author: Mr. Justice Scott

text:
    John Wright v. The People of the State of Illinois.

      Filed at Springfield September 27, 1884.

      Witness—professional opinion—whether a professional fee may be required before the witness shall testify. In an action' for an assault and battery, a witness who was a physician, was called to testify in behalf of the plaintiff, on the trial, and stated that he was called to see the plaintiff professionally, after the injury, and described the condition in which he found the patient. The witness was then shown a policeman’s “billy, ” and asked if a blow struck with it on the head, at or near the temple, would or would not be likely to produce upon the person receiving such blow, a condition like or similar to that in which he found the plaintiff. The witness thereupon, without answering the question, made inquiry of the court whether it did not call solely for a professional opinion, and the Court answered that it did. Witness then declined to answer until his professional fee of ten dollars should be paid or secured to him, and persisting in his refusal, the court imposed a fine upon the witness, as for a contempt of court. On error, it was held, that having already, and without objection on his part, stated the condition of the patient he had visited professionally, the witness could not properly refuse to give his opinion as to the cause of the symptoms he discovered to exist,—and this without a professional fee being paid or secured to him therefor. The opinion sought to be elicited was pertinent to the subject about which he had voluntarily testified.
    Writ of Error to the Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of DeWitt county; the Hon. Lyman Lacey, Judge, presiding.
    This was a proceeding as for a contempt of court, against the plaintiff in error, in refusing to answer a question propounded to him as a witness, during the trial of an action brought by John Finneran, against Henry Henson, for an assault and battery.
    The plaintiff in error, being upon the stand as a witness, testified: “My name is John Wright. I reside in Clinton, DeWitt county, Illinois. I am a physician and surgeon,— a graduate of Chicago Medical College,—and have been engaged in the active practice of medicine and surgery for twenty years last past. I was called professionally, on the 8th of November last, to visit the plaintiff, John Finneran. I found no bruises or signs of violence about him at that time. He complained of dizziness, and buzzing in his head and ears, and was laboring under the hallucination that certain parties were in pursuit of him, and were seeking to harm him. He .seemed to be afflicted with mental aberration.” Witness was_ here shown an instrument or device, commonly known as a policeman’s “billy,” composed of strong leather, sewed together in such manner as to form a handle or handhold at one end, and enlarging into a bulb at the other, and filled with leaden shot. Plaintiff, by his counsel, then asked witness the following question: “If one person should strike another a heavy blow on the head, at or near the temple, with that ‘billy,’ would it, or would it not, be likely to produce upon the person receiving such blow, a condition alike or similar to that in which you found John Finneran?”
    Witness: “I regard that as calling for a professional opinion, and if so, I claim that I am privileged from answering the question until my fee of ten dollars is paid or secured to me; and I would ask the court if that question does not call solely for a professional opinion.
    The "court: “It does.
    Witness: “Then I refuse to answer it, except upon the conditions I have stated.”
    The court then asked plaintiff if he was willing to pay or secure said fee of ten dollars, to which, plaintiff replied he was not, although admitting the fee to be a reasonable charge for such opinion, but insisting that witness was not entitled to charge any fee other than the statutory witness fee, and that he was compellable to answer the question.
    The court, to witness: “The court holds that you can not legally claim such fee, and refuse to answer because the same is not paid or secured to you; and the court orders and directs you to answer, to the best of your ability.
    Witness: “Believing the court has no right to direct or order me to answer the question without my fee being paid or secured, I still refuse to answer. ”
    The above was all the evidence in said cause, and all the facts and occurrences upon which the action of the court was based. Thereupon the court informed the witness that his refusal to so answer said question was in contempt of .said court, and that he stood arraigned before said court for such contempt; and being again asked by said court to answer said question, and the witness still refusing, the court adjudged him guilty of a contempt of said court for such refusal to answer, and sentenced him to pay. a fine of five dollars, and costs of the proceeding, for such contempt,—to all which the defendant herein then and there excepted.
    Mr. Geo. B. Graham, for the plaintiff in error:
    A physician can not be compelled to make an examination, perform an autopsy, or sit in court and give ear to the testimony of other witnesses, in order to be able to give his opinion as an expert, unless his reasonable charges are paid or secured to him. In England, where the question of property rights could not be relied upon as here, the right was recognized by the courts, and finally had the sanction of legislative enactment, wherein every witness was entitled to pay for his time according to his “countenance and calling.” Betts v. Clifford, Warwick Lent Assizes, 1858; Webb v. Page, 1 Car. & Kir. 25; Parkinson v. Atkinson, 31 L. J. (N. S.) C. P. 199; Tamer v. Turner, 5 Jur. (N. S.) 839.
    In America the discussion of the right of compensation has chiefly been one of property right, and though the decisions of the different courts are not in harmony, the great weight of authority is in favor of and recognizes the right to compensation. In the matter of Roelker, Sprague, 276; 13 Abb. Pr. (N. S.) 207; Dills v. The State, 59 Ind. 15; Blythe v. The State, 4 id. 525; Webb v. Baird, 6 id. 13; Redfield on Wills, 154, 155, note 46; Rogers on Expert Testimony, p. 252, chap. 10.
    Mr. William Booth, for the People:
    It has not been decided in any of the English cases cited,. that a physician or other person examined as an expert is entitled to be paid for his testimony as for professional opinions. Fees or costs can not he allowed or recovered unless they are given and fixed by statute. Smith v. McLaughlin, 77 Ill. 596.
    That a physician may be compelled to testify without compensation other than his witness fee, see Ex parte Dement, 53 Ala. 389; Summers v. The State, Texas Ct. of App. 374.
    To classify witnesses into professional and unprofessional, and compel the unprofessional witnesses to testify as to common facts, and not compel professional witnesses to testify as experts, when the case requires both kinds of knowledge, would be an unjust inconsistency.
   Mr. Justice Scott

delivered the opinion of the Court:

On the trial of the case of John Finneran v. Henry Henson, defendant, John Wright, was called as a witness, on behalf of plaintiff. The witness stated 'that he was a graduate of a medical college, and that he had been engaged in the practice of medicine and surgery for a number of years;" that he was called to attend Finneran professionally, and without" making any objections to doing so, he stated that he found no bruises or signs of violence about him. He further stated the patient complained of “dizziness, and buzzing in his head and ears, and was laboring under the hallucination certain parties were in pursuit of him, and were seeking to harm him.” After having stated this much, witness was shown an instrument commonly known as a policeman’s “billy, ” and was asked if a blow struck with it would or would not be likely to produce upon the person receiving such blow, a condition alike or similar to that in which he found Finneran. This question the witness refused to answer unless he was first paid or had secured to him a fee of ten dollars, on the ground he said he regarded it as calling for a professional opinion. Having without objection stated 'the condition of the patient he had visited professionally, the witness could not, under any rule of law, refuse to state what would cause the symptoms he discovered to exist. That was pertinent to the subject about which he had testified voluntarily. This view of the ease renders it unnecessary to consider other questions discussed by counsel, and concerning which no opinion will be expressed.

The judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Craig

license: Public Domain

text:
    Emma Stevens et al. v. John Wait et al.

      Filed at Springfield Sept. 27, 1884

      Rehearing denied January Term, 1885.

    1. Descbiption—boundary—of its sufficiency, generally—oral evidence to explain ambiguity. Any description of land in a deed of conveyance by which the identity of the premises intended tó be conveyed can be established, is sufficient; and for the purpose of sustaining a grant, extrinsic evidence may be used tb identify and establish the objects and calls in the deed. Oral evidence may be introduced to explain an ambiguity in a deed, but not to enlarge or vary its terms.
    2. Same—rejecting a senseless or ummeaming portion of a description. In attempting to describe a tract of land in a deed, by metes and bounds, giving courses and distances, three of the four lines necessary to the description—the south, east and north lines,—were plainly given, leaving no uncertainty. Then in producing the west line, it was described as running from the west end of the south line “north 60° 30' west,” etc., giving the distance, “to a stake.” The course thus given would make this fourth line -run, not north to the west end of the north line, but nearly west, and would, in connection with the other three lines, inclose no land at all. So the words, “60° 30' west,” being unmeaning, were rejected as surplusage, leaving the line to read, “thence north,” etc., “to a stake.” In that way the description of the land was made certain.
    3. Same—quantity controlled by courses and distances. In the same deed, the first part of the description designated the land intended to be conveyed, as “34 69-100 acres off of the south side of the south-east quarter of section 14. ” But no importance was attached to that part of the description, as it was controlled by what immediately followed, giving the corners and boundaries of the land.
    4. Limitations—as between tenants in common. One tenant in common can not set up the bar of the Statute of Limitations to defeat an action brought by his co-tenants, for the reason that his possession is not adverse. Possession of land, however long continued, unless adverse, will not defeat a recovery on behalf of the owner.
    5. Same—whether possession is adverse. The owner of land, while in its occupancy as a homestead, conveyed the same,in fee, reserving in the deed, however, his homestead right. It was held, the continued possession of the premises by the grantor, after his conveyance, was not adverse to his grantee, because such possession was consistent with the deed.
    6. Tenants in common—who considered as holding that relation. An owner of land conveyed the same to his five children. One of the grantees afterwards reconveyed to the original grantor, but by deed purporting to convey, not the undivided one-fifth interest which he held, but the entire tract. It was considered, however, that the legal effect of the reconveyance was, under the circumstances, the same as if it had purported to convey only the interest which the grantor therein held—an undivided one-fifth part. So the original grantor, having thus acquired an undivided one-fifth interest in the land, became a tenant in common with the other four owners to whom he had previously conveyed, and his possession in that relation, was not adverse to them.
    Appeal from the Circuit Court of Coles county; the Hon. J. W. Wilkin, Judge, presiding.
    Mr. John Favorite, and Mr. S. M. Leitch, for the appellants.
    Messrs. Wiley & Neal, for the appellees.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by Emma Stevens and Cornelia Canup, against John Wait and others, to partition a certain tract of land in Coles county, containing 34T acres. It is alleged in the bill that Emma Stevens, (formerly Emma Wait,) Cornelia Canup, (formerly Cornelia Wait,) together with John Wait, William Wait, and Samuel M. Bussell, are owners in fee simple, as tenants in common, in equal parts (except Samuel M. Bussell, who is owner in feé simple as tenant in common of two-fifteenths parts,) of the following real estate, in Coles county, Illinois, known and designated as follows, to-wit: Being' 34T acres off the south side of the south-east quarter of the north-east quarter of section 14, in township 12, north of range 9, east, beginning at the intermediate corner on the east boundary line of the said section ; running thence south 83° 40' west, seventy-nine poles to a stake on the road; thence north 6° 30' west, sixty-nine and one-quarter poles to a stake; thence north 84° east, seventy-nine and four-tenths poles to a stake in the section line; thence south 6° 30' east, sixty-eight and three-quarters poles to the place of beginning, containing 34T61J90- acres,— which said real estate is described in the records of deeds of Coles county, in said State, in a deed dated June 17, 1857, from Stephen Wait to Almarinda Wait, Cornelia Wait, Preeilla Wait, Emma Wait, and William Wait, as recorded therein in words and figures following: “Situate, lying and being in the county of Coles and State of Illinois, known and designated as follows, to-wit: Being 34r6g9 acres off of the south side of the south-east quarter of section 14, in township 12, north of range 9, east, beginning at the intermediate corner on the east boundary line of the said section; running thence south 83° 40' west, seventy-nine poles to a stake on the road; thence north 60° 30' west, sixty-nine and one-quarter poles to a stake; thence north 84° east, seventy-nine and four-tenths poles to a stake in the section line; thence south 6° 30' east, sixty-eight and three-quarters poles to the place of beginning, containing 34T acres.”

Stephen Wait owned the land in question on the 17th day of June, 1857, and on that day he made a deed to his children, Almarinda Wait, and others, with the intention, no doubt, of conveying the, land to them; but it is contended the description of the premises contained in the deed does not describe the land which complainants claim in the bill,—and this is the first, and, indeed, the main, question presented by the record.

The correct description of the land is as follows: “Being Sljoir acres off of the south side of the south-east quarter of the north-east quarter of section 14, in township 12, north, of range 9, east, beginning at the intermediate corner on the east boundary line of the said section; running thence south 83° 40' west, seventy-nine poles to a stake on the road; thence north 6° 30' west, sixty-nine and one-quarter poles to a stake; thence north 84° east, seventy-nine and four-tenths poles to to a stake in the section line; thence south 6° 30' east, sixty-eight and three-quarters poles to the place of beginning, containing 34t acres. ” The copy of a deed read in evidence by complainants, under which they claim title, describes the land as follows: “Being 34T acres off of the south side

of the south-east quarter of section 14, in township 12, north of range 9, east, beginning at the intermediate corner on the east boundary line of the said section; running thence south 83° 40' west, seventy-nine poles to a stake on the road; thence north 60° 30' west, sixty-nine and one-quarter poles to a stake; thence north 84° east, seventy-nine and four-tenths poles to a stake in the section line; thence south 6° 30' east, sixty-eight and three-quarters poles to the place of beginning, containing 34-^1. acres.” Does this deed convey the land ?

