author: Mr. Justice Mulkey Mr. Chief Justice Scott : Mr. Justice Dickey :

text:
    The Home Insurance Company v. Charles P. Swigert, Auditor.

      Filed at Ottawa November 20, 1883.

      1. Statute—may be made to depend upon a contingency. While a law can not have a mere fragmentary or inchoate existence, yet it is well settled that the operation and even remedial character of a perfect and complete law may, by virtue of limitations in the law itself, based upon contingent extrinsic matters, be enlarged, diminished, or wholly defeated. Such laws, though adopted absolutely and perfect in all their parts, may, by their own limitations, be made applicable to a hypothetical condition of things which may or may not ever happen.
    2. So it is competent for the legislature to pass a law, the ultimate operation of which may, by its own terms, be made to depend upon some contingency, as, upon an affirmative vote by the electors of a given district, or upon any other indifferent contingency; and this is no abandonment by the legislature of its legislative functions. In such case the law is complete when it comes from the hands of the legislature.
    3. Foreign insurance companies doing business in this State—rate of taxation dependent on the action of the foreign State. The several sections of the general Insurance law of March 11, 1869, relating to foreign insurance companies doing business in this State, in effect declare that the rates of taxation and scale of fees to be paid by such companies shall in all cases be governed by the general provisions of .the Insurance act relating to 1 that subject, exclusive of section 29, except where the statute of the State to which any such foreign company belongs has or may hereafter impose upon our own insurance companies doing" business therein a higher rate of taxation than is required by our law, in which case section 29 is made to govern, and the higher rate imposed by such foreign State upon our companies doing business there will be applied to its own companies doing business here. The fact that no case has arisen calling for the enforcement of the 29th section until some twelve years after its enactment, can in no way operate to render that section inoperative, or affect its validity as a binding law. Until some other State should impose upon companies organized under the laws of this State, and doing business there, the higher rate of tax contemplated in the 29th section, no case could arise for its enforcement,—-yet in the meantime it was in full force and effect, and it was entirely competent for the legislature tg provide that the application of that section should await the happening of the contingency named.
    4. The enforcement of the provisions of the 29th section in any proper case is not to be regarded as the enforcing by our courts of the laws of the foreign State, any more than would the case of enforcing a contract by legal proceedings in one of our own courts which was made in a foreign State, whose law regulating such contract differs from our own general law on the subject. In either case it is but the enforcement of our own law.
    5. Nor is that section in conflict with section 1, article 9, of the constitution of 1870, which authorizes the legislature to tax peddlers, auctioneers, insurance business,-etc., in such manner as it may, from time to time, direct by “general law uniform as to the class upon which it operates," as it does not follow that all foreign insurance companies are, for the purpo'se of assessment or taxation, to be deemed of the same class, within the meaning of the constitutional provision. The constitution has left the power with the legislature to classify such companies for taxation, as is done by the act in question.
    6. Construction on statutes—several sections construed together. The several sections of a statute relating to the same subject must be construed together in determining the legislative intent.
    7. Constitutionality of a statute. A court will not declare an act of the legislature unconstitutional, unless it is clear, beyond reasonable doubt, it has transcended its constitutional powers.
    Appeal from the Circuit Court of Sangamon county; the Hon. Charles S. Zane, Judge, presiding.

      The Home Insurance Company of New York, the appellant, brought an action in the Sangamon circuit court, against Charles P. Swigert, the appellee, to recover money paid by the company to appellee, as Auditor, under section 29 of the general Insurance act, commonly known as the “reciprocity provision. ”
    Counsel have embodied in a written stipulation the material facts upon which the rights of the parties depend, from which it appears the plaintiff is an insurance company incorporated under the laws of New York; that during the years 1880 and 1881 it had established agencies and transacted the business of insurance within the State of Illinois, and had fully complied with section 22 of the law regulating the business of insurance, approved March 11, 1869; that during the year 1881 the plaintiff had appointed three hundred and one agents in the State of Illinois, and that the Auditor of Public Accounts had issued certificates of authority to each of such agents, as provided by said section; that the plaintiff, in the month of January, 1882, filed with the defendant, as Auditor of Public Accounts, its annual statement, as required by said Auditor, showing, among other things, the amount of premiums received by the plaintiff in said State during the year 1881, and that such report was satisfactory to said Auditor; that the statement required by said section was filed with the said Auditor, showing the amount of premiums received by said company through its agencies in this State, for the year 1880; that the amount of premiums so received in gross was the sum of $193,443.80 ; that the plaintiff, in January, 1882, made proper application to the defendant, as Auditor, for the renewal of the certificates for each and all of its said agents located in said State of Illinois; that such application was made after the filing of its annual statement in accordance with the provisions of said section 22, arid that the Auditor refused' to renew such certificates, for the sole reason that the plaintiff had failed and refused to pay a tax of eight-tenths of one per cent upon the gross amount of the annual premiums paid to such plaintiff upon its business transacted in the State of Illinois for the year 1880 ; .that the gross amount of such premiums was $193,443.80, and that the tax thereon of eight-tenths of one per cent was $1547.55; that on the 31st day of January, 1882, the defendant, as such Auditor, rendered the plaintiff an account, of which the following is a copy 4
    “State of Illinois, Auditor’s Office, Springfield, Jan. 81, 1882.

      “Home Insurance Co., New York;

      To Charles P. Swigert, Auditor P. A.

    1881.
    Jan. 28. To filing statement - - $20.00
    “ advertising - - 80.00
    “ 301 ag’ts-certificates - - 602.00
    “ fo 1% tax on $193,443.80 1 prems.
    in Illinois, 1880 - - 1,547.55
    Mar. 17. “ 13 ag’ts certificates - 26.00
    May 27. “ 15 ag’ts certificates - 30.00
    $2,305.55
    Cr.
    Jan. 28. By check - $612.00
    Mar. 17. Si m _ 26.00
    May 27. SS m 3Q.00
    June ss m „ „ 10.00
    Aug. ss „ 20.00
    Nov. ss 22.00

      SS SS ... - 4.00

      <( ss 4.00
    728.00
    $1,577.55
    File mark on back of paper:
    “Home Insurance Co., statement of accts. with Auditor, Jan’y 31, ’82, $1577.55.”

      That on said 31st day of January the plaintiff paid to the said defendant said tax of $1547.55; that at the time of such payment the plaintiff denied the validity of such tax, and made such payment under protest, and further, that such payment was made under the following stipulation:
    “It is hereby stipulated and agreed between C. P. Swigert, Auditor of the State of Illinois, and the Home Insurance Company, of the State of New York, that said company shall pay to the said Swigert, under protest, the sum of $1547.55, being the amount claimed by said Auditor as due from said company for taxes for the year 1880, being eight-tenths of one per cent upon the gross business or premiums received by said company upon its business transacted in said State of Illinois during the year 1880, under section 29 of the general-insurance law of said State, passed and approved by the legislature thereof March 11, 1869,. said sum of money to be held by said Swigert to abide the result of an action to be brought by said company against him to recover back said sum, and to test the validity of the law,—it being understood and agreed between the parties hereto that said action shall be prosecuted without unreasonable delay to final judgment in the Supreme Court of said State of Illinois, and both parties shall abide said judgment.
    (Signed) Chas. P. Swigert, Auditor P. A.

    Home Insurance Co., N. Y., by Eugene Cary, Sp’l Ag’t.

    Howard Insurance Co., N. ,Y„ by Eugene Cary, Sp’l Ag’t.

    Germania and Hanover Ins. Cos., by Geo. D. Gould, Atty. in fact. ”

