author: Mr. Justice Magruder

text:
    Margaret E. Ward et al. v. James A. Ward.

      Filed at Springfield March 29, 1887.

    1. Apter-bobn chii/d—in case of a prior will—of raising a portion for such child. The statute provides: “If, after making a last will and testament, a child shall be born to any testator, and no provision be made in such will for such child, the will shall not, on that account, be revoked; but, unless it shall appear by such will, that it was the intention of the testator to disinherit such child, the devises and legacies by such will granted and given, shall be abated, in equal proportions, to raise a portion for such child, equal to that which such child would have been entitled to receive out of the estate of such testator, if he had died intestate. ”
    2. A testator, on May 12,1880, made his will, making various devises and legacies to his widow and eight children, and to some other relatives, disposing of his entire estate. On July 15, 1880, another son was born to him, not mentioned in the will, and the testator died on July 6, 1881, and his will was duly probated: Held, that such son, born after the making of the will, was entitled’to an undivided one-ninth part of the realty described in each devise, subject to the widow’s dower therein, and of the rents collected therefrom after the testator’s death, and that each devise of realty should be abated or reduced by an undivided ninth part thereof, and be effective as to the remaining eight-ninths,—in other words, one undivided ninth should be deducted from each devise of real estate, and the other eight-ninths should pass as directed by the will.
    3. Where the testator, after making specific devises of certain parts of his real estate, authorized his executor, who was also made a trustee, to sell the “residue and remainder” thereof at a certain time, and to divide the proceeds equally among his eight children, it was held, 'that the after-born child should have one-ninth of such “residue and remainder,” as well as of such parcels as had been specifically devised, subject to the widow’s dower therein, and the other eight-ninths thereof should remain subject to sale and distribution, according to the terms of the will, and that it was error to take the whole of the “residue and remainder” from the other eight children and give it all to the after-born child, as that would be a virtual revocation of that part of the will.
    4. Where a child of a testator is born after the making of the will, which is not provided for in the will, and is not disinherited, and all the personal property of the testator is bequeathed to the widow, such child will be entitled to its share in such personalty, the same as if its father had died intestate; and this share is properly charged against the widow.

      5. Same—after-born child and the widow’s dower. The portion raised for such after-born child from the various devises will be subject to the widow’s dower, notwithstanding she may not have renounced the benefit of the provisions of the will. That part of the estate taken by such child is to be treated the same as intestate propeiiy; and as the provision made for the widow is subject to contribute its proportionate part in making up the portion of such child, she should have dower in such portion.
    6. But where a testator has an heir born after the making of his will, not provided for. and not disinherited by the will, who is entitled to receive a child’s portion of the estate, the failure of his widow to renounce the will, will prevent her from asserting dower in the lands, as against the devisees, • to the extent they each hike under the will, though she will be entitled to dower in that part of the estate which the statute, independently of the will, gives to the after-born child.
    7. Costs—on bill by child born after the making of a will. Where a child was born to a testator after the making of his will, which was entitled to share in the estate under the statute, on bill filed by such child to have its share fixed and allotted, the costs were apportioned among the parties according to their several interests in the estate.
    Appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    James Ward died, testate, on July 6, 1SS1, leaving a widow, Margaret E. Ward, and nine children: Sarah A. Amberg and Mary E. Gannon, adults; and Frank C. Ward, Albert J. Ward, Charles S. Ward, Walter M. Ward, Anna E. Ward, Ella D. Ward, and James A. Ward, minors. The will was executed May 12, 1880. James A. Ward, the complainant, who brings this, bill by his next friend, was born July 15, 1880, and is not mentioned in the will.
    In his will, James Ward, after directing the payment by the executor of debts and funeral expenses, makes the follow - ing devises and bequests;
    First—He bequeaths to the widow all the personal property, (except the library, which is given to the four sons, Frank, Walter, Charles and Albert) on condition that she pay out of the same all lawful claims against the estate, and also $500 to his sister, Sarah Hitchcock, and $500 to his brother, Edward Ward, in annual installments of $100 each:

      Second—He devises to the widow the use, improvements and income of certain lots in Chicago for her life, and, at her death, such lots to go to the four sons, above named, share and share alike, in fee; but if she should die before any of said four sons become twenty-two years old, then the trustee, William A. Amberg, is to sell said lots, and divide the proceeds, fro rata, among said four sons, giving to each his share upon his becoming*'twenty-two years of age:
    Third—He bequeaths to his wife the income, issues and profits in the premises, known as No. 435 West Van Burén street in Chicago, his interests and rights therein being set forth in an agreement between his sister, Sarah Hitchcock and himself:
    Fourth—He devises certain lots in Chicago to his daughter, Sarah A. Amberg:
    Fifth—He devises certain lots in Chicago to his daughter, Mary E. Gannon:
    Sixth—He devises certain lots in Chicago to William Am-berg, in trust for his son, Frank, until he arrives at the age of twenty-two years, and, after that, to said son, in fee: Seventh—He devises certain lots in Chicago to said Amberg, in trust for his son, Walter, until he becomes twenty-two years old, and, after that, to said son, in fee:
    Eighth—He devises certain lots in Chicago to said Amberg, in trust for his son, Charles, until he becomes twenty-two years old, and, after that, to said son, in fee:
    Ninth—He devises certain Chicago lots to said Amberg, in trust for his son, Albert, until he becomes twenty-two years old, and, then, to said son, in fee:
    Tenth—He devises certain Chicago lots to said Amberg, in trust for his daughter, Anna, until she becomes twenty-two years old, and, then, to her, in fee:
    Eleventh—He devises certain Chicago lots to said Amberg, in trust for his daughter, Ella, until she becomes twenty-two years old, and, after that, to her, in fee:

      Twelfth—He devises to his sons, Frank and Albert, in fee, each an undivided half of six hundred and forty acres of land in Texas:
    Thirteenth—He devises to his sons, Charlds and Walter, in fee, each an undivided half of another tract of six hundred and forty acres of land in Texas:
    Fourteenth—He authorizes said trustee and executor to sell the residue and remainder of his real estate (the same being in Cook county,) at any time before his son, Frank, becomes twenty-two years old, at public or.private sale, for such price and uyon such terms as may seem best to him, and to convey the same free from any liabilities, and to divide the same among all the said children, named in the will, share and share alike:

      Fifteenth—Tiz appoints Amberg, the trustee and executor, guardian of the estates of the minor children, named in the will, and authorizes him to manage and improve the same, and collect and pay over the incomes thereof, etc.
    Sixteenth—In case of the death of any of his children, without leaving lawful issue, he gives and devises the share of such child dying, to Amberg, trustee and executor, in trust, to sell the same for the benefit of the survivors in equal shares and proportions, in the same manner, as specified as to the residue of the real estate.
    In the circuit court, several references were made to the master, who took testimony, including that of real estate experts and others, and, in his several reports, found, that the portion, which appellee would have been entitled to receive out of his father’s estate, if there had been no will, was one-ninth of the estate, subject to the dower of the widow therein; that appellee was entitled to one-ninth of the rents, since the testator’s death; tha't the total value of the land and the improvements thereon, belonging to the estate, was $308,707.75; that,,the gross value of the personal estate was $23,737.27, and, after deducting therefrom, the costs and expenses of administration, the widow’s award and the proven debts, that the net value of the personal estate was $9209.91; that the total value of the estate was $317,917.66; that the dower of the widow in the real estate, calculated by the Northampton tables, was $62,420.70, which deducted from $308,707.75, would leave a balance of $246,287.05, one-ninth of which, to-wit: $27,365.23, would be the value of appellee’s interest in the realty; that his ipterest in the personalty was $682.21, being one-ninth of the two-thirds of the net amount thereof, which would belong to the heirs in case of intestacy, after giving the widow one-third thereof; that the total value of appellee’s inheritance was $28,047.44.
    The decree, entered by the circuit court, confirms the reports of the master, and finds, that, to make up the sum of $28,047.44, the several defendants (the devisees above named) should contribute proportionately to the amounts devised and bequeathed to them, specifying the amount to be contributed by each; that the real estate, described in the will as “residue and remainder” (that referred to in above paragraph No. 14) be set,off to complainant, without prejudice to the defendants, at the value of $18,725, and that the residue of the sum of $28,047.44 be paid by the trustee out of moneys in his hands, belonging to the defendants; that the real estate, specifically devised is not susceptible of partition without prejudice; it is decreed, that the trustee convey such “residue and remainder” to complainant, that the defendants pay to William Amberg, guardian of complainant, the respective sums above named (specifying them;) that said real estate and money shall be the full portion of complainant in the estate, and the balance of the property shall be free from any claim on his part; that certain defendants pay to complainant one-ninth of the net amounts of rents, received by them, etc; that the taxed costs be borne by complainant and the several defendants in proportion to the value of their several devises.

