text:
    The Chicago City Railway Company v. Mary C. Duffin.

      Filed at Ottawa October 2, 1888.

    1. Continuance—absence of uñtness—requisites of the affidamit. The • statute requires that when a continuance is sought on account of the absence of a witness, the affidavit shall show due diligence to procure the attendance of the witness; what particular fact or facts the party expects to prove by him, and his place of residence, if known, or if not known, that due diligence has been used to find the same, and which can be done if further time be given. If the facts expected to be proved by such witness be not material, or if the opposite party will admit the affidavit in evidence, the cause shall not be continued.
    2. Same—admission of affidavit for continuance—effect thereof as evidence. "Where an affidavit is admitted, in order to avoid a continuance, the effect of the admission is nothing more than if the absent witness were present and had testified to the facts stated in the affidavit expected to be proved; and the party admitting the same may controvert the truth of such testimony. The affidavit is, in the first instance, addressed to the court, but on being held sufficient, and admitted, so much thereof as sets up facts material and pertinent to the issue, which would be testified to by the absent witness, is to be admitted to the jury as the testimony of such witness. The other portions of the affidavit will have performed their office, and the party ca*»not be permitted to introduce in evidence any part of the affidavit except that alleging the facts to be proved by the absent witness, and even in that, it will be limited to such facts as the witness could, under the rules of evidence, testify to if present,—that is, such as are competent under the issues.
    3. The plaintiff admitted the defendant’s affidavit for a continuance on account of an absent witness, and the defendant read in evidence so much, only, of the affidavit as stated what was expected to be proved by the absent witness, whereupon the court allowed the plaintiff, over the defendant’s objection, to read to the jury all of the affidavit: Held, that the court erred in allowing the whole of the affidavit to be read in evidence.
    4. The admission that an absent witness would testify to certain facts, to avoid a continuance, is a judicial admission, which the party can not be permitted to dispute. Therefore, it is error to allow that part of the affidavit to go'to the jury which shows that the statement of what the absent witness would testify to, was made upon information and belief, only. The effect of the admission in evidence of such portion of the affidavit would be to create doubt in the minds of the jury, not only as to the truthfulness of the statements, if sworn to, but also as to the fact that the witness would, if present, testify as alleged.
    5. Erbob will not always eevebse. A judgment will not be reversed because technical error has intervened, when it is apparent, from the whole record, that substantial justice has been done, or if, upon the facts, the same verdict must have been rendered if the error had not been committed. But when it is impossible to say, from the evidence, that the verdict is clearly right, if the error tended to the prejudice of the party complaining, it is ground for a reversal.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. E. S. Williamson, Judge, presiding.
    Messrs. Hynes & Dunne, for the appellant:
    It was error for the court to allow plaintiff to read those parts of the affidavit which were addressed to the court. Railway Co. v. Clark, 70 Ill. 276.
    It was error to allow the unjustifiable remarks of counsel about the affidavit for the continuance, and other matters. Farman v. Lauman, 73 Md. 569; Railway Co. v. Johnson, 116 Ill. 206; Covell v. Covell, 79 N. C. 588; Meredeth v. People, 84 Ill. 480; Hennies v. Vogel, 87 id. 242; State v. Rork, 23 Kan. 147; Brown v. Swineford, 44 Wis. 282; Rolfe v. Rumford, 66 Me. 564; Wolffe v. Minnis, 74 Ala. 386; Railroad Co. v. Bayless, 75 id. 466; Railroad Co. v. Carloss, 77 id. 443; Berry v. State, 10 Ga. 511; State v. Caludius, 1 Mo. App. 551; Tucker v. Heniker, 41 N. W. 317.
    Messrs. Stiles & Lewis, for the appellee:
    The whole affidavit for a continuance was properly before the jury. Practice act, sec. 43; State v. Eisenmeyer, 94 Ill. 96; Railway Co. v. Clark, 70 id. 276.
    As to the remarks of counsel, the following eases will illustrate the unwillingness of the court to disturb a judgment on this ground: Wilson v. People, 94 Ill. 299; Earll v. People, 99 id. 123; Garrity v. People, 107 id. 162; Railway Co. v. Johnson, 116 id. 206; Felix v. Scharnweber, 119 id. 445.
   Mr. Justice Shops

delivered the opinion of the Court:

This was an action by appellee to recover for personal injury, resulting, as charged in the declaration, from the negligence of the servants of appellant in the management of its cars, upon which appellee was attempting to take passage. A trial by jury resulted in a verdict for $2500 in her favor, and a motion for a new trial having been overruled, judgment was ' entered upon the verdict. An appeal to the Appellate Court was taken, and the judgment affirmed, and therefrom this further appeal is prosecuted by the defendant below.

While the record is in so unsatisfactory condition that it is difficult to determine with precision what did occur on the trial below, it is clear that the defendant, prior to entering upon the trial, made an application to the court for a continuance of the cause, supported by the affidavit of its agent. The ground relied upon, as set out in the affidavit, was the absence of Frederick H. West and G. H. Cummings, who, it is alleged, were material witnesses for defendant upon the trial of said cause, neither of whom could be secured at that term of the court. The residence of the witnesses, the facts expected to be proved by them, the diligence used to obtain their testimony, that they were not absent with the consent or privity of defendant, that they could be procured by the next term of court, and that the affiant, who was charged with the preparation for trial of said cause by defendant, knew of no other witness by whom the same facts could be proved, were set out in the affidavit. Upon presentation of the affidavit it was held by the court to be sufficient, and the plaintiff, to avoid a continuance of the cause, stipulated to admit the affidavit, and the case, proceeded to trial,—for while the record is somewhat incomplete, the remarks and rulings of the court, and statements of counsel on both sides, set out in the record, show conclusively that the application was regarded and treated throughout, by the court and parties, as made and admitted under the statute,—and the same is, in effect, conceded here. Counsel for appellee, in their brief, say: “When the case was called for trial in the court below, appellant presented an affidavit for continuance, which the court held sufficient, and, to save a continuance, appellee’s counsel admitted the affidavit in evidence.” The jury were instructed by the court, that the effect, in law, of the statement in the affidavit “of Welch,” as to what could be proved by said absent witnesses, is, “that plaintiff admits that if they were present they would so testify, and the statement in said affidavit as to what could be proved by said witnesses stands simply as the testimony of said witnesses,” as if they were present testifying thereto. The counsel for plaintiff told the jury, that, under the law, plaintiff admitted that said witnesses would so testify, if present. No doubt can exist, when the whole record is considered, that the application was made, the affidavit set out in the record held by the court sufficient to entitle the defendant to a continuance, and that, under the statute, the plaintiff admitted the affidavit, and the cause proceeded to trial as if no application had been made.

After the plaintiff had concluded her case, the defendant called as a witness one Ealph, by whom it proposed to prove, substantially, the same facts set up in the affidavit, to which objection was made, on the ground that the affidavit had been admitted, and that stating that defendant knew of no other witness, than said West and' Cummings, by whom the same facts could be proved, defendant was precluded from calling other witnesses to prove the same fact. After an extended colloquy between court and counsel, in the hearing of the jury, (to which exception was taken by defendant’s counsel, and urged here as error, but which we do not deem it important to discuss,) the witness was withdrawn by defendant. Therenpon the record recites that counsel for defendant read to the jury “certain portions of the affidavit of Sumner C. Welch.” It is objected by appellee, that for aught appearing by the record, defendant’s counsel may have read the parts of the affidavit the reading of which, as we shall presently see, is assigned as error. This is manifestly a mistake, for immediately upon the conclusion of the reading from the affidavit by defendant’s counsel, plaintiff’s counsel proposed to read the residue of the affidavit, whereupon defendant’s counsel said: “I object to those other portions of the affidavit. I make the point, that only so much is admissible as states what is expected to be proved by the absent witnesses.” The court: “I think he is entitled to read it all,”—to which ruling the defendant excepted. The record shows that plaintiff’s counsel then read to the jury all of the said affidavit for continuance. This ruling of the court is assigned as error. '

The 42d section of the Practice act requires, that when a continuance is applied for on account of the absence of a witness, the affidavit shall show due diligence to obtain the witness, what particular fact or facts the party expects to prove by such witness, and his place of residence, if known, or, if not known, that due diligence has been used to find the same, and which can be done if further time be given. The next section provides, that if the court is satisfied that such evidence will not be material, “or if the other party will admit the affidavit in evidence, the cause shall not be continued.”

