text:
    Edward R. Allen et al. v. James Powell et al.

      Filed at Ottawa January 23, 1884.

    1. Decree—not binding on one not made a party. A surety'on an appeal bond was compelled to pay the amount of a decree of foreclosure, from which the appeal was taken to this court, and on such payment took an assignment of the mortgage debt and the decree of foreclosure, and afterward other parties to the record having mechanic’s liens allowed them and made a lien on the mortgaged premises, filed a supplemental bill seeking to have their demands given priority over the mortgage debt, and obtained a decree to that effect. It was held, the assignee of the mortgage debt and decree, not having been made a party to the decree under the supplemental bill, might maintain a bill to have such decree, set aside and vacated.
    2. Surety—right to purchase subject matter to which his suretyship relates, as an indemnity. Where a corporation appealed from a decree foreclosing a mortgage given by it, and the decree was affirmed, whereby the surety on the appeal bond became personally liable to pay the amount of the decree and costs, it was held, that the surety had the light to purchase the decree and hold the same for his indemnity, and that in such case the decree will not be discharged, but will be kept alive, according to the intention of the parties, for the surety’s protection. The law does not forbid such a purchase.
    3. Assignment—carries with it remedies of assignor. The assignment of a decree for the payment of money, to one secondarily liable for its payment, for his indemnity, is no discharge, but leaves the decree still owing, and the assignment carries with it the same right to collect or enforce the same as the assignor may have had.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Kane county; the Hon. Charles Kellum, Judge, presiding.
    Mr. E. G-. Montony, and Mr. Eugene Caneield, for the appellants:
    In equity it was the duty of the executors, to whom the mortgage debt and decree were due, to sell the mortgaged property under the decree before enforcing the appeal bond against the surety. Wise v. Shepherd, 13 Ill. 41; 1 Story’s Eq. Jur. 639.

      Equity will not marshal funds between creditors unless they belong to the common debtor. It will not compel a creditor of tun persons to proceed against the one in preference to the other, without some other good reason. 1 Story’s Eq. Jur. 643.
    The courts, even at law, will protect the rights of an assignee, .whether, the assignment be good at law or only in equity. Chapman v. Shattuck, 3 Gilm. 52; Carr v. Waugh, 28 Ill. 422; Henderson v. Connell, 12 id. 170; Morris v. Cheney, 51 id. 451; 2 Story’s Eq. Jur. secs. 1039, 1040, 1047.
    A surety on payment may take an assignment of the debt, and this shows an intention not to extinguish it, but to keep it alive for his benefit. Brandt on Surety and Guaranty, sec. 271, citing Neal v. North, 23 Ohio St. 483; Goodyear v. Watson, 14 Barb. 481; Norris v. Ham, R. M. Charlt. (Ga.) 367 ; Norris v. Evans, 2 B. Mon. 84; Thompson v. Palmer, 3 Rich. (S. C.) 139; Mechanics’ Bank v. Hazard, 13 Johns. 353.
    Equity will compel the creditor to receive payment and assign the judgment to the surety. Brandt on Surety and Guaranty, sec. 260; McDougal v. Dougherty, 14 Ga. 674.
    An assignment of a judgment does not pass the legal title, and the assignee takes subject to all existing defences and equities. McJilton v. Love, 13 Ill. 495; Himes v. Barnitz, 8 Watts, 38; Chamberlain v. Day, 3 Cow. 353; Magher v. Kellogg, 24 Wend. 32; Hughes v. Trahern, 64 Ill. 48.
    That sureties upon appeal bonds and the like are entitled to subrogation, see Salters v. Salters’ Creditors, 6 Bart. 624; Leake v. Furguson, 2 Gratt. 419; Rogers v. McLines, 4 id. 81; Saul v. Eferson, 38 Texas, 492; Billings v. Sprague, 49 Ill. 509; Fogarty et al. v. Ream et al. 100 id. 366.
    Mr. M. O. Southworth, and Mr. Charles Wheaton, for the appellees:
    Appellants having paid the appeal bond, were not entitled to be subrogated to the rights of the executors. A surety not

      originally bound for the debt, but who comes in during the prosecution of a remedy for the debt against the principal, can not, by subrogation, gain preference over creditors of the principal, whose liens attached before the surety became bound. Brandt on Suretyship and Guaranty, 362, sec. 283; Bank of Hopkinsville v. Rudy, 2 Bush, 326; Armstrong’s Appeal, 6 Watts & Serg. 352; Patterson v. Pope, 5 Dana, 241; Dickinson v. Todd, 43 Ill. 504.
    The former adjudication dismissing the bill binds appellants as privies, or purchasers pendente lite. Hamilton v. Quimby et al. 46 Ill. 90; Peterson et al. v. Nehf, 80 id. 25; Dickinson v. Todd et al. 43 id. 505.
   Mr. Justice Scott

delivered the opinion of the Court:

The Aurora Agricultural and Horticultural Society borrowed of John R. Coulter, since deceased, the sum of $6000, for which the corporation gave him its note, and secured it by mortgage on the premises it owned, known as the “Bair Grounds.” Afterwards the society became'indebted to several firms of lumber dealers, and among others to defendants, Powell & Barrett and Dickinson & George, for materials used by the society in making the necessary improvements on the grounds covered by the mortgage, to fit them for holding fairs. The sums due these parties for lumber furnished not having been paid, they instituted suits in the circuit court to enforce payment, by a mechanic’s lien on the premises improved, and afterwards these suits were consolidated with the suit previously commenced by the executors of the last will and testament of John B. Coulter^ deceased, to foreclose the mortgage. The consolidated cases progressed to a hearing, and the court found the amount due on the mortgage, and decreed a foreclosure, and also found the amounts due to the material-men, and decreed the same to be a lien also upon the mortgaged premises. By that decree it was provided the master in chancery should sell the premises, and out of the proceeds pay the respective parties the sums found to be due to each of them in full, with interest, or in case of a deficit, then a pro rata division should be made. Prom that part of the decree which gave a foreclosure of the mortgage the corporation appealed to the Supreme Court, and defended in that court on the ground the mortgage was ultra vires, but the decree of the circuit court was affirmed. The present complainants, together with one Loucks, since become bankrupt, were the sureties for the corporation on the appeal bond in the suit taken to the Supreme Court. After the affirmance of the decree, the executors of the estate of John E. Coulter brought suit on the appeal bond against the corporation and all the sureties, except Loucks, who had gone into bankruptcy. The defendant sureties in that suit paid to the executors the full amount found to be due on the mortgage, and took to themselves an assignment of the note and mortgage, and the interest of the executors in the decree of foreclosure.