      Mr. James Goggin, for the appellants :
    The pretermitted heir should be made a sharer in each separate devise, and it was error to raise its portion out of the residuary devise. Armstead v. Dangerfield, 3 Munf. 20; Haskins v. Spiller, 1 Dana, 170; Shelby v. Shelby, 6 id. 60; 1 B. Mon. 266.
    Mr. Daniel J. Avert, for the. appellee.
   Mr. Justice Magruder

delivered the opinion of the Court:

Section 10 of chapter 39 of the Devised Statutes of this State, entitled “Descent” (Starr & C. Stat. page 883) is as follows:

“If, after making a last will and testament, a child shall be born to any testator, and no provision be. made in such will for such child, the will shall not, on that account, be revoked; but, unless it shall appear by such will, that it was the intention of the testator to disinherit such child, the devises and legacies, by such will granted and given, shall be abated, in equal proportions, to raise a portion for such child, equal to that which such child would have been entitled to receive out of the estate of such testator, if he had died intestate,” etc.

No provision is made in the will of James Ward for his son, the appellee, who was born, after the making of the will, and before the death of his father; nor does it appear by the will, that it was the intention of the testator to disinherit appellee.

Inasmuch as the testator left a widow and nine children, including appellee, the portion, which appellee would have been entitled to receive out of his father’s estate, if the latter had died intestate, is an undivided one-ninth of all the real estate, subject to the widow’s dower therein, and two twenty-sevenths (gy) of the net personaltj’-, that is to say, one-ninth of two-thirds of the net personalty.

The testator makes separate devises of specific pieces of real estate. Appellee is entitled to an undivided one-nintli part of the realty, described in each devise, and of the rents collected therefrom, since the testator’s death. Each devise of realty,should be abated or reduced by an undivided one-ninth part thereof, and be effective as to the remaining eight-ninths. In other words, one undivided one-ninth should be taken out of or deducted from each devise of real estate, and the other eight-ninths should remain under the operation of the will. For instance, the testator devises certain lots to his daughter, Mrs. Amberg. She will continue to own, as directed by the will, eight-ninths of those lots, but the title to the other one-ninth will become vested in appellee, subject to the widow’s dower. It may continue to be undivided, or a partition may be made between Mrs. Amberg and appellee, as may be thought best. As to the land, embraced in this devise, no other persons, except Mrs. Amberg and appellee and the widow, are interested. The statement, here made as to the Amberg devise, is true as to every other devise in the will.

The will is not to be revoked, but “the devises and legacies * * * shall be abated in equal proportions.” This can mean nothing else than that the proportion, in which one devise or legacy is abated or. reduced, shall be equal to the proportion, in which each of the other devises or legacies is abated or reduced. If, in the present case, each devise is so reduced as to give appellee one undivided one-ninth thereof subject to dower, then all the devises are reduced in equal proportions. They would be abated in unequal proportions, if, for example, the first devise should be reduced by one undivided one-eighteenth, and the second by one undivided one-eighteenth, and the third by an undivided two-ninths. The proportion, in which the devises and legacies should be abated, is the proportion, in which the after-born child would be entitled to share in the estate, if it was intestate.

It is true, that the statute speaks of the portion to he raised, as “equal to that which such child would have been entitled to receive out of” the intestate estate, and does not designate it, as being the same as that, which he would have been so entitled to receive. But we understand the meaning here to be, that the several proportions, in which the several devises or legacies are abated, shall together equal the proportion of the estate, which the after-born child would have been entitled- to, in case of intestacy. If appellee, for instance, is given one-ninth of the real estate in each devise, the portions, so awarded him out of the several devises, will only be equal to that one-ninth of the whole estate, which he would have inherited under the law, if his father had died intestate.

After making specific devises of certain parts of his real estate, the testator, in the fourteenth clause of his will, authorizes the trustee to sell the “residue and remainder” thereof at a certain time, and to divide the proceeds equally among his eight children. Under the construction here contended for, appellee should have one-ninth of such “residue and remainder,” and the other eight-ninths should remain subject to sale and division, according to the terms of the will. The decree of the circuit court, however, takes the whole of the “residue and remainder” from the eight children, and gives it all to appellee. The devise in the fourteenth clause is thus abated entirely, instead of being abated, as the statute requires, in a proportion equal to that, in which every other devise is abated. Moreover, by taking the eight-ninths of the “residue and remainder” out of the operation of the will altogether, the decree virtually revokes that portion of the will, which disposes of such “residue and remainder, ” and thereby violates the statute, which says, that “the will shall not, on that account, be revoked. ”

The questions here involved are presented to the consideration of this court for the first time by this case. We have been referred by counsel to few authorities and have not the time to examine the statutes of the different States, and compare them with our own, to see how far adjudications, based upon special statutes, may be applicable in the construction of the one, now under consideration. But we think the views, here expressed, are sustained by the following cases: Armstead v. Dangerfield, 3 Munf. 20; Haskins v. Spiller, 1 Dana, 170; Shelby v. Shelby, 6 id. 60; Shelby v. Shelby, 1 B. Mon. 266.

The statute, brought under review in these cases, was similar, in its phraseology, to our own. It provided that the after-born child should, “succeed to the same portion of his father’s estate, as such child would have been entitled to, if the father had died intestate; towards raising which portion, the devisees and legatees shall contribute proportionately out of the parts, devised and bequeathed to them.”

In Haskins v. Spiller, supra, William Spiller made a will, providing for his four children, and, afterwards and before his death, a fifth child, George Spiller, was born. George filed a bill to reach his interest in a tract, "which had been devised to his brother, B. 0. Spiller, and had been sold by the latter to various parties. It was held, that he was entitled to one-fifth of the whole estate; that he could sue and recover from each devisee a fifth of that, which "was devised to him; that one-fifth of the tract in one entire body could be allotted to the complainant, leaving the defendant or defendants, from whom such fifth was taken, to seek indemnity, by pro rata contribution, from the other defendants, or, if the the chancellor should so determine, complainant could take “a fifth from each defendant of that, which he holds. ”

In Shelby v. Shelby, supra, it is held, that, where the after-born child is entitled to one-fourth of the whole estate, each devisee must contribute one-fourth of the property devised to him. In that case, the court say, that, as the widow would have been entitled to one-third of the. land during her life, the after-born child should only have one-fourth of two-thirds thereof, while she lived, and one-fourth of the remaining third, after her death.

In the ease at bar, however, as appellee would only be entitled, in case of his father’s intestacy, to one-ninth of the realty, subject to the widow’s dower therein, we see no objection to making the proportion, assigned to him out of each devise, subject to such dower. The fact, that the widow did not renounce the benefit of the provisions in the will, only bars her dower, as to those interests, upon which such provisions take effect. Appellee’s interest is relieved from the operation of the will, and, as to that interest, the estate is virtually intestate. Her failure to renounce prevents her-from asserting dower in the eight-ninths of each devise, which are covered by the terms of the will, but does not deprive her of dower in the one-ninth, which the law disposes of, independently of the will. Moreover, it is no more than just, that she should have dower in appellee’s one-ninth, because her failure to renounce was based upon the expectation of getting all that the will gave her, and yet the devises and bequests to her are abated in the same proportion, in which the other devises and legacies are abated.

A part of the prayer of the bill in this case is, “that a fair and equal partition and division of each and every part of said estate, real and personal, may be made, so as.to give orator the portion, to which he is entitled, ” but no.steps were taken in the circuit court to effect the partition and division here prayed for. We think that commissioners should be appointed, as in a partition proceeding, and that one-ninth of the realty, embraced in each devise, should be set off to appellee and the other eight-ninths to the party or parties entitled thereto under the will. In case the commissioners should report, that the property in any one devise is not susceptible of division, the same can be sold and the proceeds divided between appellee and the devisee or devisees therein mentioned in the proportion of one-ninth and eight-ninths, the interest of appellee in the land or the fund being subject to the widow’s dower.

We see no objection to that portion of the decree, which finds the interest of appellee in the personal property to be $682.21, but this amount should he charged against the widow, as she took all the personalty by the terms of the will.

The costs should be apportioned among the parties according to their several interests, as here indicated.

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

Decree reversed.


source: Caselaw Access Project

author: Mr. Justice Craig

license: Public Domain

text:
    The Bloomington Mutual Benefit Association v. William Blue.

      Filed at Springfield March 23, 1887.