An argument in favor of admitting the whole of the affidavit in evidence is attempted to be drawn from the language quoted. It is said that it is the affidavit which is to be admitted in evidence, and not simply that part which sets forth what the absent witness will swear to,—that the party presenting is in the condition of offering the affidavit in evidence, and can not be heard to object to any part of it. This is a misapprehension. The 44th section of the act provides what shall be the effect of admitting the affidavit “in evidence,” which is: “The party admitting such affidavit shall be held to admit, only, that if the absent witness was present he would testify as alleged in the affidavit, and such admission shall have no greater force or effect than if such absent witness was present and testified as alleged in the affidavit, leaving the party admitting the affidavit to controvert the statements therein contained, or impeach the witness, the same as if the witness had testified in open court.” Prior to the passage of the statute under consideration, when an affidavit for a continuance was held to be sufficient, the cause was to be continued, unless the statements in the affidavit expected to be proved were admitted as absolutely true. (Board of Supervisors v. M. & W. Railroad Co. 21 Ill. 338.) By the statute, the other party, instead of admitting the affidavit as a verity, may, in his discretion, admit that the absent witness will testify as alleged, and thereby avoid a continuance, and still be permitted to controvert the truth of such testimony. The affidavit is, in the first instance, addressed to the court; but upon its being held sufficient, if the opposite party admit the affidavit, so much thereof as sets up facts material and pertinent to the issue, which will be testified to by the absent witness, is to be admitted to the jury as the evidence of such witness. The other portions of the affidavit required by the statute have performed their office, and the material and pertinent facts to be proved by the absent witness, as shown by the affidavit, are “made to speak instead of the witness.” Nor is the assumption that the party presenting the affidavit stands in the position of having offered the affidavit in evidence, justified by either the law or the facts. AH that he can offer, or be permitted to introduce, is so much of the affidavit as alleges the facts' to be proved by the absent witnesses, and in that, is limited to such facts as the witness could, under the rules of evidence, testify to if present,—that is, such as are competent under the issues. Slate v. Eisenmeyer, 94 Ill. 96; Chicago and Northwestern Railway Co. v. Clark, 70 id. 276.

Here, all those parts of the affidavit read to the jury over the objections of defendant’s counsel, as shown, were clearly incompetent, and it was error for the court to admit the same. But it is insisted, that although error, it is not such error as should reverse in this case; and the doctrine so frequently announced by this court, that a cause will not be reversed, notwithstanding technical error has intervened, when it is apparent, from the whole record, that substantial justice has been done, or if, upon the facts, the same verdict must have been rendered if the error had not been committed, is sought to be invoked. This will necessarily involve such consideration of the facts of the trial as will determine the probable effect of such evidence upon the jury. So far as the evidence legitimately going to the jury showed the facts set up in the affidavit, the right of counsel to comment thereon, and of the jury to consider the same, can not be questioned. This case fitly illustrates the impropriety of permitting those portions of the affidavit addressed to the court, only, to go to the jury. It was testified by plaintiff, that she received the injuries complained of while attempting to get upon defendant’s car after it had come to a stop at a street intersection; that as she set her foot upon the step of the car, the car was suddenly jerked forward, by means whereof she was thrown with violence against the car and upon the ground. The case thus presented rested mainly upon her testimony. It was insisted by defendant that the injury to plaintiff was attributable to her own negligence in attempting to board the car while it was yet in motion. The affidavit admitted by plaintiff set forth that the absent witnesses were present and witnessed the manner in which the . accident to plaintiff occurred, and that said West assisted in picking the plaintiff from the ground where she had fallen, and that it was expected to be proved by said witnesses that plaintiff started for the car and attempted to get on while the car was still in motion; that she took hold of the hand-rail of the car while it was still in motion, and attempted to put her foot „ on the step leading to the rear platform of the car, lost her balance, and fell to the ground,—and that this all occurred before the ear stopped, the car coming to a full stop about two feet from where the plaintiff fell. The witness Ealph was, subsequently to the reading of the affidavit, re-called, and, upon the statement of defendant’s counsel that the fact that he knew of the accident to plaintiff had been discovered since the filing of the affidavit for continuance, was permitted to testify, and did testify, to substantially the same facts set up in the affidavit. John Turner, the person who was driving defendant’s car at the time of the injury, was also produced, who testified, in substance, that after he stopped the car he looked back, and saw a lady picked up. He did not stop the car at the crossing more than once, and says: “Grot one bell to stop, and two to go ahead. The accident must have occurred before the car stopped, because when I got the bell to stop, I looked back and saw her getting up.”

It is apparent, from the foregoing, that the jury were justified in finding for the plaintiff, or the defendant, as they gave credit to the testimony upon the one side or upon the other, and it is impossible to say, from the evidence, that the verdict is clearly right. If, therefore, the evidence complained of, in the manner in which it went to the jury, tended to the prejudice of the defendant, its admission would be reversible error,—and that it did so, a slight examination of the case will, we think, clearly demonstrate. If it was properly admissible, legitimate comment thereon by counsel was entirely proper. Here the admission was made the occasion of arraigning before the jury, defendant’s counsel, its agent and officers. Because of the fact stated in the affidavit by Welch, that he was charged with the preparation for trial on behalf of defendant, and that he knew of no other witness by whom he could prove the same facts expected to be proved by the absent witnesses, and Ealph and Turner had subsequently been produced, he was, in connection with the officers of the corporation, denounced as’ the “champion liar,” and the question submitted to the jury as to whether the affidavit was true in the respect mentioned. The affidavit was made upon the information and belief of Welch, and counsel for plaintiff proceeded to discuss that branch of the affidavit, and the jury were told, in substance, that Welch did not know that the witnesses would so testify,—that Welch did not claim to know, and that it was mere hearsay; and the jury were asked if they supposed that it was possible that if the witnesses had told Welch they would so testify, he would not have taken their deposition, or kept them and had them on hand to testify. Further commenting, counsel said that the statements in the affidavit as to what West and Cummings would testify to, had not been sworn to by them or by any one else,—that Welch simply had sworn he was informed and believed they would so testify.

We can not go through with all the uses made by counsel of all those portions of the affidavit improperly admitted, with- _ out unduly extending this opinion. It was perfectly competent for plaintiff’s counsel to apply every test to the facts set up in the affidavit expected to be proved by the absent witnesses,' by which their truthfulness or untruthfulness might be made to appear; but when he was permitted, by the introduction of • this immaterial testimony, to throw discredit upon such facts, . not hy. impeaching their truthfulness, but by arraigning before the jury, as was done, the agent of defendant, (a person unknown to the jury, and not testifying before them,) as unworthy of belief, and the corporation by which he was employed, as a suborner of perjury, because two witnesses were produced having knowledge of the same facts set up in the affidavit, apparently in conflict with that portion of the affidavit improperly admitted, a false issue was raised, with which the jury had nothing whatever to do, and the consideration of which, by the jury, was well calculated to awaken in their minds a prejudice against the defendant, not having a basis in legitímate evidence. The admission that the absent witnesses would so testify, is a judicial admission, which the party can not be permitted to dispute. When the court permitted that part of the affidavit to go to the jury, which showed that the statement of Welch as to what the absent witnesses would testify was made by him upon information and belief, only, another and an unwarranted element was introduced into the consideration, by the jury, of the testimony of the absent witnesses, for when counsel assumed, as He might legitimately do if the evidence was proper, that the admission was not a verity, but rested only in hearsay, the effect, necessarily, was to create in the minds of the jury, not only a doubt as to the truthfulness of the statements, if sworn to, but of the fact that said witnesses would, if present, testify as alleged. The effect of the concluding argument by the distinguished counsel for plaintiff, based, as it was, in part, upon evidence not pertinent to any issue, and improperly admitted, could not have failed to create in the minds of the jury a prejudice against the defendant, and its manner of preparation for trial, and of weakening the force and effect of the evidence, especially of the absent witnesses.