In the meantime Powell & Barrett filed in the consolidated suit a supplemental bill, to which they made the executors of Coulter, and Dickinson & George, and others, parties defendant. The object of the supplemental bill was to procure a modification of the decree in the consolidated cases, so that the material-men might be first fully paid, in preference to the mortgage indebtedness. The decree was modified. To the supplemental bill the present complainants were not' made defendants. Soon after they discovered the modifications that had been made in the original decree to their prejudice, the present bill was filed by the solvent sureties on the appeal bond, alleging that tlje complainants in the supplemental bill had notice of their equities in the premises, that the proceedings had thereon were fraudulent as to them, and claiming, in right of the assignment to them, all the interest the executors of Coulter had under the mortgage and decree of foreclosure. Answers were filed to the bill by Powell & Barrett, and Dickinson & George, and replications thereto by complainants. The case was submitted on proofs taken, and the stipulation of the parties, and the circuit court found that complainants have, by their purchase and assignment, acquired all the rights the executors had in the Coulter note and mortgage, and in the decree of foreclosure entered in the original.consolidated cause, and that the decree had not been satisfied by payment so as to discharge it; that the decree obtained by Powell & Barrett, and Dickinson & George, upon their supplemental bill, was a fraud on the rights of complainants, and that the same should be set aside'and held for naught, and ‘that the original decree entered in the original consolidated cause, and afterwards affirmed in the Supreme Court, be executed by the master in chancery as therein directed, except that complainants herein should have the rights which were therein decreed to'the executors of Coulter. Other proceedings were had in the original consolidated cases by the parties interested in the present litigation, and others, but it is not necessary to the present decision to notice them, and no statement of the pleadings in that respect will be made. The decree of the circuit court was reversed in the Appellate Court on the appeal of Powell & Barrett and Dickinson & George, and the cause remanded, with specific directions as to what decree the circuit court should enter, and as there remained nothing to be done except for that court to decree in conformity with the directions given, complainants have brought the ease to this court on appeal, as the statute authorizes them to do in such cases.

It is quite evident if complainants can succeed, under the assignment to them, to the rights which the executors had in the Coulter note and mortgage, and the decree foreclosing' the same, the decree rendered on the supplemental bill of Powell & Barrett was properly set aside, as was done by the decree of the circuit court. The rights of complainants, whatever they were, had previously attached and of which there are grounds for the conclusion reached, that the complainants in that bill had notice, and as the assignees (the complainants in the present bill) were not made parties to the supplemental bill of Powell & Barrett, they are not, and ought not to be, concluded by the decree rendered in that case. The only question, then, that need be considered is, whether the decree in the original consolidated cases, which provided for a pro rata division of the proceeds of the sale of the mortgaged premises between the mortgnge creditors and the material-mén, in case there was a deficit, can be regarded as still in force for the protection of complainants.

As has been seen, complainants were sureties on the appeal bond of the Agricultural and Horticultural Society. Their obligation in that respect made them liable for the indebtedness of the corporation to the executors of the estate of Coulter, which was also secured by mortgage on the property of the corporation. The executors had the option to sell under the decree of foreclosure in their favor, or to proceed against complainants on .their legal liability on the appeal bond. At all events, complainants would be ultimately liable for the indebtedness of the corporation, and payment could be readily coerced by an action on the appeal bond. Complainants, therefore, paid to the executors the amount of the decree, and took an assignment of the same to themselves. There was no intention to satisfy the decree. On the contrary, an assignment was taken, under the advice of counsel, for the express purpose of keeping the decree alive, that the sureties of the corporation whose debt they had paid might have the benefit of it, so far as it would afford them indemnity. The fact is proven, beyond all doubt, it was the understanding of all parties to the transaction the decree should be kept alive for the benefit of the sureties of the mortgagor. No reason is perceived why complainants could not buy the interest the executors of the estate of Coulter had in the mortgage and the decree of foreclosure, as any one else might do. That is the legal effect of what they did. They paid to the executors the amount due to them, and took from them an assignment of the mortgage and the decree. In such cases the authorities hold the assignees will be protected, although they may be secondarily liable, as sureties or otherwise, for the debt or claim they may buy. It is a mode of buying indemnity against loss, and no policy, of the law forbids it. By what was done the mortgagor was not discharged from its indebtedness to the executors of the mortgagee. As has been seen, there was no intention to discharge such indebtedness, and the intention of the parties is always the controlling element in such transactions. It is still owing and undischarged, and the assignment carries with it the same right to collect that the executors of the mortgagee had. Billings v. Sprague, 49 Ill. 509; Honore v. Lamar Fire Ins. Co. 51 id. 409.

There is nothing in the -facts of this case that would make it inequitable that complainants should have the measure of relief demanded by their bill. It is suggested in argument, complainants are, or were, stockholders and officers in the debtor corporation, and that they were primarily liable, and therefore it was their personal duty to pay both the decree and the mechanic’s lien. Nothing is discovered in the evidence that shows any such primary liability or duty. It may be some of them were stockholders in the corporation, but how many is not shown by the testimony. Nor does it appear how many other persons were also stockholders. It is stated a great many persons had been induced to invest in the stock of the corporation, and doubtless that is true. It is proven one of defendants, (Dickinson,) whose firm claims a mechanic’s lien on the property, was a stockholder, and at one time was a director, and was president. Certainly complainants were under no greater personal obligation, other than them suretyship on the appeal bond, than other stockholders were, to pay the debts of the corporation.

Having paid the indebtedness of thfeir principal, there is no just reason why complainants may not stand in the shoes of the creditors, by virtue of the assignment to them, and have all the remedies they had to enforce payment from the debtor corporation. The executors, had they chosen to do so, could have had the decree, after its affirmance by the Supreme Court, executed in their favor, and what possible difference can it .make to defendants whether the decree shall be executed for the benefit of these complainants, or for the benefit of their assignors, in whose favor it was rendered ? The result, so far as they are concerned, would be precisely the same. Originally the decree was favorable to defendants, perhaps more so than the law would warrant, and it is now no hardship upon them it should be enforced as it was rendered, and there is no just ground, for complaint on their part, the pro rata share of the proceeds of the sale of the property shall be paid to these complainants instead of their assignors.

The judgment of the Appellate Court will be reversed, and the cause remanded, with directions to affirm the decree of the circuit court.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Mulkey

license: Public Domain

text:
    The West Chicago Park Commissioners v. Mary Ann Coleman et al.

      Filed at Ottawa January 23, 1884.

      1. Limitation—act of 1839—payment of taxes by one of several tenants in common. One seeking as tenant in common to avail himself of the possession and payment of taxes by his co-tenant, under the Limitation act of 1839, is not required to first show tjie conveyance or conveyances under which they claim, passed the absolute title. The transfer of the paramount title is not essential to a co-tenancy or tenancy in common.