    1. Life insurance —by. whom a policy may be obtained, and for whose benefit—of a wager policy. A policy taken out on the life of a third person, by a beneficiary, the latter having no pecuniary interest in the life of the assured, is a wager policy, and as such is void.
    2. Public policy forbids one person who has no interest in the continuance of the life of another, from speculating on that life by procuring a policy of insurance thereon, without the knowledge or consent of the assured.
    3. A person has an insurable interest in bis own life, and has a right to procure a policy on the same, and have it made payable to any one whom he may appoint, although the benefiei try designated may not have any pecuniary interest in the continuance of the life of the assured.
    4. Same—of the doctrine as applied to companies formed on the mutual benefit plan. And when, under a charter of a mutual benefit association, a member thereof may take out a policy on his own life and devise such policy to a stranger, there is no reason why he may not have the policy made payable to the proposed beneficiary directly, in lieu of doing the same thing by appointment in a will.
    5. Section 1 of the act of 1883, relating to corporations on the mutual benefit plan, which provides that such corporations, etc., may be organized for the purpose of furnishing life indemnity or pecuniary .benefits to the widows, orphans, heirs or relatives, by consanguinity or affinity, or legatees, of deceased members, does not prohibit the issue of a policy to a member, made payable to one not related to him, and who has no pecuniary interest in the continuance of the life of such member.
    6. Same—estoppel to claim, a want of authority to insure for benefit of a person appointed as beneficiary. Where a mutual benefit association voluntarily enters into, a contract of insurance upon the life of a member for the benefit of one not expressly authorized or prohibited from becoming a beneficiary, which is not contrary to public policy, and receives all the premiums thereon, it will not be allowed to defeat a recovery pn the policy, at the suit of the beneficiary, by claiming that the contract, on the part of the association, is ultra vires.

    Writ of Error to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of McLean county; the Hon. O. T. Beeves, Judge, presiding.
    Messrs. Fifer & Phillips, for the plaintiff in error:
    At common law, the contract is void on grounds of public policy, for the reason that Blue had no insurable interest in the life of Bailey. Insurance Co. v. Hogan, 80 Ill. 35; Insurance Co. v. Hoyt, 46 Mich. 473; Insurance Co. v. Sturges, 18 Kan. 93; Gambs v. Insurance Co. 50 Mo. 44; Warnock v. Davis, 104 U. S. 775; Canmack v. Lewis, 15 Wall. 643.
    Section 1 of the statute prohibits any one from becoming a beneficiary unless included in the class of persons therein named, and therefore the policy is void. Penn v. Bornman, 102 Ill. 523; Insurance Co. v. Miller, 13 Bush, 489; Insurance Co. v. Falmer, 87 Pa. St. 133.
    Messrs. Kerrick, Lucas & Spencer, for the defendant in error:
    It is the well settled rule of law in this State, that a corporation' can not plead ultra vires to its own executed contracts. Bradley v. Ballard, 55 Ill. 415; Building Society v. Crowell, 65 id. 453; Darst v. Gale, 83 id. 136; Ward v. Johnson, 95 id. 215; East St. Louis v. Gaslight Co. 98 id. 415; Railroad Co. v. Thompson, 103 id. 187; West v. Agricultural Board, 82 id. 205.

      And the great weight of authority outside of this State is to the same effect. 2 Morawetz on Private Corp. 689; Green’s Brice’s Ultra Vires, 784; Gold Mining Co. v. National Bank, 96 U. S. 640; National Bank v. Meadows, 98 id. 621; Perkins v. Railroad Co. 47 Me. 573; Railroad Co. v. Proctor, 29 Vt. 93; National Bank v. Rogers, 125 Mass. 339; Arms Co. v. Barlow, 63 N. Y. 62; Thompson v. Lambert, 44 Iowa, 239; National Bank v. Insurance Co. 41 Ohio St. 1; Water Co. v. Murphy’s Flat, 22 Cal. 621; Manufacturing Co. v. Railroad Co. 48 Mich. 331.
    The contract is not void, as against public policy. Johnson v. Van Epps, 110 Ill. 551; 14 Bradw. 201; Langdon v. Life Ins. Co. 14 Fed. Rep. 272; Life Ins. Co. v. Baum, 29 Ind. 236; Campbell v. Insurance Co. 98 Mass. 381; Life Ins. Co. v. Francis, 94 U. S. 561; Life Ins. Co. v. Shafer, id. 457; St. John v. Life Ins. Co. 13 N. Y. 31; Wainwright v. Bland, 1 M. & W. 32; Volton v. Life Ins. Co. 22 Bush, 9; May on Insurance, secs. 112, 113; Bliss on Insurance, sec. 26; Olmstead v. Keys, 85 N. Y. 597; Forbes v. Life Ins. Co. 15 Gray, 249; Lemon v. Life Ins. Co. 38 Conn. 294; Rawls v. Life Ins. Co. 27 N. Y. 283; Fairchild .v. Life Association, 51 Vt. 613; Brockway v. Insurance Co. 9 Fed. Rep. 249; Warnock v. Davis, 104 U. S. 775; Clark v. Allen, 11 R. I. 439.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action brought by William Blue, against the Bloomington Mutual Benefit Association, to recover a certain amount of. money claimed to be due on a life benefit certificate issued by the defendant in October, 1883, to William B. Bailey, by which the association agreed, in consideration of certain payments to be made by Bailey, to pay to William Blue, upon the death of Bailey, an amount therein named. To the declaration on the certificate, the defendant filed four special pleas. In the first, it is averred that defendant is a corporation organized and doing business under an act of the legislature, approved June IS, 1883, in force July 1, 1883; that the plaintiff, Blue, is not a legatee or devisee of the said "William Pi. Bailey, and is not related to said Bailey, either by affinity or consanguinity, etc.; that the defendant, by virtue of the act under which it was organized and doing business, was only authorized to furnish life indemnity and pecuniary benefits to the widows, orphans, etc., of deceased members, by means- whereof said life benefit certificate was and now is null and void. The second plea is like the first, and contains the following additional averments: “The object for which it is formed, is to provide and equitably distribute, at minimum cost, a fund devoted to the relief of widows, orphans, heirs and devisees of deceased members.” It is also averred in this plea, that Blue was not a creditor of Bailey, and had no pecuniary interest in his life, and had no well founded expectation of pecuniary advantage to be derived from the continuance of the life of Bailey. This plea also contains a copy of the constitution and by-laws of defendant. In the third pica, the statute and defendant’s articles of incorporation are set up as a defence, and in the fourth plea, the articles of incorporation, and the fact that Blue had no pecuniary interest in the continuance of the life of Bailey, are interposed as a defence. To the pleas, the court sustained a general demurrer,' and the defendant abiding by the pleas, •judgment wa.s rendered in favor of the plaintiff for the amount claimed.

It is contended, first, that Blue had no insurable interest in the life of Bailey, and hence the contract was void; second, that it is rendered void by virtue of the statute under which defendant is organized and doing business.

It may be regarded as a plain proposition of law, that a wagering policy is void, and we think it also well settled that a policy taken out on the life of a third party by a beneficiary, in the continuance of whose life the beneficiary has no pecuniary interest, may be regarded as a wagering policy, and as such would be void. Had this policy been taken out by Blue on the life of Bailey, without his knowledge or consent, and had the premiums been paid by him, it would manifestly fall within what is known as a wagering policy, and would be void. Public policy forbids one person, who has no interest in the continuance of the life of another, from speculating on that life by procuring a policy of insurance; but here it does not appear that Blue had any instrumentality whatever in procuring the policy on the life of Bailey, or that he ever paid any portion of the premiums to procure the policy or to keep it in force, and hence the case of Insurance Co. v. Hogan, 80 Ill. 39, cited by the defendant, has no bearing on this case. In the case cited, the insurance was procured by the beneficiary, and all the premiums were paid by him, while here, Bailey procured the policy and paid all the premiums. Manifestly, the Hogan case can have no bearing on the facts of this case. Bailey had an insurable interest in his own life, and had a clear right to procure a policy on his life, and unless some principle of public policy is violated, he could make it payable, in ease of death, to any person whom he might desire.

In Lemon v. Phenix Mutual Life Co. 38 Conn. 294, where a similar question arose, it is said: “A question was made before us that Miss Lemon had not an insurable interest in Mr. Peterson’s life. If she had undertaken to obtain, and had herself obtained, an insurance on his life, that question might have arisen; but surely Mr. Peterson had an insurable interest in his own life, and he obtained the insurance on it, and we know of no law to prevent him making it payable, in case of his death, to the person to whom he was affianced, and if such a policy is delivered, as a gift, to the party to whom payable, we know of no law to prevent such a gift being effectual. ”

In Reeves v. Life Ins. Co. 27 N. Y. 282, Judge Wright says: “If the contract is with the' party whose life is insured, he may have the loss payable to his own representative, or to his assignee or appointee.”

In Fairchild v. New England Mutual Life Ins. Association, 51 Vt. 613, it is said: “The second point made by the defendant is, that Fairchild had no insurable interest in the life of Mrs. Nay, and- that the policy is therefore a wagering contract, and void by the law of this State. * * * If it were shown, therefore, that in point of fact Fairchild procured this policy to be issued upon the life of Mrs. Nay, himself, and for his own benefit, the question of his insurable interest might arise. But the prima facie showing of the policy, application and receipts is, that Mrs. Nay procured the policy to be issued herself, upon her own life, and chose to make Fairchild the beneficiary. * * * We are bound to presume that the policy was procured Jby Mrs. Nay upon her own life, as is the purport of the instrument itself. * * * ‘It can not be questioned,’ says the Supreme Court of Indiana, ‘that a person has an insurable interest in his own life, and that he may effect such insurance, and appoint any one to receive the money, in case of his death during the existence of the policy,’ and he may effectuate this object by an assignment of the policy, or by immediately appointing such person as the beneficiary. * * * It is the interest of A in his own life that supports the policy. The plaintiff did not, by virtue of the clause declaring the policy to be for her benefit, become the assured. She is merely the person designated, by the agreement of the parties, to receive the proceeds of the policy upon the death of the assured.” ■

In Langdon v. Union Mutual Life Co. 14 Fed. Rep. 272, it is said: “There is no case, to my knowledge, which holds, that a party may not insure his own life, and make the policy payable to any one he may select, though such person has no legal interest in his life. * * * Although this exact question has not been decided, the intimations of the courts are uniformly in that direction.”

