source: Caselaw Access Project

author: Mr. Justice Shope

license: Public Domain

text:
    Louis Yeck v. George W. Crum.

      Filed at Springfield September 27,1887.

    1. Mistake—in conveyance of land, being other than the land sold— mortgagee of the grantee without notice. Where a party owning five forty-acre tracts, lying in a line north and south, sold the north forty-acre tract, but by mistake in his deed conveyed the south forty-acre tract, having the same description as the tract sold, except being in another section, and the grantee mortgaged the tract so conveyed to him, and the grantor afterward filed his bill to set aside such mortgage as a cloud on the title of his south forty acres, it was held, that he was not entitled to the relief sought, without showing'that the mortgagee took his mortgage with a knowledge of the grantor’s rights, or under such circumstances as to put him upon inquiry in respect of such right.
    2. Same—of notice to mortgagee—possession, whether sufficient notice— ■examination of record sufficient. The owner of several forty-acre tracts of land, lying together, sold one of them, but by mistake conveyed another one of the tracts. The grantee took possession of the tract in fact sold, and the .grantor continued in the possession of the tract conveyed. The grantee, in giving a mortgage, described the land as in his deed. Afterward he borrowed §1000 to take up this mortgage, and gave a similar mortgage to secure the same. He informed the second mortgagee that the land was that conveyed to him, and by him mortgaged to the first mortgagee. The second mortgagee examined the record, and found the legal title in such party, subject to the prior mortgage. The second mortgagee knew that the mortgagor resided on one of the forty-acre tracts, and that Ms grantor resided on another, but was not acquainted with their location by their numbers, and had no actual notice of the mistake in the deed: Held, that the mortgagee, in examining the records, exercised all the care and made all the inquiry that could reasonably be expected of Mm, and that he should not lose Ms-debt on account of the mistake in the original deed.
    3. Same—third persons protected as against the mistake or fra/ad of another. It is a fundamental doctrine of equity that where one of two persons; must suffer by the fraud of a third person, the loss must fall upon him who, by Ms negligence or conduct, put it in the power of such third person to. cause the injury. So when a party, by mistake in his deed, conveys a tract of his land not intended, and his grantee, in ignorance of such mistake, incumbers the land conveyed, and afterward the grantee conveys the tract he-in fact bought, and the original grantor, in violation of an agreement with, the mortgagee, makes a conveyance of the right tract, which inures to the-benefit of the second purchaser, and takes back from his grantee a deed for. the land actually conveyed, so that the mortgagee can not have Ms mortgage-placed upon the proper tract, such grantor can not, in a court of equity, have the mortgage set aside as a cloud on his title, but must suffer the loss-caused by his own conduct.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Cass, county; the Hon. Lyman Lacey, Judge, presiding.
    Messrs. Pollard & Phillips, for the appellant.
    Messrs. Ketcham & Gridley, for the appellee.
   Mr. Justice Shope

delivered the opinion of the Court:

George W. Crum, appellee, was the owner of a farm of two-hundred acres, in Cass county, Illinois, composed of five forty-acre tracts, lying north and south of each other, the north forty being the north-east quarter of the south-east quarter of section 26, and the south forty of the two hundred acres being the north-east quarter of the south-east quarter of section 35, all in township 17 north, range 11, west of the third principal meridian. It will he observed that the descriptions of the north and south forty-acre tracts are identical, except that one is in section 26 and the other in section 35. The dwelling house, barn, orchard, etc., of the appellee were on the forty in section 35, which was occupied by him, as his homestead, at the time of the conveyance to George A. Crum.

On the 6th day of May, 1881, appellee bargained and sold to his cousin, George A. Crum, the north forty-acre tract,— i. e., the north-east quarter of the south-east quarter of section 26,—for the sum of $2000, but by the mistake of the scrivener in preparing the deed, conveyed to said George A. the south forty-acre tract,—that is, the north-east quarter of the south-east quarter of section 35, instead of the north forty, as intended. The grantee, George A. Crum, went into possession of the forty on section 26, filing his deed for record May 9, 1881. No change of possession of the forty on section 35 occurred, appellee continuing in the occupancy thereof. On the 9th of May, 1881,—the same day of recording the deed of appellee to himself,—George A. Crum borrowed of William Epler $1000, and, to secure the payment thereof, executed a mortgage to Epler, on the north-east quarter of the south-east quarter of section 35, following the description in his deed from appellee. May 1,1883, the money secured by the mortgage to Epler having become due, George A. Crum borrowed of appellant $1000, and with it took up and cancelled the Epler mortgage, and to secure appellant in this loan, executed and delivered to him a mortgage on the same tract of land,—that is, the north-east quarter of the south-east quarter of section 35, following the description in the deed from appellee and the mortgage to Epler. On the 10th day of August, 1883, George A. Crum, by his deed duly made, and recorded the same day, conveyed to Oswell Skiles the north forty-acre tract,—that is, the north-east quarter of the south-east quarter of section 26, being the tract purchased by him of appellee: About this time the mistake in the deed from appellee to said George A., and in the mortgages mentioned, was first discovered, and appellee and appellant at once called on said Geoge A., who promised “to straighten matters up” by paying appellant, appellant agreeing to release the mortgage on appellee’s land when his debt was paid. George A. Crum neglected to pay appellant, and finally, when urged to do so, refused to pay or secure him, alleging, as a reason for such refusal, that his cousin, appellee, had mistreated him. Several meetings of the parties seem to have occurred, and considerable effort-made to adjust the matter, without avail. During the negotiations respecting it, appellant requested appellee not to make or deliver a deed for the forty acres on section 26 until the debt due appellant was satisfied; and we think the weight of evidence clearly shows that appellee then agreed that he would comply with this request, and would not correct the mistake, but would retain the legal title until Yeck’s debt was paid or secured. In November, 1883, appellee, without notifying appellant of his intention to do so, executed and delivered to-George A. Crum a warranty deed, conveying to him the said north-east quarter of the south-east quarter of section 26, reciting that the deed was made for the purpose of correcting the mistake in the deed of May 6, 1881. On the 30th day of November, 1883, a deed dated November 7, 1883, from George A. Crum to appellee, was filed for record, conveying the northeast quarter of the south-east quarter of section 35 to appellee. George A. Crum was then, and still is, insolvent.