      2. Where a tenant in common, holding an undivided half of the title or color of title, pays all the taxes assessed and levied upon the entire interest, it will be presumed such payment was made for the other co-tenant as well as for the one so paj’ing. All acts done by a co-tenant relating to or affecting the common property, will be presumed to have been done for the common benefit of all.
    3. Same—of the proof of the payment of taxes. Where it is positively sworn by a person that he paid all taxes on a tract of land for seven successive years, and that at the time he had no claim to any other land in the locality, it can make no difference that some of the tax receipts given in evidence do not accurately describe the land.
    4. Tenancy in common—pa/ramonnt title not essential. Where a conveyance of land is made to two or more persons, and possession is taken under it, the grantees in the deed become tenants in common, although the grantor may have had no title to the premises to convey. In such case an inchoate right is created in the grantees, which, by possession and payment of taxes for the requisite period, will ripen into a perfect title, thereby defeating the former paramount title.
    5. Same—acts of one tenant inure to all. One tenant in common can not strengthen his own position, or obtain an advantage over his co-tenants; by purchasing an adverse outstanding title in his own name. So the payment of taxes by one inures to the benefit of all. '
    6. Tenancy by entirety—and tenancy in common, as to the same tract of land. In 1855 a conveyance of land was made to H. J., N. J., his wife, and M. A. J., his daughter, under which H. J., as the head of the family, took possession: Held, that the husband and his wife became seized of an undivided half thereof, as tenants by the entirety, and the daughter of the other half as a tenant in common, and that upon the death of the husband the wife continued to hold the same interest which the two, as one person, had held before.
    7. Ejectment—parties plaintiee—tenants in common. Under our statute tenants in common, although having unequal interests, may join as XDlaintiffs in an action of ejectment.
    8. Same—o/ the judgment. In such case it is not error to render a joint judgment in their favor in case of a recovery. Upon such recovery the parties plaintiff will hold by several titles, as they did before, according to their respective interests. The possession, only, is joint, and that is always the case with tenants in common.
    9. Champerty—conveyance of part interest in land to attorney as his fee for its recovery. A party claiming the undivided half of a tract of land in the adverse possession of another, employed counsel to examine into the facts and bring and conduct a suit for his interest, and in payment of them for such services, and perhaps others, conveyed to them a part interest in the land. The attorneys did not undertake to pay any of the costs or expenses in the maintenance of the suit: Held, that the conveyance to the attorneys was not a champertous contract.
    10.' To make a case of champerty it is not sufficient to show that a part of the thing recovered was paid, or agreed to be paid, as an attorney’s fee. It must also be shown that the costs and expenses of the suit, or some part of them, are paid, or agreed to be paid, by the champertee.
    Appeal from the Superior Court of Cook county; the Hon. Hollín S. Williamson, Judge, presiding.
    Mr. George W. Smith, for the appellants:
    As to what is color of title under the Limitation law, see Hill v. Milton, 2 Murphy, (N. C.) 14; Monroe v. Merchant, 28 N. Y. 9; Brooks v. Bruyn, 35 Ill. 392; Coleman v. Billings, 89 id. 190.
    The instrument must purport to convey title, to be color. Coleman v. Billings, 89 Ill. 190; Bride v. Watts et al. 23 id. 507; Kruse v. Wilson, 79 id. 240; Mason et al. v. Ayers et al. 73 id. 121; Rawson v. Fox, 65 id. 200; Whitney v. Stevens, 77 id. 585.
    The Stone deed is mere color, which is distinguished from claim of title. The evidences of the title are, first, color; second, claim in good faith; and third, payment of taxes.
    The receipts were not in themselves proof of the payment of the taxes. The signatures were not even proved.
    Co-tenants have separate interests in land, each having only an undivided part. These interests are different estates, depending upon different titles. At common law tenants can not join in an action of ejectment. Sedgwick & Waite on Trial of Title, sec. 297.
    Mr. Robert A. Childs, also, for the appellants:
    The contract with the attorneys giving them an interest to bring and carry on the suit, is champertous. Bouvier’s Law Die. title “Champerty;” 4 Sharswood’s Blackstone’s Com. p. 135, notes; 2 Chitty on Contracts, 99-6, notes; Addison on Contracts, 194, notes; 2 Parsons on Contracts, 260, 261; 4 Kent’s Com. 448, 449, notes; Thompson et al. v. Reynolds, 73 Ill. 11; Gilbert v. Holmes, 64 id. 548.
    An agreement between attorney and client for a transfer or conveyance by client to attorney of a portion of the subject matter in litigation, as compensation for carrying on the litigation, is absolutely void and illegal at common law. Berrien v. McLain, 1 Hoff. (N. Y. Ch.) 421; Wood v. Downs, 18 Ves. 122; In re Bleachley, 5 Paige, 313; Key v. Vattien, 1 Ham. 132; Thurston v. Perceval, 1 Pick. 415; Rust v. Lane, 4 Littell, 413; Backus v. Byron, 4 Mich. 552; Hilton v. Woods, 4 L. R. Eq. 439; Wells v. Middleton, 1 Cox, 125; Ackert v. Barker, 131 Mass. 436; Lathrop v. Amherst Bank, 9 Metc. 492; Martin v. Clark, 8 R. I. 401; Swett et al. v. Poor et al. 11 Mass. 554; Scobey v. Ross, 13 Ind. 117.
    It is not necessary that the attorneys undertake to pay the costs of the court, or the like. Lathrop v. Amherst Bank, 9 Metc. 492; Thompson v. Reynolds, 73 Ill. 11; 1 Hawk. Ch. 84, sec. 1; Coke’s Lit. 368 b.
    Messrs. Forrester & Felsenthal, for the appellees :
    A party purchasing property, and placing a deed therefor on record, is presumed to claim in accordance with the purchase and deed. Hartshorn v. Dawson, 79 Ill. 108.
    The possession of one tenant in common is that of all, and all acts done by the one affecting the common property inures to the benefit of all in general. Sedgwick & Waite on Trial of Title, secs. 276, 279; Freeman on Co-tenancy and Partition, sec. 196.
    Payment of taxes need not be proved by the tax receipts,— verbal evidence of that fact is available. Elston v. Kennicott, 46 Ill. 197; Hinchman v. Whetstone, 23 id.. 108.
    Our statute authorizes tenants in common to join in ejectment. (Rev. Stat. 1874, chap. 45, secs. 5, 30.) Holding the same doctrine, see Sedgwick & Waite on Trial of Title, sec. 297; Jackson v. Bradt, 2 Caines, 170; Baznore v. Nave, 2 Yerg. 228; Poole v. Fleeger, 11 Pet. 185.
    Tenants in common may join .in an action to recover an undivided interest. Gray v. Givens, 26 Mo. 303; Huck et al. v. Rogers, 4 Cranch, 164; Sweet v. Patrick, 11 Maine, 179.
    The objection on the ground of champerty was not taken on the trial, and can not be urged on error or appeal. Sedgwick v. Phillips, 22 Ill. 123.
    The law in regard to„ champerty has been essentially changed in this State. In Walsh et al. v. Shumway et al. 65 Ill. 471, a contract was made by Sloan, an attorney, to prosecute a suit, he to receive one-fourth of the land for his services, but there was no agreement that Sloan was to pay any costs. The court treated this as a valid contract.
    A fair, bona fide and reasonable contract for a part of the matter in suit, as a compensation for the attorney’s services, is not unlawful. Berrien v. McLain et al. 1 Hoff. 422.
   Mr. Justice Mulkey

delivered the opinimpof the Court:

On the 26th of August, 1880, the appellees, Mary Coleman, Bobert H. Forrester, Martin Beem, and Daniel F. Flannery, brought an action of ejectment in the Superior Court of Cook county, against the West Chicago Park Commissioners, for the recovery of an undivided half of a certain two-acre lot of land, situate in Cook county, being now a part of the city of Chicago. There w-ere three trials of the cause in the court below. The defendants were successful in the first trial, and the plaintiffs in the last two,—the last trial occurring on the 17th of May, 1883, when final judgment was entered in favor of plaintiffs, and the present appeal is from that judgment.