In Connecticut Mutual Life Ins Co. v. Schaffer, 94 U. S. 457, it is said: “There is no doubt that a man may effect an insurance on his own life for the benefit of a relative or friend, or two or móre persons,- on their joint lives, for the benefit of the survivor or survivors. The old tontines were based substantially on this .principle,-and their validity has never been called in question. The essential thing is, that the policy should be obtained in good faith, and not for the purpose of speculating on the hazard of a life in which the assured has no interest. ”

There are other authorities holding the same doctrine, but we have referred to enough to show the current of authority on the question.

The first section of the act under which the defendant is organized, in express terms' authorizes the organization of such associations for the purpose of furnishing life indemnity or pecuniary benefits to devisees or legatees. If, as is plain from the language of the statute, a person may take out a policy on his own life, and devise such policy to a stranger, what principle of public policy would be violated by a provision in thé policy making it payable to a stranger, in lieu of doing the >same thing by will ? If the policy may be made payable to a stranger who has no insurable interest in the life of the insured, as it may be by statute, we perceive no reason which will prevent the sable thing being done by a clause the insured may have inserted in the policy at the time the insurance is procured.

We have been cited to Mutual Benefit Association of Michigan v. Hoyt, 46 Mich. 473, as an authority holding that the policy is contrary to public policy, and void. The case cited sustains that view, but we do not regard it in harmony with the current of authority, and are not inclined to follow it. We think the better rule is, where a person obtains a policy on his life, of his own accord, and pays the premiums himself, he may, if he desires, make the policy payable to one who has no insurable interest in his life, and by so doing, no rule of law or principle of public policy will be violated.

We now come to the second question: Section 1 of the act under which defendant is incorporated, is as follows : “That corporations, associations or societies, for the purpose of furnishing life indemnity or pecuniary benefits to the widows, orphans, heirs or relatives, by consanguinity or affinity, devisees or legatees, of deceased members, or accident or permanent disability indemnity to members thereof, and where members shall receive no money as profit, and where funds for the payment-of such benefits shall be secured, in whole or in part, by assessment upon the surviving members, may be organized, subject to the conditions hereinafter provided.” It is contended that all persons not named in the act are prohibited from becoming beneficiaries. It will be observed that the contract involved is not absolutely prohibited by statute. All that can properly be claimed is, that it was not expressly authorized by the statute. The defendant voluntarily issued the policy. It received the premium, and Bailey fully, so far as appears, performed all that his contract required him to do. So far as he is concerned, the contract is an executed one. Now, upon the death of Bailey, when the defendant is called upon to perform its part of the contract, can it refuse, and defeat a recovery by claiming that the contract is ultra vires? We think the law on this question is well settled that such a defence can not be made availing. Where the contract has been fully performed by the party contracting with the corporation, and the corporation has received the benefits from such contract, it can not invoke the doctrine of ultra vires to defeat an action brought against it on such contract. Bradley v. Ballard, 55 Ill. 415; Darst v. Gale, 83 id. 136; 2 Morawetz on Corporations, 689.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    John W. Scott, Exr. v. The People ex rel. Lewis, Collector, and M. T. Scott v. The People ex rel. Lewis, Collector.

      Filed at Springfield March 23,1887.

    1. Drainage haw—formation of drainage districts—by whom—and of the different classes. By section 1 of the Drainage law of 1885, the highway commissioners in each town in counties under township organization are made drainage commissioners of all the drainage districts in their respective towns, and are made a body corporate. Where a proposed district lies in two towns, the town clerk of the town having the greater part of the lands is required to select the drainage commissioners from the highway commissioners of both towns, and such districts are called “union districts.” When the proposed district lies in three or more towns in the same or different counties under township organization, the county court of the county having the greater part of the lands appoints temporary commissioners for the purpose of organization, after which new ones are to be elected. Such is called a “ special district. ”
    2. Same— enlarging a drainage district—by whom. Under section 42 of the same act, the authority to enlarge a previously organized district, without regard to the class to which it belongs, is conferred upon its drainage commissioners alone. Therefore, a proceeding to enlarge a special drainage district lying in three or more towns is not required to be instituted in the county court, but should be had before its drainage commissioners. It matters not, in respect to the question of their jurisdiction, that the commissioners may be an interested tribunal.
    3. Same—objections to judgment for delinquent assessments—whether availing after neglect to appeal. The fact that the order of the commissioners of a special drainage district confirming the classification of the lands added to the district was mislaid, so that it could not be found, affords no valid objection to an application by the county collector for judgment against the lands for the delinquent assessments thereon, as such an objection does not go to the substantial justice or validity of the assessment.
    4. Same—absence of order of confirmation as an obstacle to the taking of an appeal—notice to be taken of the orders in a proceeding. Moreover, the loss of the order of the commissioners confirming the classification of the lands did not necessarily prevent an appeal. The parties were bound, at their peril, to take notice of all orders made in the proceeding, and to “take cognizance of all adjournments, without further notice, ” and if they had been present when the question of confirmation was disposed of, they would have had all the facts necessary to the perfecting of an appeal. So the absence of such order, could not avail as a defence to an application for judgment, upon the ground that the exercise of the right of appeal was thereby prevented.

      Appeal from the County Court of Champaign county; the Hon. J. W. Langley, Judge, presiding.
    Messrs. Gere & Beardsley, for the appellants:
    The -supposed enlargement of the drainage district was without authority of law, and void. As a special ■ drainage district could be organized only in the county court, the proceeding to enlarge it must be instituted before that tribunal.
    The fact that the commissioners in this case sat as judges in a case in which they were personally interested, renders their acts void. Cooley’s Const. Lim. 410; Broom’s Legal Maxims, 90.
    The order of the commissioners affirming the classification was not so filed as to permit appellant to appeal therefrom.
    The condition and location of the land must have been such as called for by section 42, before the commissioners could have had jurisdiction to include them within - the enlarged district.
    Actual notice of the levy of the assessment was necessary in this case.
    Mr. Francis M. Wright, for the appellee:
    Every matter urged by the appellants in support of their objections, preceded the application for judgment, and every such matter must be considered res judicata, and not now to be again investigated. Lehmer v. People, 80 Ill. 601; People v. Brislin, id. 423.
    All objections which could have been urged at the time of the classification or assessment must be considered as waived, and can not be urged for the first time on application for sale of lands for delinquent assessments. Blake v. People, 109 Ill. 504, and cases there cited.
    The collector’s list of delinquent lands is prima facie ground for judgment. The collector is not bound to prove legality. The defendant has the burden of proving illegality. Durham
      v. People, 67 Ill. 414; Chiniquy v. People, 78 id. 570; Karnes v. People, 73 id. 274; Mix v. People, 81 id. 118; 86 id. 312.
    The collector’s return was primq, facie evidence that the amounts returned were due. Brackett v. People, 115 Ill. 29; Pike v. People, 84 id. 80.
    It is incumbent on the party filing objections, to prove them. Enos v. City of Springfield, 113 Ill. 65.
    Authority to act can not be questioned collaterally, even though the proper notice was not given, as an attempt to defeat an application for judgment upon unpaid special assessments made by the corporate authorities. Blake v. People, 109 Ill. 504.
    The special assessment itself is prima facie evidence that the property is lawfully assessed, and the burden of proof is on the owner to show that it is not so assessed. Chicago v. Sherwood, 104 Ill. 549.
    No error or informality in the proceedings of any of the officers connected with the assessment, levying or collecting the taxes, not affecting the substantial justice of the tax itself, shall vitiate, or in any manner affect, the tax or the assessment. Rev. Law, sec. 191; People v. Clayton, 115 Ill. 150.
    Two appeals are provided for by the provisions of the statute under which this assessment was made. (See sections 61, 24, 25, 62 and 27 of “An act to provide for drainage for agricultural and sanitary purposes, and to repeal certain acts therein named,” approved June 27, 1885.) Both parties appeared and objected to the classification, and thereby gave jurisdiction, if not obtained otherwise; and for the matters of which complaint is now made, appeal was the appropriate remedy. Keigwin v. Drainage Comrs. 115 Ill. 347.
   Mr. Justice Mulkey

delivered the opinion of the Court;

Thomas Lewis, as county collector, made application to the county court of Champaign county, for judgment against certain lands belonging to the appellants in the above entitled causes, for the amount of a special assessment made by the drainage commissioners of Big Slough special drainage district, in said county. -£he owners of the land appeared, by counsel, and interposed a number'of written objections, none of which being deemed sufficient, they were overruled by the court, and judgment entered accordingly. The owners thereupon, respectively, appealed to this court, and as the eases involve' the same questions, they will be considered together.