In the bill of appellee, in addition to the fact of the conveyance to George A., the mistake therein, the execution of the mortgage to Yeck, the relative location of the tracts of land, and the occupation of each, it was alleged, in substance, that-appellant was well acquainted with appellee’s farm, and knew that George A. Crum had, at the time of the execution of the mortgage to Yeck, no title to the land in the mortgage mentioned, but that the tract therein described was complainant’s-homestead-. It is also alleged that appellant was negligent in not endeavoring to ascertain the fact, and took no other-means of learning that his mortgage described the tract owned by said George A. than by comparison with the Epler mortgage. The answer of Yeck denies all knowledge that the premises mortgaged belonged to appellee, and sets up that he carefully examined the record, and found the title to the property mortgaged was in the said George A. Crum. These averments present the only question of fact really in dispute in the case.

That it was material for appellee to show that appellant took his mortgage with knowledge of the rights of appellee, or under such circumstances as would put him upon inquiry in respect of such right, is conceded. If it were not, it would require the citation of no authority to sustain the position, that without proof of such notice, or that which would amount to notice thereof, appellee would not be entitled to the relief sought. The only proof in the record which we have been able to find, aside from the presumption arising from the possession of the respective tracts, tending to sustain this view, is that of appellee, who says: “Speaking from my own knowledge, Yeck was aware of my possession of the forty on section 35, and of George A.’s possession of the forty on section 26, from and after the date of my deed to George A. Crum.” On the other hand, appellant, after testifying to an examination of the record, says: “All the knowledge I have concerning the title of George A. Crum to the land, is what he told me at the time he wanted the $1000 from me. I asked him in what way ' he would secure me. He told me he would give me a mortgage on forty acres of land he bought from Doc. Crum, the complainant in this case. I asked him if there was any incumbrance on the forty. He said there was a mortgage of $1000, payable to William Epler, that became due May 12, and that he wanted to pay that off; that he would give me a lien on the same piece of land. He said that he had bought this same piece of land from Doc. Crum two years before. * * * At the time I took this note and mortgage, I had no personal knowledge as to the locality of this forty acres of land. I have a general knowledge of the neighborhood in "which this land is situated, and I felt satisfied that any forty acres in that neighborhood was good security for $1000. * * * I had no knowledge of the description of the land as to where the complainant at that time lived,—that is, on what forty.”

It may very well be tha’t appellant knew where each of the Crums resided, without knowing or having his attention in any way called to the description of the tract upon which ■each lived. This would very naturally be so, unless he had a very intimate knowledge of the land by its numbers, which is not shown. We are not prepared to hold that the preponderance of the evidence in respect to this matter is with appellee. It is clearly shown that appellant, before taking the security, ■examined the record, and found that George A. Crum had a deed from George W. Crum, appellee, and apparently a good title to the land described in the mortgage. We can find no sufficient evidence in this record upon which to base the presumption that he knew as a fact, when he took his mortgage, that it was upon the land of appellee, nor is there anything in the record, aside from the possession by appellee of the tract mortgaged, that would put a reasonable and prudent man upon inquiry as to the state of the title. It may be conceded that appellant knew where appellee and George A. Crum, respectively, lived, and that when George A. Crum proposed to .give him a mortgage on the land which he had bought of George W. Crum, and had mortgaged to Epler, and when he examined the records and found there a deed from George W. Crum to George A. Crum, and a mortgage from George A. to Epler, upon the forty-acre tract in section 35, he supposed that it was the land occupied by George A. Crum; but that would ■only prove that he was mistaken in the locality of the land he was getting the mortgage upon, and not in its description. The evidence does not disclose that he was told where the land was located or who was in possession of it. Nor do we think that appellant was negligent in not making further inquiry. He was told, simply, that he was to have a mortgage on the land that had heen mortgaged to Epler, and which had been conveyed by appellee to said George A. Crum. With this information he went to the record, and found the land mortgaged to Epler, and conveyed by appellee to George A., was the north-east quarter of the south-east quarter of section 35, and took his mortgage accordingly. He made all necessary examination and inquiry he was bound to make, and all, it seems to us, that any reasonable and prudent man would make under the circumstances, and there was nothing apparent to apprise him of any mistake in the description. If George A. Crum had claimed title through a source other than George W. Crum, then the possession of the latter might have been notice to appellant sufficient to have put him upon inquiry as to the rights of the said George W. Crum in the land. But under the facts in this case, such possession by the said George W., if known to the appellant, would put appellant on inquiry as to title claimed by the said George W., acquired by him after the date of his deed to George A. only, and it is not pretended there was any such title acquired. The mistake in this case was the result of negligence on the part of appellee, for which appellant is in nowise responsible. Appellee had it in his power to correct the mistake, so that no injustice would have been done.