The plaintiffs, for the purpose of showing color of title, offered in evidence a deed from Horatio 0. Stone, by his attorney in fact, Myron L. Pearce, bearing date July 11, 1855, and purporting to convey the premises in question to Henry Johnson, Nancy Johnson, his wife, and Mary Ann Johnson, his daughter, now Mary Ann Coleman. Nancy Johnson being then introduced as a witness on behalf of plaintiffs, testified that Mr. Stone claimed to own the property, and she thought she was getting a good title when she bought it; that it was paid for betwixt her and her husband, Henry Johnson; that he died about two years before the war between the North and South; that she and her husband fenced the property in; that he rented it to George Dixon before his death, and she rented it to him afterwards, at five dollars a month; that she had a little cottage built on it, which was used by Dixon to keep his tools in, and that she paid all the taxes, and got receipts therefor. Witness then produced tax receipts, which were admitted in evidence, showing the q>ayment by her of the taxes on the premises for the years 1861 to 1868, inclusive, the first receipt bearing date May 7, 1862, and the last, May 10, 1869. The witness further testifies that she owned no other land in the vicinity of this property, and that she paid the taxes for herself and daughter, Mary Ann Johnson, now Mary Ann Coleman, though the name of the latter does not appear in any of the receipts. Plaintiffs, to complete their chain of title, put in evidence three additional deeds: First, a quitclaim deed, hearing date January 29, 1877, from the said Mary Ann Coleman, and her husband, Augustus Coleman, to appellees Robert H. Forrester, and Martin Beem, and Edward A. Gibbs, for an undivided third part of the lot in question; second, a deed from the said Mary and George Coleman, bearing date June 28, 1879, to the said Forrester and Beam, and Daniel F. Flannery, for the undivided one-third of said premises,—■ this deed being given merely for the purpose of curing a supposed defect in the deed last mentioned; third, a deed bearing date April 12,1879, from the said Edward A. Gibbs, and Jennie L. Gibbs, his wife, to the said Daniel F. Flannery, for all their interest in said lot. For the purpose of showing title in the defendants, defendants’ counsel -then offered in evidence a warranty deed, dated April 1, 1870, from said Nancy Johnson to the West Chicago' Park Commissioners. Some additional evidence was offered by the defendants, and admitted by the court, but as we are of opinion it does not materially affect the legal aspects of the case, it is unnecessary to set it out.

Numerous reasons are assigned for a reversal of the judgment in this case, but we perceive no merit in any of them. It is first said by counsel for appellants: “The plaintiffs were boungl to prove ownership of title to the one-half claimed by the declaration, in order to establish a co-tenancy. They could not assume the tenancy, and out of the doctrines and rules of that relation build up a title.” If we do not misapprehend counsel, the position is taken that where one seeks as tenant in common to avail himself of the payment of taxes and possession of his co-tenant, under the Limitation act of 1839, he must first show the conveyance or conveyances under which they claim passed the absolute title, otherwise no co-tenancy would arise. The position in question, as we understand it, resolves itself into this: If the claimants’ title is perfectly good of itself, and can not therefore be strengthened by an appeal to the Limitation law, then such claimant may avail himself of the possession, payment of taxes, etc., of his co-tenant, for the purpose of bringing himself within its provisions, otherwise not. We do not concur in this view. It would, in effect, be holding that the Limitation act in question has no application to tenants in common. Such a position is in direct conflict with some of the fundamental principles growing out of and governing that relation. For instance, nothing is better settled than that one tenant in common can not strengthen his own position, or obtain a,n advantage over his co-tenants, by purchasing an adverse outstanding title in his own name. (Freeman on Go-tenancy, sec! 154.) Now, if no such tenancy can be created except where the co-tenants acquire the paramount title, there could be no place in the law for such a doctrine. Other reasons of a similar character might be suggested why such a position can not be sanctioned, but it is unnecessary to do so.

Where a conveyance of a piece of land is made to two or more persons, and possession is taken under it, the grantees in such deed become tenants in common, although the grantor may have had no title whatever to the premises. By the delivery of the deed in such case an inchoate right is created in the grantees, notwithstanding the paramount title is in another, which, by possession and payment of taxes for the requisite period, will ripen into a perfect title, thereby defeating the former paramount title. When Johnson, as head of the family, took possession of the lot in controversy under the Stone' deed, he and his wife became seized of one undivided half thereof as tenants by entirety, and the daughter of the other half. Upon Johnson’s death the wife continued to hold the same interest in the property which the two as one person had held before, namely, one undivided half. (Freeman on Co-tenancy, sec. 70, et seq.; Washburn on Beal Prop. 333.) This being so, there is no just ground for the contention that the bar under the Limitation act of 1839 was not fully made out. That the Stone deed was good as color of title, is not disputed, and the exceptions taken to the sufficiency of the proof of payment of taxes hardly demands consideration. The fact that some or all of the tax receipts may not accurately describe the land, when it is positively sworn the taxes were paid on this particular two acres of land, and that the party paying them had no claim to any other land in that locality, does not make a particle of difference. Elston v. Kennicott, 46 Ill. 197.

But it is objected there is no satisfactory proof that Nancy Johnson paid any part of these taxes for her daughter, through whom appellees claim. Why not T She paid all the taxes charged against the land, being double the amount required to discharge the taxes on her own interest in the property, and as she knew, or at least is conclusively presumed to have known, as between herself and daughter the latter was bound for the other half of the taxes, is it not reasonable to presume that in paying the whole amount she intended the payments for the benefit of both of them? But whether so intended or not, as this property'was held by her and her°daughter as tenants in common, such payments are deemed in law to have been made for the benefit of the daughter as well as herself. Indeed, it is a general rule of law that all acts done by a co-tenant relating to or affecting the common property, are presumed to have been done for the common benefit of all the co-tenants. Freeman on Co-tenancy, sec. 166.