The record shows that Champaign county is under township organization, and that the drainage district in question lies partly in three towns. The tracts of land involved in the suit were not in the district- as originally organized in 1880, but they became a part of it through a proceeding to enlarge its boundaries in 1885, and the chief objection to the present assessment is based on the alleged illegality of that proceeding. The proceeding in question was had under an act of the legislature, entitled “An act to provide for drainage for agricultural and sanitary purposes, and to repeal certain acts therein named, ” approved June 27, 1885. By the 1st section of the act, the commissioners of highways in each town in the several counties under township organization, are made drainage commissioners of all the drainage districts in the town, and are declared to be a body corporate, etc. Where a proposed district lies in two towns, in the same or different counties, section 48 of the act requires the clerk of the town in which the greater portion of the lands lie, to select the drainage commissioners in part from the highway commissioners of both towns. Districts of this class are called “union districts. ” When the proposed district lies in three or more towns, in the same or different counties under township organization, the county court of the county in which the greater portion of the land lies, appoints temporary commissioners for the purpose of organizing, and after the organization is effected, new commissioners are to be elected by the owners of the land in the district. Section 49, et seq.

Iii addition to the differences here noted in respect to the selection and appointment of commissioners, an examination of the act will show considerable diversity in the procedure in the three classes of cases provided for, not only in the organization of the districts, but in other respects. But for the purposes of the decision to be made, a more particular reference to them will not be necessary.

As a special district, like the present, can only be organized, in the first instance, before the county court, it is contended by appellants, that a proceeding to enlarge its boundaries should, therefore, necessarily be brought before the same tribunal, and as the proceeding to enlarge, in this case, was instituted and conducted before the drainage commissioners of the district, and not before the county court, that the whole proceeding is, therefore, without authority of law, and void. Admitting the correctness of this conclusion, it would logically follow that the lands in question are not within the district, and consequently not subject to assessment. This, of course, would lead to a reversal of the judgment. We do not, however, regard the argument as sound, or believe the conclusion is justified by the provisions of the statute. As we read the é2d section of the act, we think it clear that the authority to enlarge a previously organized district, without regard to the class to which it belongs, is conferred upon the drainage commissioners alone. So much of that section as relates to this question is as follows: “Drainage commissioners may, at any time, enlarge the boundaries of their district, by attaching new areas of land which are involved in .the same system of drainage, and require for outlets the drains of the districts made or proposed to be made, as the case may be, on the petition of as great a proportion of the land owners of the district so enlarged as is required for an original district. All changes thus made in the district shall be duly noted and shown upon the map, and recorded in the drainage record. The commissioners shall proceed to classify the lands thus added to the district. ”

That this language is broad enough to include all classés of drainage commissioners, can not be denied; and the only reason assigned why it does not apply to all classes is, as stated by counsel, that the “section is found, in its order, among the sections providing for the organization and maintenance of a district composed wholly of lands lying in one township.” This statement, even if true to the extent stated, would not justify the conclusion drawn from it. The part of the section relating to this subject is not found “among” the sections providing for the organization of districts lying wholly in one township. It is inserted immediately after that subject is entirely disposed of, and is followed by provisions relating to the formation of sub-districts. If the part of the act cited, relating to the enlargement of existing districts, is not general in its application, then there is no provision for such enlargement of any districts except those which lie wholly in one town. We can not concur in a construction that would lead to such a result. We find no warrant in the statute, either express or implied, for the contention of appellants’ counsel, that a proceeding to enlarge a drainage district of any class should be conducted in the county court.

It is next urged, that to permit the commissioners to pass upon the question of enlargement of the district, would be to have it determined by an interested tribunal. To a limited extent this is true, but it does not therefore follow that the decision of the question, when made, would not be binding. In matters of mere local concern, which are of a public or quasi public character, this, in many cases, can not be avoided without great inconvenience. It is every day’s experience for property owners in small villages to sit as jurors in corporation cases for the recovery of penalties under ordinances, and yet we presume there are few who would now question their right to do so, on the ground of interest. So township and county officers are constantly in the habit of making up and auditing their own accounts for services to the public, and no one, we presume, questions the validity of these official acts on that ground. They are, in most cases, largely ministerial, and the interest is so small and insignificant that the law does not regard it. To hold this objection good, would strike at the very foundation of the whole drainage system.

It appears, that while the order of the commissioners confirming the classification of the lands was duly filed with the clerk, yet, when counsel for appellants called upon the clerk for the purpose of inspecting it, it could not be found, and it is claimed that, by reason of this, appellants were prevented from taking an appeal. This objection clearly does not affect the justice or validity of the assessment, and consequently can not prevail in an application of this kind. The appellants were bound, at their peril, to take notice of all orders made by the commissioners in the proceeding. The statute required them to adjourn from day to day, until all objections to the classifications of the lands were heard and disposed of. After the first notice, the statute declares that “all persons shall take cognizance of all adjournments, without further notice. ” Had appellants been present when the question of confirming the classification was finally disposed of, they would have been put in possession of all the facts necessary to the perfecting of an appeal. But, outside of all these considerations, as before indicated, the objection is not one that could be availed of upon an application for judgment against the land.

The other objections, not specially noticed, are equally untenable, and were therefore properly overruled.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Shops

text:
    Philander L. Cable et al. v. Thomas B. Ellis et al.

      Filed at Ottawa March 22, 1887.

    1. Practice—what proceedings allowable in trial court after reversed and remandment. Where a judgment or decree of the circuit court is'reversed, and the cause remanded for “other and further proceedings in conformity with the opinion” of this court, the circuit court will be concluded by the legal principles announced by the appellate tribunal; but it does not necessarily follow that other facts may not be proved, within the principles announced, and amendments made, which obviate objections to the granting relief or to the allowance of a defence.
    2. In the case of the reversal of a decree, and the remandment of a cause without specific directions, the circuit court has the power to allow amendments to the pleadings, and to permit the introduction of other evidence not inconsistent with the principles announced in the opinion of the superior tribunal. Even after a third remandment, amendments may be allowed, on reasonable terms, so that neither party will be surprised or unreasonably delayed thereby; and so may a stranger to the record be allowed to intervene, upon a proper showing made.
    3. Posher adjudication—what may be considered on a second appeal. Where this court, on appeal, has considered the case on its merits, and found the equities between certain of the parties as presented by the pleadings, one of the defendants can not, under the guise of exhibits to .his cross-bill, bring all the previous pleadings and evidence into the case as new matter, and thus require this court to reconsider questions already passed upon by it.

      Cross-biiTi—its requisites. A defendant filing a cross-bilHs not required to recite or set out in the same any of the pleadings or proceedings under the original bill.
    5. Same — in whose favor relief may be granted on cross-bill. The complainant in a cross-bill will have no right to ask affirmative relief in favor of other persons who are parties before the court, and capable of carrying on their own litigatiem and protecting their own interests.
    6. Purchaser pendente lite—how far bound by the result in the suit. A purchaser of real estate pendente lite, under such circumstances as that the doctrine of lis pendens is applicable, and those claiming under him, will be bound by the result of the pending litigation.
    7. Improvements—whether regarded as a part of the realty—and of an allowance for improvements—charging for use and occupation. As a general rule, improvements made upon real estate, of a fixed and permanent character, and attached to the realty, by one who has no title or interest in the premises, and without the consent of the owner of the fee, become a part of the realty, and vest in the owner of the fee.
    8. Where, however, improvements upon real estate, of a permanent character, are made in good faith by one in possession, believing himself to be a bona fide purchaser or owner for value, and under circumstances justifying such belief, and the expenditure is reasonable in amount and of benefit to the estate, allowance may, in a court of equity, be made therefor, in a case where the title is found to be in another; but the person claiming such allowance will be charged with the value of the use and occupation of the premises.
    9. But there is no principle of law permitting the owner or mortgagor, or his grantees, or a subsequent purchaser with notice of prior equities of the first purchaser, to make improvements on the premises and have a prior lien therefor, but such improvements will pass upon sale of the premises.
    10. So where, during the pendency of litigation respecting the title to a tract of land, and the equities of the parties therein, a person acquired the title or interest of one of the litigants and afterward became involved in the same litigation, still pending, he allowed parties to go upon certain lots into which the premises were divided, and make improvements thereon, telling them he could make no title, but agreeing to convey to them in case he should succeed in the suit, the court finally found against his title, and the parties improving the lots intervened, and sought to be allowed for their improvements, and the court dismissed their petition, it was held, that the decision was correct, the intervenors not being bona fide purchasers, or even purchasers at all.
    Appeal from the" Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Peoria county; the Hon. N. M. Laws, Judge, presiding.
    Mr. C. M. Osborn, for the appellant Cable.
    Mr. C. Dunham, for the intervening petitioners.
    Mr. George W. Spahr, and Mr. John Muckle, for the appellee Ellis.
    Mr. William Jack, and Mr. W. W. Rathbun, for the appellee Rathbun.
    Mr. R. L. Lyons, and Mr. James S. Murray, for the appellees the heirs of Austin, Sumner & Co.
   Mr. Justice Shops

delivered the opinion of the Court:

By the appeal from the judgment of the Appellate Court for the Second District, affirming the decree of the circuit court, this case is for the fourth time brought before this court,—first, as Sumner et al. v. Waugh et al. 56 Ill. 531, and thereafter as Cable v. Ellis et al. 86 id. 525, and Ellis et al. v. Sisson et al. 96 id. 105. In the first of these cases, such of the facts as were thought to be necessary were stated in the opinion, and accompanying the opinion in the other two cases will be found carefully prepared statements of the facts as they had then been developed.

