author: Mr. Justioe Scholfield

text:
    The People ex rel. J. W. Davidson, Treasurer, v. L. B. Cole et al.

      Filed at Springfield

      April 5, 1889.

    1. Dbainage law—omitting lands from assessment. At the time of the organization of a drainage district under the act of 1879, an assessment of nearly $5000 was levied on the lands of the district. After the act was amended in 1885, the commissioners made a new classification of the lands under section 21 of the amendatory act, and levied a new assessment of $5000, and also an additional assessment of $2000, to be paid in two installments. At the time of making this levy, the commissioners credited certain lands with the full amount levied against them, so as to relieve them entirely from the levy, on the ground they were not benefited : Held, that this was the same as to wholly omit to-assess the lands so credited, and that such action rendered the whole assessment void.
    2. Drainage commissioners have no power to release lands within the district of their proportion of the assessment based on the last classification. Both the letter and spirit of the statute require that the burdens of the district shall be apportioned on the basis of a classification of lands in the district, which each owner had an opportunity to contest.
    3. Same — re-elassification of lands—notice to owner. Upon every classification of lands in a drainage district each land owner has an interest, and in order that he may be protected in that interest, he is-entitled to notice of the “time when and the place where” the commissioners will meet to hear any and all objections that -may be made to the classification, and if dissatisfied with the decision of the commissioners, he is given an appeal to three supervisors.
    Appeal from the County Court of Champaign county; the Hon. James W; Langley, Judge, presiding.
    Mr. T. J. Both, and Messrs. Bay & Slauson, for the appellant r
    Appellees, by their appearance in the county court and going to trial on the merits of the objections filed, admitted the prima facie right of appellant to recover judgment against their lands. Mix v. People, 106 Ill. 425.
    It devolves upon the objectors to show that it is substantially unjust that judgment should be rendered against their lands for these assessments. The burden is upon them to show wherein the injustice of the claim for judgment in this application consists. Starr & Curtis’ Stat. chap. 120, sec. 191, p. 2087; Chiniquy v. People, 78 Ill. 570.
    Unless the court finds that the tax itself is substantially unjust, the objections can not prevail. Eevenue act, see. 191.
    As to the duty and right of the commissioners, in making this assessment, to consider their former assessments against the lands of the district .with reference to benefits, and to give-credits for amounts which were in excess of benefits, the law is thought to be clear. Const, art. 4, see. 31; Drainage act of 1885, sec. 26; Commissioners v. Kelsey, 120 Ill. 482.
    The recording of the resolution in the drainage record, and the filing of the tax list with the town clerk, is notice to all the tax-payers within the district, of the intended levy. The law requires no more than this. Drainage act of 1885, sec. 26-
    Mr. Francis M. Weight, and Mr. L. A. Smypjss, for the appellees :
    No special assessment can be made except through and by a classification, and when a levy is made, the statute is imperative that it shall be apportioned among the several tracts-according to the acreage of each, and its figure of classification on the graduated scale. ' The commissioners have no power to apportion a levy on any other basis. Drainage act of 1885, sec. 26, p. 86.
    Tins was not done, as the assessment was nullified by a fictitious credit of the same amount as regards part of the land. If the commissioners have this-power in one case, they have it in all, which would render the classification of no binding force in any case.
    In no" other way than by following the provisions of the-statute can the commissioners make an assessment, and no-assessment can be made under the statute without a classification, a notice, and a tax-list in conformity with the classification. All of these are wanting in this case, therefore in the judgment of the county court there is no error.
   Mr. Justioe Scholfield

delivered the opinion of the Court:

Drainage district No. 3, in the town of Eantoul, in Champaign county, was organized in 1882, under the Drainage act of July 1,1879, which was then in force. At the time of organization, an assessment of $4854 was levied upon the lands in the district. The Drainage act of July 1,1879, was amended and revised by the Drainage act in force July 1, 1885, and, after the last named act was in force, on the 23d of November, 1885, the drainage commissioners made a new classification of ihe lands in the district, pursuant to the authority conferred in that respect by the 21st section of the last named act. After this classification, and on the 21st of December, 1885, ihe commissioners levied a new assessment of $5000 upon the lands in the district, and on the 23d of November, 1887, the •commissioners levied an additional assessment of $2000 upon ihe lands in the district, which was to he paid in two installments. At the time of making this levy, the commissioners •credited certain lands with the full amount levied against them, for the purpose of relieving them entirely from the payment of any and every part of that levy. Appellees, among other land owners, not having paid the amounts assessed against their lands by the last named levy, application was made for judgment, of the county court of Champaign county, for such amounts.' Appellees appeared and filed numerous objections, among which was the following:

“Sixth—The pretended credits by which certain lands in •said district are totally relieved of all burdens of taxation in and by said tax list, was intended by the commissioners to "burden the lands of the objectors beyond their just proportion, and is therefore, 'in law, a fraud, rendering said tax list a nullity. Objectors had no notice of levy of $2000, or of tax list, or the filing thereof, and therefore could not prosecute appeal. Wherefore tax list is not binding, etc., and may be attacked collaterally,” etc.

The court sustained the objection, and declined to give judgment in behalf of the district, as prayed, and this appeal is prosecuted to reverse that ruling.

If this record presented merely the question whether the fact that one person had not been assessed who ought to have been assessed, or that one person had failed to pay the amount assessed against his property, afforded a reason why others who were assessed should not pay the amounts assessed against their property, it may be that we should feel compelled to reverse the judgment below. But no such question is presented, and it is therefore immaterial how we might decide that question. The testimony of the commissioners is: “The credits entered upon the tax lists to the credit of all the lands where credits are given, as appears in said tax lists, were made, and' each of them, at the time, and as a part of the same act and transaction as the assessment of lands in said tax lists. The credits so given do not represent any damages, or old ditch, or right of way, or any other thing of value received from the land owner or on the land so credited, but were entered up to said lands for the reason that we believed said lands so credited were not benefited. The lands so credited were assessed upon the figure of classification as heretofore made, and at the same time the credits were entered, for the purpose of relieving them of said assessment.”

It is too obvious to need discussion, that the levying of an amount, and in the same instant, and as a part of the same act, giving credit for it as a mere gratuity, is precisely the same as not levying it, for the amount that will thus be left to be collected from other property in the district must be precisely the same in the one case as in the other. It is the substantive right, and not the mere matter of form, that must be considered. The question presented, therefore, is, whether the commissioners can levy an assessment upon a part, only, of the lands in the district, in disregard of their former assessment of benefits and classification, merely because they may, at the time of the levy, be of the opinion that the lands omitted from the levy are, in fact, not benefited.

It is, among other things, provided in section 21 of the act-in force July 1, 1885, that “in districts heretofore formed, which have made one or more levy of taxes, and a new levy is required, * * * if the commissioners believe, from experience and results, that the former assessment was not fairly adjusted on the several tracts of land according to benefits, then the commissioners shall disregard the proportion of the former assessment, and make the new classification in accordance with such proportions as should have been made originally.”' In every classification of lands in the district it is apparent-that each land owner has a vital interest, and in order that he may have an opportunity to protect that interest, the 23d section of the act in force July 1,1887, provides that he shall have notice of the “time when and the place where” the commissioners “will meet to hear any and all objections that may be made to the classification.” The 24th section requires that the commissioners “shall hear whatever objections may be urged by any person interested, and if satisfied that any injustice has been done in the classification of the several tracts of land, or any of them, they shall correct the same in accordance with, what is right.” And “any person appearing and urging objections, who is not satisfied with the decision of the commissioners, may appeal from their decision to three supervisors.”

We must therefore assume that the classification of November, 1885, was correct, and that it was satisfactory to all the parties affected by it. It might undoubtedly happen, that by reason of changes in conditions, what in 1885 appeared to be a benefit may now be demonstrated to be not a benefit; but it is manifest that this is not a question in which a few, only, of the land owners of the district are interested, but that it affects every land owner, for a given amount having to be raised, just in proportion as lands are released from the obligation of its payment must the amount be increased on those that are not released.

No provision of the law authorizing commissioners to release lands within the district from the payment of then- proportion of the assessment, based on the last classification, is pointed out or claimed to exist, and it is clear the existence of such a power would practically nullify the provisions of the statute to which we have referred,' for of what avail can it be to a party that he is allowed to contest a classification, if the commissioners may, at their pleasure, disregard such classification? Both the letter and the spirit of this statute clearly require that the burdens of the district shall be apportioned on the basis of a classification of lands in the district, which each land owner had an opportunity to contest. An assessment, then, levied, as was this, in violation of the act under which, alone, it is assumed to be authorized, is void, and can not be collected. City of Nashville v. Weiser et al. 54 Ill. 245; Dillon on Mun. Corp. (1st ed.) sec. 610, and authorities cited in note 1.

The judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Magruder

license: Public Domain

text:
    The Illinois Central Railroad Company v. Blanche Latimer, a minor.

      Filed at Springfield

      April 5, 1889.

    1. Bond pob costs—in smt in behalf of minor—at what stage of the suit it may be filed. An action brought by the next friend of an infant ■without an order of appointment or the filing of a bond for costs, will not be dismissed, if such bond be given when so ordered by the court. The giving of the bond for costs is not a jurisdictional matter.