It is apparent that Sidles, by the exercise of proper diligence, could, at the time of the discovery of the mistake, have protected himself from loss. But if he could not, it is apparent that, at the time of his purchase, if he had examined the record, it would have been disclosed to him that the title to the forty on section 26 was in appellee, and that George A. Crum had no title of record thereto, and could convey no title. The slightest inquiry or diligence on his part would have apprised him that "it would be unsafe to purchase the forty on section 26 of the said George A., and rely upon any title the said George A. then had thereto. If, however, he chose to buy of said George A., relying on his possession and his equitable title, he would be held to take the title thus acquired, charged with all the equities to which it was subject in the hands of his grantor, one of which was the equitable right of appellant to attach his mortgage to the land. Upon a bill filed by either Skiles or said George A., to correct the mistake in the deed to said George A., they would have been compelled to do equity.

There are two familiar principles, either one of which, in the view we take of this case, is sufficient to preclude appellee from obtaining the relief sought by his bill. It is a fundamental doctrine of equity, that where one of two innocent persons must suffer by the fraud of a third person, the loss-must fall upon him who, by his conduct, put it in the power of such third person to cause the injury. By his mistake in the first deed to George A. Crum, appellee vested in him the legal title, and put it in the power of said George A. to convey the legal title to the tract on section 35, and invested him with the muniment of title thereto, and by correcting that mistake-after he had notice of appellant’s mortgage, and equitable right of satisfaction thereof out of the forty on section 26, appellee put it in the power of George A. Crum to commit, and assisted him in consummating, an act by which either appellant or appellee must be the loser, and, according to the principle announced, the loss must fall upon appellee. When appellee discovered the mistake of his own making, he also discovered the equitable right of appellant, and had it in his power, audit was his duty, under his agreement with appellant, in correcting the mistake, to see that the rights of appellant were-protected.

It requires no citation of authority to sustain the principle announced, or that other principle, also fundamental, that he who seeks equity must do equity, or to show the applicability of these principles to the facts of this case. Undoubtedly a court of equity would, upon proper bill filed by appellee, have-corrected the mistake and transferred appellant’s mortgage, and declared it to be a lien on the land in section 26, or, at. least, have decreed that appellee have a conveyance from George A. of the tract in section 35, and created a lien in favor of appellant upon said tract in section 26 for the amount of his mortgage. Appellee, however, chose to correct the mistake without protecting appellant and without notice to him, after his agreement that he would not make the corrections without the payment of appellant’s mortgage, and upon which agreement he must have known appellant relied. Under such circumstances, we are of opinion that he has no standing in a court of conscience.

It may be said that appellant could have filed a hill and enforced his equitable rights, and because he did not do so he is guilty of laches, and must suffer the consequence. The answer to this is, that appellee expressly promised that he would hold the title to the land on section 26, and make no correction of his former deed until appellant’s debt was satisfied. Upon this promise appellant had a right to, and evidently did, rely.

To affirm this judgment would be to cause appellant, who has acted, so far as we can see, in the most perfect good faith, and without negligence, unless it was in relying on the assurance and promise of appellee, to lose his security,—in the taking of which, as we have seen, he acted in good faith and with proper care,—and permit appellee to escape loss which has been caused by his own negligence in the first instance, followed by his own deliberate act of putting it in the power of George A. Crum to convey the tract on section 26 to innocent purchasers without notice of appellant’s right. This would be most inequitable, and to it we can not yield our consent.

The judgment of the Appellate Court and the decree of the circuit court will therefore he reversed, and the cause remanded to the circuit court of Cass county, with instructions to render a decree dismissing complainant’s bill.

Judgment reversed.


author: Mr. Justice Mulkey

text:
    Ezekiel C. Howell v. William W. Foster.

      Filed at Springfield September 27,1887.

    1. Pasties—in chancery—generally. In equity, all persons materially interested in the subject matter of the suit, and who will be directly affected by the decree sought, must be joined as parties, either as complainants or defendants.
    2. Same—on bill by purchaser of land to enjoin sale rmder execution against a former owner. On bill by a purchaser of land from a judgment debtor, to enjoin the sheriff from selling such land under executions against the former owner, on the ground that the judgments had ceased to be a lien on the land by lapse of time, in order to the proper presentation of that question the plaintiffs in the executions are necessary parties.
    Writ of Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of Macon county; the Hon. James F. Hughes, Judge, presiding.
    Mr. H. Pasco, and Mr. B. I. Sterrétt, for the plaintiff in error.
    Messrs. Outen & Vail, for the defendant in error.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The present writ of error brings before us for review a judgment of the Appellate Court for the Third District, affirming • an order and decree of the circuit court of Macon county, dismissing a bill in equity filed therein by Ezekiel Howell, against William Foster, the sheriff of the county, to restrain him from selling certain real estate belonging to the former, under numerous fee-bills and executions then in his hands in favor of various parties, and for divers small sums of money, amounting, in the aggregate, to over $500.