When the cause was last before us, the decree of the Appellate Court was reversed, “and the cause remanded for further proceedings in conformity to this (that) opinion. ” And in remanding the cause to the circuit court, the form of the order of the Appellate Court was: “Therefore, in obedience to said command, it is ordered by the court, that the decree of the circuit court of Peoria county, in this behalf rendered, be reversed, annulled, set aside, and wholly for nothing esteemed, and that this cause he remanded to the circuit court of Peoria county, for other and further proceedings in conformity to the opinion of the Supreme Court aforesaid.” After the cause had been re-docketed in the circuit court, appellant Cable exhibited his cross-bill, and made all the parties to the litigation, and then before the court, parties defendant thereto, and some sixteen persons, including the Bock Island and Mercer County Bailroad Company, were permitted to file petitions in the cause, as intervenors whose rights were said to have been acquired since the commencement of the litigation,—and the propriety of this action of the court is questioned.

By the 81st section of the Practice act, (Starr & Curtis’ Stat. p. 1839,) it is provided, “that the Supreme Court, or Appellate Court, in case of a partial reversal, shall give such judgment or decree as the inferior court ought to have given, * * * or remand the cause for further proceedings, as the case may require. ” In construing this language of the statute, in Chickering v. Failes, 29 Ill. 294, it was said: “On the previous trial, the court deemed it improper to render a decree in the case, but regarded it as equitable, and conducive to justice, that it should be remanded for further proceedings. The whole question grows out of the fact that the directions to proceed are general. If these general directions to the court below limit its power only to act upon the record of the case as it then existed, under the rules announced in the opinion, then the amendment of the answer, and the reception of additional evidence, was unwarranted. That the court below is concluded by the legal principles announced by the appellate tribunal, is undeniable. But it by no means follows that other facts may not be proved, within the principles announced, and amendments made which obviate objections to the granting the relief sought, or to the allowance of a defence interposed, * * * When a reversal of the decree or judgment occurs, the judgment of the court below, as to the parties to the record, is entirely abrogated, and the cause then stands in the court below precisely as if no trial had occurred. The case is then remitted to that court in precisely the same' condition, in all respects, as it occupied before the trial in that tribunal. The decree, by its reversal, is in effect expunged from the record; and the court has the same power over the record which it possessed before its decree or judgment was rendered. It then follows, that when a decree is reversed, and the cause is remanded without specific directions, the circuit court has the power to allow amendments to the pleadings, and to permit the introduction of other evidence.”

The objection, therefore, is without force. It was within the discretion of the circuit court to allow the pleadings to be amended, and the. introduction of other and further evidence, to such extent as should seem necessary and conducive to justice; but in allowing amendments or new pleadings, in the introduction of further evidence, and in any decree it might thereafter render in the case, the court must not fail to recognize and observe the principles announced in the opinion of the superior tribunal. The history of this case furnishes a striking illustration of the application of the rule announced. The litigation was begun in 1861, by a bill filed by appellee Ellis. After the case had been brought to this court for the second time, and remanded to the circuit court, Ellis amended his bill, and thereby obviated the difficulty that till then had prevented his recovering; and no reason is perceived why any of the parties might not, after the third remandment, so amend their “bills, pleas, answers .and replications, on such terms as the court may deem proper, so that neither party be surprised nor unreasonably delayed thereby. ” (Starr & Curtis’ Stat. p. 409, see. 37.) And, particularly, for a defendant to file a cross-bill, after having answered. (Ibid, p. 407, sec. 30.) And it was equally within the discretion of the court, even after the third remandment, to allow a stranger to the record to intervene in the ease, upon proper showing made by him.

But the controlling questions in this case are, first, whether, by the amendment to the pleadings made since the last trial in this court, any new issues have been raised, and, if so, what those issues are, and whether or not the court erred in its decree in respect thereto; and second, whether the court erred in denying relief to the interveners, and dismissing their petition.

The cross-bill exhibited by appellant Cable, showed the exhibiting of the original bill by Ellis, in 1861, against Waugh, Sisson and Rathbun; that Ellis sought relief against all three defendants, and particularly to have Waugh declared equitably a party to the contract under which Ellis claimed both the Sisson and Waugh mortgages were to be released and surrendered; that hy subsequent bills all the parties in interest were brought before the court, and the then three causes, under the Ellis bill, the Sumner bill and the Cable bill, were consolidated; that, issue was taken on all the bills, testimony taken, a trial had, decree rendered, appeal and remandment; that on the next trial, in 1878, Ellis amended his bill and answers, alleging the verbal agreement of Waugh to release the notes and mortgage he held, and asking that Cable, the assignee of Waugh, and Waugh’s heirs, should now be required to do "so; that issue was taken on this amended Ellis bill, testimony taken, a trial had, decree rendered, which, on appeal, was reversed, and the cause remanded; then shows the character of the Sumner bill, and the Cable bill, and the relief sought under each; then asks that his original bill and exhibits may be taken as part of his cross-bill, and refers to the record in all the eases for statement of fact, and that the testimony taken under those bills, might be considered as taken under his cross-bill. He then says he had no personal knowledge of the contracts and agreements relied upon by Ellis and the other parties litigant, before he bought the Waugh notes and mortgage, and as to the verbal contract relied on by Ellis, he never heard of it till Ellis disclosed it in his amended bill and the evidence then taken, and now he could not learn the truth, because Waugh was dead; reaffirmed all his averments in his previous pleadings, as of his own knowledge, as true; that he did not believe the verbal contract set up by Ellis was true, but that up to the time Ellis disclosed that verbal contract, he, Cable, was entitled to the specific relief he had asked. He further alleged that the litigation on his part all grew out of Ellis’ neglect to set up the verbal contract in his pleadings and evidence, and if Ellis should be entitled to priority over him because of that contract, it was then proper for him to set up, by cross-bill, certain equities to which he was entitled. Now, it is perfectly evident that down to this point, appellant Cable had contented himself with informing the court, with some particularity, as to the preceding steps in the case, not because he was required to do so, for the statute expressly excused him from reciting, in his “cross-bill, any of the pleadings or proceedings in the case in which it” was to be filed, (Starr & Curtis’ Stat. p. 408, sec. 31,) but because he intended, no doubt, some advantage would or might thereby accrue to him. But, however intended, with respect to every issue arising under the pleadings and evidence, as the same stood on the last appeal to this court, as between the equities of Ellis, and those claimed by Cable as the purchaser and assignee of Waugh, this court had solemnly adjudged priority to Ellis. Appellant Cable could not, under the guise of exhibits to his cross-bill, bring all the previous pleadings and evidence into the case as new matter,— infuse life into dead issues by repetition,—and thus require the court to reconsider and re-adjudicate questions it had previously passed upon.

Summarizing the averments of the cross-bill under which the new equities must arise, if at all, we have: the charge that Ellis was negligent in not sooner setting up his verbal contract with Waugh; that he did not know of this verbal contract when he bought the Waugh notes and mortgage; that before he did buy' those notes of Waugh, this court had decided that the Waugh mortgage was a first lien; that he bought in good faith, and expended therefor a large sum of money; that Ellis ought not to have a first lien, because the amount due him exceeded the value of the land, and because, further, Waugh was insolvent, and he, Cable, could not have recourse for his expenditures on Waugh; that he offered to pay Ellis the principal of his debt; that Ellis’ laches in disclosing his alleged verbal agreement with Waugh ought to operate to prevent Ellis having interest on his original debt; that Ellis’ claim is against Bathbun, and not against Waugh; that his rights ought to be subrogated to Waugh’s rights in the lands; that he has requested Ellis to collect his debt from Bathbun, but Ellis, intending to cheat him, refused to do so; that, at most, under the contract, Waugh’s mortgage was to be released only as to part, etc. He further charges, that before the third appeal to this court, he gave the Bock Island and Mercer County Bailroad Company, in which he was largely interested as a stockholder, permission to build its road over the lands, and establish thereon depot facilities, and agreed to make the railroad company a deed therefor when he should get title; that he laid off a town about the depot, and allowed various persons to improve the lots and build thereon their dwelling houses, and when he should get title he was to make them deeds, on payment of an agreed price; that his contract with these lot-occupiers was not in writing, and they had not paid him anything on the contracts, or for rent therefor, and that the railroad company and these lot-occupiers ought to be allowed for their improvements.