      2. Bailboads—removing passenger for non-payment of fare—circumstances to be considered—what is a regular station. In an action of trespass by a girl of about six years of age, against a railway company, for putting her off the train at a point about half a mile from its depot, but within the same town, for non-payment of fare, there is no error in allowing the plaintiff to prove that there was an extra train following the one from which the expulsion was made. The fact that in a few minutes a train was expected to arrive at the place of expulsion, is a circumstance proper to be considered by the jury in connection with all the other facts upon the question whether it was proper or improper for the conductor to put the plaintiff off at that particular point.
    3. The regular stations on a railway at which the conductor is authorized, by section 94, chapter 114, to remove, or cause to be removed, a passenger for a refusal to pay fare, are the places on the railway where passenger trains usually stop for the purpose of having passengers get on and off such trains. The statute does not authorize the expulsion of a passenger for non-payment of fare at any place in the town or village in which the company may have its passenger depot building, other than at such depot platform.
    4. Evidence—opinions of experts. In a suit by a child six years old, against a railway company, to recover for injury sustained by ejecting her from a train, the plaintiff endeavored to prove that she was suffering from heart disease, produced by the fright she received when put off the train, and asked physicians whether fright would produce the heart trouble: Held, that the question was proper.
    5. Pleading—joinder of counts—as to acts done by the principal, and by an agent. In trespass by a passenger against a railway company, for expulsion from a train at a place not a regular station, for non-payment of fare, the first count charged that the trespass was committed by the defendant corporation, while the second averred that the defendant, by its conductor, committed the trespass: Held, no misjoinder of counts, as they both charge a trespass by the defendant.
    6. Assignment oe ebbob — as to instructions requested on a given question. Tíhere both parties ask the court to instruct the jury on the question of exemplary damages, and thereby concede that such question is involved, neither can be heard to assign for error the fact that the court complied with his request. A party can not demand of the court that it rule upon a certain branch of the case, and then be heard to say that the court had no right to rule upon that branch of the case at all.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of DeWitt county; the Hon. Cyrus Epler, Judge, presiding.

      Messrs. Moobe & Wabnee, for the appellant:
    The suit having been brought by the next friend without any previous authority or appointment by the court, and without entering into bond for costs, and filing the same in court before or at the time of commencing the suit, it should have been dismissed on plaintiff’s motion. Rev. Stat. chap. 64, sec. 18, as amended by Laws of 1881, p. 98.
    The first count of the declaration charging the appellant with one offense, and the second count charging one Finch with the same or another offense, there is a misjoinder of counts, and the court erred in refusing to carry appellee’s demurrer back to the declaration. Chitty’s PI. 205; Mining and Transportation Co. v. Ullman, 89 Ill. 244.
    The court erroneously allowed appellee to propound improper questions, that were objected to by appellant, to the witnesses introduced as experts, and allowed such witnesses to give improper answers thereto. 1 Greenleaf on Evidence, sec. 585; Henry v. Hall, 13 Bradw. 343; Railroad Co. v. Railroad Co. 67 Ill. 142; Hoerner v. Koch, 84 id. 408; Railway Co. v. Shires, 108 id. 617.
    An instruction should not assume as a fact anything material to the issue. Railroad Co. v. Zang, 10 Bradw. 594; Railroad Co. v. Hall, 90 Ill. 43; Railroad Co. v. Shelton, 66 id. 424; Morey v. Pierce, 14 Bradw. 91; Bradley v. Coolbaugh, 91 Ill. 148; Village of Warren v. Wright, 3 Bradw. 602; Wharton v. People, 8 id. 232.
    The court should not, in its instructions, intimate as to the weight of the evidence, or call attention to particular testimony that is not decisive of the case. Frame v. Badger, 79 Ill. 441; Graves v. Colwell, 90 id. 612; Railroad Co. v. Hall, id. 42; Life Ins. Co. v. Dill, 91 id. 174; Coon v. People, 99 id. 368; Railway Co. v. Moranda, 108 id. 576.
    The evidence in the case did not warrant the court in instructing the jury, for appellee, that they might find exemplary or vindictive damages. Railroad Co. v. Patterson, 63 Ill. 304;
      Pierce v. Millay, 44 id. 189; Railroad Co. v. Dewin, 86 id. 296; Railroad Co. v. Dunn, 52 id. 451; Railroad Co. v. Boger, 1 Bradw. 472; Waldron v. Marcier, 82 Ill. 550.
    An instruction which fails to tell the jury that they should be governed by the evidence in their assessment of damages, is erroneous. Railway Co. v. Frazier, 19 Bradw. 92; Martin v. Johnson, 89 Ill. 537; Railroad Co. v. Sykes, 96 id. 162; Rolling Mill Co. v. Morrissey, 111 id. 646.
    The damages are excessive. Railroad Co. v. Dunn, 52 Ill. 451; Railroad Co. v. Payzant, 87 id. 125; Railroad Co. v. Cunningham, 67 id. 316.
    Mr. E. A. Lemon, for the appellee:
    The court properly refused to dismiss the suit for a failure to file bond before suit brought-, and in allowing one to be filed after the motion. Starr & Curtis’ Stat. p. 1241, see. 18; Patterson v. Pullman, 104 Ill. 87; Lee v. Waller, 13 Bradw. 403; Bakery v. Palmer, 83 Ill. 570.
    Appellant, by pleading to the declaration, waived all previous questions on the demurrer, (Brooks v. People, 11 Bradw. 422, Quincy Goal Co. v. Hood, 77 Ill. 68,) and no motion in arrest of judgment was made.
    A general objection to a question only raises the question whether or not the subject matter of the inquiry is proper or relevant, and does not go to the form of the question. In all cases where the cause of the objection can be removed or obviated, our practice requires that the objection be specific. Wilson v. King, 83 Ill. 232; King v. Railroad Co. 98 id. 376; Railroad Co. v. Morgan, 69 id. 492; Chicago v. Stearns, 105 id. 554.
    The court submitted the question of exemplary damages at the special request of both parties.
    In actions for torts, the damages for which can not be measured by a legal standard, all the facts constituting and accompanying the wrong should be proved; and though there be a legal standard, for the principal wrong, if aggravations exist they may be proved to enhance damages, and every case of personal tort must necessarily go to the jury on its special facts. These embrace the res gesta, and the age, sex and status of the parties,—and this whether the case be one for compensation, only, or also for exemplary damages, where they are allowed. 1 Sutherland on Damages, p. 745.
    A regular station means a regular station for passengers to get on and off the train. Railroad Co. v. Flagg, 43 Ill. 364; Railroad Co. v. Parks, 18 id. 465; Railroad Co. v. Vanatta, 21 id. 188.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is an action of trespass, brought in the Circuit Court of DeWitt County, on June 28, 1887, by the appellee, a girl six years old, who sues by her mother and next friend, against the appellant Company, to recover damages for the removal of appellee, at a place other than a regular station, from a passenger train of cars operated by appellant between Wapella and Clinton in said county, while the appellee was riding thereon as a passenger. The verdict and judgment in the Circuit Court were in favor of the plaintiff, and such judgment, having been affirmed by the Appellate Court, is brought here by appeal from the latter "court. All the questions of fact are settled by the judgment of the Appellate Court.

First, it is assigned as error, that the Circuit Court refused to dismiss the suit, upon motion of defendant below, because it was brought by a next friend without previous authority or appointment by the court, and without filing a bond for costs before or at the time the suit was commenced. "When the motion to dismiss was overruled, a cross-motion by the plaintiff below for leave to file a bond for costs was allowed, and the plaintiff, in obedience to a rule by the court, filed the bond on the same day. The error is not well assigned.

Section 18 of chapter 64 of the Eevised Statutes, being “An Act in regard to guardians and wards,” (Starr & Cur. Stat. page 1242) contains a proviso to the effect “that any suit may be commenced and prosecuted by any minor by his next friend, without any previous authority or appointment by the court, on such next friend entering into bond for costs, and filing the same in the court in which such suit is instituted.” The proviso must be construed in connection with the part of the section, which precedes it. The preceding portion of the section directs, that “nothing contained in this act shall impair or affect the power of any court * * * to appoint or allow any person as next friend for a minor to commence, prosecute or defend any suit in his behalf.” The power is here conferred to appoint a next friend to “prosecute” the suit, as well as to “commence” it. The prosecution is designated as being distinct from the commencement of the suit. It follows that a next friend might be appointed to prosecute after the suit was commenced. This must be kept in mind in determining the meaning of the language used in the proviso. The words of the latter must be taken to mean, that without previous authority to “prosecute, ” as well as in the absence of previous authority to “commence,” the suit may be “prosecuted” as well as “commenced” by filing a bond for costs. On entering into the bond and filing it in court at any time during the prosecution of the suit when the court shall so order, the suit may proceed. The filing of the bond is a substitute for the previous appointment, whether it be an appointment to prosecute, or to commence the suit. The design of the statute in conferring upon the court the power to appoint a next friend was to insure the conduct of the suit by a responsible person. This end can be gained by the filing of a good bond for costs, whether it be done at the beginning of the suit, or after the suit has been begun. We do not agree with counsel in the view advanced by them, that the filing of the bond is a “pre-requisite and jurisdictional necessity.” (Baker v. Palmer, 83 Ill. 568.)

Second, it is assigned for error that certain questions, asked of some of the witnesses, were improper, and that certain testimony, which was admitted, should have been excluded. We can not stop to notice all of the objections, made by counsel for defendant upon the trial below. Many of these objections are extremely technical, but they arrange themselves mainly under two general heads. In the first place, objection is made to testimony, introduced by the plaintiff for the purpose of showing, that an extra train was following the train, from which plaintiff was ejected, and was expected to reach and, as matter of fact, did reach the point, at which she was put off, in about fifteen or twenty minutes after her removal. The evidence tends to show, that the appellee was placed upon the train by her uncle, in the afternoon of June 14,1887, at Wapella, for the purpose of being carried from Wapella to her home in Clinton, distant about four and a half miles; that the conductor found her in one of the cars with a paper hatbox in her hands, and asked for her fare, which amounted to about seven cents; that the child had no money with which to pay her fare; that the conductor then stopped the train at a point within the corporate limits of Wapella, but about a half of a mile south of the passenger depot, and there put the little girl off with her box; that she ran back towards the depot, crying as she went, and being obliged to pass a cattle guard and culvert on her way.