The bill charges, “that on the 25th of February, March 3, and March 9, 1886, one Frederick Aholtz, deceased, by warranty and quitclaim, and for a valuable consideration by your orator to him paid, deeded and conveyed to your orator all and each and every part and parcel of the property hereinafter mentioned and described, then owned or claimed by the said Aholtz, situated in Macon county, Illinois; that said deeds of conveyance are on record in said county of Macon; that prior to the time of making such conveyances by said Aholtz to your orator, to-wit, at the times hereinafter by the proceedings shown, divers judgments for costs were rendered against the said Aholtz in the circuit court of Macon county. All of the said judgments, or nearly all of them, were over seven years old at the time said conveyances were made by the said Aholtz to your orator, and said judgments, or nearly all of them, were over seven years old at the time the divers executions or fee-bills were issued on the same, as herein complained of, all of which judgments, executions or fee-bills, and the levies by the sheriff made thereby, together with the different pieces of property thereon levied, are hereinafter fully described and set forth; that by reason of the lapse of time, to-wit, more than seven years, the said judgments had all, or nearly all, become stale, and ceased to be liens on said real estate, or any part thereof, by reason of limitation, as aforesaid, prior to the time such fee-bills or executions were issued and said conveyances made by Aholtz to your orator; that on or about December 24, 1885, about eighteen fee-bills or executions were issued, and placed in the hands of the sheriff of Macon county, Illinois, on said stale judgments, for costs, against said Aholtz, and levied March 16, 1886, on said lands.” The bill then sets out a detailed statement of the dates and amounts of said judgments, and the names of the parties thereto; also, the dates of the executions and fee-bills, and a description of the lots and lands upon which they were respectively levied. From this statement it appears that twelve of the judgments were-more than seven years old at the time said executions and fee-hills were issued thereon, while as to the others the full seven years had not run at the date of their issue, and as to some of them the seven years had not expired when they were levied.

Judging from the manner in which the ease has been presented, the chief object of counsel in prosecuting the present writ of error is to obtain an expression of this court’s opinion, upon the facts stated, as to the rights of the plaintiffs in said judgments to have the same, or some of them, satisfied out of the lands in question. As the complainant has brought no one before the court but the sheriff, a mere formal party, who has not the slightest interest in the subject matter of the suit or the questions sought to have decided, we do not feel at liberty, in the absence of the plaintiffs in said judgments, (the real parties in interest,) to consider or pass upon the proposed question. We the more readily adopt this course because it is not, in' our view of the case, at all necessary to a decision of it. It is a fundamental principle of equitable pleadings, that all persons materially interested in the subject matter of the suit, and who will be directly affected by the decision to be rendered, must be joined as parties, either plaintiffs or defendants. High on Injunctions, sec. 752; 1 Daniell’s Ch. Pr. (Perkin’s ed.) 240; Smith v. Rotan, 44 Ill. 506; Lynch v. Rotan, 39 id. 14.

That the bill in the present case is fatally defective in not making the plaintiffs in said judgments parties defendant, is, upon the authorities, quite clear, and it therefore follows that the circuit court ruled properly in sustaining the demurrer to it. If the plaintiff, upon the demurrer being sustained to the bill, still desired to have the questions now discussed passed upon by this court, he should have taken leave to amend the bill. Instead of that he elected to stand by it, thus leaving the court no choice but to dismiss the bill, as it did.

The judgment will be affirmed.

Judgment affirmed.


text:
    The Sangamon Coal Mining Company v. William Wiggerhaus.

      Filed at Springfield September 27, 1887.

    1. Mines and mining—providing signals and places of refuge—the statute construed. Section 8, of chapter 93, of the Be vised Statutes, entitled “Miners,” that “all underground, self-acting or engine planes or gangways on which coal cars are drawn and persons travel, shall be provided with some proper means of signaling between the stopping places and the end of said planes or gangways, and sufficient places of refuge at the sides of such planes or gangways shall be provided at intervals of not more than twenty feet apart, ” applies to all underground, self-acting or engine planes, and also to all underground gangways on which coal cars are drawn and persons travel, whatever the motive power may be.
    2. Same—the rule of negligence—as at common Icm. In an action on the case by a miner, to recover for a personal injury while working in a coal mine, the court instructed the jury, that if the defendant company knowingly, negligently, etc., failed to keep its doors across its gangways, and the gangways themselves, in reasonably safe condition and repair, and by reason thereof the plaintiff was injured, as alleged, they should find for the plaintiff: Held, that the instruction was proper, as laying down the rule of liability for negligence at the common law, and did not attempt to lay down the rule under the statute.
    3. Notice to an agent—as notice to the principal—in the case of corporations. When a duty is imposed upon and intrusted to an agent by a corporation, notice to such agent of matters falling within his line of duty is notice to the corporation.
    4. Appeals—finding of facts by Appellate Court. Where the Appellate Court renders a general judgment of affirmance of a judgment in favor of the plaintiff in an action on the case for negligence, without a finding of the facts, this will amount to a finding of each fact necessary to the right of recovery, and this court will presume that the evidence sustains the declaration.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. Jambs A. Creighton, Judge, presiding.