The law is well settled that any description of land in a deed of conveyance by which the identity of the premises intended to be conveyed can be established, is sufficient, and for the purpose of sustaining a grant, extrinsic evidence may be used to identify and' establish the objects and calls in the deed. (Colcord v. Alexander, 67 Ill. 582; Smith v. Crawford, 81 id. 296.) Oral evidence may be introduced to explain an ambiguity in a deed, but such evidence is not admissible to enlarge or vary the terms of a deed.

In Myers v. Ladd, 26 Ill. 415, where a mortgage described the property as situated in the mill of the mortgagor, “in Lancaster, Timber township, Peoria county, Illinois, ” it was held that parol evidence was admissible to prove that the mortgagor had a mill four miles from Lancaster, in Timber township, in which was the property described, and that the mortgagor had no other mill in that county, and that the word “Lancaster, ” in the description, might be rejected as surplus-age. It is there said: “The rule is, that where there are

two descriptions in a deed, the one, as it were, superadded to the other, and one description being complete and sufficient of itself, and the other, which is subordinate and superadded, is incorrect, the incorrect description, or feature, or circumstance of the description, is rejected as surplusage, and the complete and correct description is allowed to stand alone.” In Kruse v. Wilson, 79 Ill. 233, we had occasion to consider a similar question in reference to the construction of a description in one of the deeds which was read in evidence in the chain of title relied upon by one of the parties, and we there held, where one of the calls in the description of land in a deed was, “thence north-westerly along Mass street,” etc., which, taken in connection with the other calls, was senseless and unmeaning, but which, by the omission of the word “northwesterly,” and adapting the line to Mass street, answered the call, and made a complete description, the word “northwesterly” was rejected as surplusage. It is there said: “It is very evident the term ‘north-westerly’ has no business there, for a line running in that direction would enclose nothing. * * * Taken in connection with the other points and lines of the survey, the description, ‘thence north-westerly along Mass street five chains,’ is senseless and unmeaning. Mass street, where the west line of this survey strikes it, runs north-east. By rejecting'the word ‘north-westerly,’ the line is adapted to Mass street, and answers the call.” These cases have an important hearing on the question involved in this case.

We attach no importance to the first part of the description contained in the deed, where the land is designated as “34i<5690- acres off of the south side of the south-east quarter of section 14,” as this is controlled by what immediately follows, giving the corners and boundaries of the land conveyed. In determining the location of the land, we have first the starting point, called the “intermediate corner on the east boundary line of the said section,”—that is, of section. 14. The corner here mentioned we understand to be the government corner on the east line of the section, between the northeast and south-east quarters of section 14. In describing the land, here is a known corner as a starting point,—“running thence south 83° 4CK west, seventy-nine poles to a stake on the road.” Here, also, is a definite line which can be followed, and the poifit on the road where the stake is called for can be found without any difficulty. There is no difficulty, then, as regards the south line and the south-west corner of the land. The east or fourth line of the land is plain from the description. It begins at a stake on the east line of the section, “thence south 6° 30' east, sixty-eight and three-quarter poles,” to the quarter corner. The north or third line of the land is plain from the description in the deed. It is a line running parallel with the first line from a certain point west of the stake which had been established on the east section line; from that point running “north 84° east, seventy-nine and four-tenths poles to a stake in the section line.” Here are three lines,—south line, east line, and north line,—that are plain, and no uncertainty as to their location. Now, as to the west line, it is as follows: from the stake on the road (the. western terminus of the first line) “thence north 60° 30' west, sixty-nine and one-quarter poles. ” This, as it reads, in connection with the other, could not be the western line of the land. Indeed, it would, in connection with the other 'three lines, inclose no land whatever. The line, instead of running north from the stake on the road to the point where the third line begins to run east, runs nearly west. As said in the Kruse case, the words, “60° 30' west, ” are senseless and unmeaning, and should be rejected as surplusage. If rejected, that would leave the line to read: “Thence north sixty-nine and one-quarter poles to a stake. ” By the rejection of these words, which may be done under the authority of the two cases cited supra, the description of the land is certain and definite, and answers the call, and the call in all four of the lines is harmonious.

It is also claimed, that even if complainants ever had any right of action, the cause of action accrued more than twenty years before the filing of the bill, and the Statute of Limitations, set up in the answer, would bar a recovery. Stephen Wait, after the making of the deed in 1857, continued to occupy the land until his death, which occurred August 17, 1878, and since that time John Wait, his grantee, has been in the possession of the land. On the first day of September, 1866, Precilla Wait, one of the five children to whom Stephen Wait conveyed the land, conveyed her interest therein to Stephen Wait. After receiving that conveyance, he and his four children, who held the other four-fifths of the land, were tenants in common, and we understand the law to be well settled that one tenant in common can not set up the bar of the Statute of Limitations to defeat an action brought by his co-tenants, for the reason that the possession was not adverse. Possession of land, however long continued, unless adverse, will not defeat a right of recovery on behalf of the owner.

The decree of the circuit court will be reversed, and the cause remanded.

Decree reversed.

Subsequently, upon an application for á rehearing, the following additional opinion was filed:

Per Curiam : One ground relied upon by the defendant to defeat the action, was possession and payment of taxes, under color of title, for more than seven years, which constitutes a bar to a recovery under the act of 1839. This defence, it is claimed in the petition for a rehearing, was overlooked by the court. But little was said in the opinion on this branch of the ease, as we regarded it a minor point,—one not seriously relied upon. In the opinion, we held that the possession relied upon was not adverse, but that the land was occupied by a party who was a tenant in common, and hence the Statute of Limitations could not be invoked as a defence. A brief reference to the facts is all that is required to show that the possession relied upon by the defendant to bring his case within the statute was not adverse.

On June 17, 1857, Stephen Wait, who owned the premises, conveyed the same, by general warranty deed of conveyance, to his five children, Almarinda, Cornelia, Emma, Precilla and William Wait, excepting his homestead interest therein. After the making of this deed the grantor continued to occupy the premises as before, as he had a right to do under the clause in the deed reserving a homestead. In 1866, Precilla, one of the grantees, conveyed, by quitclaim deed, the premises back to Stephen Wait. This deed, although the grantor only owned an undivided one-fifth of the premises, purported to convey the whole tract, and seven years’ possession and payment of taxes under this deed, by Stephen Wait, is relied upon to bar a recovery, under the act of 1839, and defeat the title held by Almarinda, Cornelia, Emma and William Wait, the four children named as grantees in the deed made by Stephen Wait in 1857.