As will be seen, appellant lays great stress upon the fact that in buying the Waugh notes and mortgage he relied upon the previous decisions of this court declaring this Waugh mortgage a first lien, and having so relied, the court ought now to protect him, and those under him, to the extent of their permanent improvements, at the expense, if need be, of Ellis. A moment’s consideration of this record will suffice to show into how serious an error appellant has fallen. He bought the Waugh notes and mortgage early in 1872, and on September 14,1872, exhibited his bill of foreclosure in the circuit court of Mercer county, (removed by change of venue to Peoria county,) in which he claimed to be the owner of these mortgage notes, by assignment from John M. Waugh and Henry B. Ellis. As before stated, this litigation began by the filing of the Ellis bill in 1861, and was followed by the Sumner & Co. bill, filed June 9, 1865. The case first reached this court on the appeal of Sumner & Co., and a decision announced in this court at the September term, 1869. (Sumner et al. v. Waugh et al. 56 Ill. 531.) On' this appeal, there was brought before this court the issues arising under the Sumner bill, to which Waugh, H. B. Ellis, Sisson, Thomas B. Ellis, and others, were, made parties defendant. This bill was taken as confessed, all the defendants being in default except Thomas B. Ellis and H. B. Ellis, both of whom answered. In that bill, Sumner & Co., as the assignees of Sisson, asked foreclosure of the Sisson mortgage. In his answer, Thomas B. Ellis gave a history of the transaction out of which this Sisson mortgage arose, set out the written contract of September 30,1858, and insisted that both this Sisson mortgage and the Waugh mortgage, (by which is meant the mortgage given by Thomas B. Ellis, when he was the owner of the premises, to Waugh and H. B. Ellis, and by them assigned to Cable,) were, by the contract, to be released and surrendered, and that, as between Thomas B.JEllis and the assignees of Sisson, Ellis was entitled to priority. In addition to his answer, T. B. Ellis exhibited his cross-bill against Sumner & Co* Waugh and Sisson were not made parties defendant to this cross-bill; and while, in his cross-hill, as in his answer, Ellis set up all the facts and circumstances under which he claimed priority as to both the Sisson and the Waugh mortgages, it is manifest that the issue before the court, and on which it was called upon to pass, was as to the equities and priorities as between Sumner & Co., assignees of Sisson, and T. B. Ellis, and not as between T. B. Ellis and Waugh. Waugh was not seeking any relief,—was not attempting to foreclose his mortgage,—and the question of equities and priorities under the Waugh mortgage, as between Waugh and T. B. Ellis, was not, therefore, before the court for decision.

The state of the record, the issues arising on the pleadings, and the testimony in the case, and the decision and opinion of this court in Sumner v. Waugh, were all well known to appellant before he bought the Waugh notes and mortgage. In his answer to Ellis’ amended bill of November 25,1878, he says: “Before purchasing said mortgage, in 1872, from said John M. Waugh, then the legal owner thereof, he (appellant) caused a full and careful examination to be made into all the pleadings and testimony of the said Thomas B. Ellis, and all the defences and claims which said Ellis had set up against the said mortgage, during all the time for eleven years preceding the said purchase by this respondent. ” If this is true, and it must be taken as true against appellant, he knew when he bought into this litigation, that this court had never had before it for decision the question of the conflicting equities between T. B. Ellis and J. M. Waugh, and arising under the Waugh mortgage, for, before the case reached this court for the second time, appellant had made his arrangement with Waugh, had become the speculative purchaser of the Waugh notes and mortgage, and had exhibited his bill to foreclose the same.

Turning our attention, now, to the consideration of the remaining averments of appellant in his last cross-bill, it will be observed that all of the facts averred as the basis of the alleged new equities, existed prior to the last appeal to this court,—that is to say, prior to the October term, 1878, of the Peoria circuit court,—and they were as perfectly within the knowledge of appellant then, as at the time he exhibited this cross-bill. If, for any reason, his pleadings at that time did not disclose all the facts within his knowledge necessary for him to maintain his alleged right of action or establish his defence, it was clearly his duty to have amended them before trial, that upon the trial the court might have before it all facts relied upon by any of the parties, and affecting their rights. But if the cross-bill should be regarded simply as an amendment of his previous pleadings, the question still remains, whether any issuable facts are disclosed in this cross-bill that were not included in his previous pleadings, and in issue before the court when the case was last before this court.

And first—We may dismiss all that part of his cross-bill having reference to the supposed equities of the Bock Island and Mercer County Railroad Company and the other occupiers of lots, with the remark, that it was entirely gratuitous on the part of appellant, and wholly unnecessary for him, to interpose in their behalf, since they were each and all before the court in their own behalf, by their intervening petitions. It nowhere appears that they had constituted appellant their representative, nor that they were not entirely competent to carry on their own litigation without his active interference.

Secondly—With respect to the remaining charges and averments in appellant’s cross-bill, an examination of the record clearly shows, that in substance and effect, if not in form, they were each and all contained in his former bill, answers, petition for a rehearing, and other pleadings, and that in respect thereto, testimony had been taken to the fullest extent by all the parties, so that there was before this court, on the third appeal, not only the requisite and proper parties, but a record disclosing all these matters properly at issue.

The gist of appellant’s various charges is, that although he bought pendente lite, he was nevertheless an innocent purchaser of the Waugh notes and mortgage, for value, and without notice of the equities of Thomas B. Ellis arising under the verbal contract with Waugh, as first disclosed by Ellis in his amended bill of November 25, 1878. In .whatever form presented, appellant’s alleged right of priority over T. B. Ellis comes to this as its foundation. Now, in his answer to this amended bill of Ellis, of November 25, 1878, setting up this verbal contract for the first time, appellant shows, that “before purchasing said mortgage in 1872, from said John M. Waugh, then the legal owner thereof, he caused a full and careful examination to be made into all the pleadings and testimony of the said Thomas B. Ellis, and all the defences and claims which said Ellis had set up against the said mortgage during all the time for eleven years preceding the said purchase by this respondent, and it was not in any way claimed by said Ellis at that time, or at any other time until the filing of said amended bill, more than twenty years after said supposed contract was made, that any of the defences in said amended bill ever existed;. and respondent says, that even if such contract as is in said amended bill set up, did, in fact, exist, the said Thomas B. Ellis, by his-and great and inexplicable delay, is estopped, to set up or claim the benefit of the same in any way; * * * that more than twenty years have elapsed since the making of the same, and more than four years have elapsed since the death of the said John M. Waugh; during all said twenty years, and during sixteen years of Waugh’s life after the supposed contract, said Ellis never, at any time, in any way mentioned or spoke of or pleaded the same, notwithstanding he might have done so twenty years before filing said amended bill, and notwithstanding this suit has been pending since March, 1861, during all which-time said Ellis has never mentioned or set up or pleaded or testified about such a contract; and this respondent sets up and pleads the said lapse of time as a bar to any action on such contract now; * * * that it was a contract for the sale and surrender of an interest in lands, and that no note or memorandum in writing, signed by said John M. Waugh, was ever made, and respondent sets up and pleads and expressly claims the benefit of the Statute of Frauds and Perjuries; * * * that said contract was and is unjust, unfair, and its enforcement will deprive this respondent, and the heirs and estate of said Waugh, of a mortgage and notes on which there was then nearly $14,000 due, and on which there is now due nearly $30,000, without any consideration.” And after the issues arising on this answer of appellant (and all the other issues in the case,) had been passed upon and decided by this court, (Ellis et al. v. Sisson et al. 96 Ill. 105,) this appellant, by his petition for a rehearing, challenged the correctness of that decision and opinion, presumably upon every existing ground, including the very right of Ellis to exhibit his amended bill of November 25, 1878. This court, in its further opinion, said: “After a careful consideration ■ of the grounds of the petitions, upon the merits of the controversy between the parties and the questions heretofore presented, we feel satisfied with our opinion and judgment, and see no reason for changing the same.” And as to the right of Ellis to amend liis bill, as he did, November 25, 1878, and which was the new question presented on the rehearing, it was said: “We think we may properly refuse to this petitioner a rehearing in order to afford him an opportunity to present for consideration this new point which he failed to make before in the court. ” From all which it satisfactorily appears, that when this cause was last before this court, there was presented for its consideration and determination the conflicting rights of all the parties to this record (not intending here to include intervenors) upon issues properly arising on the pleadings and evidence; and that within those "issues were embraced the alleged new equities set up and assumed to be disclosed in appellant’s cross-bill of May 4, 1881. It follows, therefore, that the matters in issue between the parties to this record, are, by the former determination and judgment of this court, res judicata. Litigation must, at some point, cease. In this case, the end had been reached,—the rights of the parties had been found and declared, and' the controlling legal and equitable principles announced, and the rights of the parties and the law of the ease became fixed and determined by the former decision of this court.