Counsel for appellant admit that railroad companies are not allowed to put off even adult passengers “at out-of-the-way places and at a distance from possible aid, food and shelter.’5 They claimed on the trial below, and are claiming here, that the conductor had as much right to put appellee off the train at any point within the corporate limits, as at the platform of the depot. The character and location of the place, where the removal took place, and all the circumstances attending the act of removal, were matters about which both sides introduced testimony. The fact, that in a few moments a train was ex-peeted to arrive at the place of removal, was a circumstance proper to be considered by the jury, in connection with all the other facts in the case, as bearing upon the question whether it was proper or improper for the conductor to make the removal at that particular point.

In the next place, the plaintiff endeavored to show that she was suffering from functional disease of the heart, produced by the fright she suffered when ejected from the train. Upon this branch of the case physicians were placed upon the stand as expert witnesses. Appellant objects, that certain questions, addressed to the medical witnesses, required them to express their opinions upon the evidence, and that they were thereby made to usurp the function of the jury in deciding whether or not the affection of the heart was produced by the act of ejection from the train. In other words, it is claimed, that the questions objected to are such as were condemned by this court in C. & A. R. R. Co. v. S. & N. W. R. R. Co. 67 Ill. 142, and Hoener v. Koch, 84 id. 408. In the first case, a witness was asked, what would be the damages to the defendant, if certain work was done ? In the second, a witness was asked, whether, taking the facts as he understood them, he saw any evidence of malpractice?

No such interrogatories, as those commented upon in the cases cited, were addressed to the witnesses in the ease at bar. The physicians, who were examined on the trial below, were asked whether fright would produce the heart trouble, with which appellee was said to be afflicted. It was proper for them to give their professional opinion upon this subject.

Third, the giving and refusal of instructions are objected to mainly upon two grounds. The first relates to the definition of “regular station.” Section 94 of chapter 114 of the Eevised Statutes (Starr & Cur. Stat. page 1944) contains these words: “If any passenger on any railroad ear * * * shall refuse, upon reasonable demand, to pay his lawful fare, etc., * * * it shall be lawful for the conductor of the train to remove, or cause to be removed such passenger from the train at any regular station.” The instructions given for the plaintiff defined the term, “regular station,” to mean “the place on the railroad where passenger trains usually stop for the purpose of having passengers get on and off such trains,” while several instructions, asked by defendant and refused, defined such term to mean “the town or village in which a railroad company may have its passenger depot building,” and not “the depot platform of a railroad company.” We think the definition laid down in the given instructions was substantially correct, and in accord with the decisions of this court. (C. & A. R. R. Co. v. Flagg, 43 Ill. 364; C., B. & Q. R. R. Co. v. Parks, 18 id. 465; T. H. A. & St. L. R. R. Co. v. Vanatta, 21 id. 188).

It is not claimed on either side, that it was usual or customary for passengers to get off and on the trains at the place where appellee was put off. -It is not contended, that any passenger was ever known to get on or off at that point. A railroad company does not comply with the statute, when it puts a passenger off at a point on its track distant from a fourth to a half of a mile from the depot platform, even though such point be within the corporate limits of the village or city, where such depot is located.

The second ground of objection to the instructions is that they called the attention of the jury to the question of exemplary or vindictive damages. Without passing upon the correctness or incorrectness of such instructions, we deem' it sufficient to say, that appellant itself requested the jury to be instructed upon this subject. The question was submitted to the jury at the special request of both parties. A party can not demand of the court, that it rule upon a certain branch of the case, and then be heard to say that the court had no right to rule upon that branch of the case at all. He may challenge the correctness of the finding of the jury on the question of fact submitted to them by the instructions, but he can not be heard to say that it was error for the court to comply with his own request in submitting the question to the jury. (Lahr v. M. E. R. Co. 104 N. Y. 268.) An inspection of the instruction shows, that the question of punitive or exemplary damages was conceded by the appellant to have been involved in the case. Counsel for appellant did not ask the trial court, by instruction or otherwise, to rule that the question was not involved. On the contrary three instructions were given upon this subject at his request, which were only slightly modified by the trial court. One was, “that exemplary or vindictive damages should not be allowed or given in this case, unless the jury find from the evidence, not only that the defendant is guilty, but also that it, by its conductor, acted maliciously or wantonly, and with wrongful intent.”

The instruction thus quoted was given as drawn by appellant’s counsel, except that the court inserted the words, “by its conductor.” These words do not change the principle announced in the language made use of.

Appellant makes the point that there was a misjoinder of counts in the declaration. If the record were in such shape as to permit this point to be made here, it is without force. The first count charges that the trespass was committed by appellant as a corporation. The second count substantially avers that appellant by its conductor or agent committed the trespass. It can not be said that two acts of trespass are alleged to have been committed by two persons, one by the company and one by Finch, the conductor. In substance, the trespass is charged in both counts to have been committed by appellant.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Per Curiam :

text:
    The Kankakee Stone and Lime Company v. The City of Kankakee.

      Filed at Ottawa

      April 3, 1889.

    1. Special assessments—rule for ascertaining benefits—market value —present use of property, and of the use to which it is adapted. In a proceeding to levy and collect special assessments on property benefited, the true inquiry is, what will the influence of the proposed improvement be upon the market value of the property claimed to be benefited thereby. The jury should consider what the property is then fairly worth in the market, and what will be its value when the improvement is made.
    2. In determining the present market value, it is competent for the jury to take into consideration the uses to which the property is put, or for which it is suitable or adapted. If the present value of the property is increased by reason of the use to which it is then put, or its market value will be materially affected by an interference with that use, and the proposed improvement will have that effect, that is a matter clearly competent for the consideration of the jury.
    3. On a proceeding to confirm a special assessment upon certain lots, the court instructed the jury: “You" are instructed that it makes no difference -in this case whether or not the property assessed is used at present for such a purpose that it will not be specially benefited by the proposed sidewalk, or is put to any use to which the market value of the same is at present unimportant; and in determining your verdict, you should not take into consideration the present use to which the lots or tracts, or both, are put, but you should consider whether or not the market value of said lots or tracts, for any legitimate purpose for which the same may be used, will be increased by reason of the construction of the proposed sidewalk:” Held, that the instruction was erroneous, in directing the jury that they should not take into consideration, in determining the market value, the present use to which the lots were put.
    . '4. Pbactioe—time to object—as to admission of evidence. In a proceeding to confirm a special assessment for the building of a sidewalk, an objection that the ordinance for the proposed improvement was not certified to the mayor or approved by him, comes too late when made for the first time in this court. Objection to evidence should be made on the trial.
    5. Instbxjction—erroneous one—whether cured by others. In a case where the evidence is conflicting, the law should be given to the jury with substantial accuracy. An erroneous instruction can not be said to be cured by proper instructions on the other side, when, from the evidence, it is impossible to say that the jury did not follow the erroneous one.
    Appeal from the County Court of Kankakee county; the Hon. Thomas S. Sawyer, Judge, presiding.
    Mr. William Moore, and Mr. Stephen Potter, for the appellant :
    The ordinance set out in the record is not shown to have the approval of the mayor, nor to have ever been certified to him by the city clerk. 1 Private Laws of 1865, p. 893; sec.
    5, art. 3, p. 398.
    Property can not be specially assessed except for the actual benefits thereto. Crawford v. People, 82 Ill. 557.
    The fifth instruction wholly ignores the use to which the property is put, and is erroneous. Mittel v. Chicago, 9 Bradw. 534.
    Mr. W. B. Hunter, for the appellee:
    The objection was not made to the ordinance in the court below, and can not, therefore, be urged here.
    It is claimed that appellee’s fifth instruction is meaningless.
    If so, it can not prejudice the rights of appellant. The meaning of this instruction is, that the present use of the property is so temporary that it is not a proper basis upon which to estimate the benefits which accrue by reason of the improvement. Cooley on Taxation, 458.
   Per Curiam :

The city of Kankakee required, by ordinance, the building of a sidewalk on the east side of Fifth avenue and Bourbonais Grove road, in said city, and requiring special assessments against contiguous property benefited. No objection is made to the substance of the ordinance authorizing the special assessment, or the appointment and report of com- ¡> missioners thereunder. The commissioners appointed for such purpose made report to the city council, which was approved, and appellant not having constructed said sidewalk along its property, as required by said ordinance, a petition was, by order of the city council, presented to the county court, in conformity with the provisions of the act respecting cities and villages. Commissioners were appointed by the court, who made a return of the assessment roll, as contemplated by said act. On application for confirmation thereof, certain objections were filed by appellant, and thereupon such proceedings were had that a jury was impaneled, who, after hearing the evidence, etc., returned their verdict into court, fixing the benefits accruing to appellant’s land from the construction of said sidewalk. The court modified said assessment roll to conform to the finding of the jury, and rendered its judgment affirming said roll so modified.

The first point urged is, that the ordinance authorizing such proceeding was not properly passed, in that it was not certified to the mayor or approved by him. The objection, if tenable, can not be made for the first time in this court. The ordinance seems to have been read to the jury, without objection.

At the instance of the city, the court gave the jury the following instruction:

“You are instructed that it makes no difference in this case whether or not the property assessed is used at present for such a purpose that it will not he specially benefited by the proposed sidewalk, or is put to any use to which the market value of the same is at present unimportant; and in determining your verdict, you should not take into consideration the present use to which the lots or tracts, or both, are put, but you should consider whether or not the market value of said lots or tracts, for any legitimate purpose for which the same may be used, will be increased by reason of the construction of the proposed sidewalk.”