    That the said defendant claims authority to assess and collect said tax of eight-tenths of one per cent 'under and by virtue of the laws of the State of Illinois and the laws of the State of New York, and more particularly by virtue of section 29, of chapter, 73, of the Revised Statutes of the State of Illinois, entitled “reciprocity, ” and under the act of the General Assembly of the State of Illinois, approved June 4, 1879, entitled “An act for the better regulation of the business of insurance, and for the protection of the citizens of this State in their dealings with insurance companies, ” and such other laws of the State of Illinois as were then in force, and also under and by virtue pf the laws of the State of New York, more particularly because of an act entitled “An act t6 provide for raising taxes for the use of the State upon certain corporations, joint stock companies and associations,^passed June 1, 1880, three-fifths being present; ” that during the years 1880 and 1881, insurance companies incorporated under the laws of the State of Illinois had agencies and transacted insurance business in the State of New York, and were required to comply with said law of New York above referred to.
    Section 5 of the New York act of June 1, 1880, above referred to, is as follows:
    “Sec. 5. Hereafter it shall be the duty of the president, secretary, or other proper officer of every insurance company and every association organized or incorporated by or under any law of this State, and every person or partnership doing an insurance business in this State, (except life insurance companies, and purely mutual beneficial associations whose fund for the benefit of members, their families or heirs, is made up entirely of contributions of their members, and the accumulated interest thereon,) to make report in writing to the comptroller, annually, upon the 1st day of August, in each year after the 1st day of August, 1881, setting' forth the entire amount of premiums received on business done in this State by such company or association, person or partnership, during the year ending with the preceding 30th day of June, whether the said premiums were in money or in the form of notes, credits, or any other substitute for money; and every such company, association, person or partnership shall pay into the State treasury, at the date aforesgid, a tax, as a tax on its corporate franchise or business, at the rate of eight-tenths of one per centum upon the gross amount of said premiums. And every company or association organized under the laws of any other State or country, and every person or partnership doing an insurance business in this State, except as aforesaid, shall pay into the treasury, on the 1st day of August in each year, a tax at the rate of eight-tenths of one per centum on the gross premiums received by them on business transacted in this State during the year ending with the preceding 30th day of June, whether the said premiums were in money or in the form of notes, credits, or any other substitute for money; and every such company, association, person,' partnership, or the agents or officers thereof, in this State, shall make report in writing to the comptroller, annually, upon the 1st day of August in each year, setting forth the entire amount of premiums received during the period aforesaid: Provided, the reports above required shall be made under oath or affirmation, and that it shall be the duty of the comptroller of the State to add ten per centum to the account of any company, association, person or partnership which shall neglect or refuse, for a period of thirty days, to make the said report or to pay into the State treasury the tax imposed by this section. And it shall be the duty of the president, secretary, or other proper officer of each and every insurance company, association, partnership, and of every person liable to be taxed under this section, to make a report in writing to the comptroller, on the 1st day of August, 1881, under oath or affirmation, of the entire amount of premiums received on business done in this State during the six months ending with the preceding 30th of June, and to pay a tax at the rate of eight-tenths of one per centum thereon. And it shall be the duty of the comptroller of the State to add ten per centum to the account of any company, association, person or partnership which shall neglect or refuse, for a period of thirty days, to make the said report or to pay into the State treasury the tax imposed. ”
    Section 29 of our own act, referred to in the above stipulation, is as follows: “Whenever the existing or future laws of any State of the United States, or any other kingdom or country, shall require of insurance companies incorporated by or organized under the laws of this State, and having agencies in such other State, kingdom or country, any deposit or securities in such State, kingdom or country, for the protection of policyholders or otherwise, of any payment for taxes, fines, penalties, certificates of authority, license fees, or otherwise, greater than the amount required for such purposes from similar companies of other States by the then existing laws of this State, then, and in every such case, all companies of such States establishing, or having heretofore established, an agency or agencies in the State, shall be and are hereby required to make the same deposit, for a like purpose, with the Auditor of this State, and to pay to the Auditor for taxes, fines, penalties, certificates of authority, license fees, and otherwise, an amount equal to the amount of such charges and payments imposed by the laws of such State upon the companies of this State, and the agents thereof: Provided, that the payment required of such foreign companies shall in no case be less than required by this act. ”
    The court found the issues for the defendant, and rendered a judgment against the plaintiff for costs, and thereupon the latter prosecuted an appeal to this court.
    Messrs. Walker & Carter, for the appellant:
    Section 29 of the general Insurance law of this State is invalid, it being in effect a delegation by our General Assembly of its powers ahd discretion to the legislature of the State of Hew York. For twelve years this section has been a dead letter. If it had validity, it had no vitality. If life has been recently given to it, this vitality has not come from the only power that could make, modify or repeal the law, but on the contrary, the legislature of New York has breathed into its inert body the breath of life.
    The authority to. make laws can not be delegated or transferred to any other person or body by the law-making power. 2 Locke on Civil Government, 273.
    The power to impose taxes must be exercised by the legislature itself, and can not be delegated. Cooley on Taxation, 48; Dillon on Municipal Corp. secs. 60, 567, 618; Cooley on Const. Lim. 117, 205; Scofield v. Lansing, 17 Mich. 437 ; East St. Louis v. Wehrung, 96 Ill. 392; Thorne v. Cramer, 15 Barb. 112; Bradley v. Baxter, id. 122; Bartow v. Himrod, 8 N. Y. 483; Rice v. Porter, 4 Harr. 479; People v. Collins, 3 Mich. 343; State v. Wier, 33 Iowa, 134; Mishmeier v. State, 11 Ind. 482; Commonwealth v. Locke, 72 Pa. St. 491; State v. Hudson County, 37 N. J. 12; Foss v. City of Chicago, 56 Ill. 354; Harward et al. v. St. Clair Drainage Co. 51 id. 130.
    A law, the force of which is to depend upon the happening of some future event, or upon some future change of circumstances, can not be sustained. When made to take effect upon the happening of a future event, the legislature in effect declares the law inexpedient if it should not happen, and expedient if it should happen.
    The Auditor is no judicial officer, and has no right to determine, as a matter of fact, ■whether the legislature of New York has passed any particular law.
    The tax levied by the Auditor is not uniform as. to class, and is therefore inhibited by section 1, article 9, of the constitution. Bureau County v. Chicago R. R. Co. 44 Ill. 229 ; Allhands v. People ex rel. 82 id. 234; Hughes v. City of Cairo, 92 id. 339; Cooley on Taxation, 128.
    The appellant having already been taxed by the local authorities under section 30 of the act, the tax collected by the Auditor under section 29 is double taxation, which is prohibited. Cooley on Taxation, 164,165; Amesbury Woolen Co. v. Amesbury, 17 Mass. 461; Savings Bank v. New London, 20 Conn. 117; Savings Bank v. Portsmouth, 52 N. H. 17; Oliver v. Washington Mills, 11 Allen, 276.
    If authority is given the Auditor, hy section 29 of the general Insurance law of 1869, to levy and collect the tax in controversy, then so much of said section as authorizes -such tax is repealed by section 30 of the same act.
    Mr. James McCabtney, Attorney General, for the appellee:
    An illegal tax voluntarily paid can not be recovered back. Lamborn v. Dickinson County Comrs. 97 U. S. 181; Galveston v. Graham, 49 Texas, 279.
    That a law may be made to depend upon some contingency, as to when or whether it shall ever take effect, as, a vote of the people, is sustained by the decided weight of authority. This is no delegation of legislative power, but a delegation of power to determine some fact upon which the operation of the law is made to depend. Locke’s Appeal, 72 Pa. St. 498; Alcorn v. Hamer, 38 Miss. 652; People ex rel. v. Salomon, 51 Ill. 37; People v. Reynolds, 5 Gilm. 1; Erlinger v. Boneau, 51 Ill. 94; Guild v. Chicago, 82 id. 472; State v. Baker, 26 Vt. 357; Anderson v. Commonwealth, 13 Bush, 485; Aurora v. United States, 7 Cranch, 382; Cooley on Const. Lim. 117.
    The business of insurance is not in any way inter-State commerce, and no objection can be interposed of violating the constitution of the United States. Western Union Tel. Co. v. Mayor, 28 Ohio St. 521; Home Ins. Co. v. Augusta, 50 Ga. 543; Paul v. Virginia, 8 Wall. 168.
    The only limitation upon taxation is, that the tax shall be uniform as to the class on which it operates, and the legislature has the exclusive power to make such classes ¡and establish such rates as it may see proper. The terms prescribed by this statute are uniform upon all companies from New York doing business here. Wallack v. Mayor, 3 Hun, 95; 5 Thomp. & Cook, 310; People v. Mayor, 4 Conn. 420; Eurigh v. People; 79 Ill. 214; Burch v. Mayor, 42 Ga. 596.
    But a license is not a tax, and is not subject to the rule of uniformity. East St. Louis v. Wehrung, 46 Ill. 392; Ducat v. City of Chicago, 48 id. 172; Hughes v. City of Cairo, 92 id. 339; Walker v. City of Springfield, 94 id. 364.
    The State may establish any rates it pleases for the privilege of a foreign corporation to transact its business in this State. Western Union Tel. Co. v. Lieb, 76 Ill. 172; Western Union Tel. Co. v. Mayor, 28 Ohio St. 521; Hughes v. City of Cairo, 92 Ill. 339.
   Mr. Justice Mulkey

delivered the opinion of the Court:

It will be perceived from the statement which precedes this opinion, as well as from the argument of counsel for the appellant, that the theory upon which the company seeks to recover back the money paid by it to the Auditor under protest, rests upon the legal assumption that it is not competent for the legislature to provide a general rate of taxation and of fees to be paid by foreign insurance companies for the privilege of doing an insurance business' in this State, as is done by the 30th and other sections of the Insurance act, and by another provision of the same law prescribe higher rates and different scales of fees to be paid by such companies upon certain contingencies therein provided for, as is done by the 29th section of the act,—and this is really the main question in the ease.

The 30th section of the act requires all‘agents of foreign insurance companies doing business in this State to return, for purposes of taxation, to the proper officer of the county, town or other municipality in which their respective agencies are established, in the month of May, annually, the amounts of the net receipts of such agencies for the preceding year, which are declared to be subject to the same rates of taxation, for all purposes, that other personal property is in said municipalities, respectively,—such tax to be in full of all town and municipal license. The 27th section • requires certain fees to be paid by all companies proposing to do an insurance business under the act. Of course the several sections relating to this subject must be construed together, and when so considered, they in effect declare that the rates of taxation and scale of fees to be paid by foreign companies doing business here shall, in all cases, be governed by the general provisions of the Insurance act relating to that subject,, exclusive of the 29th section, except where the statute ■ of the State to which any such foreign company belongs, has or may hereafter impose upon our own companies doing business therein a higher rate of taxation than is required by the general provisions of our own act, in which case the 29th section is made to govern,—or, in other words, upon such contingency the higher rate of taxation imposed by such foreign State upon our companies doing business there, will, by virtue of the 29th section of our act, be applied to its own companies doing business here.

It is clear that if this 29th section is operative and valid at all, and the Auditor may rightfully enforce it whenever a case is brought within its provisions, there can be no recovery in the present action. But it is earnestly insisted that such is not the case; that the section in question has for twelve years past been a dead letter upon the statutes of the State ; that if it now has any vitality at all, it has been recently infused into it by the statute of New York, and that to admit this is in effect to hold the legislature of the State may abdicate its legislative functions, and surrender them to the legislature of a foreign State, which all concede can not be done. This, to our apprehension, is an extreme and unsound view of the matter, although it- seems to be sustained" by Clark & Murrell v. The Port of Mobile, 10 Ins. Law Journal, 357. But that case can not, on principle, as we understand it, be reconciled with numerous other well considered cases, and, moreover, we do not regard the reasoning by which the conclusion is reached as sound, and for these reasons we respectfully decline to follow it. As opposed to the reasoning in that ease, we cite Alcorn v. Hamer, 38 Miss. 652; Locke’s Appeal, 72 Pa. St. 498; 'The People v. Reynolds, 5 Grilm. 1; The People ex rel. v. Salomon, 51 Ill. 37; Guild v. Chicago, 82 id. 472; Erlinger v. Boneau, 51 id. 94.