Some reliance is placed upon the fact of the absence of the conductor of the car, who is shown to have been present at the time of plaintiff’s injury, without any satisfactory excuse or explanation, as tending to support the theory of the plaintiff. It was shown that the conductor had left the employ of the defendant, and gone to New York, and that efforts had been made to find his whereabouts. We agree with the court that if the defendant had it in its power to produce this witness, and failed to do so, or purposely suppressed his testimony, that was a circumstance which might, perhaps, be proper to be considered as tending to support.the theory and testimony of the plaintiff. But it can not be said that that circumstance would furnish any excuse or justification for the admission of the improper matter before adverted to, and, if considered, would still leave the vital question at issue open, to be determined by a preponderance of the evidence. It may be true, as insisted, that the testimony of the witness Balph is shown to be wholly unreliable; but that fact, if it exists, in no way destroys or interferes with the right of the defendant to have the testimony of Turner and of the absent witnesses go to the jury unaffected by extraneous and improper matter.

It is also assigned for error that the court permitted improper remarks of counsel for plaintiff, during the trial and argument of the cause. We do not see in the argument of counsel, while perhaps in some instances unwarranted, any such error as should reverse the judgment, if the evidence before mentioned was competent to be considered by the jury. In the conflict of evidence tending to establish the material facts, it was the duty of the court to see that nothing reached the jury improperly that would have a tendency to prejudice the cause of either party. The rules of evidence must be applied impartially to all litigants, and to promote and secure the fair and impartial trial of the cause according to the rules of law.

For the errors mentioned, the judgments of the Appellate and Superior Courts must be reversed, which is done, and the cause remanded to the latter court for further proceedings.

Judgment reversed.

Magruder. J.: I do not concur.

Bailey, J., having heard this cause in the Appellate Court, took no part in this decision.


source: Caselaw Access Project

author: Mr. Justice Wilkin

license: Public Domain

text:
    The Wabash, St. Louis and Pacific Railway Company v. Isaac McDougall et al.

      Filed at Springfield September 27, 1888.

    1. Eminent domain—measure of damages—as to land not taken. In an original proceeding to condemn land by a railway company for right, of way, the measure of damages to land not taken is the difference between the value of the land, as a whole, before and after the construction of the road, built according to the plan proposed.
    2. Same— subsequent damages—occasioned by a change in the plan of the construction of a railroad—as, the substitution of a trestle bridge for an embankment. If, after damages have been assessed in such case, or settled by agreement, a change in the plan of construction of the road is made, occasioning further damages, the owner may demand a new assessment as to such increased damages.
    3. On a proceeding to have damages assessed which are caused to land by a change in the construction of a railroad, there can be no recovery of damages growing out of a wrongful or negligent act of the railway company in making the change. In such case, the proper measure of damages is the increased or additional injury caused by the alteration.
    4. A railway company, after having made a change in the construction of its road, sought a further condemnation against a purchaser from the prior owner, who was not entitled to compensation for the original taking of land for right of way. The then owner claimed damages to adjoining lands on account of the change of the plan of the road, to avoid which claim, the petitioner, on the trial, offered-to prove that the change from an embankment to a trestle bridge, made nearly three years before, was but temporary, until such time as it could be ascertained, from the action of the water of a stream, and its effect, what change should be made,—whether back to the original plan or not,— which the court refused to admit: Held, that the proposed evidence was properly refused.
    5. In such case, the company having built a trestle bridge in the place where originally it had an embankment, which had been washed out, and maintained the bridge for nearly three years, and having filed its petition for a second condemnation, making therein no averment of any proposed change by restoring the embankment, it was not competent for the petitioner to prove, on the trial, that the company did not intend the opening in the embankment to remain permanently. The company should have amended its petition by showing that it proposed to re-adopt the original plan of construction, by plans to be incorporated into the record, when the evidence might have been pertinent.
    6. In a proceeding for the assessment of damages to land not taken, but damaged, by a change in the construction of the road by the erection of a bridge over an opening in an embankment caused by a flood in a river, the court allowed the defendant to prove, that by reason of the opening in the grade a small house on the land below was carried off by the water, and a levee built by him was destroyed: Held, that the evidence was calculated to lead the jury to believe that such injuries were proper elements of damages, and therefore was improperly admitted. If the object of the evidence was to show the force with which the water passed through the opening, it should have been so limited when offered.
    7. Where the land owner, in a proceeding to condemn land, after a change in the plan of the road and its construction, by putting in a bridge where there had before been a heavy embankment, it is error to refuse to allow the petitioner to show that the alteration benefited the defendant’s land above the grade of the river, if the land owner, by his cross-petition, claims damages to his other lands, some of which are above and some below the place where the change is made.
    8. Same—damages resulting from failure to maintain an embankment as a levee against overflow of a river. Where a railway company has built an embankment, which serves as a part of a levee to prevent the overflow of lands, not, however, under any contract with the owners thereof, and the company afterward changes the plan of its road by placing a trestle bridge in the place of its embankment washed out, the land owner will have no claim for damages to his land for the failure of the company to maintain and keep up such embankment.
    9. Same—authority of attorney to bind petitioner by stipulation. An attorney employed by a railway company to procure a condemnation of land for a right of way, can not bind the petitioner by his agreement or stipulation as to the plan of constructing the road, in the absence of special authority to do so.
    10'. After the construction of a railroad near a river, a part of its embankment was carried away by a flood, and a bridge or trestle work was substituted in the place of such embankment, and the road was so operated for nearly three years, when a condemnation was sought against the purchaser from the former owner. The owner filed his cross-petition, claiming damage to his land not taken, both above and below the line of the road, caused by the alteration in the plan of the road. On the trial, the petitioner’s attorney, without proof of authority, filed an agreement of the company, executed by him, to restore the embankment according to the original plan, and to maintain the same, which, on defendant’s motion, was stricken from the files: Reid, that the action of the court was proper.
    11. Same—sufficiency of the verdict. In a proceeding to condemn lands for a railroad, in which damages are claimed in respect to lands not taken, the verdict need not describe the lands for which damages are awarded, and may state the amount assessed in a gross sum.
    12. Practice—offer by the court to admit evidence after having improperly excluded it. After the exclusion of proper evidence, upon the withdrawal of objection thereto, the court offered to allow the evidence, which the party failed to introduce. There was nothing to show why the same could not have been introduced as well after as before the exclusion: Reid, that the party could not complain of the ruling of the court in excluding the evidence in the first instance.
    Writ of Error to the Circuit Court of Menard county; the Hon. Cyrus Epler, Judge, presiding.
    This is ,a condemnation proceeding, hy which plaintiff in error seeks to obtain right of way over defendants’ land. Before the filing of the petition, another company had constructed and put in operation a railroad over the land sought to be condemned, which railroad plaintiff had purchased, and ivas then operating. Defendants, by cross-petition, claimed damages for injury to adjacent lands, averring that the railroad divided a farm of about five hundred acres, diagonally, leaving one hundred and sixty acres north-east, and the remainder southwest thereof; that the grade of the roadbed acted as a dam against water flowing from the one hundred and sixty acres, thus overflowing and submerging it; that by reason of openings and bridges in the grade, the lands south-west thereof were washed, overflowed, etc., and that by inconvenience in passing from one part of said farm to another, caused by said grade and the operation of said railroad, all of said lands were damaged. A trial on the original and this cross-petition, resulted in a verdict and judgment for defendants for $4134.50, from which plaintiff prosecuted a writ of error to this court. The case is reported in 118 Ill. 229.