It is insisted that the first portion of this instruction is unintelligible. Be this as it may, considered as a whole, the instruction contains the proposition, that the present use to which the premises are put by the owner must be excluded from consideration by the jury in determining the market value of the lots. The true inquiry in all such cases is,.what will the influence of the proposed improvement be upon the market value of the property claimed to be benefited thereby. The jury should consider what the property is then fairly worth in the market, and what will be its value when the improvement is made. (Cooley on Taxation, 459.) In determining the present market value, it is competent for the jury to take into consideration the uses to which the property is then put or for which it is suitable or adapted. If the present market value of the property of appellant was increased by reason of the use to which it was then put, or its market value would be prejudicially affected by an interference with that use, and the proposed improvement would have that effect, it was clearly competent for the consideration of the jury. It was said in Chicago and Evanston Railroad Co. v. Jacobs, 110 Ill. 414, that in these cases “the real issue was, what was the market value of the property for any purpose for which it was adapted or might be used.” See, also, Dupuis v. Chicago and North Wisconsin Railway Co. 115 Ill. 97; Jacksonville and Southeastern Railway Co. v. Walsh, 106 id. 253; Calumet River Railway Co.v. Moore et al. 124 id. 329.

The purposes for which the premises of appellant were used were entirely legitimate, and it was insisted they were more valuable for that use than for any other, and that the construction of the proposed sidewalk, in the manner contemplated, would materially decrease the value of the property, for the reason, as alleged, that it would interfere with that use of the property. If this was so, it was clearly competent for the jury to consider in determining the present market value •of appellant’s property, and it was error to instruct the jury they should not take into consideration, in determining the market value, “the present use to which the lots or tracts, or both, are put.”

It is said, however, that the jury were properly instructed on behalf of appellant, and that they could not therefore have been misled by the instruction complained of. There was a ■conflict in the evidence, and it seems to us the preponderance was with appellant upon the question of whether said property was benefited or not, and while we would not be disposed to interfere upon that ground, the law should have been given to the jury at least with substantial accuracy. If it be true the law was correctly given in appellant’s series, it is impossible to say that the jury followed them rather than the one ■containing the vicious element. Indeed, aside from the report of the commissioners, which is made evidence by the statute, it would seem, from this record, that the weight of evidence is with appellant that the present market value of the -premises, considering the use to which it is put and is adapted, would be depreciated rather than increased by the proposed improvement ; and the conclusion can hardly be resisted that the jury followed appellee’s instruction, and excluded from consideration the present use of the property in making up their verdict.

Other minor objections are pointed out, which doubtless will be corrected on another trial, and which it is here unnecessary to notice.

For the error indicated, the judgment of the county court will be reversed, and the cause remanded for further proceedings.

Judgment reversed.


author: Mr. Justice Scholeield

text:
    Simon Gruhn v. Nancy R. Richardson et al.

      Filed at Springfield

      April 5, 1889.

      1. Veitoob’s men—not assignable—lost by transfer of debt. The right to enforce a vendor’s lien is personal, and is therefore not transferable. It ceases to exist when the vendor sells and indorses the note representing the purchase money, although the transfer is made with the consent or upon the advice of the debtor.
    2. Homestead—what will defeat the right—effect of transfer of note given for purchase money—fraudulent acts. A person purchased a house- and lot, giving his promissory note for the purchase money, after.which he conveyed the premises to his wife, from which time the property was occupied by them both as their homestead. It was of less value than $1000. A third person, at the husband’s request, bought the note given for the purchase money. It was held, that the purchaser of the note acquired no equity as against the wife’s homestead. Even if she-had owed the note herself, and had requested such third party to pay the same, his doing so could have given him no right as against her estate of homestead.
    3. Even the fraudulent acts of the party entitled to a homestead are not allowed to divest that right.
    4. Trust—voluntarily assumed—not to be repudiated. <3-., having a small claim against a debtor who was being 'harassed by creditors, under the guise of friendship falsely advised the debtor and his wife that the creditors would take their homestead, which was in the wife, unless they mortgaged the same to him, and promised that if they would mortgage the same, he would, when he acquired the title, convey to the debtor’s wife, and thereby induced them to execute a mortgage for the sum he claimed, and afterward induced them to give a fictitious note and mortgage to a third person for $1000, which G-. afterward procured to be assigned to himself, and obtained a decree of foreclosure and sale, professedly for the benefit of the wife, but afterward refused to convey to her, disavowing and denying the trust: Held, that G-. could not be allowed to repudiate his assumed trust, and that a court of equity would compel .him to convey to the wife, or set aside the mortgages and sale of the property to him.
    5. Same— Statute of Frauds. "Where a party, by voluntarily assuming a confidential relation, as, that of a trustee, to save the homestead of another, and by means of confidence 'thus inspired obtains the title thereto, and refuses to perform his promises, the law will raise a constructive trust, which a court of equity will enforce, and the Statute of Frauds will have no application.
    Appeal from the Circuit Court of Macoupin county; the Hon. Jesse J. Phillips, Judge, presiding.
    Messrs. Andebson & Bell, for the appellant:
    The complainant is barred of the relief sought, by her negligence. She had no right to blindly adopt the representations of G-ruhn, instead of seeking information which was accessible to her. Hicks v. Stevens, 121 Ill. 186; Young v. Young, 113 id. 432; Tuck v. Downing, 76 id. 71; Story’s Eq'. Jur. sec. 191.
    The legal presumption is, that deeds and mortgages are made in good faith, and without fraud. O’Neal v. Boone, 82 Ill. 589.
    Parol evidence to set aside a deed or mortgage must be clear and convincing. Wilson v. McDowell, 78 Ill. 514.
    The violation of a parol agreement to convey or reconvey land will not constitute such a fraud as to take the case out of the Statute of Frauds. Young v. Young, 113 Ill. 430; Rogers v. Simmons, 55 id. 76; Perry v. McHenry, 13 id. 227; Dunbar v. Bonesteel, 3 Scam. 32.
    If the mortgage is to be rescinded or held for naught, then appellees must return to appellant all that in equity is his. Before a party can rescind a contract for fraud, he must return, or offer to return, the consideration received. Smith v. Brittenham, 98 Ill. 188; 109 id. 540.
    Messrs. Rinakeb & Rinakeb, for the appellees:
    The circumstances of the execution of the mortgage, alone, are enough to brand it as fraudulent. There was no actual danger to the homestead, as it was then worth only $800 or $900, and was exempt from any judgment against the husband.

      If Gruhn obtained the mortgages upon false representations and promises, he can in no case disregard them, although he may have been compelled to give up part of his security, and although the property may have since depreciated in value.
    The vendor’s lien, evidenced by the Kemper note, which Kemper might have enforced, not only was not in fact, but could not in law, have been transferred by him to Gruhn. Moshier v. Meek, 80 Ill. 79.
    If Gruhn intentionally misrepresented the facts in order to mislead or entrap or cheat appellees, or to obtain an undue advantage of them, there is positive fraud, in the truest sense of the term. Story’s Eq. Jur. sees. 192, 330.
    If, and especially at his request, “confidence is reposed, and one party has it in his power, in a secret manner, for his own advantage, to sacrifice those interests which he is bound to protect, he will not be permitted to hold any such advantage. ” (Story’s Eq. Jur. see. 323.) In the one case his advantage is the result of actual fraud; in the other case his position is obtained by constructive fraud.
    The defense of the Statute of Frauds is no answer to appellees’ case, and the facts proven.
    Mrs. Richardson received no consideration whatever for the execution of these mortgages, except Gruhn’s promise, based on his false or mistaken statement of danger to her homestead, to use it only to save the homestead for her. Can he, with full performance on her part, repudiate his promise and retain the benefit so obtained, because his promise was only verbal ?
   Mr. Justice Scholeield

delivered the opinion of the Court :

This appeal brings before us for review a decree of the circuit court of Macoupin county, setting aside certain mortgages, and a sale thereunder, made pursuant to a previous decree of that court.

The case made by the evidence on behalf of the complainant is, in substance, this: In December, 1881, John Richardson, who had all his life been a farmer, and who had consequently no previous experience in trade, and who had no practical knowledge in that respect, sold his farm for $8000, and engaged in trade in the village of Medora, in Macoupin county. He first tried the grocery business, but that soon resulting disastrously, he abandoned it for the clothing business, and a like result as in the grocery business speedily followed in this business. He became the owner of- several village lots,—among others, of lot 4, in block 19, in Bice’s third addition to the village,—which he purchased of William Kemper, but only partially paid for. On the 19th of March, 1883, Kemper conveyed the lot to Bichardson, and at the same time, Bichardson made his note of that date, payable to Kemper, for $550, (the balance due upon the lot,) twelve months after date, with eight per cent interest. There was, and still is, a dwelling house upon the lot, and Bichardson immediately took possession of the lot and made his residence in the dwelling house. On the 3d day of April, 1883, he conveyed the lot to his wife, Nancy B., the complainant, and the lot was then, and it has been ever since, occupied by them as and for their homestead, and it is of less value than $1000.

On the 19th of October, 1883, the Bank of Medora recovered a judgment against John Bichardson for the sum of $2223.46, and at that time he was indebted to various other parties in different amounts, the aggregate exceeding his ability to pay. On the 24th of November following, he was served with summons at the suit of Joseph Hill, upon which Hill obtained judgment in December thereafter, and at the time that suit was commenced other suits were threatened, which were, several months afterward, prosecuted to judgment. Simon Gruhri had become the owner, by assignment, of a promissory note made by McKernan & Bichardson on the 21st of March, 1883, to Byan & Elwood, for $625, with eight per cent interest from date, due May 1, 1883, upon which a credit of $300, paid April 24,1883, was indorsed. Gruhn also claimed that Bichardson was at the same time indebted to him in the further sum of $300.