Whatever the rule may be in other States, it is well settled in this, as will appear from the eases just cited, that it is competent for the legislature to pass a law the ultimate operation of which may, by its own terms, be made to depend upon some contingency, as, upon an affirmative vote by the electors of a given district, or upon any other indifferent contingency the legislature in its wisdom may prescribe. Where the contingency upon which the ultimate operation of a law is made to depend, -consists of a vote of the people, or the action of some foreign deliberative or legislative body, as is the case here, it is erroneous to suppose the legislature in such case abandons its own legislative functions, or delegates its powers to the people in the one case, or to such foreign deliberative or legislative body in the other. In either case the law is complete when it comes from the hands of the legislature, otherwise it would be inoperative and void, for we fully recognize the principle a law, properly so called, can not have a mere fragmentary or inchoate existence; and even if it could, neither the people by a vote, nor any other independent body, could complete the unfinished work of the legislature, and thus make it a law. But while this is so, nothing is better settled than that the operation and even remedial character of a perfect and complete law may, by virtue of limitations contained in the law itself, based upon contingent extrinsic matters, be enlarged, diminished, or wholly defeated. Such laws, though adopted absolutely and perfect in all their parts, yet by their own limitations they are applicable to a hypothetical condition of things only, and which may or may not ever happen. That it is perfectly competent for the legislature to pass such laws is shown by long legislative experience, and a decided weight of judicial authority. Indeed, we have not the slightest doubt of the validity of laws of this character, and to hold otherwise would clearly lead to the most serious consequences. Who has ever doubted the validity of that portion of our statute which declares that deeds executed without the State may be acknowledged, before any one authorized to take such acknowledgments, by the laws of the State or. country in which they are made ? Or who has ever questioned the constitutionality of that provision of our statute which makes all wills and testaments made in a foreign State or country binding and valid here, if executed and proven agreeably to the laws and usages of such foreign State or country, although not in accordance with our general law on the subject? And yet, in either of these cases, there is just as much reason for claiming that our legislature has abdicated its legislative functions, and attempted to delegate its constitutional and legitimate powers to a foreign State or country, as there is that it has done, or attempted to do so, in the present case; and to apply the doctrine contended for to those provisions of our statute, .would unsettle and destroy a vast number of titles which have never heretofore been questioned, and would thereby give rise to a train of evils the magnitude of which can hardly be conceived. We can not, therefore, either upon authority or upon grounds of public policy, give the doctrine our sanction.

It is not an objection to the validity of this provision of the statute that no attempt has ever before been made to enforce it, and that it has, as counsel put if, “lain dormant for the last twelve years. ” In this sense all penal laws are dormant until the facts or circumstances arise which constitute a breach of them. Until the legislature of New York, in 1880, passed the act in question, and commenced enforcing it against our own companies doing business there, no case had arisen here to which the 29th section of our own act could apply,—nevertheless it was in full force and effect all that time. It is also a misapprehension to suppose that in giving effect to this section of our statute we are simply enforcing the statute of a foreign State. It is a fundamental principle that courts can only enforce the laws of the State or sovereignty from which they derive their powers and jurisdiction. Take the ordinary case of enforcing a contract by legal proceedings in one of our own courts which was made in a foreign State, whose law regulating such contract differs. from our own general law on the subject. In such case the court here does not simply administer the foreign law, for, as already stated, it has no power to do that, but, as in all other cases, it administers the law of this State only,—that is, it administers the law of this State regulating all foreign contracts of the same character, made under like circumstances. In all cases of this kind the law which obtains here, and by which the rights of the parties are governed, is identical with the foreign law where the contract was made; but it is the law here, and not the foreign law, that is enforced by our own courts. So in the present case, while our own law regulating the terms upon which New York companies may do business here, is identical with the law of that State prescribing the terms upon which insurance companies may do business there, it is nevertheless the law of this State, and not the law of New York, which is enforced by our courts here.

It is further contended by appellant’s counsel, that the 29th section of our Insurance act is in conflict with section 1, article 9, of the present constitution, which is as follows: “The General Assembly shall provide such revenue as may be needful by levying a tax by valuation, so that every person and corporation shall pay a tax in proportion to the value of his, her or its property, such value to be ascertained by some person or persons to be elected or appointed in such manner as the General Assembly shall direct, and not otherwise. But the General Assembly shall have power to tax peddlers, auctioneers, brokers, hawkers', merchants, commission merchants, showmen, jugglers, inn keepers, liquor dealers, toll bridges, ferries, insurance, telegraph and express interests or business, and persons or corporations owning or using franchises and privileges, in such manner as it shall, from time to time, direct by general law uniform as to the class upon which it operates. ”

This position, to have any force at all, necessarily assumes as true two other propositions, namely, first, that the amount required to be paid by New York companies doing business here, is, under the 29th section of our Insurance act, a tax, within the meaning of the constitution; and second, that all foreign insurance companies doing business here, are, for the purpose of assessment or taxation, necessarily of the same class. In the view we take of the second proposition it will not be necessary to discuss the first.

While we concede that all insurance companies organized under the laws of other States are to be distinguished from those organized under our own laws, for some purposes, by a common characteristic,' namely, that of being created and organized under the laws of a foreign State, still, in our judgment, it does not legally or logically follow that all such companies are, for the purpose of assessment or taxation, to be deemed of the same class, within the meaning of the section of the constitution above cited, for it is hardly necessary to remark there may well be one or more attributes or characteristic marks common to several classes, and yet each class, for some purposes, be quite distinct from the other. The framers of the constitution having failed to classify insurance companies for these purposes, the power to do so rests exclusively with the legislature, and, as we understand it, that power has been exercised by the adoption of appropriate legislation for that purpose, already referred to. The insurance companies of each foreign State doing business here, whose laws require companies organized under the laws of this State doing business there to pay a higher rate of taxation than is required to be paid by the general provision of our own law on the subject, are, by the express provisions of the 29th section of our Insurance act, constituted a distinct class for the purposes of assessment and taxation here. As already stated, the power to classify such companies has been left by the framers of the constitution with the legislature, and we can perceive no good reason, nor has any been suggested, Avhy a classification of these companies may not Avell be based, as it has been, upon the legislative policy of their respective States towards our own companies doing business there. On the contrary, we can see many good reasons (which we will not noAY stop to enumerate) for classifying these companies upon such a basis, and we have no doubt it was perfectly competent for the legislature to do so, a S' it did, by the adoption of the 29th section.

Whatever grounds there may be for doubt on the question, Ave can not believe them of so serious a character as to require us to hold the 29th section unconstitutional. It is a familiar doctrine that courts will not declare an act of the legislature unconstitutional, unless it is clear, beyond reasonable doubt, it has transcended its constitutional powers. We can not say that such is the case here, hence we must and do hold the act a valid law.

The judgment will be affirmed.

Judgment affirmed.

Mr. Chief Justice Scott :

I do not concur in this opinion.

Mr. Justice Dickey :

I concur in the view that the statute is valid, but I doubt whether our statute Avas intended to apply to a ease where the imposition by the foreign statute is in no sense a discrimination against corporations of this State.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    Virginius A. Turpin, Receiver, v. The Baltimore, Ohio and Chicago Railroad Company.

      Filed at Ottawa November 20, 1882.