      On that hearing, the record showed that at the time the road was built, the title to all the lands in question was in one Bennett, but that after plaintiff became the owner of the road, and after defendants purchased the land of Bennett, a break, some three hundred and fifty feet in length, in the embankment, was caused by an overflow, and that instead of refilling the same, so as to restore the roadbed to its original construction, plaintiff caused a bridge to be put in said opening, which it has since maintained. On that record it was held, that whatever damage was done to the lands described in the cross-petition, by reason of the original construction of the road, accrued to Bennett, and not the defendants, his subsequent grantees, as held in the court below, and for that reason the judgment was reversed. It was, however, then decided, that inasmuch as it appeared that a change in the plan of construction in the grade had been made after the title vested in defendants, they could recover for any increased damages caused by the change, and the cause was remanded for further proceedings in accordance with that decision. Defendants thereupon filed an amended cross-petition, basing their entire claim for damage to lands not taken, on the change. In it, they aver ownership to all the lands described in the original cross-petition, and allege, generally, that the land is injured by the alteration; but the specific claim is, that so much of the same as lies below or south-west of the grade is thereby overflowed, covered with drift, etc.; that levees theretofore constructed thereon were washed out, and the building of others made impracticable. Plaintiff then filed a statement in writing, purporting to be an agreement, on its part, to restore the embankment to its original plan, and so maintain it. It was signed, in plaintiff’s name, by the attorneys appearing for it on the trial. On defendants’ motion, this paper was ordered stricken from the files.
    The bill of exceptions shows that plaintiff made an offer of proof, as follows: “We offer to prove that the structure put in the opening was put there temporarily, until such time as it could be ascertained, from the action of the water there, and the effect upon the surrounding country, as to what change should be made,”—but the court held such proof incompetent.
    Defendants were allowed to prove, over plaintiff’s objection, that by reason of the opening in the grade a small house on the land below the grade was carried off by the water, and a levee built by them destroyed.
    Witnesses on behalf' of defendants having testified that by reason of the change the land below was flooded, and thereby damaged, they were asked by plaintiff’s counsel, on cross-examination, if the change did not benefit the one hundred and sixty acres above the grade, but an objection thereto was sustained. Plaintiff also offered to prove, in rebuttal, the same fact, but the evidence was held incompetent, and excluded. Afterward, however, counsel for defendants withdrew the objection to this last proof, and the court then offered to allow the evidence, and gave counsel for plaintiff an opportunity to introduce it, but they declined. To each of the above rulings proper exceptions were taken.
    The verdict is for a gross sum, and contains no description of land to be taken or injured. The amount found by the jury is $3570. Motion for a new trial being overruled, judgment was rendered on the verdict, and plaintiff again prosecutes its writ of error to this court.
    The errors assigned are: First, the court erred in striking plaintiff’s stipulation from the files; second, the court erred in admitting improper testimony on behalf of defendants; third, the court refused to admit proper testimony offered by plaintiff; fourth, the court gave improper instructions at the instance of defendants; fifth, the court refused to give proper instructions asked by plaintiff; sixth, the court erred in overruling plaintiff’s motion for a new trial; seventh, the verdict of the jury is defective.

      Mr. G. B. Bubnett, for the plaintiff in error:
    The court erred in striking plaintiff’s stipulation from the files. Railroad Co. v. Kidder, 21 Ill. 131; Elgin v. Eaton, 83 id. 535; Railroad Co. v. Railroad Co. 105 id. 388; Railway Co. v. Railroad Co. 112 id. 589; Coal Co. v. Switzer, 117 id. 399.
    The court admitted improper testimony on behalf of defendants. Railroad Co. v. Winslow, ,66 Ill. 219.
    The court refused to admit proper evidence offered by plaintiffs. Page v. Railroad Co. 70 Ill. 324; Shawneetown v. Mason, 82 id. 337; Green v. Chicago, 97 id. 370.
    The verdict of the jury is fatally defective in not finding the compensation for the land taken, and the damages to the land not taken, separately, and in failing to give a description of the land. Hays v. Railroad Co. 54 Ill. 373; Railroad Co. v. Bryant, 57 id. 473; Railroad Co. v. Mayrand, 93 id. 591.
    Mr. N. W. Branson, and Mr. Edward Banning, for the defendants in error:
    The so-called stipulation was properly stricken from the files. The attorney had no authority to make the same. Robinson v. Murphy, 69 Ala. 543; Moulton v. Bowker, 115 Mass. 36.
    As to the form of the verdict, see Railroad Co. v. Mayrand, 93 Ill. 591.
   Mr. Justice Wilkin

delivered the opinion of the Court:

The paper denominated a stipulation was properly stricken from the files. It was not, in any sense, an amendment to the original petition, as contended in argument, nor was it filed as such. It was not a plan or proposed plan of construction proper to be incorporated in the record, and therefore Railroad Co. v. Kidder, 21 Ill. 131, and other like cases cited, have no application. No argument or citation of authorities is needed to show that attorneys employed to represent the company on the trial, could not bind it by their agreement as to the plan of constructing its road. It is not claimed that they were given any -such special authority.

The evidence which plaintiff sought-to introduce, for the purpose, as is claimed, of showing that the opening was not intended to be permanent, was incompetent as offered, and the court ruled properly in excluding it. No offer was made to prove, by proper evidence, that the company intended to change the plan upon which the road is at present constructed. For anything appearing in the offer of proof, the company may have intended, after ascertaining the action of the water, to leave it just as it now is, or even so change it as to increase the injury. Having built the bridge, and maintained it as a part of the structure of its road for nearly three years, and having filed its petition to condemn, making no averment whatever of an intended or proposed change in the construction, it was not competent for plaintiff to prove, merely, that it did not intend the opening to be and remain permanent. If it had amended its petition so as to properly aver that it proposed to re-adopt the original plan of construction, and had supported it by the introduction of plans to be incorporated in the record, the question as to whether or not the opening should be treated as a permanent part of the construction, would have been raised. On the present state of the pleadings no such issue is presented.

The evidence introduced by the defendants to prove an injury to their house and levees was calculated to lead the jury to believe that such injuries were proper elements of damages to be considered in making their verdict, and should therefore have been excluded. If the sole object of its introduction was to illustrate the force with which water passed through the opening, as is now contended, it should have been so limited when offered.

There was manifest error in refusing to allow plaintiff to show that the alteration benefited the one hundred and sixty acres above the grade. There is nothing, however, in the record, to show that the testimony on that question could not have been introduced as well after the objection was withdrawn as when it was first offered. Therefore, if injury resulted to plaintiff for want of such evidence, it was self-imposed, and it can not complain.

The question raised on the assignment of errors as to giving and refusing instructions, involves a decision as to .the correctness of the rule adopted by the trial court for.the measure of damages. The lands in question border on the Sangamon river, and are, and always have been, subject to frequent overflow. There is no proof as to their value immediately prior to .the construction of the railroad; but it does appear that Bennett, the grantor of defendants, purchased the entire tract from the county, as overflowed land, for $1000, and it is clear, from all the proof, that without levees to protect it against the frequent freshets from the Sangamon river, it is of but little value. After defendants purchased, and before the break in the grade of the roadbed, they built a single line of levee from a point of high ground on the west, near the river, extending in an easterly direction, to and connecting with the railroad •embankment, whereby they effectually leveed two hundred and eighty acres of that part of the farm situated below or southwest of the road. On this trial, defendants confined their proof of damages to this two hundred and eighty acres, and all the witnesses who make any estimate as to the amount of damages, do so by giving their opinion as to the difference in value of that two hundred and eighty acres before and after the change complained of was made, or, with the above mentioned levee and without it. For instance, the defendant Hamilton,, in his evidence, says: “The fair market value of the land below this railway embankment, and within the line of our levee, at the time the opening in the embankment was made, I think is $25 an acre. After the opening was made, I do not think it was worth more than $10 an acre. I figure this difference upon two hundred and eighty acres, and the difference per acre was §15.” On cross-examination, as to this estimate, he says: “I took into account the levee there, and its connection with the embankment, and our use of the embankment as a part of the levee.” While it is true that some of the witnesses speak of the increased force with which water is thrown upon the land below, and the impracticability of making levees with the opening in the grade, as elements of damages occasioned by the change, they make no estimate on that basis, nor do they furnish such facts as would enable a jury to do so, except on the theory adopted by Mr. Hamilton.