On the 28th of November, 1883, Gruhn, having obtained the confidence of John and Nancy B. Biehardson, and induced them to believe that he was their friend, anxious to aid them in their financial embarrassments, and that he was possessed of ample knowledge of the law to correctly instruct and advise them therein, went to them and represented to them that the only way by which they could save their homestead from the creditors of John, was to mortgage the same, together with other village lots, to him; that the creditors could set aside, as fraudulent, the conveyance by John to Nancy B., and sell the homestead, but that if they would mortgage the homestead, together with the other village lots, to him, he (Gruhn) could and would hold it against the other ci’editors, for Nancy B., and when he should obtain a "title ther'eto, through a sale and purchase, he would convey it to her. He represented that it was indispensable that they should act promptly and secretly, and warned them against speaking to others of what they did. They were ignorant of their legal rights in regard to the homestead, and believed in and relied upon the truthfulness of what he said, and thereupon, thus influenced and controlled, Bichardson made his promissory note to Gruhn, payable twelve months after date, for $300, with interest at eight per cent per annum from date; and he and his wife, Nancy B., then also made a mortgage to Gruhn, of the homestead and other village lots, to secure the balance due on the Byan & Elwood note and this $300 note. Two days afterwards,—namely, on the 30th of November, 1883,—Gruhn informed the Bichardsons that his mortgage was not large enough to protect the homestead against Bichardson’s creditors, and persuaded and induced them to execute a promissory note to George Wright, to whom neither of them was indebted, for $1000, payable, with eight per cent interest, one year after date, and to execute a mortgage on the homestead to secure it, saying, (and they believing what he said,) that this mortgage would help secure the homestead. Wright never claimed that anything was due him on account of this transaction, hut always admitted that he entered into it as a mere matter of accommodation.

On the 2d of April, 1884, Gruhn made an arrangement between William Kemper, George Wright and John Richardson, whereby Kemper let Gruhn have his note on Richardson, indorsed by him without recourse, and Gruhn then exchanged that note with Wright for Wright’s note and mortgage, which Wright indorsed and delivered to him. The agreement between Kemper and Gruhn was, in substance, that Gruhn was to collect the money for Kemper if he could. Wright claims ■no interest in the Kemper note, and has delivered it to Richardson's attorney.

On the 20th of January, 1885, Gruhn filed his bill to foreclose his mortgage and the Wright mortgage, in the circuit court •of Macoupin county, against John Richardson and Nancy R. Richardson, alleging therein, among other things, the assignment of the Wright note and mortgage to him, and his ownership thereof. Summons was properly served upon the Richardsons, but they were persuaded by Gruhn to not appear and make defense,, he representing to them that he knew best what to do—that he was acting for them, and would attend to iheir interests better than they could themselves; that he would bid in the property at the sale to be made under de■cree of foreclosure, and afterwards convey the homestead to Nancy R. A decree pro confesso was rendered on the 19th of February, 1885, finding that there was due Gruhn, on the mortgages, $1942.43, and directing a sale of the mortgaged premises for the payment of the same.

On the 28th of May, 1885, Gruhn made another agreement with Kemper, whereby Gruhn gave Kemper, for Kemper’s note on Richardson, his note for $300, payable absolutely, and his note for $200, in regard to which it was agreed that in the event either that Gruhn should assign his certificate of purchase, which it was contemplated he would obtain at the foreclosure sale, or convey the premises, within one year after the-sale, for more than enough to pay his own demands against, the property, with interest, then he was to pay the excess toKemper to the extent of the balance due him from Richardson.. John Richardson acquiesced in this arrangement, but there is no evidence affecting Nancy R. Richardson by it, and she expressly denies all knowledge of it.

Gruhn denies that he agreed to secure a homestead for Nancy R. ;■ that he used other persuasions to induce them to sign the mortgage than his claims as a general creditor, a neighbor and a friend of John Richardson. He denies that he did or said anything to induce the Richardsons to not appear and defend the foreclosure proceeding, and he denies that he, at any time, represented himself to have special law knowledge in respect of questions pertinent to their rights in the-premises. He was, to some extent, sustained by the evidence-of other witnesses.

The court below adopted the view that the evidence sustained the ease made by the evidence on behalf of the complainant, and after having carefully considered the entire record,, we are unable to say that there is clearly error in that ruling. It would subserve no useful end to recapitulate and comment upon the evidence in detail, and we shall therefore proceed to an examination of the legal principles applicable to the view of it, as expressed.

• The right which Kemper had to enforce a vendor’s lien was-personal to himself, and was ended the moment that he indorsed the note and delivered it to Gruhn, notwithstanding Richardson consented to or advised that transfer. (Richards v. Learning, 27 Ill. 432; Keith et al. v. Horner, 32 id. 524; McLaurie v. Thomas, 39 id. 291; Lehndorf et al. v. Cope, 122 id. 333.) But no attempt was ever made to enforce a vendor’s lien. Kemper filed no bill for any purpose, and the bill of Gruhn was only to foreclose mortgages for the. payment of promissory notes (not including that of Kemper) described in the mortgages, and the agreement subsisting between Gruhn and Kemper, at the time of the filing of the bill and obtaining the decree of foreclosure, simply was that Gruhn would collect Kemper’s note if he could. He took a decree for the amount of indebtedness secured as appeared upon the face of the mortgages, and accruing interest, and this included the $1000 of fictitious indebtedness, and the accruing interest thereon; and the notes which Gruhn subsequently gave to Kemper, seem to assume that $300 of the amount is to take the place of so much of the fictitious indebtedness, inasmuch as the $300 note was payable absolutely. The $200 note has not been paid, and is not to be paid unless the amount shall be realized hereafter in the way indicated in the agreement. It is manifest that in all this Gruhn has acted voluntarily, and for what he doubtless supposed would subserve his own interests. He knew that the vendor’s lien could not be transferred to him, because he is charged with a knowledge of the law; and Nancy B. never-consented that any part of the Kemper debt should be substituted for and take the place of so much of the fictitious note to Wright. If the Kemper lien was to be enforced, it is not perceived that it could make it any less burdensome to Nancy’s-homestead that it should be done by Gruhn. But it was important to Gruhn to get the Kemper claim out of his way, for,, having priority, it depreciated his mortgage security by that amount, and so the entire transaction was manifestly to benefit him, alone; and he is not entitled to any claim of merit, because it was impossible to thus benefit himself without extinguishing the vendor’s lien upon the homestead, and to that extent benefiting Nancy B.

The indebtedness to Kemper was not that of Nancy B. The lien imposed no personal obligation upon her, and so when it was removed without her act, she incurred no liability thereby. But even if she had owed the debt herself to Kemper, and had personally requested Gruhn to pay it, his paying could have given him no rights as against her estate of homestead. (Winslow v. Nolle, 101 Ill. 194; Eyster v. Hathaway, 50 id. 522.) Even the fraudulent acts of the party entitled to a homestead are not allowed to divest that right. (Leupold et al. v. Krause, 95 Ill. 440.) The case made is, as we think, governed by the ruling in Allen et al. v. Jackson et al. 122 Ill. 567.

G-ruhn assumed, voluntarily, a confidential relation,— in legal contemplation, that of trustee for Nancy R. Richardson, to secure her homestead,—and he shall not now be allowed to deny his trust. He knew that she confided in him, and believed his representations to be true, and that solely because she did so confide and believe, she executed the mortgages. Having since repudiated his assumed trust, she was justified in filing the present bill. He can not be allowed to enjoy a personal advantage by saying that he was not entitled to the confidence he induced her to place in him.

Wolford v. Herrington, 74 Pa. St. 311, is quite analogous to the present case. There, land was advertised to be sold on a judgment against John Wolford. Herrington went to the wife of Wolford, and asked her if she knew that the land was to be sold. She said they could not sell it, for she had a deed. He said there might be some trouble, and she had better let it be sold, and let him buy it in for her. She said, in that case she could get the money from Mr. Randolph. He said that Randolph wrould need the money before he would, and that he would bid it in and pay the money, and allow her two years to pay him back the money, with interest. She assented to this finally, and he bought the land at the sale, but he after-wards refused to allow redemption to be made, and to convey as he had agreed. The court, speaking through Sharswood, J., said: “Her testimony alone, if believed by the jury,—and there was no contradiction of it,—showed a clear case of fraud on the part of Herrington, within our late decisions of Beegle v. Wentz, 5 P. E. Smith, 369, and Boynton v. Housler, 23 id. 453. She had a claim on the land in her own right by an unrecorded deed—whether good or bad, conveying a good title or not, is unimportant; and these cases settle that where one having any interest is induced to confide in the verbal promise of another that he will purchase for the benefit of the former at a sheriff’s sale, and in pursuance of this allows him to become the holder of the legal title, a subsequent denial by the latter, of the confidence, is such a fraud as will convert the purchaser into a trustee ex vialaficio.” See, also, Wharton bn Agency, sec. 240, and Bigelow on Fraud, p. 231.

The Statute of Frauds has no application to the present case. The trust is not express, but is raised by construction. Allen et al. v. Jackson et al. supra; Kerr on Fraud and Mistake, (Bump’s ed.) 151, 179; Reed et al. v. Peterson, 91 Ill. 295; Haigh v. Kaye, Law Rep. (7 Ch. App. Cas.) 469; Bispham’s Eq. sec. 231.

The decree below must be affirmed.

Decree affirmed.


author: Mr. Justice Shops

text:
    Edward C. Giles et al. v. Mary Anslow et al.