It is manifest that possession and payment of taxes by Stephen Wait, after his conveyance in 1857, and before he obtained the deed from Precilla, in 1866, can not be relied upon to bar an action, under the statute, for the reason that the deed made by Wait to his children provided that Wait should retain a homestead in the premises. His possession was consistent with the deed and in harmony with the deed. Indeed, his possession was in no sense adverse, and can not, for that reason, fall within the Statute of Limitations. Was the character of the possession changed after Stephen Wait procured a deed from Precilla, in 1866 ? If she had conveyed -merely her undivided one-fifth interest, and Wait held under . such deed, he would "be merely a tenant in common with the other four owners, and possession and payment of taxes, however long continued, would not constitute a bar, under the statute, as one tenant in common can not set up the statutory bar against his co-tenants. (Dugan v. Follett, 100 Ill. 585.) The deed, however, made by Precilla, purported on its face to convey, not an undivided one-fifth of the land, but the entire tract; but under the facts of this case, the legal effect of the deed was the same as if only an undivided one-fifth had been conveyed. Stephen Wait had conveyed, as before observed, by general warranty deed, and whatever title he obtained from Precilla, aside from her one-fifth interest, under the-covenants of his warranty deed, passed on the delivery of that deed to the grantees of Wait, Almarinda, Cornelia, ,Emma and William Wait, or their heirs or assigns, and he and - they then held the title as tenants in common, Wait owning one-fifth of the title and they four-fifths. This was .the situation of the parties after the making of the deed in 1866, and so long as they occupied this position the possession of Wait could not be adverse.' His possession was that of a tenant in common, and as such he could not, nor can his grantee, invoke the aid of the Statute of Limitations of 1839 to bar a recovery on behalf of his co-tenants. Bush v. Huston, 75 Ill. 344; Ball v. Palmer, 81 id. 370.

The petition for a rehearing will be denied.

Rehearing denied.


author:
Mr. Justice Mulkey Mr. Justice Scott :
      Mr. Justice Walker :

text:
    Mary C. Dobbins et al. v. The First National Bank of Peoria.

      Filed at Ottawa November 17, 1884

      Rehearing denied March Term, 1885.

    1. Judgment and execution liens upon real estate—how acquired— when they attach—their duration—under acts of 1845 and 1873. Under the act of 1845, relating to judgments, a judgment did not become a lien on the real estate of the debtor unless an execution thereon was issued within a year from its rendition, but when execution was so issued, a lien was created which related back to the end of the term at which the judgment was rendered, and continued for seven years from that time, and no longer. A levy of an execution, in such case, within the seven years, did not extend the lien beyond that time, and a purchaser at a sale made under such levy, but after the seven years, took the property subject to the rights of intervening purchasers and incumbrancers.
    2. But by the act of 1872, a judgment of a court of record becomes a lien on real estate from the day on which it is rendered, except as against other judgments rendered at the same term. If no execution is issued within one year from the entry of judgment, the same ceases to be a lien. But still an execution may be sued out within seven years, and that will become a lien upon land from the time it is delivered to the officer; and this execution lien will continue for one year after the expiration of the seven years, and a sale thereunder within the eight years will relate back to the levy, and confer upon the purchaser the same rights as if the sale had been made within the seven years.
    3. A lien on the lands of a judgment debtor, obtained by the levy of an execution after the lien of the judgment is lost by not suing out an execution within one year, will, in determining priorities between creditors, be given the same effect that would be given to a judgment recovered on the same day, followed by an execution within the year, and no other or different effect.
    4. Under the act of 1872, when the lien of a judgment is lost by not having an execution issued within a year, if a third party obtains a judgment against the same debtor before any execution is sued out on the former one, the lien of the junior judgment will take precedence over a lien subsequently created by suing out an execution on the prior judgment.
    5. Same—in the particular case. A judgment was recovered March 16, 1871, upon which an execution was issued within a year, which was returned “no property found.” On April 10, 1872, an alias execution was issued, and levied on the 17th of the same month, on land of the defendant therein. On November 7, 1878, it was returned “no part satisfied,” and on January 16, 1879, the land was sold on a venditioni empanas, sued out November 16, 1878, and after fifteen months a deed was made to the assignee of the purchaser. On March 2, 1878, a second judgment was recovered against the same defendant, by another party, upon which execution was issued April 29, 1878, and being returned unsatisfied, an alias, on December' 31, 1880, was issued, which was levied on the same land, and the holder of the latter judgment filed a bill to set aside the sale and deed under the prior judgment: Held, that the lien of the first judgment expired in April, 1878, and before any sale under it, and left the lien of the second judgment in full force, and the only lien upon the land, and that the law of 1845, and not that of 1872, governed the case of- the party claiming under the prior judgment.
    6. Same—extension of lien in favor of judgment creditors. To extend the lien in favor of a judgment creditor beyond seven years, he must cause a levy to be made upon land of the debtor, and such levy must be made under and within the lifetime of the execution, when the lien on the land so levied upon will continue for one year after the expiration of the seven years’ lien applicable in ordinary cases.
    7. Same—repealing clause in act of 1873—saving of preexisting rights. The act of 1872, relating to judgments and executions, and the liens thereof, after repealing the act of 1845 and other acts on the same subject, declares that “this (the repealing) section shall not be so construed as to affect any rights that may have accrued, or any suits or proceedings that may be pending, when this act shall take effect:” Held, that the effect of this provision was to continue the old law in operation as to all cases where suits had been actually commenced or were pending when the new law took effect.
    8. The words, “suits or proceedings, ” in the saving clause of section 66 of the act of 1872, relating to judgments and executions, which repeals certain prior laws, embrace executions, a suit being an attempt to gain an end by legal process, and an execution of the judgment being the final step in a suit at law.
    9. Retrospective Legistration—as affecting vested rights, remedies, and modes of procedure. It is not competent for the legislature to pass an ex post facto law, or a law impairing the obligation of a contract; nor can it deprive a citizen of his property or other vested right by mere legislative act.
    10. There is no such thing, however, as a vested right in a public law, which is not in the nature of a grant, and the legislature may repeal all laws which are not in the nature of contracts or private grants. But the repeal of a law will not be permitted in any case to affect or impair rights which have been acquired under it.
    11. While a new statute adopted as a substitute for a prior one, can have no retrospective operation, so far as vested rights acquired under the former law are concerned, yet statutes which do not affect vested rights may be given a retrospective operation, and when such intent is clear, it is the duty of courts to give them effect accordingly.