But in addition to all this, the mother swears positively that the payment of taxes made by her was for her and her daughter, and her testimony on this point is not contradicted by any one. To this, however, it is objected, that her testimony is inconsistent with her conduct; that her conveyance of the whole of this property.by warranty deed to the appellants, as heretofore shown, is conclusive evidence that she regarded the property as her own, and that she ought not now to be permitted to allege anything to the contrary. It must be remembered the mother is not setting up in this litigation any right to the property in question, as against the appellants or any one else. She appears in the case merely as a witness, at the instance of parties not claiming through her, who have a right to insist upon her testimony, and it is clear she has been called to testify against her own interests, for if the effect of her testimony is to establish title in her daughter and her daughter’s grantees, it will certainly fix her liability on the covenants in her deed to the West Park Commissioners. So there is nothing in this suggestion.

It is also objected the judgment is erroneous on the ground it is in favor of all the plaintiffs, jointly, for an undivided half of the property, whereas the proofs show they had separate and unequal interests in it, and it is therefore claimed the judgment should have been several, and not joint. It is true tenants in common could not, at common law, join as plaintiffs in an action of ejectment, on the ground their titles are several; but in a number of the States, including our own, the common law rule on this subject has been changed by legislative enactment. Under our statute tenants in common, although having unequal interests, may join as plaintiffs, and in such case it is not error to render a joint judgment in the event of a recovery. . Upon such recovery the parties plaintiff will hold by several titles, as they did before, according to their respective interests. The possession, only, is joint, and that is always the case with tenants in common. Rev. Stat. 1874, chap. 45, secs. 5, 30.

Finally it is objected, appellees other than Mary Ann Coleman are not entitled to recover, because they are claiming through a champertous deed. Waiving the questions whether appellants, being strangers to the alleged champertous deed, can raise this question at all, or whether, conceding this may be done, it can be raised for the first time in this court, as is the ease here, we do not tjaink the poini is well taken. The rigor'of the common law with respect to champerty and maintenance, has been greatly modified in later times. Under its influence, as it anciently existed, the familiar doctrine that choses in action are not assignable, had its origin. So, also, the well recognized principle of common law that a conveyance of corporeal hereditaments in the adverse possession of another is inoperative and void, sprang, in part, from the same source. To remedy the inconveniences and hardships arising from the first of these doctrines, courts of equity interposed, at an early day, in favor of the assignee, holding that while such assignments were void at law, they were, when not otherwise objectionable, valid in equity, in consequence of which these equitable assignments soon became one of the most fruitful sources of equity jurisdiction, and have so continued until the present time. With a like view the legislatures ef some of the States, including our own, have passed acts enabling persons having titles to or interests in lands, to convey the same to others, notwithstanding such lands may be in the possession, of an adverse claimant.

But waiving this consideration altogether, we do not think, according to the weight of modern authority, the conveyance in question is champertous. ' The substance of the transaction is simply this: Mary Ann Coleman, claiming to be the owner of an undivided half of a certain piece of land then in the adverse possession of another, and being desirous of instituting proceedings for the recovery of the same, employed Forrester, Beem & Gibbs, attorneys at law, to conduct said ju’oceedings, and in payment thereof conveyed to them a part of her interest in the land. The additional fact appears, that these attorneys had advanced money for her to pay for an abstract of title to the land. It is not altogether clear whether this advance by them constituted a part of the consideration of their purchase; but whether it did or not is wholly immaterial, as that was a matter entirely collateral to the contemplated suit, and constituted no part of the costs or expenses of it. So far as this record shows, these attorneys did not undertake to pay one cent of her costs or expenses in the maintenance of the suit, which is a complete answer to the claim the conveyance was a champertous contract. To make out a case of champerty it is not sufficient to show that a part of the thing recovered was paid or agreed to be paid as an attorney’s fee. It must also be shown that the costs and expenses of the suit, or some part of them, are paid or agreed to be paid by the champertee. In Chitty on Contracts, (10th Am. ed.) page 745, the author defines champerty to be, “A bargain with a plaintiff or defendant to divide the land or other matter sued for, between them, if they proceed at law, whereupon the champertee is to carry on the party’s suit at his own expense. ” It is clear from this definition, the case at bar does not come within its terms. This view of the law is fully sustained by Walsh et al. v. Shimway et al. 65 Ill. 471, and there is nothing in the eases cited by appellants laying down a contrary doctrine. Gilbert et al. v. Holmes, 64 Ill. 548; Thompson v. Reynolds, 73 id. 11; Coleman v. Billings, 89 id. 187.

The judgment will be affirmed.

Judgment affirmed.

Mr. Justice Dickey took no part in this decision.


author: Mr. Justice Walker

text:
    Robert Grier v. Sabin D. Puterbaugh.

      Filed at Ottawa January 23, 1884.

    1. Description of lot, by locality. A defendant gave Ms written agreement to the plaintiff to pay him $3000 if a contemplated government building was located “on the corner of Main and Monroe streets, in Peoria, known as the ‘Post-office Corner,’ ” when the title to the ground was conveyed to the United States: Held, that the description of the location was sufficiently definite, and that on proof that such building was located at the place or locality named, and the ground conveyed, the plaintiff was entitled to recover.
    2. Consideration or contract'—how ascertained. In a suit on a written contract for the payment of money on a certain condition expressed, when the consideration is put in issue and denied, the jury may consider the antecedent propositions in reference to the contract, as well as the circumstances at the time it was entered into, to ascertain what was the real consideration, and the property named in the contract.
    3. Fraud—;false representations. To render a contract void for false representations, they must not only be untrue when made, but they must be known to be so by the person making them, and they must be such as an ordinarily prudent man would rely on as true.

      i. Instruction—may describe property as in contract. "Where a contract for the payment of money upon the conveyance of certain real estate to the United States for a public building, described the property as “on the corner of Main and Monroe streets, in Peoria, known as the present ‘Post-office Comer:’ ” Held, no error to use the same description in an instruction, the locality being well known and easily proved. For the purpose of a trial of a suit to recover the money, the description was sufficient.
    5. Error will not always reverse. Where an error does not injure, or is not calculated to injure, the party complaining, it will not be any ground for a reversal.
    6. Same—giving improper instructions. Although an instruction given may have no foundation in the pleadings or in the evidence, it will be no ground of reversal, unless this court can see that it misled the jury, or was calculated to mislead them, to the prejudice of the party complaining.
    7. An irrelevant instruction is not necessarily calculated to mislead, and when it does not appear that it was calculated to mislead or injure, although if erroneous, the error will be harmless, and no ground for a reversal.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Peoria county; the Hon. David McCulloch, Judge, presiding.
    This was an action of assumpsit, brought by Sabin D. Puterbaugh, against Robert C. Grier, upon an instrument in writing, of which the following is a copy:
    “Peoria, III., June IS, 1882.