The court charged the jury, in the third and fourth instructions given on behalf of defendants, that “the proper measure of damages for land damaged but not taken, is the difference between the market value of the land before and after the act of the railroad company which occasioned the damage; ” that “the damages to he awarded to the defendants is the difference between the value of the land so damaged before, and the value of said land after, the break was made.” Plaintiff asked an instruction, (numbered 6 in its series,) which would, in effect, have informed the jury, that in assessing defendants’ damages they should not take into consideration the fact that but for said opening defendants might maintain a levee by attaching the same to the railroad embankment, and use it as a part of such levee to protect their land from overflow; but the court refused to give it. From the evidence, and the giving and refusing of the above mentioned instructions, it is manifest that defendants were allowed to recover, not only for the injury to their land occasioned by the construction and operation of a railroad .built on the plan adopted by the change, hut for loss resulting to them from the removal of an improvement put on the land by the plaintiff, or the company from 'which it purchased. Something is said, in the argument, about a contract, by which defendants had a right to use the railroad embankment as part of their levee; but there is no proof of an agreement between them and the plaintiff which would vest in them an interest'in the embankment, or a legal right to compel plaintiff to maintain it, nor did the law, in view of the circumstances under which it was built, give them, as owners of the land, any right of property therein. Chicago and Alton Railroad Co. v. Goodwin et al. 111 Ill. 273; Ellis v. Rock Island and Mercer County Railroad Co. 125 id. 82.

There is no claim, on behalf of defendants, that the change in construction was a wrongful or negligent act, and if there was, there could be no recovery by them in this proceeding » for such wrong or negligence. It will be seen, by reference to the former opinion herein, that the case on this trial is to be treated simply as a proceeding for re-assessment of damages as to the land not taken but injured, and that the measure of defendants damages is the increased or additional injury, if any, caused by the alteration. In an original proceeding to condemn, the measure of damages is the difference between the value of the land, as a whole, before and after the construction of the road built according to the plan proposed. Chicago and Pacific Railroad Co. v. Francis, 70 Ill. 238; Page et al. v. Chicago, Milwaukee and St. Paul Railway Co. id. 324; Eberhart v. Chicago, Milwaukee and St. Paul Railway Co. id. 347; Dupuis et al. v. Chicago and North Wisconsin Railway Co. 115 id. 97; Chicago, Burlington and Northern Railroad Co. v. Bowman et al. 122 id. 595. As to these lands, such damages accrued to Bennett, as heretofore decided. If, after damages have been assessed, or settled by agreement, a change in the plan of construction, involving more damages, is made, the owner may demand a new assessment as to such increased damages. (Mills on Eminent Domain, 219.) To the same effect is the holding in the former decision herein. The proper inquiry, on this trial, was, whether or not the lands in question, as a whole, were damaged more by the railroad built on its present plan, than they were as it was first constructed, and if they were, to determine the amount of such increased damages.

We think the giving of defendants’ third and fourth instructions, and the refusal of plaintiff’s sixth, was error.

The giving of defendants’ first instruction was also error. By it the jury were instructed, that if they should find that the alleged change was made, and that by means thereof the lands of defendants below and adjoining the railroad were damaged, then the defendants are entitled to just compensation for the damages so done to their said land. There is some evidence in the record tending to show that the one hundred and sixty acres above the road was benefited by the change; yet this instruction takes the consideration of such benefits from the jury entirely, and confines their inquiry to the two hundred and eighty acres which was damaged. As already stated, and as will be seen from Page et al. v. Chicago, Milwaukee and St. Paul Railway Co. supra, and other cases above cited, the measure of damages, in such a proceeding, as to lands injured but not taken, is the difference in the value of the -property, as a whole, before and after the construction of the road, and therefore, even if it had been proper to allow defendants damages for being deprived of the use of the embankment as a levee to the two hundred and eighty acres, the benefits to other portions of the farm should have been considered in reduction of .such damages. The amended cross-petition did not have the effect of confining the inquiry to the lands below the road, as counsel assume. - The trial below seems to have been conducted throughout as a proceeding in the nature of an action for damages resulting to the two hundred and eighty acres by reason of a negligent or wrongful failure on the part of plaintiff to properly maintain its embankment, rather than a proceeding to ascertain just compensation under the eminent domain laws of this State.

Under the last assignment of error, it is insisted that the verdict is fatally defective, because it finds a gross sum to be paid defendants, instead of compensation and damages separately, and in failing to describe the land.” The authorities cited in support of this position are not in point. They simply hold that the verdict in such proceeding must conform to the requirements of the law under which it is had. We find nothing in our present statute requiring a more definite or specific finding by the jury than is here returned. The verdict is sustained by Peoria, Pekin and Jacksonville Railroad Co. v. Peoria and Springfield Railroad Co. 66 Ill. 174, and Illinois Western Extension Railroad Co. v. Mayrand, 93 id. 591.

For the errors indicated, the judgment of the circuit court must be again reversed, and the cause remanded.

Judgment reversed.


author: Mr. Justice Shops

text:
    Morton B. Hull v. Joseph O. Glover.

      Filed at Ottawa October 2, 1888.

    1. Bathtoation—as to deed by officers of a corporation—action of the stockholders as amounting to a ratification. The members of an incorporated land company, in order to avoid the question of the authority of the corporation to deal in lands, in pursuance of a general scheme, and for the purpose of placing its lands in the hands of trustees appointed to represent a new company, by the president and secretary of the corporation, and under the corporate seal, conveyed all its lands to a corporator, who conveyed to the trustees. There was no proof of any resolution or other action of the corporation, as such, authorizing the deed, but it was shown that all the stockholders, who conveyed to the trustees and surrendered the stock in the old corporation, took shares in the new company thus formed: Feld, that the action of the stockholders amounted to a ratification of the deed of the president and secretary of the corporation.
    2. Same—as to a conveyance under a power of attorney. A deed under a power of attorney authorizing the attorney to sell and convey property, is not invalid, as being a conveyance, only, without any sale, where the deed purports to ratify the acts of a corporation of which the grantor is a member, in selling and conveying the same land, and when the grantor subsequently ratifies the act of his attorney by his own action.

      3. Release oj? do wee—by deed, wider power of attorney. "Where a wife joins her husband in the execution of a power of attorney for the sale and' conveyance of lands owned by the husband, for the express purpose of relinquishing her dower, and a conveyance is made by the attorney under such power, it will be effectual, under the act of 1869, to bar any right of dower the wife may have had in the land.
    4. Same—to whom dower may be released. The right of dower may be released to the owner of the fee, or to any one in privity with the fee, under the same title, as, to a warrantor in the chain of title, who may receive the release in discharge of his covenant of warranty and for the benefit of his grantee, however remote.
    5. Burden op proop—to show title—on bill by the vendor for specific performance. On bin by the vendor for the specific performance of a written contract for the sale and conveyance of land, when abstracts are to be furnished showing a good and merchantable title, the burden of proof will rest on the complainant to show that he has and can convey to the other party a “good and merchantable title.”
    Appeal from the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.
    Messrs. Hoyne & Follansbee, for the appellant.
    Mr. B. G. Cook, for the appellee.
   Mr. Justice Shops

delivered the opinion of the Court:

The only question presented by this record is as to the sufficiency of the title to the tract of land agreed to be conveyed by appellee, Glover, to appellant, Hull. The burden was upon appellee (complainant below) to show that he had and could convey to appellant a “good and merchantable title,” as was agreed to be conveyed by him; and this, by stipulation of the parties filed in the cause, was to be determined by the court, from the abstracts filed in the cause, and the proofs heard before the master, to whom the cause was referred. It is conceded that the title to the land in question was in Cyrus H. Bentley, who, joined by his wife, conveyed the same, by general warranty deed, to Joel D. Harvey, August 13,1872.