      12. Satins clause in repealing statute—construed. ’ Where a new statute adopted on the same subject as a prior one, repeals the former law, with a saving clause in the repealing section as to existing suits or litigation, the saving in such case is in legal effect a limitation on the repealing clause, and operates to continue in force the old law as to existing suits and proceedings.
    13. Practice—time to object—that decree was not upon terms. On bill to set aside a tax deed as a cloud on the title of complainant, he offered to pay the taxes and costs satisfied by the purchaser. The answer insisted upon the validity of the title, and no point was made on the trial as to the refunding of the sum paid at the tax sale, either before the master, or by exceptions to his report, so as to call for the judgment of the trial court on that question. The tax title was set aside without any conditions of paying the taxes, etc.: Held, that the objection to the decree on this ground came too late in this court, and was no ground for reversal.
    Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Peoria county; the Hon. John Burns, Judge, presiding.
    On the 16th of March, 1871, Thomas S, Dobbins recovered a judgment in the circuit court of Peoria county, against Henry T. Baldwin, and others. An execution was issued upon this judgment within the year, and returned no property found. On the 8th of" April, 1872, an alias execution was issued on said judgment, and, on the 17th of the same month, levied by the sheriff on the premises in controversy, but remained in the hands of the sheriff, without any action being taken under it, until November 7, 1878, when it was returned with the indorsement, “no part satisfied- ” The sheriff, on the 16th of January, 1879, sold the premises in question, under a venditioni exponas, sued out November 16, 1878, to Gilbert G. Gibbons. The latter assigned the certificate of purchase to Mary C. Dobbins, who in due time, to-wit, on the 31st of May, 1880, received a sheriff’s deed for the premises. Prior to this, however, to-wit, on the 2d of March, 1878, Richard A. Cniter recovered a judgment in the Peoria circuit court, against said Baldwin and others, for $2709.97, and costs, which was assigned, for value, to the First National Bank of Peoria, the defendant in error. An execution was issued on this judgment, April 29, 1878, which being returned unsatisfied, an alias execution was issued on the 31st of December, 1880, and placed in the hands of the sheriff for execution. On the 5th of January, 1881, this alias execution was levied by the sheriff on the premises in question. Thereupon the bank, together with others, filed the present bill, setting up, among others, the foregoing facts, and praying, among other things, that “said venditio rei exponas, said certificates of purchase, and said sheriff’s deeds to Mary C. Dobbins, be each set aside as to complainant’s said judgment, ” and that she be enjoined, etc. Other matters and interests are set up in the bill; but they are not material to a decision of ¿the main question upon which the ease turns, and need not, therefore, be noticed. On the hearing, the court sustained the title of the bank, and entered a decree accordingly, which was affirmed on appeal to the Appellate Court.
    Messrs. Hopkins & Hammond, for the plaintiffs in error:
    At the date of the sale upon the venditioni exponas, under the Dobbins judgment, lapse of time had not extinguished the right to make title under that judgment, which should be paramount to the lien of the junior judgment.
    The act of 1872, where a levy has been made within seven years, authorizes a sale within one year after the seven years shall have expired. Its effect is to extend the lien, provided a levy has been made within the proper time. That act is new legislation, covering the entire subject of judgments, etc., embraced in the law of 1845. It is a repeal of the old and an enactment of new rules governing the entire subject.
    The statute is one affecting the remedy, merely, and not the rights of the parties to the suit, and applies to judgments existing at the time of its adoption, as well as to subsequent judgments. It was in force when this levy was made, and therefore governs the rights and remedies acquired by the levy.

      The act is not an ex post facto law, (Wilson v. Railroad Co. 64 Ill. 546,) and a retrospective law which does not impair the obligation of contracts, or partake of the nature of ex post facto laws, is not prohibited. Satterlee v. Matthewson, 2 Pet. 380.
    The tax title is not invalid by reason of any insufficiency in the affidavit of notice, (Laws 1872, secs. 216-218, p. 51,) and the purchaser could not be affected by subsequent conditions imposed.
    The court below erred in setting aside and cancelling said tax deed and tax title of Mary C. Dobbins, without requiring repayment of the taxes for which said lots were sold and deeded. Phelps v. Harding, 87 Ill. 442; Durfee v. Murray, 7 Bradw. 233.
    Messrs. Puterbaugh & Puterbaugh, for the defendant in error:
    A pending levy of an execution issued on the judgment made during the existence of the lien, will not operate to continue the lien of the judgment beyond the statutory period of seven years. Tenney v. Hemenway, 53 Ill. 97; Cnwell v. Watkins, 71 id. 488; Gridley v. Watson, 53 id. 186; James v. Wortham, 88 id. 70.
    The statute in force at the date of the judgment must govern as to the extent of the lien, and within what period it may be enforced. Beasley v. Spencer, 25 Ill. 217; Dickson v. Railroad Co. 77 id. 331; Garrison v. People, 87 id. 96; Hyman v. Bayne, 83 id. 256.
    A statute is to operate in future only, unless it clearly appears that it was the intention of the legislature to make it retrospective; and this intention must be manifested by clear, unequivocal expressions. Thompson v. Alexander, 11 Ill. 54; Betts v. Bond, Breese, 223; People v. Thatcher, 95 Ill. 109; People v. Peacock, 98 id. 172; Garrett v. Wiggins, 1 Scam. 335; Rhinehart v. Schuyler, 2 Gilm. 473; Bruce v.
      Schuyler, 4 id. 221; Marsh v. Chesnut, 14 Ill. 223; Conway v. Cable, 37 id. 82.
    A party having a judgment or execution which is a lien on property, has no legal right to extend the time for its collection, to the injury of other creditors. A judgment creditor so situated has no right to place himself in a position that he can not proceed for its collection, and at the same time hold his lien, so as to prevent others from proceeding to satisfaction. Ross v. Weber, 26 Ill. 223; Davidson v. Waldron, 31 id. 120.
    A subsequent statute can not operate to change the rights of the parties under a decree rendered before the new act took effect. Parmelee v. Lawrence, 48 Ill. 331; 44 id. 405.
    The repeal of a statute does not affect rights acquired under the repealed statute. Naught v. O’Neal, Breese, 29.
    Independent of the saving clause in the act of 1872, we further claim that the statute of 1845, in force at the date of the judgment, issue of the execution, and levy, must govern as to the extent of the lien, and within what period it may be enforced. Beasley v. Spencer, 25 Ill. 217; Dickson v. Railroad Co. 77 id. 331; Garrison v. People, 87 id. 96; Hyman v. Bayne, 83 id. 256.
    Where a notice of a tax sale is not given in the manner required by the constitution and by the statute, a court of chancery will interfere in behalf of a party interested as owner, or who is in possession, to remove a cloud occasioned by an invalid tax sale, under which title is claimed. Barnard v. Hoyt, 63 Ill. 341; Gage v. Rohrbach, 56 id. 262; Gage v. Billings, id. 268; Reed v. Tyler, id. 288.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This cause was heard and determined at the September term, 1883, of this court, and an opinion filed therein May 19, 1884, reversing the judgment of the Appellate Court affirming the decree. A petition for a rehearing having been granted in the case, it is again before us for consideration.