      Filed at Springfield

      April 5, 1889.

    1. Wills—quantity of estate devised—whether afee, or less than a fee. It is provided by statute, that every grant, conveyance or devise shall be deemed a fee simple estate of inheritance, though lacking the use of words necessary, at the common law, to create such an estate, if a less estate be not limited by express words, or does not appear to have been granted, conveyed or devised by construction or operation of law.
    2. A simple devise of lqnd, without any words of perpetuity or inheritance, under the statute, is sufficient to pass an absolute estate in fee, unless a contrary intent is shown in other parts of the will. The intention of the testator, which controls, is to be ascertained from the w'hole will. If a less estate than a fee is intended, it is wholly immaterial in what part of the will such intention is manifested.

      3. It is the disposition of the courts to adopt such a construction as "will give an estate of inheritance to the first donee. When, therefore, the fee is devised by a clause or clauses of a will, and other portions or clauses are relied on as limiting or qualifying the estate thus given, they should be such as to show a clear intention on the part of the testator to thus limit or qualify the estate granted. Such an intent should clearly and unequivocally appear.
    4. Same—devise over upon condition—as, the settlement of the estate before the death of the first taker—as determining where the fee shall go. A testator devised all his estate, real and personal, to his wife, subject to the payment of his just debts, and appointed her his sole executor. The will further provided, that in case of the death of his wife before the settlement of his estate, all the testator’s property should be equally divided between his two nephews: Held, that the settlement referred to, which would operate to defeat the devise to the wife, was a settlement or adjustment of the estate in the due course of administration in the county court, and that such settlement in her lifetime was a condition upon which the devise to her depended.
    5. Until such settlement of the estate, which included the payment of the debts, the amount devised was uncertain, as it might become necessary to sell land, or some part thereof, to pay the claims against the estate; but when the administration was completed and closed, her rights became fixed and determined. If made during her life, she took the remaining estate absolutely; if not, it went to the nephews.
    6. In this case, a final settlement of the estate was made in the lifetime of the first donee, and so it was held, that the clause devising the estate to the nephews in the event of the death of the widow before the settlement of the estate, did not in any manner affect the devise to the widow, and that she having performed the condition annexed to her right, her estate ceased to be conditioned, and that the condition on which the nephews were to take, failed.
    7. Same—whether a trust rests upon the subject of a devise. A trust may be impressed upon the subject of a devise, but an intent to create the trust must clearly appear. If the intention of the testator be doubtful, precatory words will not be construed into a declaration of a trust.
    8. Mere expressions of a desire that the donee will be kind to, remember, consider, deal justly by, educate and provide for, or to do justice to a certain class of persons, will raise no trust.
    9. In the absence of words showing a contrary intent, a gift, whether of land or personal property, will be presumed to be absolute, and before it will be held to be in trust, it must be clear that the testator intended the property bequeathed, or some part of it, to be applied by the donee for the purpose of the trust,—and this is to be determined from a consideration of the entire will, and the circumstances and condition of the estate devised. So the fact that personal property was included in the devise to a wife, and was expected by the testator to go with the real estate to her, maybe considered as indicative of an intent to give her an absolute estate in the land.
    10. No trust will be implied from precatory words, where the donee may, at his discretion, apply the property to other purposes, or where there is an express direction that the donee’s absolute interest is not to be curtailed, or when the precatory words are not stated to be obligatory, or when the donee is to take free and unfettered.
    11. Where the words of a gift expressly point to an absolute enjoyment by the donee himself, the natural construction of subsequent precatory words is, that they express the testator’s belief or wish without imposing a trust.
    12. By the first clause in a will a testator made an absolute devise of all his estate to his widow, upon the sole condition that she should settle up his estate. By the following clause the estate was devised to his nephews in case his widow should die before the settlement of the estate, after which are these words: “I have full confidence in my beloved wife, Mary, that she will do what is best and proper with my effects, and that she would do with my property the same as I would wish to have done—that she will take care of the proceeds. She is, by this gift, free from all restraint, to do as may seem to her best and properHeld, that the will created no trust on the subject of the devise in favor of the testator’s nephews, or for any one else, and that the wife took an absolute estate in fee upon the settlement of the estate in her lifetime.
    Writ of Error to the Circuit Court of Tazewell county; the Hon. Nenian M. Laws, Judge, presiding.
    Mr. B. S. Prettyman, for the plaintiffs in error:
    Nothing can be admitted, but every thing must be proved against infants, and the record must show the evidence to sustain the decree. Hitt v. Ormsbee, 12 Ill. 166; Rhoads v. Rhoads, 43 id. 240; Barnes v. Hazleton, 50 id. 430; Quigley v. Roberts, 44 id. 503; Gooch v. Green, 102 id. 513.
    There is no direct averment in the bill that Mary Anslow was, when she filed the hill, entitled to the fee of the premises, and no direct averment of the fact of the settlement of the estate. General references in the bill to exhibits or records are not proofs, and can not sustain the decree. White v. Morrison, 11 Ill. 361.

      The will set forth in the record shows an intention that the ¡ wife should have the use of the testator’s property while she' lived, unrestrained, to do with it as she thought best, and should make a settlement of it in remainder on his two nephews, but' in the event that she died before making a settlement of the' estate, then that his estate should be equally divided between ■ the nephews. The word “settlement” was doubtless used in the English sense of the term, as a provision made for, or a remainder preserved, settled on or for the use of his nephews.
    His desire that his estate should he so- settled upon them is' expressed to her in the will. His confidence that she would do what was best with his effects, and take care of the proceeds of it, is indicative of the trust. The words “wish” and “will” are imperative, and create a trust. McKee’s Admrs. v. Means, 34 Ala. 349; Dresser v. Dresser, 46 Me. 48; Hill on Trustees, 11; Harrison v. Grant, 2 Gratt. 1.
    Technical language is not necessary to create a trust. It is enough that the intention is apparent. Words merely precatory are sufficient. 1 Jarman on Wills, 385.
    Mr. A. B. Sawyer, and Mr. William Don Maus, for the defendants in error:
    The recital of evidence in a decree can not be questioned in the Appellate Court, any more than the statements in a bill of exceptions. Moore v. School Trustees, 19 Ill. 83; Cooley v. Scarlett, 38 id. 318.
    If either party is dissatisfied with the finding of the court, he should preserve the evidence in a certificate. Walker v. Carey, 53 Ill. 470.
    Where the facts are found by the court, and recited by it in the decree, the finding can not be reversed, unless all the evidence heard on the trial is preserved in the record, and thus brought before the court. Where the evidence is not all preserved, it will be presumed that the evidence heard and not preserved was sufficient to authorize the finding. Allen v.
      LeMoyne, 102 Ill. 28; Corbus v. Teed, 69 id. 208; Morgan v. Corlies, 81 id. 75; Rhoades v. Rhoades, 88 id. 139; Walker v. Abt, 83 id. 231; Hannas v. Hannas, 110 id. 64; Kelsey v. Starkey, 11 Bradw. 87.
    Our Statute of Conveyances provides, that “every estate in lands which shall be granted, conveyed or devised, although other words heretofore necessary to transfer an estate of inheritance be not added, shall be deemed a fee simple estate of inheritance, if a less estate be not limited by express words, or do not appear to have been' granted, conveyed or devised by construction or operation of law.” Bev. Stat. 1874, page 275, sec. 13.
    In the absence of limiting or qualifying words, a fee is devised, unless a less estate appears to have been devised, by construction or operation of law. Surely, it will not be contended that a less estate than a fee was devised to Mary Anslow, by operation of law.
    The settlement of the estate referred to in the will, had reference to the adjustment of the affairs of the estate in the county court, by the payment of the funeral expenses, debts, and expenses of administration and distribution of the residue. Bev. Stat. 1845, p. 56, sec. 123; Bev. Stat. 1874, chap. 3, sec. 112; Frame v. Frame, 16 Ill. 155; Calkins v. Estate of Smith, 41 Mich. 409.
    The primary consideration is the testator’s intention. Hamlin v. Express Co. 107 Ill. 443; Walker v. Pritchwrd, 121 id. 231.
    Illinois cases where wills have been construed as to whether a life estate or a fee was intended: Boyd v. Strahan, 36 Ill. 355; Mulberry v. Mulberry, 50 id. 67; Bergan v. Cahill, 55 id. 160; Markillie v. Ragland, 77 id. 98; Johnson v. Johnson, 98 id. 564; Bland v. Bland, 103 id. 11; Hamlin v. Express Co. 107 id. 443; Walker v. Pritchard, 121 id. 231; Brownfield v. Wilson, 78 id. 467.

      Courts will construe wills so as to give an estate of inheritance to the first donee. 1 Redfield on Wills. (2d ed.) 446; Leiter v. Sheppard, 85 Ill. 242.
    The plain and unambiguous words of a will must prevail, and are not to be controlled or qualified by any conjectural or doubtful construction, growing out of the situation, circumstances or condition of the testator, his property or family. 1 Redfield on Wills, (2d ed.) 429.
    When personal property is given-in the same clause with realty, it is an evidence that a fee was intended. Leiter v. Sheppard, 85 Ill. 242.
    When debts "are made a charge on the estate, the donee takes a fee. King v. Ackerman, 2 Black. 415; Denn v. Molton, 5 T. R. 562; 2 Washburn on Real Prop. 561, par. 25; Friedman v. Steiner, 107 Ill. 125; West v. Fitz, 109 id. 436; Kaufman v. Breckenridge, 117 id. 306; Rountree v. Talbot, 89 id. 246.
    An absolute power of disposition annexed to a primary devise in fee, is deemed conclusive of the existence in the primary devisee of an absolute estate. A valid executory devise can not co-exist with a devise of a primary fee, accompanied with an absolute disposing power in the first taker, and an executory limitation, by will, of real or personal property, after a gift of an absolute estate, is void. 4 Kent’s Com. 270; 2 Washburn on Real Prop. 669.
    To create a trust by precatory words, it must clearly appear that a binding duty was intended to be imposed, and no discretion left in the trustee. 2 Redfield on Wills, 414, 415.
    If the gift be absolute in the first instance, subsequent precatory words will not cut it down to a mere trust. Bernard v. Minshall, Johns. Ch. 287; Bensear v. Kinnear, 2 Giff. 195.
    Expressions of request, however strong, will not create a trust, when the will contains an expression that the donee is nevertheless free to act in his own discretion. 2 Redfield on Wills, 418, pi. 12, note 28.

