of the sale therein ordered, was executed more than two years before the filing of this bill of. review. The youngest of appellants is now eighteen years of age. We can not see that they have been injured.

The decree of the court below is affirmed.

Decree affirmed.


author: Mr. Justice Scott

text:
    The Chicago and Western Indiana Railroad Company v. Ferdinand Bingenheimer.

      Filed at Ottawa January 25, 1886.

    1. Negligence—starting car suddenly without notice to the servant attempting to get on same. A servant of a railway company whose duty it was, as soon as arriving cars were placed upon the wash-track, to go upon them and clean them for future use, attempted to get upon a car that had arrived and was standing at rest near the wash-track, to clean the same, when the locomotive attached thereto was started suddenly, without any signal or notice to the servant, and without due care on the part of the engineer to observe whether the servant was about to go upon the car, whereby the servant was thrown from the car steps and severely injured, he observing ordinary care: Held, that the facts so found by the trial and Appellate courts were sufficient to justify a recovery against the company by the servant.
    2. Jdbob—competency—sympathy with one of the parties. A juror called in an action by a servant against a railway company to recover damages for the loss of a leg from alleged negligence, stated that if he had any sympathy it was with the plaintiff, and that he would have none for the defendant, but that he knew of no reason why he could not try the ease fairly and impartially, that he would not violate his oath under any circumstances, and that he would endeavor to do justice between the parties: Held, that the juror was clearly competent.
    3. Instruction—based on facts which evidence tends to prove. If there is any evidence tending to show a certain fact or facts, it is not error to give an instruction to the jury based upon such fact or facts, if they find them from the evidence.
    4. Same—modification not changing its legal effect. The modification of an instruction by the insertion of words not changing its sense and effect, and not qualifying or limiting the doctrine of law therein stated, is no ground of error.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    Mr. Chas. M. Osborn, and Mr. Samuel A. Lynde, for the appellant:
    There was no evidence tending to show that appellant’s servants were guilty of gross negligence, and appellee’s negligence in attempting to get on the car while under control of appellant, and before it had reached its' place on the wash-track, was not slight, but gross. The court therefore erred in giving to the jury appellee’s second instruction. Railroad Co. v. Clark, 108 Ill. 113; Railway Co. v. Zoffinger, 10 Bradw. 259.
    The position of appellee, in attempting to get on the ear wdiile under the control of appellant’s servants; was that of a trespasser. A railway company is not liable to those wrho> trespass upon its track, except where the negligence of its. servants is willful. Railroad Co. v. Hall, 72 Ill. 225; Railroad Co. v. Hart, 87 id. 529; Railroad Co. v. Hetherington, 83 id. 513; Railroad Co. v. Olsen, 12 Bradw. 250; Railroad Co. v. Frelka, 9 id. 612; Railroad Co. v. Godfrey, 71 Ill. 507.
    The court erred in overruling the challenge to the juror Lavely. His sympathy and bias, or inclination in favor of the plaintiff, rendered him incompetent. Railroad Co. v. Adler, 56 Ill. 346; Railroad Co. v. Haslam, 8 Bradw. 595; Meaux v. Whitehall, 8 id. 174.
    A juror should stand indifferent between the parties. No bias should influence his judgment and swerve him from strict impartiality. Insurance Co. v. Schueller, 60 Ill. 472.
    Messrs. J. & B. McGaeeey, for the .appellee.
   Mr. Justice Scott

delivered the opinion of the Court:

This action was brought against the Chicago and Western Indiana Bailroad Company to recover for personal injuries sustained by Ferdinand Bingenheimer. At the time plaintiff was injured he was in the employ of the Louisville, New Albany and Chicago Bailroad Company. His duty was to wash and otherwise clean the cars after their arrival in Chicago, and before being used on the road again. It seems that under some arrangement between the companies, the Louisville, New Albany and Chicago Bailroad Company ran their passenger cars into Chicago over the track of defendant’s road. On the arrival of the trains at the depot of defendant, it was the duty of the servants of defendant, with their own motive power, to take the cars to what is called the “wash-track, ” situated near Fourteenth street, and there make up the train by placing the cars in position, to go out again. It was the duty of plaintiff, so soon as practicable after the cars were placed in position so it could be done, to go upon them for the purpose of cleaning them for future use. It is averred in the declaration that one of the cars composing the train that came in on the morning the accident occurred, was standing at rest upon defendant’s track, and that it was plaintiff’s duty to enter that ear for the purpose of cleaning it; that defendant’s locomotive was at that time attached to the car, and that it became defendant’s duty to refrain from moving the car while plaintiff was in the act of getting on it, and that when the ear was about to be moved, to give plaintiff timely warning by ringing the alarm bell, and, in the exercise of ordinary care and prudence, to observe the said plaintiff while he was in the act of getting on said car, and to apprise him of any danger from 'the sudden starting of the engine and car, and that as he was in the act of getting on the car, with all due care and diligence, the defendant’s servants carelessly and negligently caused the car to be suddenly and violently started backwards, and carelessly and negligently failed to observe the plaintiff as he was in the act of getting on the car, and carelessly neglected to ring the alarm bell prior to causing the car to be suddenly started, and failed to apprise plaintiff, by any signal, of the danger to which he was subjected by the motion of the car and engine, and that by reason of the negligence in this regard he was thrown with great force off the steps upon the ground, and his right leg thrown across one of the rails so that one of the wheels of the engine passed over it, crushing it so badly it had to be amputated.