It appears that certain persons, having in contemplation the organization of a corporation to purchase, hold and sell lands, had furnished money to said Harvey to-purchase, and with which he did purchase, lands, including the tract in question, it being understood by said persons that the title should be taken in Harvey’s name, to facilitate its transfer. The contemplated corporation was organized, and certificate of incorporation issued September 10, 1872, which was recorded October 2, 1872, in Cook county, and certificates of shares of stock therein issued to the various persons who had advanced money to Harvey with which to purchase said lands, equal to the amount they had severally so advanced. Said Harvey, by an instrument bearing date September 9, 1872, acknowledged and recorded December 17, 1872, made a declaration of trust in favor of said incorporation, in which he set forth the purchase of said lands with the money of the incorporators, and-that he held said lands and titles in trust, solely for the use and benefit of said corporation. Although it appears by the recitals" in subsequent conveyances, that said Harvey also executed a deed to said corporation, conveying said lands, no such deed or conveyance is shown, otherwise than by such recital. It is, however, wholly unimportant, in the view we have taken of this case, whether the legal title was attempted to be conveyed to the corporation, or remained in said Harvey, and no discussion thereof is required. It appears that doubts arose as to the power of the corporation to take and hold these lands, and it was determined by the parties interested, to abandon the corporation, and to form a private association for that purpose. Accordingly, articles of association were entered into, by and between all the persons who had contributed money for the purchase of said lands, or who were stockholders in said corporation, the promoters of the corporation surrendering their certificates of stock therein, and receiving therefor certificates of shares in said association. The title to the real estate of the association was to be held by three trustees named in the articles of association. As a means of effecting the object sought to be attained, of vesting the title to all the lands purchased and held, as above mentioned, in the said trustees, for the uses and purposes of the association, the corporation, under its corporate seal, executed a conveyance of all the lands mentioned in the declaration of trust in its favor, made by Harvey, to Joel D. Harvey, and the same was signed and acknowledged by the president and secretary of the corporation. At the same time, all the persons contributors toward the purchase of the lands, and also stockholders in the corporation, joined in the execution of the articles of association, and, with their wives, severally united in a deed of conveyance to Joel D. Harvey, of the same lands, and this was followed by a conveyance, by Harvey and wife, to the three trustees named in the articles of association, conveying all the lands before mentioned; and the title thus acquired by said trustees was, by a warranty deed executed by the two surviving trustees, Goodman and Porter, conveyed to appellee.

Numerous suggestions and queries are made by counsel for appellant, the consideration of which we do not regard as necessary to the determination of the ease presented by this record. One point of contention, however, would seem to be, that neither the equitable nor legal title became vested in the corporation by virtue of any conveyance or declaration of trust by said Harvey, for the reason, first, that said corporation, although regularly licensed, was incapable, in law, of taking or holding real estate; second, (the presumption being that the declaration of trust before mentioned was made on the day it bears date,) that the corporation was not then in existence,. and therefore could not take, and this being so, that Harvey was a naked legal trustee, holding the legal title to the land for the use of the persons who had advanced money to the purchase of the same, and that under the Statute of Uses, the use was executed, and the fee vested in the cestuis que trust. The determination of these questions being unnecessary to the proper decision of this case, as it seems to us, however interesting, must also be eliminated from the discussion, for, as we-shall hereafter find, in either of the events suggested, the legal and equitable title became vested in appellee by the several conveyances shown.

It is insisted that the conveyance from the corporation to Harvey was ineffectual to divest the corporation of any title which it may have acquired to these lands, if, in law, it acquired any, for the reason that the president and secretary are not shown to have been authorized to make said conveyance, by any action of the corporation or of the stockholders, or by the by-laws of the corporation. The deed in question from the corporation to Harvey, it is apparent from the recital therein, and from proof in this record, was made for the sole purpose of reinvesting Harvey with the title to the lands mentioned, that he might convey “a clear and undoubted title” to the trustees of the association, who, in that capacity, represented every stockholder of the corporation. If it be conceded that the deed was made by the president and secretary of the corporation without authority, it is clearly shown that it was made in pursuance of the scheme entered into by all the stockholders to abandon the corporation and to organize the association, which should, representing each alike, by its trustees, take, hold and convey the title to all the property of the corporation, if any had been vested therein; and it is equally clear, that upon the organization of the association, and conveyance by Harvey to the trustees thereof, the several stockholders in the corporation surrendered their stock therein and accepted corresponding certificates of shares in the association, with the purpose and intention of abandoning the corporation and of investing the association, through its trustees, with all the rights, titles and interest which the said corporation, or they, as stockholders thereof, had in and to said lands. Such action on the part of the stockholders would, of itself, amount to a ratification of the deed made by the president and secretary for the purposes for which it was made. But we are not left to this, alone, in determining whether the deed made by the president and secretary was the deed of the corporation, for, executed substantially with it, and to carry out the purpose and intent before mentioned, the individual stockholders, and all of them, as is clearly shown, joined in the conveyance of said lands to the same grantee, Harvey, for the same purpose expressed in the deed of the' corporation, and showing conclusively, by recitals therein, that the purpose and intent, because of doubts as to the legal capacity of such corporation to take and hold lands, was to invest the trustees of the association by them formed, with said title. The recitals in both these instruments leave no room for doubt that they were both made for the purpose of investing said trustees of the association .with every right, title and interest, legal or equitable, in the lands purchased by Harvey, as before mentioned, for the purposes declared in the articles of association.

No doubt will arise or be entertained, that the deed executed by the president and secretary, under the corporate seal of the corporation, would be effectual to convey the title and interest of the corporation in the lands described, had its execution been authorized by a resolution of the stockholders. Here, as is seen, eotemporaneously with the action of the officers of the corporation, is the act of the stockholders themselves, seeking, in the most formal manner, to effectuate the same purpose. There was here, we think, a most complete ratification of the act of the officers of the corporation by the only persons having a beneficial interest in the corporation itself, or its properties. The deed made by the individual stockholders, (and being the same persons, and all the persons, as shown by the evidence taken before the master under the stipulation referred to, that contributed money for the purchase of the land,) if properly executed, it is not questioned, was effective to convey whatever individual interest, legal or equitable, said persons had in said real estate. It is apparent, we think, that whether the title to these lands had become vested in the corporation or in the individuals contributing the purchase money, and embracing all the stockholders of the corporation, the same was, by the one or the other of these conveyances, or by both, reinvested in Joel D. Harvey, and, through him, in the trustees of the association.

But it is contended that the deed of the stockholders, as respects the interests of Emma A. Keep, one of said stockholders, was ineffectual to pass her interests, if any she had in the land. The conveyance was executed by her attorney in fact, who was, by her power of attorney duly executed and acknowledged, authorized to sell and convey the property in question. The only contention is, that the act of the attorney was a conveyance only, while the power was to sell and convey. The conveyance was clearly within the power. Therein,, she expressly ratified the acts of the corporation in selling and conveying its lands, and authorized her attorney to join in executing the articles of association, etc., for the expressed “purpose of carrying out the purposes of said association in selling said lands and distributing the proceeds thereof.” Moreover, the act of the attorney was ratified by the principal in surrendering her stock in the corporation, and accepting in lieu thereof certificates of shares in the association. The transfer of the interest of this stockholder was upon the consideration before mentioned, in which all the stockholders participated, and of the certificate of shares to be issued to her in the association. '

The same objection is urged to the execution of said deed •by Henry H. Porter, and Eliza T. Porter, his wife, who also executed the same by their attorney in fact. The power of attorney, in. which the wife joined with the husband, duly executed and acknowledged, empowered the attorney to grant, bargain, sell and convey the lands, etc., and to relinquish all dower and right of dower said Eliza T. Porter “now has or may have” therein, etc. What has been said in respect of the execution of said deed by Keep, applies with equal force in this instance. Besides this, Porter, as one of the trustees of the land company, received the deed from Harvey, of this land, upon the uses and trusts specified in the articles of association, and which, by recitals therein, shows that he, in common with all of the stockholders of the corporation, had reconveyed to said Harvey whatever interest they had or might have acquired, either hy being stockholders in said corporation or as having advanced money for the purchase of said lands, and that the purpose thereof was to convey a title to said trustees which should be free from doubt or suspicion; and acting as trustee of said association, deriving title through said deed alone, he, by warranty deed, for a valuable consideration, conveyed to appellee. He would, we think, be es-topped to assert title against his grantee. The right of dower of the wife is not the subject of conveyance until it becomes consummate, and is admeasured to her; yet she may release it to the owner of the fee, or to any one in privity with the title. (LaFramboise v. Grow, 56 Ill. 197.) The statute in force at the time of the execution of this power of attorney, and of the deed thereunder, provided that a wife joining with her husband in the execution of any deed, mortgage, conveyance, power of attorney, or other writing of or relating to the sale, conveyance or other disposition of land or real estate, shall be bound and concluded by the same, in respect of her right, title, claim, interest or dower in such estate, as if she were sole, and the acknowledgment of such deed, conveyance or power of attorney, or other writing, may be the same as if she were so. (Laws of 1869, p. 359, sec. 1.) Mrs. Porter joined her husband in the execution of the power of attorney for the express purpose of relinquishing her dower, and the conveyance made was effectual to bar any right of dower she may have had in or to the lands in question.