With the construction given to the acts of 1845 and 1872, as expressed in the opinion heretofore filed in this ease, we are entirely satisfied, and we therefore simply reproduce so much of the opinion as relates to that subject, which is as follows:

“The statute of 1845 provided that every judgment in any court of record ‘shall be a lien’ on the lands, tenements and real estate of every person against whom judgment has been or hereafter shall be obtained, ‘from the last day of the term of the court in which the same may be rendered, for the period of seven years: Provided, that execution be issued at any time within one year on such judgment; and from and after the said seven years the same shall cease to be a lien on any real estate, as against bona fide purchasers or subsequent incumbrancers, by mortgage, judgment or otherwise.’ Under this statute, it was held that a levy of .an execution upon the lands of a defendant, made within seven -years, did not extend the lien upon the land beyond the seven years, and that a purchaser at a sale made under such levy, but after the seven years, took the property subject to the rights of intervening purchasers and incumbrancers. In Tenney v. Hemenway, 53 Ill. 97, the court said: ‘If the levy could create such results, (extension of the lien,) how long would it continue ?’ The same doctrine was recognized in Conwell v. Watkins, 71 Ill. 488, and James v. Wortham, 88 id. 69.
“In 1872 the statute of 1845 was repealed, and instead another was enacted, providing, in section 1, ‘that a judgment of a court of record shall be a lien on the real estate of the person against whom it is obtained, situated within the county for which the court is held, from the time the same is rendered or revived, for the period of seven years, and no longer. * * * When execution is not issued on a judgment within one year from the time the same becomes a lien, it shall thereafter cease to be a lien; but execution may issue on such judgment at any time within seven years, and shall become a lien on such real estate from the time it shall be delivered to the sheriff to be executed.’ Section 6 provides that no execution shall issue upon -any judgment after the expiration of seven years from the time the same becomes a lien, except upon revival of the same by scire facias; but real estate levied upon within said seven years, may be sold upon a venditio rei• exponas, at any time within one year after the expiration of said seven years.
“Section,,! of the act of 1872, and section 6 of that act, must be construed together. Considering these sections to-t gether, we think it was the intention of the legislature -to so change the law, that where a levy is made within seven years from the date of the judgment, a sale of the land may be. made within one year after the end of the seven years, .upon a venditio rei exponas, with the same effect as if the sale had been made within the seven years. The new statute covers the whole subject, and was intended to take the place of the old. By the old statute, the judgment did not become a lien at all unless ah execution was issued within one year; but when issued within a year, the lien was created, and related back to the end of the term at which the judgment was rendered. By the new statute, the judgment becomes a lien from the day on which it is rendered, except as against other judgments rendered at the same term. Before the passage of the new statute, an execution was not a lien upon land at all, and after a year and a day, if ho execution had been issued, none could lawfully issue; but by the new statute, where no execution is issued within one year from the entry of judgment, the same ceases to be a lien. Still an execution may be sued out at any time within seven years, and in such case, the execution becomes a lien upon land from the time it is delivered to the officer to be executed. How long does this lien last ? The statute does not expressly say, but when it is in that connection said that real estate levied upon within the seven years after judgment becomes a lien may be sold at any time within one year after the expiration of said seven years, it is plain this lien of an execution v/as intended in such case to be kept alive for that time, to make such lien effective.
“By the act of 1872, it .seems that a mere judgment, by its own force, becomes a lien at once, and from its date. If no execution be issued within a year, the judgment lien ends; but if execution be sued out after the expiration of the first year, and within seven years from the.date of the.judgment,, such- execution becomes a lien from the time it comes to .the hands of the sheriff to be executed, and if not levied within the seven years, that execution ceases to be.a lien; but if levied within the seven, it may be sold within one year after the end of the seven years, and such sale.will relate back to the levy, and confer upon the purchaser the same rights as if the sale had been made within the seven years. It seems to follow, that if execution be issued within a year from the entry of judgment, the judgment becomes a lien for seven years, and if land be levied upon by .a valid execution within the seven years, it may be sold upon a venditio rei exponas, with like effect, either before the end of the seven years, or at any time within one year after the end of the seven, years.”

The opinion then proceeded to dispose of the case upon the hypothesis it was to be governed by the provisions of the act of 1872, and not of 1845, which necessarily led to a reversal of the judgment of the Appellate Court. Had the provisions of the act of 1845, and not of 1872, been applied to the case by this court, it would of course have led to an affirmance instead of a reversal of the judgment. It follows, therefore, the only question now to be considered is, whether the trial court, in applying the act of 1845, as it must have done,committed an error for which the decree should have been reversed by the Appellate Court.

It is a part of the organic law of this country, .well understood and recognized, that it is'not competent for the legislature of any State to pass an ex post facto law, or a law impairing the obligation of a contract; nor can the legislature deprive a citizen of his property, or other vested right, by mere legislative act. These limitations upon State legislation are ’engrafted in the national constitution, which is the paramount' law of the land. While the above general propositions are readily’conceded and recognized by all, yet doubts and difficulties frequently arise in applying the principles which theyannounce. It is generally agreed, however, there can be no such a thing as a vested right in a public law, which is not in the nature of a grant,—hence, however beneficial an act of the legislature may happen to be to a particular person, or however injuriously its repeal may affect him, the legislature would clearly have the right to abrogate it. Indeed, the legislature has the undoubted right to repeal all legislative acts which are not in the nature of contracts or private grants. But the repeal of a law is not permitted, in any case, to affect or impair rights which have been acquired under it. So of the adoption of a new law,—it can have no retrospective operation -so far. as vested rights are concerned. Yet statutes which do not affect vested rights may be given a retrospective operation, and where such intent is clear, it is the duty of courts to give it effect.. Thus the legislature has the unquestioned right to change the limitation laws of the State with respect to existing or antecedent causes of action, subject to the, qualification the new or amended law must afford ample opportunity to enforce them, by suit, within the new limitation, for if it should not, it would in effect Jbe to deprive those having such existing or antecedent causes of action, of vested rights, under the pretence of a change of the limitation laws, which of course could not be done. So, also, it is a matter of every day’s experience for legislatures to change the law of procedure, and when so changed, where there is no saving as to existing litigation, all rights of action will be enforcible under the new procedure, without regard to whether they accrued before or after such change in the law. It is frequently the case, however, that when an old law is repealed, and a new one on the same subject is adopted, there is an express saving in the repealing clause as to existing suits or litigation. A saving of this character is, in legal effect, a limitation on the repealing clause, and continues in force the old law as to existing suits and proceedings. Such was the ease in the present instance. The change in the law of 1845, relating to judgment liens, etc., by the act of 1872 was marked and radical in several respects, as we have already seen; but the 66th section of the latter act, after repealing the act of 1845, together with other-acts, declares expressly, “but this section shall not be so construed as to affect any rights that may have accrued,- or any suits or proceedings that may be pending, when this act shall take effect. ” We think the manifest object and effect of this provision was to continue the old law in operation as to all existing rights, and to all cases where suits had been actually commenced. If this was not the intention of the legislature, we are at a loss to determine what its intention was, and nothing has been suggested by counsel for plaintiffs in error that warrants the conclusion that anything else could have been meant.