      Messrs. Patton & Hamilton, for the appellant:
    While this court will not review controverted questions of fact when passed upon by the Appellate Court, and reverse because of error as to such questions, we understand the evidence in the record will be considered, first, where it is insisted the trial court erred in excluding or admitting evidence; second, where the evidence, conceding all it shows or tends to show, fails to show a right of recovery; and third, where there is no evidence tending to prove a proposition upon which instructions to the jury were given. Railroad, Co. v. Thompson, 116 Ill. 159; Beard v. Maxwell, 113 id. 440; Furnace Co. v. Abend, 107 id. 44.
    To recover in this case, the plaintiff must establish that the place where he was hurt was an “underground, self-acting or engine plane, or gangway, on which cars were drawn and persons traveled,” and that the defendant willfully neglected to “provide sufficient places of refuge at the sides of said plane or gangway, at intervals of not less than twenty feet apart, ” and that by reason of such willful neglect or omission, the plaintiff, whilst in the exercise of due care and caution, was injured.
    The omission of appellant to provide sufficient places of refuge, etc., if the mine was operated by “self-acting or engine planes or gangways,” must have been willful. . Rev. Stat. sec. 14, chap. 93; Bewrd v. Shelton, 13 Bradw. 54; Hawley v. Daily, id. 391.
    The first of plaintiff’s instructions is erroneous, in entirely ignoring the element of willfulness on the part of appellant. Hawley v. Daily, 13 Bradw. 391.
    The second is objectionable for the same reason, and as ignoring the material question whether the injury was the result of the door being out of repair.
    The third is based upon the theory that the defendant used an underground gangway for the transit of servants, and on which cars were drawn, and that it was its duty to provide places of refuge, not more than twenty feet apart. It was not based on any evidence, as there was no proof that the gangways were used for the transit of its -servants, or that, they were such as the statute refers to.
    The fourth is faulty in stating that notice to an agent, whose duty it was to fix the door, was notice to the principal; that the opening of the door was hard and difficult. The plaintiff can not recover for the negligence of a fellow-servant. Railway Co. v. Moranda, 93 Ill. 302; Railroad Co. v. Geary, 110 id. 383; Stafford v. Railroad Co. 114 id. 244.
    Messrs. Oeendobff & Patton, and Mr. James B. Dowling, for the appellee.
   Mr. Justice Shope

delivered the opinion of the Court:

This was an action brought by appellee in the Sangamon circuit court, to recover for personal injuries received by him while in the employ of appellant. A trial resulted in a verdict and judgment thereon for the plaintiff, which, on appeal to the Appellate Court for the Third District, was affirmed, and the case is brought to this court by the further appeal of the defendant below.

The Appellate Court having rendered a general judgment of affirmance, without a finding of facts, it must have found each fact necessary to the maintenance of plaintiff’s case in favor of the plaintiff and against appellant. We are not, therefore, required to examine the facts proved, for the purpose of determining whether they have been correctly determined, but must presume that the evidence sustains the declaration; and it having been admitted by pleading to the declaration, and now conceded here, that the several counts of the declaration state a good cause of action, it must, in the absence of any legal question being raised as to the sufficiency of the proofs, be held to establish the plaintiff’s right of recovery upon some one or more of the counts of his declaration.

The first count, after alleging that appellant was operating its mine, avers it had underground planes and gangways in said mine, with doors in and across the same at intervals, on which coal ears were drawn and persons traveled, and averring it was the duty of appellant to provide, at intervals of not more than twenty feet apart, sufficient places of refuge at the sides of said underground planes and gangways, and that appellant, willfully, wrongfully and negligently disregarding its duty, failed to provide the same; that the plaintiff was engaged in loading cars in said mine and in placing empty cars in position to be loaded, and that while he, with all due care and diligence, in discharge of his duty, was passing on said underground gangway of appellant in said mine, leading to the shaft thereof, certain loaded cars were being drawn on said underground gangway toward the shaft in front of him, when they broke loose and became detached from the power by which they were being moved, at a point where they were going up an incline in said gangway, and ran rapidly down the same, and by reason of the failure of appellant to provide such sufficient places of refuge, appellee was unable to escape on either side of the track, and he was, in consequence, struck by said cars and injured, etc. The second count alleges, substantially, the same matter, but with the further allegation, that it was the duty of appellant to keep the doors across the track in repair, so that persons passing along the gangway could readily open and escape through them, and breach, etc.; and that appellee, while in discharge of his duty, with due care, was passing on said gangway, was unable to open a door across the same or pass through it, whereby he was unable to escape; and was injured by the cars, as in the first count stated. The third count alleges that it was the duty of appellant to provide and keep sufficient space on the sides of its underground planes or gangways free of obstruction, so that persons on the same could step aside and avoid injury, etc., and that by reason of failure, etc., of appellant in that respect, he was injured, etc.

The first count is predicated upon section 8, of chapter 93, ■of the statute entitled “Miners,” which requires that “all underground, self-acting or engine planes or gangways on which coal cars are drawn and persons travel, shall be provided with some proper means of signaling between the stopping places and the end of said planes or gangways; and sufficient places ■of refuge at the sides of such planes or gangways shall be provided, at intervals of not more than twenty feet apart.”