    1. Ejectment—when not maintainable by holder of legal title. Where the defendant’s possession of land is rightful, and the plaintiff is not wrong-ft y kept out of possession, the action of ejectment can not he maintained. So where the owner of land lets a railway company into possession of a part thereof under a contract for the right of way, which the company fully performs, the former owner can not maintain the action against the company.
    2. Contract—aid of surrounding circumstances in construction. The surrounding circumstances may be looked at in construing a contract, where there is any uncertainty of meaning.
    3. Same—circumstances to identify land meant. In a contract by one of several tenants in common with a railway company it was agreed to convey to the company a right of way over the party’s land, a portion of which was described, and in the concluding clause it was provided: “It is understood that the right of way east of Stony Island avenue is to be procured free of cost to the party of the second part, except through one ten-acre tract, which is to be paid by the party of the second part. ” The lots over which the right of way was then laid and marked were east of the avenue named, and when the party of the first part, by a partition, had acquired such lots in severalty, so that the right of way was on his own land solely: Held, that by virtue of the provision in Ms contract for procuring the right of way, the railway company might enforce a conveyance of the right of way from him.
    4. Purchaser—with notice of easement takes subject thereto. A purchaser of land, with notice that his grantor had agreed to give a right of way over the same to a railway company, for a valuable consideration, takes the premises subject to the rights of such company under its contract with his grantor, and can not maintain ejectment against the company for the land occupied by it rightfully under such contract.
    Appeal from the Superior Court of Cook county; the Hon. Rollin S. Williamson, Judge, presiding.
    This was an action of ejectment, brought by Turpin, receiver of the Fidelity Savings Bank and Safe Depository, against the Baltimore, Ohio and Chicago Railway Company, to recover the right of way used and occupied by the latter,' being a strip of land sixty-six' feet wide, and being thirty-three feet in width on each side of the center line of its roadway, such strip being a part of lots 11 and 13, of Seip’s subdivision of the west half of the northwest quarter of section 25, township 38 north, range 14, east of the third principal meridian, running diagonally across said premises in a north-westerly and south-easterly direction. The case was tried by the court below without a jury, and a judgment for the defendant. The plaintiff appealed.
    It appears that lots 11 and 13 are part of six lots in a thirty-acre tract; that one Platt owned an undivided one-third of the thirty acres, of which lots 11 and 13 are a part, one Field owned another undivided one-third, and Chauncey T. Bowen owned the other undivided one-third.
    Plaintiff’s title was derived as follows: Warranty deed from Bowen to Henry H. Honore, dated May 1, 1874, recorded May 19, 1874, conveying an undivided one-third of lots 11 to 16; trust deed from Honore to George W. Smith, to secure $15,000 purchase money, conveying an undivided one-third of lots 11 to 16, dated May 1, 1874, recorded May 19, 1874; indorsed on said trust deed is an agreement, dated September 11, 1874, between Charles C.„ Abell, described as owner of lots 11 and 13, and Bowen, described as holder of the notes mentioned in said trust deed, that the lien of the trust deed be assigned to, and rest upon, said lots 11 and 13, and the other lots be relieved therefrom; quitclaim deed from Honoré to Charles C. Abell, dated May 13, 1874, recorded same day, conveying an undivided one-third of lots 11 to 16, subject to said trust deed; quitclaim deed from Platt and wife, and Field and wife, to Abell, dated September 11, 1874, and recorded November 24, 1874, conveying lots 11 and 13 ; decree of sale and foreclosure in the Superior Court of Cook county upon bill, Turpin, Receiver, (holder of the notes secured by the above trust deed) v. Honoré et al.; deed from Franklin Denison, master in chancery, to Turpin, receiver, etc., dated October 29, 1879, recorded November 5, 1879, made on sale under said decree conveying lots 11 and 13. Plaintiff derived his title to the notes secured by said trust deed from Honoré to Smith, through the Fidelity Savings Bank and Safe Depository.
    The defendant never received any grant of the property, or of any easement in it, from any one. Its claim of right is chiefly under a contract, under seal, made May 13, 1874, between Bowen and one Snyder, of the first part, and the Baltimore, Pittsburg and Chicago Railway Company, Illinois division, of the second part, that then being the name of defendant, its name having since been changed to its present one, under the statute of this State. By this contract the parties of the first part agreed to convey to the railway company a right of way for its railroad through section 31, township 38 north, range 15 east; also, twenty acres additional in said section 31 and in section 32, and the railway company agreed to erect on said premises and contiguous grounds, a round-house and terminal division machine, repair and car shops, the. shops to be built of first-class brick' or stone, with iron or slate roof, and- to cost $200,000. At the end of the contract, and after the attestation clause, occur these words: “It is understood that the right of way east of Stony Island avenue is to be procured free of cost to the party of the second part, except through one ten-acre tract, which is to be paid by the party of the second part, the right of way west of Stony Island avenue to be procured by the party of the second part at its own expense; and the party of the second part further agrees to locate a station between Seventy-ninth and Eighty-first streets, for local passenger trains.”
    The premises described in the body of the contract do not embrace the property in dispute, the former lying in sections 31 and 32, and the latter in section 25, but the right of way in dispute is embraced in the concluding clause, within the description, “east of Stony Island avenue,” the evidence showing that these two lots, 11 and 13, upon which the right of way is, lie east of Stony Island avenue.
    The evidence show's this contract was- executed in Baltimore; that its terms had previously been arranged in Chicago; that the defendant, being about to locate its line of railroad from the Indiana State line into Chicago, had three lines surveyed, and marked upon a map of the county, on which map were marked the subdivisions of the lands and the owners’ names,—the central of which routes, as shown •by the map, was the one now occupied by defendant as' a right of way through said lots. Bowen having large real estate interests in the vicinity to be affected by the location of the road, was anxious the present route should be adopted, and an agreement was made in Chicago that the road should be so located, that the road should do the things mentioned above, and Bowen should procure and give defendant certain right of- way, a portion of which was that in controversy. Bowen and Snyder then went on to Baltimore, and entered into the above contract of May 13, 1874. This contract was not recorded until December 21,1876. The deed from Bowen to Honoré, though dated May 1, 1874, was not acknowledged until May 16, and was delivered some time between then and May 19. Bowen testifies, that before selling the land to Honoré he told him he had agreed to give the defendant the right of way across these lands, and that in buying he must let the company have the right of way across the land free of charge.
    On September 11, 1874, there was a partition made of the thirty acres, between the three co-tenants, and Abell took the entirety of lots 11 and 13, and the indorsement above named, of September 11, 1874, was made on the trust deed, restricting its lien to lots 11 and 13. Bowen says this was done to enable him to fulfill his agreement to give defendant the right of way; that Abell consented to the division, and that the railway track which was then upon the land should remain, and the railroad should retain its right of way across the land, to carry out Bowen’s agreement to furnish the right of way, and that to induce Abell to accept this division of the land, Bowen agreed to pay a debt of $2500 from Honoré to Abell, to secure which he says the quitclaim deed from Honoré to Abell was made, and that that deed was not an absolute conveyance, as it purports on its face.
    The trust deed above mentioned, Bowen continued to hold until the winter of 1875 and 1876, when he sold the notes secured by it to the Fidelity Savings Bank, of which plaintiff was receiver. At this time John C. Haines was president of the bank, and he. was told of the defendant .being entitled to a right of way over the premises. The defendant went into possession of the premises under the contract with Bowen and Snyder, and completed the construction of its road-bed prior to September, 1874, and in that month its cars were running over the right of way, and have been ever since. It appears that the company has performed all the conditions of the contract of May 13, 1874, which were to be performed on its part. There is no contradictory evidence in the case.

      Messrs. Dupee & Judah, for the appellant:
    Title to real estate can only be obtained by deed. This is true of an easement, which has been defined as “a charge or burden upon one estate (the servient) for the benefit of another (the dominant.)” Bouvier’s Law Dictionary; 1 Washburn on Real Prop. *397, 398; Goddard’s Law of Easements, 2.
    The right of way of a railroad over the land of another is an easement or a license. If an easement, it can rest only upon a grant by deed. 1 Washburn on Real Prop. *397, 398; Goddard’s Law of Easements, 88, 89; 3 Kent’s Commentaries, *453; Woodward v. Seeley, 11 Ill. 157; Forbes v. Balenseifer, 74 id. 183; Kamphouse v. Gaffner, 73 id. 453.
    An easement can not be the subject of dedication unless it be to the whole public. Goddard on Easements, 263, and note; Vestry of Bermondsey v. Brown, 35 Beav. 226.
    If the evidence exhibits any right to the premises in dispute, it is only a license for a right of way. Such license is revocable at will, even when valuable improvements have been made in contemplation of the enjoyment of the right. 1 Washburn on Real Prop. *398, et seq., and cases cited; 3 Kent’s Commentaries, *452, and note; Goddard’s Law of Easements, 472-475; Wood v. Leadbitter, 13 M. & W. 838; Jamieson v. Millimann, 3 Duer, 255; Morse v. Copeland, 2 Gray, 302; C. and I. R. R. Co. v. Davis, 86 Ill. 20; Forbes v. Balenseifer, 74 id. 183; Kamphouse v. Gaffner, 73 id. 453; Woodward v. Seeley, 11 id. 157; St. Louis Nat. Stock Yards v. Wiggins Ferry Co. 102 id. 514.
    No estoppel can arise out of any equities which may exist between the parties. Estoppels in pais, affecting permanent interests in land, can only be made available in an action of ejectment. St. Louis Nat. Stock Yards v. Wiggins Ferry Co. 102 Ill. 514.

      Messrs. Waite & Clark, for the appellee:
    Appellee has been let into possession under an executory contract, and can not be dispossessed tnerefrom, having fully performed on its part. Baldwin v. Pool, 74 Ill. 99; Smith v. Price, 42 id. 379; Western Union Telegraph Co. v. P. R. R. Co. 86 id. 251; Stow v. Russell, 36 id. 23. See, also, authorities cited below.
    The plaintiff, to recover in this action of ejectment, must be entitled to possession, which the evidence shows is not the case. Gridley v. Hopkins, 84 Ill. 532; Baldwin v. Pool, 74 id. 97; Kilgour v. Gockley, 83 id. 112; St. Louis, Alton and Terre Haute R. R. Co. v. Karnes, 101 id. 403.
    To maintain ejectment there must be an unlawful entry and an unjust detention. The action of ejectment proceeds for the possession of the premises, claiming that they have been - unlawfully entered and unjustly withheld, and facts which go to disprove these make a legal defence. St. Louis, Alton and Terre Haute R. R. Co. v. Karnes, 101 Ill. 403; Noble v. Christman, 88 id. 186; Rees v. City of Chicago, 38 id. 323; Smith v. Pierce, 41 id. 400.
    When one acquiesces in the occupation of his land for the construction of a railroad, and agrees to give the right of way, and lets the railroad into possession, and the road is constructed and put in operation, he can not afterwards maintain ejectment for the land. Morris v. Indianapolis, Bloomington and Western Ry. Co. 76 Ill. 523; Baker v. Chicago, Rock Island and Pacific R. R. Co. 57 Mo. 265; Plovolt v. Chicago, Rock Island and Pacific R. R. Co. id. 256; Hombach v. Cincinnati, etc. R. R. Co. 20 Ohio St. 81; McAuley v. Western R. R. Co. 33 Vt. 311; Baltimore and Ohio R. R. Co. v. Straus, 37 Md. 237; Williamston, etc. R. R. Co. v. Battle, 66 N. C. 540; Panott v. Palmer, 3 M. & K. 632; Duke of Beaufort v. Patrick, 17 Beav. 60; White v. Wahley, 26 id. 20; Duke of Devonshire v. Elgin, 14 id. 530; Oliver v. King, 3 D. M. & Whart. 224; Goodkin v. Cincinnati R. R. Co. 18 Ohio St. 169; Dilenan v. Ranlan, 1 McCart. 444; Torrey v. Camden, 3 C. E. Green, 293.
    The construction given to a written contract ,by the parties, as shown by their acts under it, may be resorted to in determining the true intention they had in entering into the same. Leavers v. Clearly, 75 Ill. 349; Chicago and Great Eastern Ry. Co. v. Vosburg, 45 id. 312.
   Mr. Justice Sheldon

delivered the opinion of the Court :

Had Bowen never conveyed to Honoré, and had he been himself the party plaintiff here, we should have no doubt that he could not maintain this action of ejectment. He 'would not have a right to the possession,—defendant would be lawfully in possession, having been let into the possession by Bowen, under a contract for the right of way, which has been fully performed on defendant’s part. In such a case, where the defendant’s possession is rightful, and the plaintiff is not wrongfully kept out of possession, it is very well settled by the decisions of this court that the action of ejectment can not be sustained. Stow v. Russell, 36 Ill. 23; Kilgour v. Gockley, 83 id. 112; Gridley v. Hopkins, 84 id. 532; St. Louis, Alton and Terre Haute R. R. Co. v. Karnes, 101 id. 403.