Since the finding of the issues for plaintiff by the trial and Appellate courts, it will be presumed every material fact the evidence tends to establish was found in his favor, so that no controverted questions of fact can be considered in this court, where only questions of law can be made..

On the trial of the case in the circuit court there arose the question of fact as to whether the car was in motion or at rest when plaintiff tried to get on it and the accident occurred. Concerning that question the evidence was conflicting, and the finding of the Appellate Court as to that fact is conclusive upon this court, and in the further consideration of the case it will be done on the assumption the ear plaintiff attempted to board was standing at rest. Other facts controverted at the trial will be assumed to have been settled by the judgment of the Appellate Court in favor of plaintiff, among which are, that it was the duty of plaintiff to enter the cars so soon as practicable after their arrival, and so soon as they should be removed from the depot to the “wash-track” or other convenient place, and that it was a custom known to defendant’s servants, for plaintiff and others engaged in the work with "him to get aboard the car elsewhere than on the “wash-track,” and commence the work of cleaning the ears. Begarding, then, as has been seen must be done, that all the facts the evidence tends to establish were found in favor of plaintiff, the case, as it comes to this'court, presents no difficulty.

It is said it was error in the court to give the second of the series of instructions asked on behalf of plaintiff. No-complaint is made, the charge given does not state the doctrine of comparative negligence with sufficient accuracy, but the reason assigned in support of the position taken is, there was no evidence tending to show that defendant’s servants were guilty of gross negligence, and that plaintiff’s negligence in attempting to get on the car while under the control of defendant’s servants, and before it had reached its place on the “wash-track, ” was not slight but gross. On looking into the record it is seen there is some evidence tending to show, first, the negligent conduct of defendant; and second, the care observed by plaintiff for his personal safety in the discharge of • his duties. That being so, the court did not err in giving the instruction as.it did. How the weight of evidence may have been touching these issues, is a question of fact, and not of law, to be ascertained by the trial court, in which such questions are cognizable, and with which this court has no concern. There is nothing in the case of Railroad Co. v. Clark, 108 Ill. 113, cited by counsel, in conflict with the views here expressed.

• It is made a point for the reversal of the present judgment, the court erred in not giving defendant’s sixth instruction in the form in which it was asked. That instruction informed the jury, that “if they should find, from the evidence, that at the time when the accident happened the defendant’s servants were in control of the sleeping car, and engaged in switching it down to the ‘wash-track,’ where it was to be left, plaintiff knew that defendant’s servants had not completed their work of placing the car where it was to remain to be washed, and voluntarily and unnecessarily attempted to get on said car before it had been placed on said ‘washtraek,’ and thereby placed himself in position of danger, and that he was injured in consequence of such exposure, then they are instructed that he was guilty of such contributory negligence that he can not recover. ” The court added to this instruction by interlining after the word “danger,” the words, “‘and in so doing was guilty of the want of ordinary care.” It is not perceived how this addition rendered the instruction faulty, even in the slightest degree. Assuming the conduct of plaintiff was as stated in the instruction, he would, no doubt, in law and in fact, in so doing have been guilty of the want of ordinary care for his personal safety, and it is not understood how it could possibly prejudice the defence being made to so state that obvious fact to the jury. It was in no sense a qualification or limitation upon the doctrine stated in the instruction. It was rather a very natural and proper amendment to the charge as originally drawn, and might with great propriety have been inserted in the first instance.

Nor was there any error in the refusal of the court to give the third instruction asked on behalf of defendant. The •substance of all it contains was embodied in a correct form in other instructions that were given, and the court was not required to give the same thing a second time, although somewhat differently expressed.

Objection is taken to the refusal of the court to sustain the challenge of defendant as to the competency of one of the jurors. It is quite apparent from the answers made by the juror touching his qualifications, the court ruled correctly. He stated distinctly he did not “know as there was any reason why” he could not “try this case fairly and impartially.”' It is true he did state, if he had any sympathy it would be with the “young man that lost his limb, ” and that he “would have no sympathy for the railroad. ” That is simply an expression of kindly feeling common to all good people, and certainly the possession of so kindly a spirit would not disqualify a citizen, otherwise competent, from acting in the capacity of a juror. Notwithstanding any sympathy he might have, he stated he would not violate his “oath under any circumstances,” and when asked whether he would “endeavor to do justice between the two parties, ” he answered without hesitation that he would. The juror was competent, and there was not the slightest ground for sustaining the challenge as to him for cause.

The judgment of the Appellate Court will be affirmed.'

Judgment affirmed.