It is further objected, that appellee is unable to convey a good and merchantable title, because, as it is said, Mrs. Mary A. W. Ferry, widow of William H. Ferry, deceased, has, as such widow, dower in said tract of land. Mr. Ferry was one of the original promoters of the scheme, a stockholder in the corporation and trustee of the association, and, as such, accepted the deed from Harvey, before mentioned, but died prior to the conveyance to Glover. In the deed of September 21, 1873, mentioned as the deed from the stockholders and persons who had advanced money with which to purchase the lands in question to Joel D. Harvey, the said William H. Ferry, and Mary A. W. Ferry, his wife, were grantors, and duly executed and acknowledged the same. By this deed the grantors grant, sell, remise, release and quitclaim all right, title and interest in said lands, and the object of making the conveyance was therein expressed to be “for the purpose of enabling said Harvey to convey to said trustees of said private association, a title which shall be free from all doubt or suspicion.” While it may be said that the law favors dower, yet, as said by this court in Johnson v. Montgomery, 51 Ill. 185, this is certainly not so “where the claimant has once sought, in good faith, and for a valuable consideration, to relinquish it, and has done whatever,'at the time, was supposed to be necessary to make such relinquishment complete.” No reason is pointed out or suggested why the right of dower of Mrs. Ferry is not barred by said deed. But if this is not so, on the third of October, 1885, Mrs. Ferry made, executed and delivered to the trustees of said association, and grantors of said Glover, a deed of release of all right of dower in the lands in question, which, it is not questioned, was sufficient to bar her dower, if the title had then been in said trustees. It is, however, insisted, that they having parted with the title, no release of dower could be made to them, but could only be effective when made to the owner of the fee, and the cases of Blain v. Harrison, 11 Ill. 384, and Summers v. Babb, 13 id. 483, are cited as sustaining that position. It is said in Chicago Dock Co. v. Kinzie, 49 Ill. 294, that the rule in those cases is- stated too broadly, if it was there intended to hold that the right of dower can only be released to the owner in fee. The dower may be released to the owner of the fee, or to any one in privity with the fee, under the same title, as, to a warrantor in the chain of title, who may receive the release in discharge of his covenant of warranty and for the benefit of his grantee, however remote. (La Framboise v. Grow, supra; Chicago Dock Co. v. Kinzie, supra; Robbins v. Kinzie, 45 Ill. 354.) When, therefore, Mrs. Ferry released to the trustees of said association her right of dower, it inured to the benefit of appellee, with like effect as if made to him.

It is also objected that there is an outstanding interest in Otis E. Glover. A recapitulation of the facts will not be necessary. It is clearly shown that in the subscription of Willard, as trustee, Otis E. Glover was, in fact, the cestui que trust, although undisclosed by the subscription. Willard joined in the general stockholders’ deed to Harvey, before commented upon, both in his individual capacity and as trustee. Without pausing to discuss the relation of the cestui que trust to the land in question, or determining whether his interest was represented by any interest in the land, or by a certificate of stock in the corporation, which should be treated as personal property, (Nicoll v. Ogden, 29 Ill. 333,) it is sufficient to say, that the act of his trustee in conveying said land to said Harvey has, as said by counsel for appellee, been over and over again ratified by the cestui que trust. Some of these acts of ratification are: First, after said conveyance he took an assignment from his trustee of the certificates of stock in the corporation; second, he surrendered for cancellation said stock in the corporate company, in 1874, after the organization of the association, and there was issued to him certificates of shares in lieu of such certificates of stock surrendered; and third, subsequently to the commencement of this suit, by a quitclaim deed of all his right, title and interest of the land in question, to appellant, Hull. The deed last mentioned was admitted in evidence by agreement of the parties, and no objection was pointed out or perceived by us affecting its sufficiency to convey to said Hull any interest said Glover could have had in said land.

It is, however, suggested, that said Glover may have conveyed his interest prior to the execution of said deed. A sufficient answer is, there is no pretense that any such conveyance was ever made, nor is any one in possession or asserting title under said Glover.

It clearly appears, as we think, from the abstract and evidence produced before the master, that appellee’s deed conveyed to appellant a “good and merchantable title to the tract of land in question,” and that he was in equity entitled to a specific performance of the contract on the part of appellant.

The decree of the circuit court is therefore affirmed.

Decree affirmed.


author: Mr. Justice Magruder

text:
    Jane B. Way v. Malvina Harriman et al.

      Filed at Ottawa October 2, 1888.

    1. Witness—competency—party, as against heirs—husband of party. The daughter of a deceased person claimed the property left by her mother, under a verbal contract to take care of the latter during her life. On a bill by the other heirs of the deceased mother, to subject the property so left by the mother to distribution among all the heirs, denying the right of the claimant under the alleged contract, it was held, that the latter was not a competent witness in her own behalf, she being a defendant, and the adverse parties claiming as heirs of her deceased mother, and also that her husband was not a competent witness in her behalf to prove the alleged contract.
    2. Evidence—degree of evidence—to charge an estate wader a parol contract. Where an attempt is made, under cover of a parol contract, to effect a distribution of the property of the estate different from that which the law makes, the proof must be clear, and the testimony must be direct and positive. Such evidence is looked on with jealousy, and should be weighed in the most scrupulous manner.

      Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Bureau county; the Hon. George W. Stipp, Judge, presiding.
    Mr. Robert Farwell, and Mr. O. G. Lovejoy, for the appellant :
    Benjamin Way was a competent witness. He had no interest in the event of the suit, and was not a party. The litigation was concerning the separate property of his wife, who, if not married, would have been a defendant. He is therefore made competent by section 1 of the act relating to evidence, and is not disqualified by section 2 or 5. Mueller v. Rebhan, 94 Ill. 142; Gravel Road Co. v. Madaus, 102 id. 417.
    The Appellate Court, in suppressing the deposition of Bern jamin Way, rely upon the eases of Treleaven v. Dixon, 119 Ill. 548, and Warrick v. Hull, 102 id. 280. Neither of these cases sustains the ruling of the Appellate Court.
    This court enforced almost exactly such a contract as this in Casner v. Preston, 109 Ill. 531, and in Kimball v. Cuddy, 117 Ill. 213.
    , Messrs. Eckels & Kyle, and Mr. Jesse Emerson, for the appellees:
    A gift mortis causa, in order to be valid, must have been made by the donor in apprehension of death; and in order to divest himself or herself of the title, there must have been a full and complete delivery. Everyting must have been done by the donor which was necessary to divest himself or herself of the title and to vest the title in the donee, and the proof of an intentional delivery on the part of the donor, and with a view to perfect the gift, must be clear and unequivocal. 3 Redfield on Wills, p. 344, and cases cited.
    When an attempt is made to effect a distribution of property of an estate different from that provided by law, under a contract resting in parol or to be established by parol evidence, the evidence relied upon should he looked upon with jealousy, and weighed in the most scrupulous manner. Woods v. Evans, 113 Ill. 187.
    Where the contract relied upon to establish the right of property, in a channel different from that provided by law, is sought to be established by the verbal testimony of the claimant of such property and the immediate members of his family, such evidence should be looked upon with great jealousy. Wallace v. Rappleye, 103 Ill. 229.
    The specific performance of a contract in equity is not a matter of right in the party seeking it. A contract which is not fair and just in all its provisions will not be specifically enforced in a court of equity. Wallace v. Rappleye, 103 Ill. 229; Stone v. Pratt, 25 id. 34; Lear v. Chouteau, 23 id. 39.
    No party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion or in his own behalf, by virtue of section 1, chapter 51, of the Eevised Statutes, when any adverse party sues or defends as the heir, legatee or devisee of any deceased persons. Rev. Stat. 1880, chap. 51, sec. 2, p. 505; Treleavan v. Dixon, 119 Ill. 548.
    The husband can not be a witness in favor of his wife, to any-admissions or conversations of the other, whether made by him to her, or by her to him, or by either to third persons, except in suits or causes between such husband and wife. Eev. Stat. 1880, proviso to sec. 5, chap. 51, p. 507; Treleavan v. Dixon, 119 Ill. 548.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is a bill filed January 6, 1885, in the Circuit Court of Bureau County by Malvina Harriman, Pearley Townsend and William Watts against Jane B. Way, and also against Carlos Sampson, Helen Way, Albert Watts and Eobert Harwell. All the parties, except Harwell, are thechildren of Sarah B. Watts, deceased, three by her first husband, named Sampson, and four by her second husband named Watts. Farwell is administrator of the estate of Mrs. Watts.. This appeal from the Appellate Court is taken by Jane B. Way alone'.