The. position taken by plaintiff’s counsel is, that the possession of the defendant does not rest upon the written contract”of May 13,1874,—that its- rights rest solely upon verbal ¡momises of Bowen to give the right of way without consideration, amounting to no more than a parol license for a right of way, which is revocable at will. This position is based upon the assumption that the contract of May 13, 1874, does not contain any agreement to convey this right of way. It contains no such agreement in terms, but it does in effect. AYe consider such agreement to be embraced in the following words of the concluding clause of that contract, viz: “It is understood that the right of way east of Stony Island avenue is to be procured free of cost to the party of the second part, except through one ten-acre tract, which is to be paid by the party of the second part.” That ten-acre tract was owned by one Saxton,.from whom defendant afterward obtained the right of way through such tract. The surrounding circumstances may be looked at in construing a contract, where there is any uncertainty of meaning. These two lots (11 and 13) lie east of Stony Island avenue. The line of the railroad had been located, and' a map made, with the line of the road marked upon it as running across these lots.

It is, then, clear enough that this provision was an undertaking by Bowen and Snyder, the parties of the first part, that they would procure' for the company, free of cost to it, this right of way, and when Bowen, who then owned the undivided third of the thirty acres upon which the right of way was located, afterward, by partition, had set off to him lots 11 and 13 as his share in severalty of the thirty acres, the right of way running through lots 11 and 13 was then on his own land solely, and by virtue of that provision in the contract for procuring the right of way, the railroad company could enforce from him a conveyance of this right of way. There was evidently no verbal promise to give the right of •way, distinct from this written contract. Any verbal contract there ever may have been, was embodied in this contract afterward executed, so that thereafter there was no separate verbal promise existing. The circumstances sufficiently show this. It was, then, a written contract for the right of way, made for a valuable consideration, and not a mere verbal promise, without consideration, to give the right of way, revocable at will, under which defendant took possession and claims its right, which right is a sufficient defence as against Bowen.

Honoré and' the Fidelity Savings Bank occupy no better position than Bowen himself. Honoré, when he purchased, was informed by Bowen that he had agreed to give the defendant the right of way across the land, which sufficiently affected Honoré with notice of this contract. Bowen, it is true, did not mention this particular contract, but he said he had agreed to give the right of way to the company, and that in buying the land, Honoré must allow the right of way free of charge. Honoré had no right to take the agreement to be any other than it was,—a binding contract for the right of way. Bowen’s interest, to be sure, was but the undivided one-third of thirty acres; but Honoré was bound to know that, on partition, the portion of the thirty acres upon which the right of way was located was liable to be assigned to Bowen as his share, and he took subject to that chance. The Fidelity Savings Bank was fully informed of this particular contract before it took the notes and trust deed; and besides, the company at that time was in possession of the right of way,—running its cars over it,—which would be constructive notice of the company’s right. As to Abell, no more need be remarked than that he took, at the most, by his quitclaim deed from Honoré, but the equity of redemption, which was cut off by the foreclosure sale and deed. To that foreclosure suit, it may be observed, the railway company was not a party.

The judgment will be affirmed.

Judgment affirmed.


author: Per Curiam:

text:
    B. F. Brock et al. v. H. R. Morrison.

      Filed at Ottawa November 20, 1882.

      Appeals—reviewing question of fact. In an action of debt upon an official bond of an officer who had served several years, in each of which he gave a bond, when the only controversy was in what year the officer became a defaulter, a finding by the circuit court that the default happened in the year the bond sued on was given, when affirmed by the Appellate Court, is conclusive upon this court as to the question of fact, and can not be reviewed.

      Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Mercer county; the Hon. John J. Glenn, Judge, presiding.
    Mr. Louis D. Holmes, for the appellants.
    Messrs. Bassett & Wharton, for the appellee.
    Messrs. Pepper & Wilson, in reply.
   Per Curiam:

This was an action of debt, brought by Morrison, supervisor of the town of Mercer, in Mercer county, on the official bond of Thomas F. McClintock, as treasurer of the commissioners of highways of the town.' McClintock was appointed treasurer in the spring of 1876, and was his own successor, from year to year, until the spring of 1881, when he died. The action was brought against appellants, who were sureties on the bond for the year 1878, plaintiff claiming that the treasurer was a defaulter for that year, while the sureties on the bond for that year claimed that the defalcation complained of occurred for the year 1877, and before they became liable as sureties. On the trial in the circuit court a judgment was rendered in favor of plaintiff, which, on appeal, was affirmed in the Appellate Court.

There was no controversy, on the trial in the circuit court, in regard-to the fact that McClintock had failed to account for all the money that had come to his hands as treasurer,— the controversy was, in what year he had become a defaulter. That was' a question of fact, to be determined from the evidence. The court, a jury having been waived, heard the evidence on this question, and found that the treasurer received the money in 1878, and failed to account for the same, and hence the sureties for that year were liable. The affirmance of the judgment in the Appellate Court settles that question of fact in the same way, and as we are prohibited by the statute from considering controverted questions of fact in this class of eases, and as no question of law is presented by the record, the judgment of the Appellate Court must be regarded as a final determination of the controversy between the parties.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Walker Mr. Justice Dickey:

text:
    Edward C. Akin v. Ann Cassiday.

      Filed at Ottawa November 20, 1882.

    1. Decree—conditional—when inoperative. On bill to foreclose a mortgage, a cross-bill was filed seeking the cancellation of' the mortgage as a cloud upon the title, and a decree entered on the cross-bill finding the sum due on the mortgage, and requiring the mortgagee to release the mortgage on payment of that sum by a day named, and providing that if the payment was not made by that time, the cross-bill should stand dismissed. The money not having been paid, the court at the same term dismissed the cross-bill, and entered a decree of foreclosure: Held, that the amount found to be due in the two decrees could not be added together as the sum required to be paid,—that the first decree was conditional, and became inoperative on the failure to pay, and the cross-bill stood dismissed without any further order; but were it otherwise, the first decree was rendered inoperative by the second decree foreclosing the mortgage, and only the sum found in the last decree could be collected, with the interest and costs.
    2. Cross-bill—when not necessary. On bill to foreclose a mortgage given by a person claiming to be the conservator of an insane person, against his successor, the latter answered denying that the person executing the note and mortgage was the conservator of the insane person, and his authority to bind the estate, and also filed a cross-bill setting up the same facts as in the answer, but no new facts, and asking to have the noté and mortgage set aside and canceled: Held, that the cross-bill was improperly filed, and should have been dismissed had a motion been made for that purpose. The defence in the answer, if successful, would have barred all future claim under the mortgage, the same as a decree declaring it void.
    3. Appeal—when freehold is involved. A proceeding to foreclose a mortgage does not involve a freehold, and when the decree is for less - than $1000 no appeal lies from the Appellate Court affirming the decree of foreclosure to this court.

      Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Will county; the Hon. Josiah McRoberts, Judge, presiding.
    Mr. George S. House, for the appellant.
    Mr. George J. Monroe, and Mr. Thomas H. Hutchins, for the appellee.
   Mr. Justice Walker

delivered the opinion of the Court:

Appellee filed a bill in equity, in the Will circuit court, on the first day of November, 18'78, to foreclose a mortgage on certain real estate in that county. The mortgage was executed by Charles H. Macomber, as conservator of Martha Palmer, to secure a promissory note of that date, for $500, payable to appellee in two years, with ten per cent interest, executed by him in like manner. The bill alleges that Ma-comber had died after the note and mortgage were executed, and appellant was appointed conservator of Martha Palmer in his stead. An answer was filed by appellant, by which he denied that Macomber was ever legally appointed such conservator, and he had no power to act as such, and having no such power, the note and mortgage given by him to appellee were void. He also filed a cross-bill, in which he alleged the Same facts, and prayed that the mortgage be declared void, as a cloud on the title. To this cross-bill there was an answer filed. A hearing was had on the original and cross-bills, and a decree rendered, under the cross-bill, that appellant pay to appellee the amount then found to be due on the note, by the 5th day of November, 1881, as a condition to the relief sought by the cross-bill, and that upon its payment appellee should make and deliver to appellant a sufficient release. This decree was rendered on the 13tli day of October, 1881. On the 12th day of November following, the case was again heard, and a decree was rendered for $785.40, and that amount was ordered to be paid within thirty days, and in default thereof the premises were ordered to he sold. This decree further orders that the cross-bill be dismissed for a failure to pay appellee as required by the former decree of the court in the cause. These hearings were had, and the decrees were rendered, at the same term of the court.

The decree under the cross-hill provided, in terms, that on a failure to pay the amount found by the time named, the cross-bill should be dismissed. The terms of the decree'not having been complied with, the cross-bill stood dismissed. The decree prescribed as the terms upon which the relief would be granted, the payment of the money within the time named, and the failure to comply operated to vacate the decree and to dismiss the cross-bill; but if it were not so, the decree is annulled and rendered inoperative by the decree of the 12th of November., by formally dismissing the cross-bill. The only decision of the case is that of November 12, 1881, for $785.40. There is no pretense that on this record more than that sum, with interest and costs, can be collected by appellee from appellant on the estate of Martha Palmer, in his hands as conservator, nor did appellee in her bill claim more than that sum. It would be wholly unjustified to hold that the two decrees may be added together as the amount of the decree of the court, as the first decree was but a conditional one, and was vacated by the latter decree.

■ The unnecessary and useless filing of the cross-bill in this case has but incumbered the record, and tended to introduce confusion and increase costs. It should have been dismissed had a motion been entered for the purpose. (Morgan v. Smith, 11 Ill. 194.) It introduced no matter not already set up as a defence in the answer. Had that defence been allowed, the original bill would have been dismissed, and that would have been as effectual to bar all future claims under the mortgage, as a decree declaring it void and inoperative. The dismissal would have been the same in effect.