It is insisted that the statute in question applies only to self-acting planes or gangways, or to those operated by means of an engine, and has no application to mines where, as in this instance, the motive power by which the cars are hauled is that of a mule or horse. We are not prepared to give the language employed so narrow a construction. The intent of the legislature undoubtedly was to afford protection to the operative in mines, and while accidents from the moving of loaded cars underground may not be as frequent when machinery is not employed as when it is, still, the necessity for protection by proper safeguards existed. The statute applies, it is conceded, to all “underground, self-acting or engine planes,” and it is there required that places of refuge should be provided. It will be observed that it by no means follows, necessarily, that the word “self-acting” or “engine” qualifies the word “gangways.” A self-acting plane upon which cars are moved, has a well understood meaning, as applied to those mines so circumstanced that the loaded cars, by reason of the dip of the plane toward the shaft, will move without other motive power down the incline and deliver themselves at the pit; and in some instances, by means of endless cables working around drums, the momentum of the descending loads will deliver the empty cars back to the face of the mine, or to some convenient or accessible point, to be re-loaded. An underground engine plane on which coal cars are drawn, would be-understood as a plane where the motive power was that of a steam engine, communicating the motion to the cars by means, of appliances adapted for that purpose; and each of these terms would -have a technical meaning, as applied to the particular subject under consideration. A “gangway” is defined by Webster as “a passage-way or avenue into or out of any inclosed place.” This record fails to show that the word has, as applied to mines or the entries or passage-ways therein, however used, any other than this general signification, nor have we, by consulting the standards, been able to find it used in any other manner, except in nautical phrase it is used to* ■designate a particular part of a vessel. Thus we find the legislature -employing language descriptive of known and defined objects and methods, and then using a word including any passage or way or avenue leading from the mine to the pit, through or along which coal cars are drawn and persons travel.

Giving effect to the intent of the legislature as thus expressed, we are of opinion that the clause applies to all underground, self-acting or engine planes, and also to all underground gangways on which coal cars are drawn and persons travel, whatever the motive power may be, and hence was applicable to the mine of appellant; and the court did not err in so instructing the jury.

It is next urged that the court erred in giving the first, second, third and fourth instructions for appellee. What has already been said disposes with sufficient clearness of the objections urged as to the third.

The criticism of the first instruction, when it is considered as to the case made under the second and third counts of the declaration, does not exist. It told the jury that if the de-. fendant knowingly and negligently, etc., failed to keep its doors across its gangways, and the gangways themselves, in reasonably safe condition and repair, and that by reason thereof the plaintiff, while exercising proper care, etc., was injured, as alleged, etc., they should find for plaintiff, ignoring, as is said, the element of willfulness. The criticism arises solely from the misapprehension of counsel that the instruction relates to plaintiff’s ease as made under the first count of the declaration, for not providing the places of refuge required by the statute. It did not pretend to lay down the rule under the statute, hut at common law, for negligently failing to keep the door and gangway in suitable repair, and, as applicable thereto, stated the rule of law correctly.

The same objection is urged, under a like misapprehension, to the second of plaintiff’s instructions, and also the further objection that it fails to require the jury to find that the injury to plaintiff was the effect of the negligent failure of appellant to keep the door across the gangway in repair. This criticism arises from the fact that the instruction is incorrectly given in the abstract, the words as found in the record, “and that thereby the plaintiff received injury while engaged” in the performance of his duty as such servant, being omitted. It is apparent, when read in the record, it is not obnoxious to the objections made.

The fourth instruction informed the jury, that if they believed, from the evidence, that an agent of the defendant whose duty it was to fix said door or cause the same to be fixed, was notified that the opening of the door across the gangway was difficult and hard, then such notice was notice to defendant, etc. It is insisted that notice to a co-servant of appellee is not notice to the common employer. We do not think it important to discuss the doctrine indicated by the objection urged. It is, we think, sufficient to say, that wffien a duty is imposed upon and intrusted to an agent by a corporation, notice to such agent of matters falling within his line of duty, is notice to the corporation. The instruction, we think, stated the rule correctly.

There was evidence tending to sustain the plaintiff’s case. The court fully laid down the rules of law in an elaborate and well prepared series of instructions presented by counsel for appellant, and it is, we think, impossible that the jury were misled as to the law applicable to the facts.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    Frederick Aholtz v. James H. Durfee et al.

      Filed at Springfield September 27, 1887.