When the case was first before us for consideration, our attention was not called to the 66th section, and the decision then announced was made without any reference to it,—hence the conclusion reached. In the present presentation of the case that section is called to our attention, and, as already shown, it becomes an important factor in arriving at a proper conclusion in it. Giving it the effect already indicated, it follows, notwithstanding the act of 1872, the act of 1845 was continued in force as to the Dobbins judgment. Under that act the judgment became a lien on the premises some time in April, 1871, and continued until in April, 1878,—a period of seven years. Just before the expiration of this lien the Culter judgment was recovered, and also became a' lien upon the premises, subject to the superior lien of the Dobbins judgment. No steps, however, were taken to make the lien of the latter judgment available, by sale of the premises or otherwise, until it expired, leaving the lien of the Gutter judgment in full force. Such being the case, it is clear the Cutter judgment thereby obtained precedence over the Dobbins judgment.

By the construction heretofore given to the act of 1872, and which both parties to this controversy concede is correct, an execution issued under that act, within the seven years, is also made a lien upon the land of the execution debtor, which will continue, if not sooner extinguished by satisfaction of the judgment, for one year beyond the seven years from the date of the judgment, so as to cover the time allowed for selling under a venditioni exponas. To preserve and extend this lien in the manner stated, the execution must, of course, be levied within the time fixed by law for its return. By the act of 1872 it was the intention of the legislature to create- and preserve a lien upon the real estate of the execution debtor during the entire time in which the judgment creditor would have the right to apply the land, by judicial process, to the payment of the judgment, so that in all cases of contests between judgment creditors about the priority of their claims, such contests could be readily determined by reference to the dates of their respective liens. The law in this respect has not been changed. As under the old law, the creditor having the oldest lien is still preferred. The only change made by the new law in this respect is the manner in which these liens may be created. Where, under the present law, the lien of the judgment is lost by not suing out an execution within the year, instead of being driven to his scire facias, as he was before, in order to obtain a new lien, he may now, át any time before the expiration of the seven years, sue out his execution, which will become a lien as soon as placed in the hands of the officer, and if levied within the lifetime of the execution will continue the lien, as before stated, for one year after the expiration of the seven years, if the judgment is not in the meantime by some means satisfied. A lien thus obtained will, in determining priorities between creditors, be given the same effect which would be given to a judgment recovered on the same day, followed by an execution sued out within the year, but no other or different effect.

It follows, from what we have said, that where, under the present law, a judgment is obtained, but no execution sued out within the year, so that the lien of the judgment is lost, and before any execution is sued out on such judgment a third party obtains a judgment, which becomes a lien upon the real estate of the judgment debtor, the lien of the.latter judgment will have precedence over a lien created by subsequently suing out an execution on the first judgment. Now it is clear, at the time of suing out the venditioni exponas in this case, the Dobbins judgment had long since ceased to be a lien on the land in question; and it is also equally clear the execution issued on that judgment, and levied upon the land on the 17th day of April, 1872, created no lien upon the land, for the act of 1872 did not go into effect until the first day of July of that year. Such being the case, it follows, that in order to sustain the title of plaintiffs in error, we must hold, that notwithstanding at the time of suing out the venditioni exponas they had neither a judgment nor execution lien, nevertheless their title is superior to that of defendant in error, who, it is conceded, then had a valid and subsisting lien upon the land, or we must hold that the act of 1872 was intended to operate retrospectively upon all existing judgments and executions, so as to create liens where none existed before. This we can not do. To so hold would be inconsistent with well established principles. Had the Dobbins execution been issued after the act of 1872 went into effect, there would be some, at least, apparent force in the position of plaintiffs in error; but as it was not, we think their position is clearly untenable. It is well settled by authority that statutes are not to be given a retrospective operation except where it is manifest the legislature intended they should have such operation; and, as already shown, it is not competent even for the legislature to give such operation to an act where it will affect existing or vested rights. Thompson v. Alexander, 11 Ill. 54; Betts v. Bond, Breese, 223; Peoples. Thatcher, 95 Ill. 109; People v. Peacock, 98 id. 172; Garrett v. Wiggins, 1 Scam. 335; Rhinehart v. Schuyler, 2 Gilm. 473; Bruce v. Schuyler, 4 id. 221; Marsh v. Chesnut, 14 Ill. 223; Conway v. Cable, 37 id. 82.

But outside of this well established rulé of construction, we have already seen the repealing clause of the act of 1872 expressly provided the repeal of the act of 1845 was not to affect any suits or proceedings that might be pending when that act went into effect. Learned counsel, however, suggest that the unsatisfied Dobbins judgment was neither a suit nor a proceeding. What was it, then ? The meaning of the word “suit, ” in a legal sense, as given by Webster, is: “An attempt to.gain an end by legal process.” What was the end to be attained in this case ? Confessedly the debt for which the judgment was obtained. This end not having been attained, it was still a suit, though by reason of the delay it subsequently became defective, so that the plaintiffs therein could not proceed further in it without reviving the judgment by scire facias. Blackstone’s definition of the word “suit” is, in substance, the same as Webster’s. Execution of the judgment we have always understood to be the final step in a suit at law. Such, at any rate, are the teachings of the horn-books on the subject.

It follows from what we have said, the judgment of the Appellate Court must be affirmed.

Judgment affirmed.

Mr. Justice Scott :

I dissent in toto from this opinion.

Mr. Justice Walker :

I dissent both from the reasoning and conclusion in this case.

Mr. Justice Dickey : I can not concur in this decision.