■ The second controlling inquiry, whether the circuit court erred in denying relief to the intervenors and dismissing their petitions, will now be considered.

Alter this cause had for the third time" been remanded to the circuit court, the Bock Island and Mercer County Bailroad Company, and fifteen private persons, on application, were allowed to intervene in the cause, upon the representation that they were interested in independent and separate parts of the subject matter of the litigation, and might be affected by the orders and decrees of the court in the cause. These interveners all claim under appellant Cable, and whatever rights they may have in the premises have grown up by their reliance upon contracts, arrangements or licenses made with and derived from him. Cable’s interest in the premises rests, primarily, upon the assignment to him of the notes, secured by the Waugh mortgage, in 1872. That interest, as we have seen, he acquired pending this litigation. Subsequently, it is claimed, Cable acquired color of title to the premises under a sale upon fieri facias, upon judgment recovered by one Wharton against T. B. Ellis, and mesne conveyances from Wharton to Sumner, and by contract of sale by Sumner to Cable, and possession in Cable, by his tenant, Sisson. This interest also was acquired by Cable pending this litigation.

When this cause was before us on the third appeal, and before the record showed a sale or conveyance by Sumner to Cable, we had occasion to say: “Wharton was an execution purchaser, under an execution issued upon a judgment against T. B. Ellis, rendered in 1871. Although the legal title then appeared to be in Ellis, it was but a naked legal title, the equitable interest being in Sisson and Bathbun, or Sisson, under the contract of September 30, 1858, and Ellis having tendered a conveyance, which had been refused to be received. The judgment and sale were long after this litigation had been commenced, and while it was pending, and the purchasers would be bound by the result of this suit, as purchasers pendente lite. ” With the doctrine as there announced we are now content.

If, therefore, the grantees of Cable took conveyances under circumstances where the doctrine of Us pendens was applicable, as we have seen they did, Cable, and those claiming under him, would be equally bound. He could acquire from or through his grantors no greater interest than they possessed, and if they were bound as purchasers pendente lite, so was he. Being himself bound by the result of this pending suit, his grantees, and those claiming rights in the premises under him, would also be bound to the same extent. It follows, that Cable, or another claiming under him, acquired no interest in the premises under the execution sale on the Wharton judgment, which could in any way affect the equities of T. B. Ellis in the premises in litigation.

The rights, then, of these intervenors, whatever they may be, have their origin; and primarily rest upon, the interest in the premises acquired by appellant Cable, pendente lite, under the assignment to him of the Waugh notes and mortgage. That interest, as this court has adjudged, was acquired under such circumstances, and ivas so taken by him, as that it must be held to be subordinate to the equitable rights of Thomas B. Ellis in the premises. We have held in this case, in effect, if not in express terms, that appellant Cable, having purchased pending this suit, was chargeable with notice of the rights and equities of Thomas B. Ellis in the premises involved in this suit, and is therefore bound by the result of the suit. If this is true of Cable in respect of his purchase and assignment of the Waugh notes and mortgage, and the interest in the premises thereby acquired by him, it must also be true as to these intervenors, who, under license from Cable, and by no other right or authority, enter upon the premises in litigation, and make thereon improvements, pendente lite.

But we are, by the pleadings and testimony, relieved from the necessity of placing our decision upon the sole ground of notice to intervenors by pending suit, for, in their several petitions, they admit that their rights have been acquired since the suit commenced, and that they have no deeds from Cable to the lots they severally occupy,—only the promise of a deed from him when he should get title; and it is in evidence, .out of the mouth of Cable himself, and undisputed by intervenors, that when they came to him for permission to build their houses and make their other improvements, for the value of which intervenors now ask a first lien on the premises, he 'told them the lands were in litigation; that he could not make them deeds; that he would make them deeds when he should get title, at an agreed price, and on payment of the price; that they better set their houses upon blocks, so they could be moved, if necessary, and that he never did make them, or either of them, deeds, nor did they, or either of them, ever pay him the purchase price, or anything on account of rent; and as to the railroad company, which, it seems, was almost éntirely owned by appellant Cable, it built its road and established its depot upon the lands, under the license of Cable, and on his verbal promise to deed the lands occupied by it, without charge, when he should get title. The case made by the intervenors themselves shows that they had actual notice that the lands they were about to occupy were in litigation; that the person with whom they were about to deal did not have and could not give them title; that they were not required to pay anything, and did not, in fact, pay anything, by way of purchase money, and, being presumed to know the law, that the contract between them and Cable as to the several lots, not being in writing, could not be enforced by law; and, in addition to all this, they were advised by the very man with whom they claimed to have valid contracts, not to attach their buildings to the realty, so as to pass by a conveyance of the land, but to put them upon blocks, so they might move them off the land, if necessary to avoid the effect of an adverse decision of the pending litigation; and yet, in spite of this actual notice and timely caution, they go into possession, and make improvements claimed to be of permanent value to the realty, and after the adverse decision against which they were cautioned, has come, they voluntarily make themselves parties to the pending litigation, and ask to be paid first out of the proceeds of the sale of the premises, to the full extent of the value of their improvements.

The general rule of law as to improvements unquestionably is, that improvements made upon real estate, of a fixed 'and permanent character, and attached to the realty, by one who has no title or interest in' the premises, and without the consent of the owner of the fee, become a part of the realty, and vest in the owner of the 'fee. (Mathes v. Dobschuetz, 72 Ill. 438; Dooley v. Crist, 25 id. 556.) But courts of equity have not hesitated to soften the harshness and rigor of the rule of law, when the circumstances of the case and the relation of the parties required it to be done to meet the ends of justice. Counsel for appellant and the intervenors have brought together, in their very able briefs, many of the adjudged-eases ■ in this court illustrative of this; and through the" research of counsel for appellee Ellis, our attention has been directed to still another line of cases, and bearing upon this question, and while no one of these cases, because of variant and distinguishing circumstances, can be accepted as decisive of the question here, or as embodying all the elements of this equitable doctrine as recognized and applied by this court, an examination of all the cases has satisfied us that the true rule is, that where improvements upon real estate, of a permanent character, are made in good faith by one in possession, believing himself to be a bona fide purchaser or owner for value, and under circumstances justifying such belief, and the expenditure is reasonable in amount and of benefit to the estate, allowance may, in a court of equity, be made therefor; but the person claiming such allowance will be charged with the value of the use and occupation of the premises. See McConnel v. Holobush, 11 Ill. 61; Breit v. Yeaton, 101 id. 242; Bradley v. Snyder, 14 id. 263; Miller v. Thomas, id. 428; Gardner v. Diederichs, 41 id. 158; Kinney v. Knoebel, 51 id. 112; Roberts v. Fleming, 53 id. 196; Smith v. Knoebel, 82 id. 392; Worth v. Worth, 84 id. 442; Ebelmesser v. Ebelmesser, 99 id. 541. There is, however, no principle of law permitting the owner or mortgagor, or his grantee, or a subsequent purchaser with notice of prior equities of first purchaser, to make improvements on the premises and have a prior lien therefor, but such improvements will pass upon sale of the premises. Martin v. Beatty, 54 Ill. 100; Dart v. Hercules, 57 id. 446; Wood v. Whelen, 93 id. 153.

Applying 'these principles to the ease made by the interveners, it is obvious they are not in a condition to ask the aid of a court of equity. They are not bona fide purchasers,— they are not purchasers at all; and the improvements were not made by them in good faith, believing themselves to be the owners, or under circumstances that would justify such belief. Before a dollar was expended by them, they knew the lands were in litigation, and had been in that condition for many years; that the person they were about to deal with neither had nor claimed title; neither would he take the purchase money nor make them deeds. At most, he would only agree to take a stipulated price, and make -them deeds should he get title. They went upon the premises and made the improvements, knowing all this, with their eyes wide open, and taking all the chances. What rights or equities they may have, if any, as against appellant Cable, we are not called upon to decide, and express no ojnnion; but as against appellees, these interveners have not shown themselves entitled to the equitable relief they ask. No distinction is perceived, in principle, in the cases made by the several intervenors; and if the Rock Island and Mercer County Railroad Company find it necessary to take private property for its corporate use, provision is made in the law for such case, and another forum provided to which resort must be had for that purpose.

It must be added, in conclusion, we have patiently and laboriously examined this most voluminous record, and have given careful consideration to the points and authorities cited by counsel in their able and exhaustive arguments and briefs, with a view to th.e final disposition of this case. For more than a quarter of a century, this case, in its various phases, has been before the courts of this State, and ■ it. has seemed to us that the time had come when the contention of the parties to this record should cease, if it could be done without violating those principles of law by which courts are governed and controlled; and it is a matter of satisfaction to the court, as it must be to the parties, that on this fourth appeal we have found it possible, by the application of well recognized legal and equitable principles,' to give to this case its final determination.

:The judgment of the'Appellate Court-is affirmed.

Judgment affirmed.

Mr. Justice Craig, dissenting.