The decree being for less than $1000, and no more or a greater than that sum being claimed, this court has no jurisdiction to review the decision of the Appellate Court. The statute has made its decision final in such cases. A freehold is not involved. In the cases of Grand Tower Manf. Co. v. Hall, 94 Ill. 152, Pinneo v. Knox, 100 id. 471, and McIntyre v. Yates, id. 475, it was held that a proceeding to foreclose a mortgage does not involve a freehold.

There not being a freehold involved, or some other statutory right of appeal, and the decree in this case being less than $1000, the appeal must be dismissed.

Appeal dismissed.

Mr. Justice Dickey:

I fully concur in this decision, and in the arguments in support" thereof; but in the views expressed upon the hypothetical case, (in case a motion had been made to dismiss the cross-bill before the hearing,) and wherein it is said such a motion ought to have been sustained, I do not concur. The question does not arise upon this record, and is not before the court for determination, and if it were, I can not doubt that had the cross-bill been true, the defendant, after filing an answer, had the absolute right, under our statute, to file the cross-bill and demand affirmative relief in having the mortgage declared void. Without the cross-bill, at any time before the hearing, the court might, in its discretion, have permitted complainant to dismiss the bill, without prejudice. Defendant had the right, by statute, to prevent this by the filing of the cross-bill, and had a motion been made to dismiss the cross-bill without a hearing, I think such motion could not properly have been sustained. This, however, is a merely speculative question. No such motion was made, hence what is said here about it is clearly extra-judicial, and of no binding force.


author: Mr. Justice Scholfield

text:
    Henry L. Young et al. v. The Matthiesen and Hegeler Zinc Company.

      Filed at Ottawa November 20, 1882.

      Appeal—does not lie from interlocutory order. An appeal will not lie from a mere interlocutory order in a suit in chancery, as, from an order refusing to allow one to become a party defendant to the bill, there being no final decree in the case. Until such decree is entered it can not be known that the refusal has prejudiced the applicant’s rights.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of LaSalle county; the Hon. Geo. W. Stipp, Judge, presiding.
    Messrs. Mason Brothers, and Mr. Charles Blanchard, for the appellants:
    Any person interested in the subject matter of a bill in chancery has a right to be made a party, upon his petition. 16 Ga. 137; Marsh v. Green, 79 Ill. 387.
    Mr. E. F. Bull, for the appellee:
    Appellants do not show any such special interest in any imaginary damage that may be done to the streets, as will authorize them to be heard. Their interests must be protected by the corporate authorities—by the sovereign power. High on Injunctions, 291, sec. 522, and eases there cited; Bigelow v. Hartford, 14 Conn. 565.
    The order refusing appellants’ application to compel the appellee to amend its bill and make them parties defendant, is not one from which an appeal can be taken, and appellee therefore moves the court for an order dismissing the appeal. Racine and Mississippi R. R. Co. v. Farmers' Loan and Trust Co. 70 Ill. 249; Gage v. Eich et al. 56 id. 297; Woodside v. Woodside, 21 id. 207; 2 Daniell’s Ch. Pr. 1543, and cases cited in note 1.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This appeal is simply from an order of the court below refusing to allow the appellants to become parties defendant to a hill in chancery filed against other parties. No final decree has been entered in the case, and until such decree is entered how can it possibly be known- that this refusal has .prejudiced appellants’ rights? It may be that decree will accomplish, without appellants’ intervention, precisely what they claim ought to be done. The order is clearly interlocutory, and therefore not the subject of an appeal. Racine and Mississippi R. R. Co. v. Farmers' Loan and Trust Co. 70 Ill. 249; Gage v. Eich et al. 56 id. 297; Woodside v. Woodside, 21 id. 207.

The appeal must he dismissed, and it is so ordered.

Appeal dismissed.


author: Mr. Justice Mulkey

text:
    Peter Schertz v. The People ex rel. Isaac Taylor, Collector.

      Filed at Ottawa November 20, 1882.

    1. Special assessment—;judgment of confirmation—whether conclusive. If, upon an application for the confirmation of a- special assessment, the court has jurisdiction to render the judgment of confirmation, such judgment will conclude the land owner from questioning any of the proceedings had prior thereto, on a subsequent application for a- judgment and order for sale of the premises. If, however, the proceedings anterior to the judgment confirming the assessment were so defective as not to authorize the court to act at all upon the question of confirmation, then objections to those proceedings may properly be made upon an application for judgment and order of sale, as well as at any other time.
    2. Same—confirmation, when a valid judgment. Where the proceedings in the case of special assessments anterior to the order of confirmation conform substantially with the requirements of the statute on the subject, the confirmation will be conclusive on the parties interested as to all objections to the proceedings anterior to the judgment confirming the assessments.
    3. Former adjudication—not on merits, no bar to second suit. Where an application for judgment against" lots for unpaid special assessments is denied by the court, merely for the reason that no ordinance had ever been passed by the city council regulating the action of the city collector in making his report of delinquent lands and lots to the county collector, the order denying the application will be no bar to a second application for judgment, for the reason there was no hearing upon the merits on the first application.
    Appeal from the County Court of Peoria county; the Hon. John C. Tates, Judge, presiding.
    Mr. John Muckle, for the appellant:
    The judgment of confirmation of the assessments is conclusive if the court had authority to render it, and had jurisdiction of the appellant and of the'subject matter, otherwise it decides nothing and concludes no one. Notwithstanding the finding in the record that proper notice had been given, appellant had the right to prove, by the record or otherwise, that proper notices, as required by law, had not, in fact, been given. Goudy et al. v. Hall, 30 Ill. 109; Gage v. Bailey, 102 id. 14; Belleville Nail Co. v. People, 98 id. 403; Barnett v. Wolf, 70 id. 76; Webster v. Reid, 11 How. 437; Given v. McCarroll, 1 S. & M. 351; Baldwin v. Kimmel, 16 Abb. Pr. 353; Johnson v. Wright, 27 Ga. 555.
    . It devolved on the People to show that the tax which was sought to be collected had the sanction of law to support it. English v. People, 96 Ill. 569.
    A judgment of the county court denying judgment against lots for special assessments, where the court had jurisdiction and the parties are all before it, if made on the merits is conclusive against the People on a second application for judgment. Graceland Cemetery Co. v. People, 92 Ill. 621; Belleville Nail Co. v. People, 98 id. 403; Gage v. Bailey, 102 id. 14; Baker v. Cleveland, 19 Mich. 230; Town of Lyons v. Cooledge, 89 Ill. 529.

      The prior judgment, on its face, appears to have been on the merits, and if the record could be controlled by evidence aliunde, the burden of proof was on the People to show that the judgment was not what it purports to be,—a judgment on the merits. Badger v. Titcomb, 15 Pick. 416; Webster v. Lee, 5 Mass. 334; Lord Bagot v. Williams, 3 B. & C. 235; Agnew v. McElroy, 10 S. & M. 552; Johnson v. Smith, 15 East, 213; Whittemore v. Whittemore, 2 N. H. 26; Phillips v. Burch, 16 Johns. 136; Coleman’s Appeal, 62 Pa. St. 252; South Side R. R. Co. v. Daniel, 20 Gratt. 363.
    Mr. Julius S. Starr, for the appellee:
    The confirmation of a special assessment by a court having jurisdiction is res judicata as to the validity of the assessment, and conclusive as to all objections that might have been taken to the proceedings. Lehmer v. People, 80 Ill. 601; Andrews et al. v. People, 84 id. 29; Beveridge v. Park Comrs. 100 id. 75; People v. Brislin, 80 id. 423.
    In order for a judgment to be a bar to a subsequent application -for a judgment, the court must-have had jurisdiction, and there must have been a hearing upon the merits. There is no pretense here that in the former order refusing judgment, and referring the case back to the city collector, there was a hearing upon the merits.
    An assessment, when once made a valid lien by judgment of confirmation, can only be discharged by payment of the sum assessed. People ex rel. v. Atchison, 95 Ill. 453.
    The statute (sec. 153, art. 9, “Cities and Villages,”) makes it the duty of the collector, within such time as may be provided by ordinance, to make a report in writing, etc. Until such ordinance was passed the application was premature.
   Mr. Justice Mulkey

delivered the opinion of the Court:

At the July term, 1882, of the county court of Peoria county, the People, on the relation of Isaac Taylor, county collector, made application for, and obtained judgment, and order of sale of certain city lots belonging to Peter Schertz, the appellant, for a special assessment, made under an ordi- , nance of the city of Peoria, for the improvement of Adams street, on which said lots are situated, and Schertz brings this appeal to reverse said judgment and order of sale.

On the hearing of the application the appellant filed, among others, the following objections:

“1. The council of the city of Peoria passed no ordinance for the improvement of Adams street, from Hamilton street to the plank road.

“2. The said court did not appoint any commissioners to assess the cost of said -improvement of Adams street against the property benefited.

“3. The judgment of said court, rendered August 25, 1880, confirming the report of commissioners Pinckney, Miller and Bestor, is void, because the court had not, prior thereto, appointed Pinckney, Miller and Bestor to assess the cost of the improvement of Adams street, from Hamilton street to the plank road; said court had no jurisdiction to enter said judgment; objector was not notified, as required by law, of the filing of said report and application for the confirmation of the same, and said judgment unlawfully and unjustly discriminated in favor of the Central City Horse Railroad Company, by allowing it to improve its own right of way in satisfaction of the amount assessed against it.