    “Whereas, an effort is being made by S. D. Puterbaugh to procure the location of the public building of the United States on the comer of Main and Monroe streets, in Peoria, known as the present ‘Post-office Corner;’ and whereas, said Puterbaugh will be put to trouble and expense in said matter; and whereas, said location would be of great pecuniary benefit to me in increasing the value of my real estate on Main street: Therefore, in consideration of the premises, if said government building is located as above mentioned, I promise to pay to said S. D. Puterbaugh or order the sum of three thousand dollars ($3000), payable only when the purchase of said property is completed and the title conveyed to the United States-
    R. C. Grier.”
    The comer of Main and Monroe streets was occupied by a post-office building sixty-five by ninety-five feet deep, and was owned by Higgins & Furber, of Chicago. Immediately joining this, Puterbaugh owned one hundred and six feet on said Main street, ninety-five feet deep, and Bernard Greiner owned forty-nine feet on Monroe street by one hundred and seventy-one feet deep, in the rear of the other two tracts, the whole being two lots containing one hundred and seventy-one feet on Main street, adjoining an eighteen foot alley, by one hundred and forty-four in depth on Monroe street. To secure the selection of this site, the appellee procured the ground held by Higgins & Furber, and obtained from Cremer an agreement .for his ground, a part of which was necessary for the site, and on the last day for receiving bids offered the amount of ground required by the government for $37,000, which offer was accepted and the purchase completed by the execution of a deed to the United States, and the payment of the purchase money. It was claimed that appellant signed the instrument without having read the same, and that it did not state the contract truly, and also that it was obtained by false and fraudulent representations.
    Messrs. Jack & Moore, for the appellant.
    Mr. John M. Niehaus, and Mr. Leslie D. Puterbaugh, for the appellee.
   Mr. Justice Walker

delivered the opinion of the Court:

This was an action of assumpsit, brought by appellee,, in the Peoria circuit court, against appellant, to recover on a written agreement. Defendant filed the plea of the general issue, and a notice that he would give special matters in evidence under it. The special defences relied on are, that the plaintiff had not performed his part of the contract; that the plaintiff was put to no trouble or expense, beyond what he would have incurred to sell his own property; that the agreement was obtained by fraud and circumvention; that plaintiff, in executing his part of the agreement, was representing not only himself, hut others, all of whom agreed to contribute towards raising the $3000 to be paid by defendant, on condition that all of certain property should be conveyed to the United States, but all of it was not so conveyed, and the •consideration had failed; that other parties who agreed to contribute refused to pay anything towards the $3000; that plaintiff had falsely represented, that to induce the persons authorized tó select the site for the public building, he would have to put in property he held and would purchase, worth $40,000, at $37,000, and defendant agreed, in such event, to pay plaintiff $3000; but plaintiff did not put in all of the property named, but retained a part thereof worth $3000, and plaintiff, instead of losing, made a profit of that sum. A trial was had by the court and a jury, and the issues were found for the plaintiff, and after overruling a motion for a new trial, judgment was rendered in favor of plaintiff for $3000 and costs. Defendant appealed to the Appellate Court for the Second District, where, on a trial, the judgment of the circuit court was affirmed, and he brings the record to this court, and assigns errors.

As the Appellate Court has settled the facts, we are, under the statute, precluded from looking into the evidence to determine whether the jury and the Appellate Court have found them correctly. We must, therefore, confine ourselves to the questions of law raised by the assignment of errors.

The instructions given for plaintiff below are criticised, and it is claimed that- the court erred in refusing and modifying a portion of defendant’s instructions. It is urged that the court erred in the first of appellee’s instructions by giving a construction to the contract. It is claimed that the description of the property to be conveyed, in the agreement, was too indefinite to authorize the instruction. The property described in the contract is “on the corner of Main and Monroe streets, in Peoria, known as the present ‘Post-office Corner.’ ” The court uses the same description in the instruction, and we perceive no error in the court using that description. The locality was well known and easily proved. It is true that neither the contract nor instruction gives a minute description, by metes and bounds, or numbers, but for the purposes of the trial that was unnecessary. The general description of the locality was all that was required, because appellant, in his agreement, had fixed its location by that description. When, therefore, appellee proved that the build- ' ing was located at the place named in the contract, he fulfilled the requirement of the agreement as to the location. It was the province of the court, and not the jury, to construe the contract.

It is claimed that the third of appellee’s instructions is erroneous, and should not have been given. On examination we do not perceive that it is not reasonably accurate. But if it was not, when considered with the other instructions given, we fail to see that it could have misled the jury.

Appellant contends, that although a correct abstract legal proposition, the' fourth of appellee’s instructions was calculated to confuse and mislead the jury. It informs them that all antecedent propositions in reference to the contract were merged in the contract, and must be disregarded, so as not to vary or change the contract specified in the written agreement, but that the jury might consider them and the circumstances when the agreement was entered into, to ascertain what was the real consideration of the contract, and the property named therein. Although not the language of the instruction, this is its ■ substance. We fail to see that it could have misled the jury. One of the issues being tried was the want of consideration, and with reference to that issue the instruction was proper.

It is objected that the fifth instruction given for appellee is erroneous, and should not have been given. It is this:

“As regards the defence set up in this ease that the contract sued on was obtained from the defendant by false and fraudulent representations, the court instructs the jury that to defeat a recovery on that ground, the jury must believe, from the evidence, that the alleged representations were made as charged, and that they were false when made, and that the plaintiff knew them to be false,—that they were such as a man of ordinary prudence would be likely to rely upon, and that the defendant did rely upon the truth of them, and was induced thereby to execute the contract in question. ”

We are unable to perceive any objection to this instruction. To render the contract void for false representations they must be untrue when made, and they must be known to be so by the person making them, and they-must be such as an ordinarily prudent man would rely on as true. It may be that when the person is not of ordinary intelligence and prudence, a lower test would be required; but that is not too high a test in this case, as appellant is a business man of more than ordinary intelligence. So the instruction could have done no harm.

It is claimed that the seventh of appellee’s instructions is erroneous, and should not have been given. It is said there is no foundation for it in the declaration, and that there was no evidence upon which to base it. This may all be true, and still we should not reverse unless we can see that it misled, or was in its tendency calculated to mislead, the jury, to appellant’s prejudice. We fail to see that it could have had that effect. Nor has appellant pointed out how it could have had that effect. We are of opinion that this instruction worked no injury.

We are unable to see that the giving of the ninth and tenth instructions worked a-ny harm, or could have done so. In the ease of Stout v. McAdams, 2 Scam. 67, referred to as condemning these instructions, it is said that some of the instructions given were entirely irrelevant and inapplicable to the case on trial, and should not have been given, as they were calculated to mislead the jury. The instructions thus condemned are not given in the case as reported, but it will be observed that the court held them not only irrelevant, but calculated to mislead. It is not true that an instruction, because it is irrelevant, is necessarily calculated to mislead. Nor is it true that the court will reverse for every error that may have been committed. If the error does not injure, or is not calculated to injure, the party complaining, it will not be ground for reversal. These instructions are of that character.