.On May 28, 18-84, Sarah B. Watts, then a widow nearly eighty years old, went to the home of her son-in-law Benj amin Way and of her daughter, Jane B. Way, the appellant in this case, who lived on a farm in the State of Kansas. Mrs. Watts lived with the appellant and with the appellant’s husband, Benjamin Way, upon the Kansas farm from May 28, 1884, to August 14, 1884, on which latter day she died intestate. The three complainants and Albert Watts and Farwell live in Bureau County, Illinois, Sampson in Iowa, Helen Way in Dakota and appellant in Kansas, as already stated.

Mrs. Watts owned in her lifetime $680.00 in money, and two notes, one against Henry Harriman, husband of the appellee, Malvina Harriman, and the other against Charles B. Townsend, husband of the appellee, Pearley Townsend. She had the money and the Townsend note in her possession, when she arrived at the Way farm in Kansas. At that time the Harriman note was in the hands of a lawyer, named Emerson, in Bureau County, Illinois, with whom it had been left for collection. Emerson was written to for the note and forwarded it on July 1, 1884, to Mrs. Watts, who received it in Kansas about July 3, 1884. After the death of Mrs. Watts, the notes and money were in the hands of appellant, who claimed to be the exclusive owner of them under a contract alleged to have been made with her mother, as hereinafter set forth. Appellant sent the notes to the said Farwell, an attorney in Bureau County in this State, for collection. Farwell as administrator, for the use of Jane B. Way, brought suits and obtained judgments upon both notes, and has collected $1252.05 upon the Harriman judgment and $1125.00 upon the Townsend judgment.

The bill sets up the foregoing facts in substance and also alleges, that the notes and money were the property of Mrs. Watts at the time of her death; that the money and notes, or the proceeds of the collection of the notes, belong to the heirs at law of Mrs. Watts, including appellant, after payment of debts, and should be distributed, as required by law; that appellant fraudulently obtained possession of said notes and money before the death of Mrs. Watts, or took possession of them after her death with the fraudulent intent to deprive the other heirs-at-la'w of their interests therein. The bill prays that the money collected on the judgments may be declared to be the property of the estate of Mrs. Watts and that it may be distributed to her heirs, and that Farwell be enjoined from paying to appellant, etc.

Appellant in her answer denies that Mrs. Watts owned the notes and money at the time of her death, but alleges that Mrs. Watts before her death gave and delivered the notes and money to the appellant for the purpose of vesting the exclusive ownership thereof in appellant, and that this was done in pursuance of a contract between appellant and Mrs. Watts, made at the latter’s suggestion soon after coming to Kansas, “to which respondent’s husband assented and was a party, to the effect that Mrs. Watts was to give to this respondent the money and promissory notes * * * in consideration of which respondent and her husband were to furnish a home for Mrs. Watts with them, were to board and lodge her, furnish such clothing as she needed, to nurse and take care of her in sickness, to furnish medical treatment and attention, to make her as comfortable as circumstances would permit during the balance of her life, and when she died to have her body decently buried. ' Further, respondent says that she and her husband furnished Mrs. Watts a home with them as long as she lived, and did all that could be done to make her comfortable, supplied all her wants, carefully and tenderly nursed her during her sickness, employed for her the best medical attendance and treatment obtainable in the county, and when she died, decently buried her body and did all that could be done or was to be done on their part in the performance of said arrangement.”

The Appellate Court has reversed the decree of the Circuit Court which dismissed the bill for want of equity. The question presented by the record is, whether the money on hand at the death of Mrs. Watts and that realized from the notes since her decease, belong to appellant or to the estate of Mrs. Watts. Before appellant can be held to be the exclusive owner of the funds in question, the contract set up in her answer must be clearly established by the evidence.

The contract, upon which appellant relies, is admitted.to have been a verbal one. The only witnesses, by which it is sought to prove it, are the appellant herself, her husband Benjamin Way, and her two sons, Elbert Way and Newton Way.

The appellant is clearly an incompetent witness under the second section of chapter 51 of Bev. Stat., entitled “Evidence and Depositions.” She is a party defendant to the suit and the adverse parties suing are the heirs of her deceased mother. (Freeman v. Easly, 117 Ill. 317).

We also think that Benjamin Way, the husband of appellant, is an incompetent witness. The fifth section of the 51st chapter of the Bevised Statutes provides, that, in certain cases therein mentioned, “the husband and wife may testify for or against each other in the same manner as other pwties may under the provisions of this act.” In Treleaven v. Dixon, 119 Ill. 548, we held that the word, “party,” as here used, means, “party to a suit or party in interest in the suit,” and we there said: “Giving it that meaning, other parties can not testify in any civil action, suit or proceeding of their own motion, or in their own behalf, when any adverse party sues or defends as the executor of a deceased person, and therefore husband and wife can not testify for or against each other in those instances.” Of course, under se.ction 2, the-same is true as well where the adverse party-is the heir of a deceased person as where he is the executor of a deceased person.

It makes no difference that the testimony of appellant and her husband is in the record. This being a chancery proceeding, we are required to assume that all the incompetent evidence was rejected on the final hearing. If there is not competent evidence in the record sufficient to sustain the decree, it must be reversed. (Treleaven v. Dixon, supra).

The testimony of appellant and her husband being disposed of, there remains only the evidence of the two sons, which is not sufficient to establish the contract contended for. • An attempt is here made, under cover of a parol contract, to effect a distribution different from that which the law makes. Under such circumstances the proof must be clear and the testimony must be direct and positive. (Wallace v. Rappleye, 103 Ill. 229). “Where an attempt is made to effect a distribution different from that provided by law, by .a contract resting in parol, the evidence relied upon to establish such a contract is looked upon with jealousy and should be weighed in the most scrupulous manner.” (Woods v. Evans, 113 Ill. 186). The depositions of Elbert and Newton Way, which were taken in Kansas under a commission, will not bear the test of the strict rule thus laid down.

These boys do not claim to have been present at the time the alleged contract was made between their mother and grandmother. They merely testify that they heard their grandmother say she had given the notes and money to their mother. They represent that what their grandmother said was said at the dinner table, at a time when, according to the testimony of the physician and according to statements made in letters written by appellant, Mrs. Watts must have been too ill to leave her bed. Their cross-examination shows that much of what they say about the agreement was told them by their mother. As to some of their statements they are flatly contradicted by one Wilson Fisher, who appears to be an entirely disinterested witness. They swear, that they heard their grandmother say she had given the money to appellant, and yet five witnesses swear that, before the burial of Mrs. Watts, they heard appellant say she never knew Mrs. Watts had any money, until the $680.00 was found in her trunk after her death.

Further comment upon the testimony of the two sons is unnecessary. It is sufficient to say, that, in our opinion, it is not sufficiently satisfactory and conclusive to sustain the contract set up by appellant. It leaves the mind too much in doubt to justify us in depriving these appellees of their lawful inheritance. We think the Appellate Court has reached the correct conclusion in the matter, and the judgment of that court is accordingly affirmed.

Judgment affirmed.

Baker, J., took no part in the consideration of this case, he having participated in the decision made by the Appellate Court.