    1. Bum of review—requisites of the bill. Where a bill is brought to review a former decree, it is necessary to set out the bill, answer and decree in the former proceeding. A mere skeleton of the record to be reviewed will not suffice. The bill should also show the point in which the party filing it feels himself aggrieved, but need not state the evidence in the former case.
    2. Same—for newly discovered evidence. In order to sustain a bill of review for newly discovered evidence, the new evidence must be of an important and decisive character, and must not be merely cumulative. If it is merely cumulative, and not decisive in its character, the bill will not lie.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Macon county; the Hon. C. B. Smith, Judge, presiding.
    Mr. H. Pasco, and Mr. B. I. Sterrett, for the appellant:
    In this case, it is alleged in the bill that the witness Coon will corroborate appellant, and that his evidence will, or would, probably have produced a different result, and that it was not the fault of appellant that the evidence of said Coon was not produced on the trial; that he could not produce it, as he did not know of it until after trial and decree, and adjournment of court; that this evidence is material, and would, and will, produce a different result. All of this is admitted by the demurrer. In such cases appellant insists that he should have had and should have a new trial. Wilder v. Greenlee, 49 Ill. 253; Railroad Co. v. Schumacker, 77 id. 583; Boyden v. Reed, 55 id. 458; Holmes v. Statler, 57 id. 209; Story’s Eq. Pl. (8th. ed.) sec. 413.
    Messrs. Outen & Vail, for the appellees:
    Leave of court is necessary to the filing of such a bill, and will not be granted without an affidavit that the new matter could not be produced by the party in the original cause. Story’s Eq. Pl. secs. 412-415.
    The former bill, and the proceedings under it, must be stated; the decree, and the point in which the party exhibiting the bill conceives himself aggrieved by it, and the ground of law upon which he seeks to impeach, or, if it be brought upon newly discovered evidence, the evidence must be stated. Griggs v. Gear, 3 Gilm. 2; Gardner v. Emerson, 40 Ill. 296; Walker v. Douglass, 89 id. 425; Goodrich v. Thompson, 88 id. 206; 3 Daniell’s Ch. Pr. 1728; Adams’ Eq. 879, 880.
    The new evidence must not be merely cumulative, but must be of an important and decisive character, if not conclusive. Griggs v. Gear, 3 Gilm. 2; Garrett v. Moss, 22 Ill. 363; Turner v. Berry, 3 Gilm. 554; Judson v. Stephens, 75 Ill. 255.
    The same rule applies as in motions for new trial at law. The newly discovered evidence should be supported by affidavits of the witnesses proposed to testify. Fuller v. Little, 69 Ill. 229; Cowen v. Smith, 35 id. 416; Yates v. Monroe, 13 id. 212.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bül in chancery to review a former decree of the circuit court of Macon county, rendered in a certain cause between the same parties. The defendants interposed a demurrer to the bill, which the court sustained, and the bül was dismissed. The complainant appealed, and the question to be determined is as to the sufficiency of the bill.

It is alleged in the bill, that the complainant is the owner of a certain lot in Decatur; that on the 26th day of June, 1877, the lot was sold for the taxes due thereon for the year 1876; that B. D. Durfee purchased the lot, and assigned his tax certificate to James H. Durfee, who subsequently obtained a deed for the lot; that in May, 1881, Durfee brought an action of ejectment to recover possession of the lot; that at the May term of the Macon circuit court, on the 27th day of the month, he recovered a judgment against the complainant for the possession of the lot; that on the 23d day of June complainant entered a motion for a new trial, which was allowed, on condition that complainant pay all costs within one year; that complainant, during the year, called several times at the office of the clerk of the court, with the money to pay the costs, but each time the clerk informed him that the costs were not made up, and the files had been taken out of his office, and he could not make up the costs until the papers were returned; that the files remained out of the clerk’s office until the year expired; that in the absence of the files the clerk was unable to compute the costs, and he so informed the complainant. It is also alleged that on the 2d day of December, 1882, complainant paid the costs, but the court then refused a new trial; that Durfee made an effort to have the sheriff of Macon county put him in possession of the lot, and thereupon complainant filed, his bill in equity, in the circuit court, against said Durfee and the sheriff, and asked an injunction, and prayed for a decree setting aside'said tax deed, and offering to pay the amount paid out by said Durfee, and whatever additional amount the court might order, to allow him to redeem said premises, setting up the fact that he had tried to pay the costs, and that he was not guilty of negligence in reference thereto, and that the affidavit made by said Durfee, to obtain a tax deed, was void, for the reason it did not show when, where or how he had served the notice to redeem on appellant, and did not say whether he had served it personally or by copy or by publication, and upon filing said bill, an injunction was granted, restraining the execution of the said writ of possession, and said defendant appeared and filed a demurrer to said bill, which demurrer was overruled, and thereupon the defendant filed answer, and the issues were made up, and said cause was; by the court, referred to the master in chancery to take proof, and make report, etc.; that in said cause, Durfee and his counsel admitted that the tax deed and affidavit were void, but made their sole defence that appellant had been guilty of willful negligence in not paying the costs in the ejectment suit within the year,—and this was the only material question tried in that case; that the evidence was taken before the master, and appellant then testified that he had gone to the office of said clerk in order to pay the costs, ■and the clerk testified for defendant and denied that appellant so applied to him; and appellant being then unable to corroborate himself, and knowing of no other than himself by whom he could make proof of that fact, said cause was heard by the court, on the evidence of appellant testifying, and the clerk denying the same; and there being no preponderance of ■evidence, the court, at the May term, 1885, to-wit, on June 5, 1885, dissolved said injunction, and dismissed said bill. It is then alleged that a writ for the possession of the property was placed in the hands of the sheriff, who is threatening to ■execute the same, and will do so unless restrained. The bill also states, that soon after said last named cause was decided, Tie, for the first time, learned the fact to be, that from March 13, 1882, to about September 1, 1882, one Lewis H. Coon, an attorney-at-law of Fort Scott, Kansas,-who formerly resided in Decatur, Illinois, and was engaged in the office of said ■clerk, recording deeds, etc., and was there at work in the clerk’s office at the time when appellant was calling, from time to time, on the said clerk, to ascertain the amount of costs in said ejectment suit, and saw appellant call and heard appellant talk to said clerk, and also said Coon himself talked with said clerk in reference thereto, and also talked with said defendant, Dnrfee, in reference to said matter; that appellant could, in many respects, prove by said Coon what he himself testified to in reference to his attempts to pay said costs, and disprove by him the statements of said clerk in reference thereto. The complainant also alleges that he has received a letter from Coon, which contains a statement of what he knows in regard to the matter in dispute, which is made an exhibit to the bill; that had appellant known that he could make proof by said Coon, before the said last named cause was disposed of, he would have procured his testimony, and could and would have obtained a decree in his favor, but he knew nothing of such evidence until about June 26, 1885; that he expects to procure, and will procure, the evidence of said Coon, and avers-that if he had known said Coon-knew anything, he would have-procured his testimony at said former trial, in said cburt, at. the May term, 1885; and if he should have had Coon, or any other person, to corroborate him on the subject of paying the costs, or trying to pay, that the court would probably have decided said cause in favor of him.