Complaint is made that the court erred in refusing, to give appellant’s refused instruction. The first of appellant’s, as given, we think, fully covers the legal proposition contained in his iefused instruction. It states that to render a contract binding the minds of the parties must meet on all the material acts to be done. His -first instruction given states that if appellee can recover, it must appear, by a fair preponderance of the evidence, that- appellee had deeded to the United States the property,’ and all the property, contemplated, understood and agreed upon by the parties at the time the contract was signed. Now, under this instruction, if the minds of the parties had not met as to what property or the quantity to be conveyed, then it could not have been understood, and if not understood, the jury was informed there could be no recovery. If the parties did not understand what was the quantity to be conveyed, then their minds did not meet and were not in accord. We are therefore of opinion that the court did not err in refusing to give this instruction.

We perceive no error in modifying appellant’s eighth instruction before it was given.

A careful consideration of all the instructions in the case, we think, shows the law of the case was fairly given to the jury. We perceive no error in the record, and the judgment must be affirmed.

Judgment affirmed.


author: Mr. Justice Scott

text:
    Ann Halstead v. Claude C. Adams et al.

      Filed at Ottawa January 23, 1884.

    1. Taxation—situs of sailing vessel for taxation. Tbe situs of a sailing vessel, as fixed by tbe statute for tbe purposes of taxation, is at one of three places: First, in the county, town, city or village, or district, where, such vessel belongs; seeond, where it is “enrolled, registered or licensed;” and third, where it is “kept when not enrolled, registered or licensed.”
    2. It is the duty of the owner to list such vessel in one of these three places, as the fact may be, and when rightfully listed in one place it is not subject to taxation elsewhere.

      O

    3. Where it appeared from the allegations of a bill to enjoin the collection of a tax on a vessel assessed in South Chicago, admitted by demurrer to be true, that the same was listed for taxation in North Chicago, where the owner resided and the situs of the property was, and that the vessel, when not engaged in navigation, was permanently kept and located in the town of North Chicago, though registered and licensed in South Chicago, it was held, that the vessel was properly listed in North Chicago, and that taxes levied upon an assessment thereof in South Chicago were without warrant of law, and subject to be perpetually enjoined, even though the officers failed to report the assessment of the owner’s vessel in North Chicago.
    Appeal from the Circuit Court of Cook, county; the Hon. Thomas A. Moran, Judge, presiding.
    Messrs. Schuyler & Follansbee, for the appellant:
    Personal property, with certain exceptions, is required to be listed and assessed where the owner resides. (Rev. Stat. 'chap. 120, sec. T.) The statute requires vessels of this kind to be listed in the county, town, city, village or district in which they belong. Ibid. sec. 13.
    Here the vessel was not permanently located elsewhere, but its owner resided in the town of North Chicago, and the property was permanently located and kept there when not in use, and it was taxable there. Mills v. Thornton et al. 26 Ill. 300;
      Irvin v. New Orleans, St. Louis and Chicago R. R. Co. 94 id. 105; Vogt et al. v. Ayer, 104 id. 583.
    Assessments for personal property against persons residing within the district are void, unless made with reference to. the actual presence of the property in such district. Cooley’s Const. Lim. (3d ed.) 499.
    At common law the situs of vessel property, for the purposes of taxation, was deemed its home port; and inasmuch •as the home port, to-wit, Chicago, in this case embraced more than one municipality having power to assess and collect taxes, it would follow the person of the owner, and in contemplation of law its situs, for purposes of taxation, would be the place where he was domiciled. Mobile v. Baldwin, 57 Ala. 61; St. Louis v. Ferry Co. 11 Wall. 423; Hays v. Pacific Mail Steamship Co. 17 How. 597; People v. Comrs. of Taxes, 1 Hun, 143; Morgan v. Parkham, 16 Wall. 471; Wilkey v. Pekin, 19 Ill. 160; State v. Haight, 30 N. J. 428; Cooley’s Const. Lim. (3d ed.) 499.
    Mr. E. E. Bliss, for the appellees:
    The only question presented by this record involves a construction of section 13 of the Eevenue act. This section was passed upon by the court in the recent case of Vogt v. Ayer, 104 Ill. 583, which seems to be conclusive of this case.
    The statement in the bill that these vessels were “permanently located in the town of North Chicago when not engaged in navigation, ” is the conclusion of the court upon the facts as presented in the cases of St. Louis v. Ferry Co. 11 Wall. 423, and Irvin v. New Orleans, St. Louis and Chicago R. R. Co. 94 Ill. 105.
    Vessels are subject to taxation in the place of their legal sitios. Mobile v. Baldwin, 57 Ala. 61; Hays v. Pacific Mail Steamship Co. 17 How. 596; Burrill on Taxation, sec. 46.

      The bill in this ease does not show affirmatively that these vessels did not have their legal situs in the town of South Chicago.
   Mr. Justice Scott

delivered the opinion of the Court:

The facts in this ease are very different from the facts on which the decision in Vogt v. Ayer, 104 Ill. 583, was rendered. In the latter case “the situs of the vessels and the place where their business” was transacted was in the town of South Chicago. That fact being admitted, as it was by the demurrer to the hill, the town of South Chicago, it was held, was the place where the vessels assessed, in the language of the statute, (sec. 13, Revenue law, Rev. Stat. 1874,) “belonged,” or were “enrolled, or registered, or licensed, ” or were “kept when not enrolled, registered or licensed,” and hence the conclusion was reached the tax levied on the vessels in the town of North Chicago was without authority of law, although the owner resided in that town. There is now no reason for dejiarting from the principle of that case.

’ The situs of a sailing vessel, as fixed by the statute for the purpose of taxation, is at one of three places: First, in the county, town,, city or village, or district, where such vessel belongs; second, where it is “enrolled, registered or licensed; and third, where it is “kept when not enrolled, registered or licensed.” It is made the duty of the owner to list such vessel in one of the three places mentioned, as the fact maybe, and when rightfully listed in one place, it is not subject to taxation elsewhere. In the case now before the court the vessels were listed for taxation in the town of North Chicago, where the owner resided, and the allegation of the bill,— which the demurrer admits to be true,—is, the “situs of the property” assessed was, at the time of such assessment, and thence hitherto was and had been, at the “place of residence” and in the “municipality” where complainant resided,—that is, in the town of North Chicago. It is true the vessels assessed were each duly enrolled at the' custom house in the town of South Chicago, and were duly licensed for the coasting trade on the lakes and the navigable waters connected therewith, in accordance with the requirements of the laws of the United States. There is nothing, however, in the record that indicates such vessels, or either of them, were, at the time of the assessment, engaged in active trade. The mere fact such vessels were enrolled and licensed would not, of itself, authorize any presumption they were at the time engaged in navigation, and consequently out of the home port. Unless that fact was made to appear, it would rather seem the presumption would be the other way. The admissions on demurrer of the allegations of the bill in this respect are, that such vessels, when not “engaged in navigation, ” were “permanently located and kept” in the town of North Chicago, and never “belonged” or were “permanently located” in the town of South Chicago. These vessels, then, “belonged” in the town of North Chicago, and it was the duty of the owner to list them for taxation in that town, as was done. That was the situs of the vessels at the time the same were listed for taxation, and under the decision in Vogt v. Ayer, that was the place where the vessels were subject to taxation. It follows, then, the assessments made by the assessor of the town of South Chicago on the vessels, for the same year, were without authority of law, and the taxes extended on the same against the owner should have been perpetually enjoined, as was asked to be done by the bill.