      Mere words of desire, recommendation and confidence, create no trust. Pennoch’s Estate, 20 Pa. St. 268; Mills v. Newberry, 112 Ill. 123.
   Mr. Justice Shops

delivered the opinion of the Court:

This bill was filed for the purpose of obtaining a construction of the last will and testament of Eichard Anslow, deceased. It may be premised that whatever estate was devised was subject to the payment of the testator’s lawful debts.

The portion of the will involved in this construction, and necessary to an understanding of what will follow, is: “To my beloved wife, Mary Anslow, I do give and bequeath all of which I die possessed, both real and personal. My real estate, so far as now known, is described as follows(here follows a description of lands;) “and I do hereby appoint her (my beloved wife) my sole executor, who is to enter upon and discharge said duties, without giving of bond, and free from all restraint. It is further my will, that in case of the death of my wife, Mary, before the settlement of my estate, that my property, of which I die possessed, shall be equally divided between my two nephews, Edward Charles Giles and Eichard A. Giles. I have full confidence in my beloved wife, Mary, that she will do what is best and proper with my effects, and that she would do with my property the same as I would wish to have done,—that she will take care of the proceeds. She is, by this gift, free from all restraint to do as may seem to her best and proper.”

The settlement referred to, which should operate to defeat the devise to the wife, was a settlement or adjustment of the estate in due course of administration in the probate court. The clause, “that in case of the death of my wife, Mary, before the settlement of my estate,” can refer to nothing other than the adjustment of the affairs of the estate, by which its debts are paid, its credits collected, and the residue distributed to the persons entitled to take the same under the will. (Calkins, Exr. v. Smith et al. 41 Mich. 409.) To enable the widow to thus settle the estate, she was made sole executrix, and was authorized to enter upon the discharge of her duties as executrix “free from all restraint.” The settlement of the estate in her lifetime was a condition upon which the devise to her depended. Until such settlement it must remain uncertain what amount was devised. It might be necessary to make sale of the lands, or some part of them, to adjust claims against the estate. When, however, the administration was completed and closed, her rights became fixed and determined. If made during her lifetime, she took the estate absolutely. If not, it went to the nephews named. The bill alleges her appointment as executrix by the proper court, the due administration of the estate, final settlement, and discharge of the executrix by the court. The decree finds the allegations of the bill to be true. There being no bill of exceptions or certificate of evidence preserving the evidence heard by the trial court, and it appearing, by recitals in the decree, that the cause was heard upon “the proofs, oral and documentary, offered by the com.plainant on the hearing,” it must be assumed that a final settlement of the estate had been made prior to the filing of the bill herein, and in the lifetime of Mary Anslow, widow of the testator.

The 13th section of the Conveyance act provides: “Every estate in land which shall be granted, conveyed or devised, although other words heretofore necessary to transfer an estate of inheritance be not added, shall be deemed a fee simple estate of inheritance, if a less estate be not limited by express words, or do not appear to have been granted, conveyed or devise'd by construction or operation of law.” Under this statute, the first clause of the will before us is clearly sufficient to invest the widow with an absolute estate in fee, and we must hold that she took such an estate, unless the subsequent clauses of the will show a contrary intention. The intention of the testator, wMch must govern, is to be ascertained from the whole will. If it was intended that a less estate should be taken by the wife, it is wholly immaterial in what part of the will such intention is manifested. It is, however, the disposition of courts to adopt such a construction as will give an estate of inheritance to the first donee. Leiter v. Sheppard, 85 Ill. 243; Sherman v. Wooster, 26 Iowa, 277; 1 Eedfield on Wills, (3d ed.) 421, 422. When, therefore, the fee is devised by a clause or clauses of a will, and other portions or clauses are relied on as limiting or qualifying the estate thus given, they should be such as show a clear intention oh the part of the testator to thus limit or qualify the estate granted. Such an intent should clearly and unequivocally appear. See Walker v. Pritchard, 121 Ill. 221; Jones v. Jones, 124 id. 254.

The clause of the will devising the estate to the two ne.phews of the testator, in the event of the death of the widow before the settlement of the estate, can not be held in any manner to affect the devise to the widow. The devise to the nephews was contingent, depending on the happening of an event, which, by the settlement of the estate during the lifetime of the widow, became impossible. Upon final settlement of the estate in the county court, the devise to the widow ceased to be conditional, and the condition on which the nephews were to take, failed.

The clause of the will following the provision for the disposition of the estate upon the death of the widow before the settlement of the estate, is relied on as limiting the estate of the wife to her life, and as creating a trust in the lands devised in favor of the nephews. There can be no doubt that a trust may be thus impressed upon the subject of the devise, but an intent to create the trust must clearly appear. If the intention of the testator be doubtful, precatory words will not be construed into a declaration of a trust. (Theobald on the Law of Wills, 379.) It is there said: “Therefore, mere expressions of a desire that the donee will be kind to, (Buggins v. Yates, 9 Mod. 122, 8 Vin. Ab. pl. 27,) remember, (Bardswell v. Bardswell, 9 Sim. 319,) consider, (Sale v. Moore, 1 Sim. 534,) deal justly by, (Pope v. Pope, 10 Sim. 1,) educate and provide for, (Macnab v. Whitbread, 17 B. 299, Winch v. Brutton, 14 Sim. 379, Fox v. Fox, 27 B. 301,) or do justice to, (Ellis v. Ellis, 23 W. R. 382,) a certain class of persons, will raise no trust.”

In the absence of words showing a contrary intent, a gift, whether of land or personal property, will be presumed to be absolute, and before it will be held to be in trust, it must be clear that the testator intended the property bequeathed, or some part of it, to be applied by the donee for the purpose of the trust; and this is to be determined, as before stated, from a consideration of the entire will, and the circumstances and condition of the estate devised. So the fact that personal property was included in the devise to the wife, and~was expected by the testator to go with the real estate to her, may be considered as indicative of an intent to give her an absolute estate in the land. Hawkins on Wills, 131, and eases cited; Leiter v. Sheppard, supra.

The author already quoted from (page 381) states the doctrine in respect of the creation of trusts, as follows: “No trust will be implied from precatory words: (a) where the donee may, at his discretion, apply the property to other purposes; (LeFroy v. Flood, 4 Ir. Ch. 1; Curtis v. Rippon, 5 Mad. 434; House v. House, 23 W. R. 22; Ex parte Payne, 2 Y. & C. Ex. 636;) (b) or where there is an express direction that the donee’s absolute interest is not to he curtailed; (Huskinson v. Bridge, 15 Jur. 738; Eaton v. Watts, 1 Eq. 151;) (c) where the precatory words are stated not to be obligatory; (Young v. Martin, 2 Y. & C. C. 582; Shepherd v. Nottidge, 2 J. & H. 766; Cole v. Hawes, 4 Ch. D. 238;) (d) or where the donee is to take free and unfettered. Meredith v. Heneage, 1 Sim. 542; Hoy v. Master, 6 id. 568; White v. Briggs, 15 id. 33.”

In Jarman on Wills, (page 388,) it is thus stated: “And when the words of a gift expressly point to an absolute enjoyment by the donee himself, the natural construction of subsequent precatory words is, that they express the testator’s belief or wish, without imposing a trust. Thus, in Meredith v. Heneage, 1 Sim. 542, when the testator, after having given his real and personal estate in the fullest terms to his wife, declared that he had devised the whole of his real and personal estate to his wife, unfettered and unlimited, in full confidence, and with the firmest persuasion that in her future disposition and distribution thereof she would distinguish the heirs of his late father, by devising and bequeathing the whole of his said estate, together and entire, to such of his father’s heirs as she might think best deserved her preference, it was held that the wife was absolutely entitled for her own benefit^ Lord Eldon considering that the testator intended to impose a moral, but not a legal, obligation on his wife, for which he relied much (as did also Lord Redesdale,) on the words, “unfettered and unlimited.” See, also, 2 Story’s Eq. Jur. sec. 1070.

The rule is stated in 2 Redfield on Wills, 418, as follows:

“It seems clear, that when the expression of request or desire in the will is ever so strong, it will not be construed to create a trust for others, when the will contains an expression that the devisee is, nevertheless, to be free to act in his own discretion.”