Subsequently, upon a second application for a rehearing, "the following additional opinion "was filed:

Per Curiam : It is well settled that upon a bill filed by the owner of land against a purchaser at a tax sale, to set aside a tax deed as a cloud upon the title of the former, the latter will, as a condition of equitable relief, be required to refund to the purchaser all taxes, interest, costs, etc., for which the owner was liable, and which were discharged by the tax purchase. Whether the same conditions will be imposed upon a judgment creditor of the owner of the land, upon a bill filed for a like purpose by such judgment creditor against a remote assignee of the tax purchaser, as is the case here, we do not, in the view we take of the ease, deem it necessary to determine. While the complainant in this case offers to refund the taxes, etc., if legally bound to do so, yet it does not appear that Mrs. Dobbins interposed any claim to such taxes, etc., but in her pleadings insisted upon the sufficiency of the tax title, which is clearly defective. The cause was referred to the master to report upon the rights of the parties generally. The master prepared and filed an elaborate 'report, passing upon the rights of the several parties, and among other things found the tax title invalid, but as to the taxes themselves the report was silent. Numerous exceptions were filed to the report by Mrs. Dobbins, but none of them assail it on the ground now urged. We think, in any view, she should have interposed her claim before the master, or at any rate should have excepted to the master’s report on that ground, which would have necessitated a ruling of 'the trial court on that question. She ought not, under the circumstances, to be permitted to raise this question for.the first time in a court of review, as is sought-to be done. Had she insisted on this right in the court below, it would have afforded the complainant an opportunity to have paid the small amount of taxes, rather than incur the vexation and expense of protracted litigation.

The petition is overruled.

„ , . , . , Rehearing denied.

Mr. Justice Scott : I do not concur in this opinion.


author: Mr. Justice Sheldon

text:
    Wilson J. Hunter et al. v. Elizabeth A. Dennis et al.

      Filed at Ottawa November 17, 1884.

    1. Trust—widow of mortgagor—paying the debt and receiving the . legal title—bill to redeem by the heirs.. Where a party conveys land as a security for a loan, and after his death his widow pays the debt and takes a deed for the land to herself, she will' hold the title as a trustee for the heirs of her husband, and they may maintain a bill tó redeem, and for an account.
    ' 2. Limitations—whether possession is adverse. The owner of land conveyed the same to secure a loan of money, and after his death his widow-paid the debt and took a conveyance to herself, and inventoried the land as that of her husband, and she and the only heir occupied the same as a homestead, she having a dower and homestead'right in the premises. It was held, that the widow’s possession was not adverse as against the heir, and that laches is not imputable in such a case.
    Appeal from the Circuit Court of Kendall county; the Hon. Isaac G. Wilson, Judge, presiding.
    Mr. R. N. Botsford, for the appellants:
    The dismissal of the original bill was clearly erroneous, as there was no dispute as to the material allegations of the bill. The record shows a clear case of trust, and the cause should have been referred to the master to state the account. Sallee v. Morgan, 67 Ill. 376; Moss v. McCall, 75 id. 191; Daly v. Catholic Church, 97 id. 17; Koon v. Hollingsworth, id. 52.
    The possession of Mrs. Dennis was not adverse, under the circumstances of this case.
    Mr. Frank Crosby, and Mr. Edward C. Lovell, for the appellees:
    Equity follows the law in the analogy of the application of the Statute of Limitations. Kane County v. Herrington, 50 Ill. 329.
    Amanda Hunter being an infant at the time of her father’s death, the Statute of Limitations, so far as this disability is concerned, became a bar at the expiration of twenty years from her attaining her majority, to-wit, in 1875,—seven years before the filing of the original bill. Stevenson v. Westfall, 18 Ill. 209.
    The fact that Amanda Hunter was married in 1854, being still an infant, would not prevent the bar of the statute. It is a familiar principle, that when the statute has once begun to run, successive or cumulative disabilities do not remove the bar. There can be no “tacking” of disabilities. Angell and Ames on Limitations, (3d ed.) 490, 491; Keil v. Healey, 84 Ill. 104.
    The appellee, Elizabeth A. Dennis, at the death of her husband, was entitled to the possession of the premises until assignment of dower to her, as was the case in Strawn v. Strawn’s Heirs, 50 Ill. 258.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a bill in chancery, filed in the Kane county circuit court, on April 17,1882, by the legal heirs of George Dennis, deceased, to have a certain deed from George Dennis to one-Black declared a mortgage, and for an accounting, and a partition of the premises .described in the deed. Elizabeth A. Dennis, the widow of James Dennis, and others, were made defendants, the bill setting out that after the death of James Dennis, the widow, Elizabeth A.,' paid the mortgage debt to Black, and he made to her a deed of the premises; that upon that deed, in an action of ejectment, she had recovered a judgment for the possession of the premises,—and the bill asked for an injunction to restrain proceedings under that judgment. Elizabeth A. Dennis answered, admitting, substantially, the allegations of the .bill, and setting up the Statute of Limitations. She also filed her cross-bill, setting up her widow’s award, divers matters of account, and asking that an account be taken, and the amount found due her be declared a lien on the premises. Upon final hearing, the circuit court' dismissed both the original and cross-bills, for want of equity. The complainants in the original bill appeal.

The undisputed facts are, that George Dennis, at the time of his death, was the equitable owner of the premises in question ; that he had made a loan of, money from Black, and secured the .loan by an absolute conveyance of the premises to Black; that-after the death of Dennis, his widow, Elizabeth A. Dennis, paid the loan to Black with means of her own, and received from -him a. reconveyance of the premises, by deed dated April 1, 1854; that at the time this was done, the only child of George Dennis was a minor daughter, Amanda;' that she married Wilson. J.. Hunter, on November 22, -1854, she being at that time seventeen years of age, and lived with him until her death, November 10, 1880; that she died intestate, leaving surviving her, as her sole heirs, the five children who are parties complainant; that during all this time the premises were jointly occupied as a home by the widow of Dennis, and the daughter and Hunter, until the death of Amanda, and ever since then, to the filing of the bill, Hunter and his five children, except the oldest one, have so occupied, them, all residing together as one family. Elizabeth A. Dennis was administratrix, together with C. H. Morgan, administrator, of the estate of George Dennis, deceased. In the inventory of • the property of the estate, filed with the probate court, and signed by her, as administratrix, these premises are inventoried as real estate, the property of George Dennis, deceased, which had been deeded to Lyman Black to secure money loaned. In the report of the administrator, C. H. Morgan, signed by°him, it is stated the estate is fully settled, that the equitablé interest in said real estate was preserved by the payment by Mrs. Dennis of about $700 upon the bond, and that a deed for the premises had been given directly to Elizabeth A. Dennis, widow of said George Dennis.

Clearly, upon the facts, Elizabeth A. Dennis held the title to the property, under her deed, but as a trustee in trust for the heirs of George Dennis, and we perceive no reason why the bill should have been dismissed. It being the case of a trust, and all the parties living together.upon the premises, occupying them as a home, the Statute of Limitations was inapplicable. There was nothing of adverse possession. The widow had a dower.right and homestead right in the premises. Her dower had not been assigned. Laches is not imputable in such a case. (Wilson v. Byers, 77 Ill. 76; Musham v. Musham, 87 id. 80.) Instead of dismissing the bill, there should have been a reference to the master to take and state an account between the parties.

The decree is reversed, and the cause remanded for further proceedings in accordance with this opinion.

Decree reversed.