“4. Said Central City Horse Railroad Company has not paid the amount assessed against it on account of said improvement, and no demand has been made on it for the same, and the same has not been returned delinquent, and no application has been made for judgment against it for its share of said assessment; and said city of Peoria has not, nor has said horse railroad company, improved or made any attempt to improve the right of way of said company, in the manner specified in the ordinance for the improvement of Adams street, passed by the city council of said city April 7, 1880. And your objector here shows. that, said right of way is fourteen feet wide, and extends from Hamilton street to the plank road in said city, and is included in that portion of Adams street proposed to be improved by said ordinance passed April 7, 1880, and for which your objector’s said property was assessed. ”

The court, on motion of counsel for the People, ordered the objections stricken from the files, on the ground the objector was concluded by the previous judgment confirming the assessment, and this is assigned for error.

The record of the entire, proceeding, including the previous judgment, upon which the application is founded, was then before the court, and if it appeared from such record the court had jurisdiction to render the judgment of confirmation, it is clear the objections were properly stricken from the files. On the other hand, if the proceedings anterior to the judgment confirming the assessment were so° defective as not to authorize the court to act at all upon the question of confirmation, then it is equally clear the objections in question might properly be made upon an application for judgment and order of sale of the lots, as well as at any other time, and if such was the case, the court erred in ordering them stricken from the files. The doctrine that the judgments and orders of a court acting without jurisdiction are absolutely void, and may be successfully resisted wherever and whenever sought to be enforced, even in a collateral proceeding, is so well understood, and elementary in its character, as to require no discussion at our hands.

The real question then would seem to be, is the confirmation of the assessment by the county court a valid judgment, or is it a mere nullity? We have examined the proceedings in the case anterior to the order of confirmation with care, and so far as we are able to discover they conform substantially to the requirements of the statute on the subject, and we are consequently of opinion the order in question was, and is, a valid judgment, and that the defences which appellant now seeks to make, as set forth in the written objections stricken from the files, should have been made on the application to confirm the assessment, and that not having been so made, he is now concluded.

It further appears from the record in this case, that a previous application had been made by the county collector for judgment and an order of sale of the same lots, on account of the same assessment now sought to be enforced;. but it not appearing on such application that any ordinance had ever been passed by the city council regulating the action of the city collector in making his report of the delinquent lands and city lots to the county collector, as contemplated by sec. 153, chap. 24, Rev. Stat. entitled “Cities and Villages, ” the application was denied, and it >is now insisted by appellant the order denying the application then made is a bar to the present one. We do not think so. There was no hearing upon the merits in that case, hence the order of the court can not operate as a bar to the present application. In that case there was no authority to make the application; in this there was,—and this is the difference between them. In the first case the application was prematurely, made—in the second it was not.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Walker

text:
    Smith S. Ventres et al. v. Junius B. Cobb et al.

      Filed at Ottawa November 20, 1882.

    1. Trustee—in deed of trust is agent of the debtor as well as of the creditor. A trustee in a deed of trust is the trustee of the debtor as well as of the creditor, and his relation imposes the duty of acting fairly, honestly, and for the best interests of all parties having rights in the property pledged, or fund, and to use all reasonable efforts to protect their several interests. For this purpose he must use the same efforts that prudent men usually employ in the protection of their own interests.
    2. Trustee’s sake—set aside for fraud and oppression. The owner of certain premises, designated as blocks 5 and 6, gave a deed of trust thereon to secure the purchase money, after which he sold the same to A and B, who assumed the payment of the incumbrance, and they conveyed block 5 to 0, who conveyed the same to D, who paid the creditor half of the debt secured by the trust deed. The remaining part of the debt, about $700, being unpaid, both blocks were advertised for sale by the trustee. On the evening before the day appointed for the sale it was agreed between the creditor and A, that A should purchase lot G for a sum sufficient to discharge the balance due under the incumbrance. On the morning of the sale it was agreed by the creditor and trustee to postpone the sale one hour, to enable A to get a certified check from the bank with which to pay his bid, and a messenger was dispatched for that purpose. Before the expiration of the time agreed on, the trustee offered and sold the property. Block 6 was sold for $505, and block 5 for $218. A returned within the hour and offered to pay the entire debt, which was refused. The purchaser of block 5 refused to complete his purchase, and the same was afterwards sold: Held, on bill filed to set aside the sales, and to redeem, that the court erred in dismissing the bill, and that the sales should be set aside for unfairness and want of integrity on the part of the trustee and creditor.
    3. Where there is a mortgage or deed of trust given on two separate parcels of land, which are afterwards acquired by different persons, and one of them pays his full share of the incumbrance, it becomes the duty of the creditor to protect the rights of the one so paying, and his tract is released in equity from the incumbrance, unless the other tract, by the use of reasonable effort, does not sell for enough to satisfy the balance of the incumbrance.
    4. Same—can be made only for default. The payment of the debt secured by a deed of trust defeats the power of sale, and a purchaser at such sale must see to it that the grantor in the deed is in default, and that some part of the debt is due and unpaid, and it seems also that a tender of payment before sale will render the sale invalid.
    5. Notice—to agent is good as to principal. Where'an agent purchasing laud at a trustee’s sale is informed of the illegality of the sale before making payment, such notice will be good against his principal, on bill filed to set aside the sale.
    C. Tender— whether sufficient. After a sale of several parcels of land under ,a power in a deed of trust, a purchaser of one of the parcels from the grantor in the deed offered to the creditor and to the trustee to. discharge the balance due under the incumbrance at the time of the sale in order to the removal of the lien from his part of the premises, having in his hand, at the time, money which he offered to pay over for the purpose indicated, and claiming that the sale had been made under circumstances such as did not deprive him of .the right thus to discharge the lien. Both the trustee and the creditor refused to receive the money, not because the amount or kind of money was not correct, but because they had no power, as the matter had gone beyond their control. The tender was held to be good.
    Appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Mr. Arthur D. Rich, for the appellants:
    A trustee must act in good faith, and protect the interests of both parties. He must not allow the-creditor to force a sale at an inadequate price, in the absence of other bidders. Meacham v. Steele, 93 Ill. 135; 2 Jones on Mortgages, sec. 1906; Vail v. Jacob, 62 Mo. 130.
    A tender of payment of the sum due on the' notes was a discharge of the lien of the deed of trust. After such tender a sale by the trustee will be set aside. 2 Jones on Mortgages, secs. 893, 1799; Wheelan v. Reilly, 61 Mo. 565; Flower v. Elwood, 66 Ill. 438.
    These trusts being capable of great abuse unless closely watched, sales under them will be set aside when oppression, unfair dealing, or sacrifice of the property is shown. Waterman v. Spaulding, 51 Ill. 425; Coswell v. Ross, 33 id. 244; Taylor v. Hopkins, 40 id. 442; Warnecke v. Lembca, 71 id. 91; Mason v. Ainsworth, 58 id. 163.

      Mr. James S. Murray, for the appellant P. N. Haskell:
    The evidence clearly shows the sale was made with extraordinary haste, and long before the time the trustee and creditor had agreed to wait. The violation of the agreement to wait but one hour, and the sale at so great a sacrifice, amount to fraud and oppression.
    Hill, the agent of Wier, had notice of all the circumstances before he paid any money or received a deed for the property, and the principal can not be protected as an innocent purchaser.
    A trustee must act in good faith, impartially, and with diligence and reasonable discretion. He must use every requisite degree of diligence to bring the property to sale under the best possible circumstances. Quarles v. Lacy, 4 Munf. 251; Rossett v. Fisher, 11 Gratt. 492; Lane v. Tidball, 1 Gil. (Va.) 132; 11 Leigh, 556; Hunt v. Bass, 2 Dev. Eq. 292; Johnson v. Eason, 3 Ired. Eq. 330; Singleton v. Scott, 11 Iowa, 589; Jenks v. Alexander, 11 Paige, 619; Outwater v. Berry, 2 Halst. Ch. 63; Richards v. Holmes, 18 How. 143.
    Mr. J. W. Waughop, for the appellees:
    The notice of the sale was ample, and the sale was kept open after the hour from thirty to. forty minutes, and the bidding was unobstructed.
    The record fails to show that Wier, or Hill, his agent, had any notice of the matters complained of in the bill, and there is nothing in the record which, if known, would affect the sale. An innocent purchaser is protected. Hosmer v. Campbell, 98 Ill. 572; Jenkins v. Pierce, 98 id. 646.
    Messrs. J. P. & T. E. Wilson, for the appellees- Hambleton and Eoff:
    The bill alleges no defect or irregularity in the sale of block 5 in December, 1879, under which Hambleton and Eoff claim title to the block.

      The tender of the amount due under the trust deed in February, by Ventres, did not satisfy the debt.
    .The sale of block 5 in December, 1879, is not dependent upon the validity of the sale of block 6 in February, 1879.
   Mr. Justice Walker

delivered the opinion of the Court:

The bill in this case was filed by appellants, against appellees, for the purpose of setting aside the sale of two tracts of land in the south addition to Englewood. The sales were made at different times, and by different persons, named in a trust deed executed by D. H. Pike to, Junius B. Cobb, to secure the sum of $4000, with interest at eight per cent per annum, payable to appellee Wenham. The trust deed contained a provision that “in case of the death, inability or refusal to act of the party of the second part, Lucius M. Cobb is made successor in trust, with like power and authority, etc.; and in case of the death, absence, or inability or refusal to act, of said party of the second part and Lucius M. Cobb, Benjamin E. Gallup is appointed successor, with like power and authority, etc.

The deed of trust was given to secure a balance of the purchase money of the property from Wenham. It had all been paid but $500, and some accrued interest, amounting in, the aggregate to about $683.25, at the time the first sale was made, on the 25th of February, 1879. Appellants Ventres and Haskell subsequently purchased the premises of Pike, on a consideration expressed in the deed of $10,000, and assumed the unpaid portion of this incumbrance. They conveyed block 5 to one Perry, on the consideration of $5000, as expressed in the deed, and Perry, on a like consideration mentioned in the deed, conveyed it to appellant Mrs. Huntington, on the 22d of January, 1879. It is claimed that when she purchased, all of the indebtedness but $500 of principal, and about $200 of interest, had been paid. The lien to secure its payment was on both blocks 5 and 6, embracing ten acres.