The clause relied on in this case as containing such precatory words as will create a trust, is as follows: “I have full faith and confidence in my beloved wife, Mary, that she will do what is best and proper with my effects, and.that she would do with my property the same as I would wish to have done, —that she will take care of the proceeds.” For whose benefit did he expect her to manage the estate and take care of the proceeds of the property? Manifestly, for her own benefit, and to guard against improvidence and consequent destitution and want. There is not the slightest intimation that such care was to be exercised in the interest of any other beneficiary. No provision is made in favor of the nephews or any other person, after the estate should have vested in the widow. The clause last quoted is immediately followed by the words: “She is, by this gift, free from all restraint to do as may seem to her best and proper.” The testator had previously left her “free from all restraint” in the discharge of her duties as executrix of his will. She was to be free from all restraint in the settlement of the estate, and she was left free from all restraint to do with the subject of the “gift” as might, in her discretion, seem best and proper. No desire or even recommendation is expressed that she should make any disposition of any part of the proceeds of the estate to or for the nephews, or to any other person or use, or the expression of a desire that they should have a claim on her bounty or - generosity. It is difficult to imagine that there is here any precatory words employed expressing a wish that the nephews should receive any portion of the estate of the testator after it became vested in the first devisee, or that they should become the objects of her bounty. “Where there is an absolute power of disposal, with the confidence expressed that the donee will dispose of the property according to the testator’s wishes, where none are expressed, there is no trust.” (Theobold on Law of Wills, 380, and eases cited.) There is no limitation expressly creating a life estate in the wife of the testator. Nor is there a limitation over for the benefit of the nephews, either express or that arises by implication from the language employed. (Hamlin v. United States Express Co. 101 Ill. 448.) By the first clause of the will, the absolute estate in the property is devised to the wife, and, apparently to prevent any mistake or misapprehension arising from the clause inserted in respect of the disposition of the estate upon her death before final settlement, she is, by the last clause, given absolute dominion and control over it. She is freed from all restraint in the use of the gift, or in doing with it as she should see proper. In other words, she was first given the property absolutely and in fee, upon the happening of the event of a settlement of the estate during her life, and then, upon the contingency of its vesting in her, she is left “unlimited and unfettered” in the dominion, control and disposition of the estate. The ease clearly falls within the rule announced by the authorities cited, and the principal devisee, the wife of the testator, upon the settlement of the estate, took absolutely the property remaining. We are not justified in creating a limitation upon the devise to the wife, by construction; nor, in our opinion, does any such limitation arise by implication from the language of the will.

We are of opinion that the circuit court decided correctly, and that its decree should be affirmed, which is accordingly done.

Decree affirmed.


author: Mr. Justice Scholfield

text:
    Elizabeth Kirchoff v. The Union Mutual Life Insurance Company.

      Filed at Ottawa

      April 3, 1889.

    X. Appeal—whether a freehold involved—what is mea/nt by the word “freehold." The word “freehold,” as used in the statute relating to appeals and writs of error, is used in the sense as defined by the common law. It does not include a mere right to do that which in equity will entitle a party to a freehold.
    2. Same—on bill to redeem. On a bill seeking to have a deed for land absolute on its face declared a mortgage, and a right of redemption therefrom allowed, no freehold is involved, and hence no appeal lies from the decree therein directly to this court.
    3. The mere fact that a complainant prays that the defendant be decreed, among other things, to convey certain real estate to the former, does not determine that a freehold is involved. That can be determined only by the allegations of the bill showing what the complainant is entitled to have decreed.
    4. A bill seeking the specific performance of an agreement of an insurance company to allow the mortgagor, after foreclosure and a conveyance of Ms equity of redemption in discharge of the mortgage debt, to redeem a part of the premises at its appraised value, in ten equal annual installments, but which fails to show any agreement on the part of the company to reconvey before full payment of the redemption money, involves no freehold. The only decree the complainant could have, if any, would be that he be allowed to redeem, and before redemption he would not be entitled to a deed, even in equity.
    Appeal from the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.
    Mr. W. S. Herbert, and Mr. George E. Daley, for the appellant.
    Messrs. Swett & Grosscup, for the appellee.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This appeal must he dismissed. It should have been taken to the Appellate Court for the First District, and it is therefore improperly here. The bill seeks a decree declaring a certain deed, absolute on its face, to he hut a mortgage, and that appellant be allowed to redeem from it, as such.

The material allegations of the bill, so far as they are necessary to show the character of the question involved, are as follows: “That on or about the 8th day of May, 1871, complainant, together with her husband, Julius Kirchoff, and her mother, Angela Diversey, borrowed of the Union Mutual Life Insurance Company the sum of $60,000, and, to secure the payment thereof, executed their promissory note for said sum, payable to said company, and also a trust deed, to Levi D. Boone, as trustee, on a large amount of property, including lots 2 and 4, in block 21, of the Canal Trustees’ subdivision of the south fractional quarter of section 3, township 39, north, range 14, east of the third principal meridian, being situated in the city of Chicago; that some time during the year 1878, default having been made in the payment of said indebtedness, the said company instituted proceedings for the foreclosure of said trust deed; that thereupon complainant, through her said husband, as her agent, offered said company to release and quitclaim to said company all her lands in said trust deed described, provided said company would allow her to redeem said two lots hereinbefore described, one of which said lots was occupied by her as a homestead, upon payment of whatever sum the said lots, with the improvements thereon, should be valued at by an appraiser to be agreed upon by said company and complainant, and upon such terms of payment as said company were, at or about that time, offering to purchasers of its real estate, to-wit, in ten equal annual payments or installments, with interest, until paid, at the rate of six per cent per annum, and to secure the payment of such installments by a mortgage or trust deed upon said lots; and provided, also, that said company would take the lands in said trust deed described, belonging to appellant, in full satisfaction of the indebtedness held by it against herself and husband; that said company accepted said offer, and agreed to allow such redemption by complainant upon the terms and for the consideration aforesaid.” It is further alleged, that a valuation was made of the two lots at $'1500, and then follows this allegation: “That thereafter, upon examination of the title to said lots, it appeared that there were certain intervening liens and incumbrances upon the same, created after the execution of said trust deed and prior to the agreement hereinbefore set forth, for such redemption by your oratrix, and it was thereupon represented to your oratrix by said company, through its attorney, that it would be necessary to foreclose said trust deed in order to make good title in said conrpany to said lots of land before it could take a mortgage thereon for said installments of redemption money, and it was thereupon agreed by and between said company and your oratrix that the agreement for said redemption should not be executed until after the title had been perfected in said company by said foreclosure proceedings, but should be held in abeyance until after such foreclosure proceedings should be completed and the title to said lots become vested in said company discharged of such incumbrances, etc., but that in the meantime your oratrix should execute and deliver to said company her deed of release and quitclaim, as agreed upon, and should interpose no defense to such foreclosure proceedings.” It is then alleged that ■ complainant or her husband “executed, acknowledged and delivered to said company a deed of release and quitclaim of all and singular the land and premises belonging to your oratrix, described in said trust deed, including the said two lots herein-before specifically described, in and by which said deed it was, in effect, stipulated by your oratrix that said deed should not be construed to affect the right of said company to foreclose said trust deed. ” It is further alleged that the company thereupon prosecuted its suit in the Circuit Court of the United States for the Northern District of Illinois, for the foreclosure of said trust deed; that decree of foreclosure was entered, sale of lots made pursuant thereto, and that at such sale the insurance company became the purchaser of all the property, including the said lots 2 and 4, and a master’s deed was subsequently made; that a receiver was appointed, and a writ of assistance issued to put him in possession of the lots; that complainant resisted said order, and set up her aforesaid agreement with the company, but the company wholly disregarded its agreement and procured the court to issue the writ of assistance, whereby complainant and her husband were compelled to vacate their homestead. It is also further alleged that the insurance company refuses to carry out its agreement with complainant, and claims to own said lots in fee, free of any equitable interest of the complainant therein, and that complainant “has always been and is now ready and willing to keep and perform the whole of said agreement on her part to be performed, but has been prevented by said company from so doing.” The prayer is, that the insurance company “may he compelled, by the decree of this court, specifically to perform the said agreement with your oratrix, and convey to her the said two lots,” etc. The answer of the company denies every allegation in respect to the agreement to allow the complainant to redeem.

The mere fact that complainant prays that the defendant he decreed, among other things, to convey to her, does not determine that a freehold is involved. That can only be determined by the allegations of the bill, showing what she is entitled to have decreed. Divested of unnecessary verbiage, the allegations here simply amount to this: that it was agreed between the parties that the complainant be allowed to redeem from the sale of lots 2 and 4 by paying to the insurance company the valuation to be placed upon them, in the manner indicated, in ten equal annual payments or installments, with interest, until paid, at six per cent per annum. There is no allegation that the company agreed that it would convey before redemption should be made, and therefore, if the complainant were to have a decree to all that she shows herself to be entitled, it could only be that she be allowed to redeem pursuant to the terms of the agreement. Until redemption, she would have no right, even in equity, to a deed; but undoubtedly, after redemption, she would have such right, and it would be enforced by a court of equity.

We have recently held, (Lynch v. Jackson et al. 123 Ill. 360, Hollingsworth v. Koon et al. 113 id. 443,) that the question of the right to redeem under a conveyance claimed to be a mortgage, does not involve a “freehold,” within the meaning of that word as used in section 88 of the amended Practice act. (2 Starr & Curtis, chap. 110, p. 1842.) Unfortunately, our rulings have not been entirely harmonious as to what is meant by “involving a freehold,” as that term is used in the section referred to above; but without deeming it necessary to review the several cases, we think it may be said, that where the question has been considered by the court and decided, the decision has, in general, (though there has been one exception, and perhaps more,) proceeded upon the understanding that the word “freehold” means as that word was known to and defined by the common law, and that it does not include the mere right to do that which, in equity, will entitle a party to a “freehold.” See Land Co. et al. v. Peck et al. 112 Ill. 432; Chicago, Burlington and Quincy Railroad Co. v. Watson et al. 105 id. 220; McIntyre v. Yates et al. 100 id. 475.

Believing that this is a fairly warranted construction of the statute, and that it will subserve the ends of justice in marking the boundary of the jurisdiction of the Appellate Court, as well as any other rule that might be adopted in that respect, it will be adhered to; and this necessitates a dismissal of this appeal, which is accordingly ordered.

Appeal dismissed.