It makes no difference the local officers failed to report the assessment of complainant's vessels in the town of North Chicago, that the taxes might be extended against the owner. Such vessels, as has been seen, were liable to taxation in that town, and complainant having listed them for taxation in that town, it was all the law required her to do. Complain-, ant is in no manner to be prejudiced by the omission of the local officers to do their duty in the premises. She has offered, by her bill, to pay such taxes as ought to have been extended on her vessels. More than that the law does not require her to do.

The decree of the circuit court is reversed, and the cause remanded, with directions to decree in conformity with the views expressed in this opinion.

Decree reversed.


author: Mr. Justice Scholfield

text:
    Almira Herrington v. L. L. Coburn.

      Filed at Ottawa January 23, 1884.

      Dower—effect of a partition. A husband being seized of an interest in land, with his wife, conveyed an undivided half thereof by a deed which failed to release the wife’s dower. Afterward they conveyed the other half interest by a deed in which the wife’s dower was duly released. The proprietors laid the land out into city lots, after which a partition was made between the several owners under a decree of court, to which neither the husband nor his wife was made a party: H'eld, that on the husband’s death the wife was entitled to dower as to the undivided half interest conveyed by her husband in his first deed, and that she was not concluded by the decree of partition, so as to be compelled to seek her dower in the lots set off to the party claiming under her deed which failed to release dower.
    Appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Mr. S. A. French, and Mr. D. B. Sherwood, for the appellant :
    Appellant’s right of dower in the land conveyed to Dear-born was not released or conveyed to him. This was not disputed in the court below, and will not be here. Murphy v. Williamson, 85 Ill. 149; Lindley v. Smith, 46 id. 523.
    Appellant’s dower extended to whatever interest her husband had. The partition does not bind the wife, as neither she nor her husband was a party to the contract. If it had been binding on the husband, appellant’s dower would be . confined to the land allotted to him. Lloyd v. Conover, 1 Dutch. (25 N. J.) 47; Rank v. Hanna, 6 Ind. 20.
    Mr. L. L. Coburn, pro se:

    Nathan P. Herrington and appellant’s grantees, together with grantor of appellee, having had their titles established in each respective portion of the Herrington tract, and each having had his portion duly assigned by a decree of court, the title established by said decree is perfect, and all liens to said land were presumably disposed of in said partition suit. Jackson v. Edwards, 22 Wend. 518.
    In Lloyd v. Conover, 25 N. J. 47, cited, the court say: “If a woman marry a man entitled to an undivided share of land, and after marriage a partition is made, by operation of law the wife is entitled to dower in the share set off to the husband only.”
    It is always in the power of one tenant in common to enforce a partition, and the husband will be bound by it. Potter v. Wheeler, 13 Mass. 504.

      Rank v. Hanna, 6 Ind. 20, is based on a statute, and is distinguished from Matthews v. Matthews, 1 Edw. Ch. 567, and Potter v. Wheeler, 13 Mass. 504, which related to the rights of the widow in lands divided by partition in the lifetime of the husband.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This was a bill for the assignment of dower by appellant, against appellee. On the hearing the circuit court decreed denying the prayer of the bill, and that the bill be dismissed, and the correctness of this ruling is the question presented for our consideration upon this appeal.

Appellant, as the wife of Nathan P. Herrington, was entitled to an inchoate right of dower' in what, in fact, was a •little less than the undivided one-ninth of a tract of land in the city of Chicago, hut it was assumed to he, and for the purposes of the question before us it may he regarded as, the undivided one-ninth of the tract. Nathan P. Herrington executed a deed of the undivided half of that ninth to Luther Dearborn. In this appellant’s right of dower was not relinquished, although she joined in the execution of the deed,— the certificate of acknowledgment as to her being insufficient. Subsequently, Nathan P. Herrington conveyed the remaining undivided half of that ninth to one Moore, and appellant joined in the execution of that deed, and relinquished her right of dower in due form of law. Afterwards, the owners of the tract platted it, and made it an addition to the city of 'Chicago, under the name of “Herrington’s addition;” and still later, there was a decree for partition by the Superior Court of Cook county, between these owners, setting apart the several lots into which they had subdivided the tract, as the court found the respective parties entitled thereto. Neither Nathan P. Herrington nor appellant was a party to that decree. Nathan P. Herrington died intestate since the decree for partition was rendered, and the present bill totally ignores that partition, and seeks dower in lots that were not therein set apart to Dearborn.

The only question is, whether appellant is concluded by the decree of partition, and limited to dower in the lots set apart to Dearborn. We think clearly she is not. It may be that there is that unity in the character of the interests of the husband and wife that any act done hy the husband, or decree rendered against him, in good faith severing his interest from that of other co-tenants, and localizing it as an interest in severalty, is binding upon the wife; but if so, this must be upon the principle that whatever is for the benefit of his interest is for the benefit of her interest, and that whatever is necessary for the protection or defence of the one is necessary for the protection or defence of the other. But it is obvious this can have no application where their interests are severed by a conveyance of the husband’s interest to a stranger. That destroys the unity, and the interests are then, to some extent, hostile and antagonistic. The husband and wife, theoretically, are never rivals in interest, while the stranger owning the fee, and the wife having a dower interest, are, theoretically, to some extent, although it may be but slight, always so. Of course we do not mean the estates are inconsistent and repugnant, but that, as to the extent and duration of the dower estate, the interests of the parties are not identical. If appellee and the other parties to the partition desired to conclude appellant by the decree, they should have made her a party. It is true that Moore’s interest ought not to be subject to appellant’s claim of dower, but he ought to have known that appellant had an initiate right of dower in the undivided one-half of one-ninth of the tract, and if he desired that should be localized as to particular lots, he should have seen that she was made a party to the decree. The sole misfortune is in attempting to partition the property without paying any attention to appellant’s interests. The decree does not bind her, and she is, consequently, entitled to have dower assigned just as if it had never been rendered. Rank v. Hanna, 6 Ind. 20, .is an authority sustaining the present ruling.

What may be the effect of the partition upon, the rights of the respective defendants as between themselves, or what part of the property should be taken to answer the rights of complainant, we have not regarded as falling within the scope of our present inquiry, and consequently we do not now decide, it being, in our opinion, sufficient, for the present, that we hold that the extent of appellant’s interests in the property is not affected by the decree for partition.

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

Decree reversed.