A receipt from Wenham to Mrs. Huntington, for a payment made by D. L. Perry, for $594, on the indebtedness secured by this trust deed, was read in evidence, and it is claimed paid the incumbrance on her lot. It is claimed that block 6 being ample security for the balance, she in equity was fully released, as well as block 5, from further liability. Haskell being unable to meet his part of the incumbrance, and the money not being paid, Lucius M. Cobb, claiming to be successor of Junius B., advertised the property for sale, February 25,'1879. On the evening before the sale, Wenham and Ventres met, and it was concluded that Ventres should purchase block 6 in full satisfaction of the lien on the two blocks. Next morning they, with Cobb and others, met at the place of sale, and Ventres asked time to send to the bank to procure a certified check for the money, with which to pay the amount of the lien when he became the purchaser. He claims that Cobb agreed to keep the sale open until eleven o’clock, and this was assented to by Wenham and his attorney. They contend that the agreement only extended it to a reasonable time to send to the bank to procure the check. A messenger was sent to the bank, and Ventres left, and was absent a short distance from the place, and, as he claims, in sight of Cobb and Wenham. On his return, together with the messenger sent for the certified check, (having procured it,) the sale of both blocks had been made. Wier purchased block 6, at $505, represented by Maston Hill, as his agent, and block 5 was sold to John Anderson, at $218. Anderson learning the facts, and that the sale would be contested, declined to pay the amount bid.

Appellants claim that this sale was made within fifteen minutes after the agreement to keep the sale open was made, and their witnesses so testify; but appellees claim, and some of their witnesses so testify, that it was thirty-five minutes. Immediately after the sale was closed, Ventres tendered the check for $723.25, as payment in full for debt, interest and costs, to Wenham, but it was declined, and he was told the sale had been made, and they could afford him no relief. He at once saw Cobb, and protested, and saw Hill, who had bid in block 6 -for Wier, and claimed that the sale was in fraud of his rights. That afternoon he offered to pay to Wenham and Cobb the full amount of debt, interest and costs, in currency, but he declined to receive it. Ventres had the money in his hand when he made the offer, but it was declined. Gallup -afterwards advertised block 5, and sold it, in the following December, to Hambleton and Boff, for $375. Gallup claimed to act as trustee under the deed.

On these facts the court below dismissed the bill, and complainants appeal, and assign errors.

Cobb, who was claiming to be the trustee under the deed, seems to have considered himself as having been appointed and acting solely in and for the interest of Wenham. He ' acted as though he was not required to act fairly towards the - debtor, or those having derived title from him, and having an interest in the property pledged for the payment of the money. The trustee, in such eases, is selected by the parties because they have confidence in his honesty, fairness and competency. He is agreed on as trustee by both debtor and creditor, and becomes equally the trustee of both. (Meacham v. Steele, 93 Ill. 135.) The trustee is appointed by the debtor, and derives all of his power from him,-and it can require no authority to prove he is the trustee of the debtor. But the relation of trustee imposes the duty of acting fairly, honestly, and for the best interests of all parties having rights in the property, but singularly enough, such trustees frequently, if not generally, seem to suppose they are the mere agents of the creditors, to aid them in obtaining advantages over the debtor, and not unfrequently lend themselves to the creditors to oppress and wrong the debtor. Such trusts have been the " source of abuse and oppression to such an extent, that the legislature, no doubt for that reason, was largely influenced in prohibiting sales under such powers, and has required them to be foreclosed in equity, that the rights of those making such instruments may be protected. (See Pub. Laws, 1879, page 211.) Of this doctrine there can be no question. All the authorities, and they are numerous, hold that a trustee must act with the utmost good faith with all parties having an interest in the property or fund; that it is his duty to use all reasonable efforts to protect their interests; that he must, for that purpose, use the same efforts that prudent men usually employ in the protection of their interests. This has always been demanded of persons exercising trusts, and nothing less will satisfy the requirements of the law.

Did C.obb use that diligence in this case ? He, as a part of his duty, was required to procure the best price the property could be made to bring, with reasonable effort. Did he discharge this duty ? The evidence shows he did not. Ventres informed him that he would bid the whole amount of the debt, interest and costs for block 6, if he would keep the sale open till eleven o’clock,—only one hour. He knew that Ventres had gone, or sent a messenger, to a bank, to procure a certified check for the amount, but he failed to wait, as is admitted, more than thirty-five minutes, and as we think the preponderance of the evidence shows, not more than fifteen minutes. He sold it for more than $200 less than Ventres told him he would bid if he was afforded time to get such a check as was demanded by Cobb, and the evidence shows the check came but a few minutes after the sale was closed. Can any one believe that had this property been his own he would have sold it at this sacrifice, to say nothing of the large sacrifice from its true value, as indicated by the consideration named in the deeds ? Then he unnecessarily sold block 5 for $218,—property for which Mrs. Huntington had, but a short time before, paid, as is named in her deed, $5000. Is it possible to hold this is good faith to Ventres or to her ? It has the appearance, when all the facts are considered, that there was a combination between Wenham, Cobb, and the purchasers, to wrong and oppress those having the title to the property; that there was a scheme by which to deprive them of their property at a vast sacrifice, under the mere forms of law; that the trustee, instead of protecting their interests, used the power conferred by the deed to oppress and wrong them,—to perpetrate injustice and iniquity. The legislature did not deprive trustees of power of sale under such deeds any too soon, when they were being used as engines of oppression and fraud.

Again, it was the duty of Cobb to protect the rights of Mrs. Huntington. She had paid her full share of the incumbrance, and her block was released in equity, unless the other property could not, with reasonable effort, be made to bring enough to satisfy the balance. Cobb was offered enough for the purpose if he would keep the sale open for an hour, and he admits that he agreed to do so for a sufficient time to procure the check. He knew that it had been sent for, and that Ventres was within call, and still he sold property worth, as appears from the consideration named in the deeds in evidence, at least $10,000, for $723, and the block costing Mrs. Huntington, a short time before, $5000, was sacrificed at $218. Is this as honest, prudent men transact their own business? Most assuredly not. Can there be any other inference than that Cobb intended to perpetrate a fraud, or was the mere instrument in the hands of Wenham to perpetrate a gross wrong and fraud ? His conduct is attempted to be justified because, it is claimed, Ventres was at least a few minutes tardy in procuring the check. Such sharp devices can never be sanctioned by a court of justice. Even if Cobb had made no promise to keep the sale open for any period of time, it was his plain and simple duty to have done so, as there was a promise from Ventres to bid the amount of debt, interest and costs on block 6, and become the purchaser. It is merely sticking in the bark, to contend- about a few minutes of time when important interests were concerned. It was the duty of Cobb to have permitted Ventres to bid in his own property, under the circumstances, and it was unjust to take such an advantage of him, and to thus deprive him of such valuable rights and visit upon him such wrong,—and this, too, by the man selected by the grantor in the trust deed to protect his rights, and those who might succeed to them.

Perry and Haskell both, at the sale, protested against closing it, because Ventres had gone for the money. This Hill, the agent of Wier, must have heard, because he was there, and had bid on the property; but if it could be doubted that he did, he was fully informed of the fraud before he paid the money and obtained a deed for the property. This rendered Wier a purchaser with notice. Notice to an agent is notice to his principal in all such transactions. In the light of this evidence Wier must be held, constructively, a party to the fraud, because his agent went on and completed the purchase after being notified of the facts, when he could have refused to proceed with the purchase without incurring the slightest liability. He did not refrain, but entered into and aided in its consummation. Wier being thus charged with notice, the conveyance to him should have been set aside as to that block.

It is the well settled law that the payment of the debt, secured by a mortgage with a power of sale, defeats or ends the power. The payment of the debt extinguishes the mortgage and the power. (Redmond v. Packenham, 66 Ill. 434; Lycoming Fire Ins. Co. v. Jackson, 83 id. 302.) And it has been held that a tender of the amount of debt, interest and costs extinguishes the power in a mortgage to sell the property. (Bennett v. Deninston, 5 Johns. Ch. 35; 2 Washburn on Real Prop. p. 79, sec. 10.) No distinction in this respect can be taken between a mortgage and trust deed with power to sell. The power is the same, its source is the same, its purpose is the same, and it can be exercised only in case of a default. There never is,- in such a case, a particle of power to sell until there is a' default in payment Without 'the default there is no power. That depends for its exercise on the contingency of a default. If there is no default, and the trustee assumes to sell, all "persons purchase" at their peril. Bidders must see to it that at least a 'portion of the debt thus secured remains due and unpaid, and that it is in default, according to the terms and conditions imposed by the power. In this case, on the day of the first sale Yentres tendered the full amount of the debt, interest and costs, to both Wenham and Lucius M. Cobb. Anderson, who purchased block 5, refused to pay the money bid by him, and complete his purchase, because he had learned the facts. The sale of block 5 having fallen through immediately after the tender was made, what was then the attitude of the case ? A tender "had been made of the amount of the incumbrance on both blocks of the property, the sale of one had fallen through, and the other had been fraudulently made, and in equity should have been canceled, and block 6 should not have been conveyed to Weir. This, then, in equity, was as though no sale had been made, and the tender was therefore in time, and was good. If it be said that the money was not shown or counted, it may be answered that Yentres had the money in his hand, and offered to pay it in discharge of the incumbrance, but both Wenham and Cobb refused to receive it,—not because the amount or kind of money was not correct, but because they claimed they .had no power, as the matter had gone beyond their control. Had they desired to avoid the effect of the tender they should have demanded the money, and had Yentres failed, or had he refused, then the operation of the tender would have ceased.

. There being a sufficient tender shown, Gallup had no power to make the sale when he did. It was without power, and Mrs. Huntington has the right to have the deed to Hamhleton canceled, and a reconveyance to her, and the court erred in refusing to render such a decree. Equity requires that the balance of the debt should be paid into court on setting aside the sales, and it should be distributed between the purchasers in proportion to the amount severally paid by them at these purchases.

The decree is reversed and the cause remanded.

Decree reversed.