The hill contains other allegations, hut enough have been set out to show its scope and object. The bill contains a prayer for process, and for an injunction to restrain the execution of the writ of possession, for a new trial in the action of ejectment, that the tax title he set aside, and that the court find the amount complainant should pay Durfee, that he be-permitted to take the evidence of Coon, and for general relief-

It is plain, from the bill, that the same question presented by this bill was litigated between the same parties in a former chancery proceeding. In the former case, there was a bill,, answer, replication, proofs, a hearing, and a final decree against the complainant. It is not alleged in the bill that there are-errors in the record of the former proceeding, or that the decree was obtained by fraud, but the gist of the bill is, that, since the former decree the complainant has found a new witness, by whom he expects to corroborate his own testimony-taken on the former hearing. In substance, it is alleged that the former chancery case turned on the question whether the complainant had made an effort to pay to the clerk of the circuit court of Macon county, within a certain time, certain costs; that upon that point complainant testified that he did offer to pay the costs, and that the clerk testified that he did not, and there being no preponderance, the court decided against complainant; that since the decision, complainant has discovered a witness, named Coon, who will corroborate complainant’s evidence.

There are several fatal objections to the bill. A bill of review may be filed, in a proper case, upon newly discovered evidence, and this bill is pretended to be predicated upon that ground; but a brief reference to a few elementary principles will suffice to show that the allegations of the bill are not sufficient.

Where a bill is brought to review a former decree, it is necessary to set out the bill, answer and decree in the former proceeding. A mere skeleton of the record to be reviewed will not suffice. In Story’s Eq. PI. sec. 420, in speaking of the form of a bill of review, the author says: “In a bill of this nature, it is necessary to state the former bill and the proceedings therein, the decree, and the point in which the party exhibiting the bill of review conceives himself aggrieved by it.”' This court has announced substantially the same rule in a number of cases. Gardner v. Emerson, 40 Ill. 297; Judson v. Stephens, 75 id. 259; Goodrich v. Thompson, 88 id. 207; Turner v. Berry, 3 Gilm. 544. In the case last cited it is said: “From the very nature of the proceedings it is manifestly necessary to state all the proceedings in the original cause, except the evidence on which the court found the facts on which it proceeded to render the decree.” In the Emerson ease the same doctrine is declared, and it is also held, that where the bill is brought on newly discovered evidence, the evidence must be stated. In this bill we find a mere skeleton of the proceedings in the former case. Neither the bill, answer nor decree is given. Under the authorities cited, if the bill was sufficient in other respects, the defect named would be fatal.

There is, however, another fatal defect in the bill. In order to sustain a bill of review for newly discovered evidence, the evidence must be of an important and decisive character, and must not be cumulative. In Griggs v. Gear, 3 Gilm. 10, in discussing this question, it is said: “The bill must set forth the newly discovered matter. The evidence must not be cumulative, and.must be of an'important and decisive character.” From the allegations of complainant’s bill, it is plain that the evidence of Coon is cumulative, and it is not of a decisive character.

The letter of the proposed witness, Coon, in regard to what his testimony might be as to complainant’s efforts to pay the costs, is made an exhibit in the bill. In the letter is the following : “What was said by Fred to the clerk about this matter, or what the "clerk said to Fred about it, I can not state. In a short time after this, Fred came into the office alone, and had some talk with the clerk about these costs; but what was said by Fred, or whether he offered to make the payment, I am unable to state.” This evidence can not be regarded as decisive. Had it been introduced on the former trial it could add but little weight to that of the complainant, and in addition it is merely cumulative.

There are other objections to the bill, but we have pointed out enough to show that the demurrer was properly sustained.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.,


text:
    Sebastian Fietsam v. James M. Hay et al.

      Filed at Mt. Vernon September 28, 1887.

    1. Franchise—defined. The word “franchise” is often used in the sense of privileges generally, but in its more appropriate and legal sense the term is confined to such rights and privileges as are conferred upon corporate bodies by legislative grant. It is nothing more than the right or privilege of being a corporation, and of doing such things, and such things only, as are authorized by the charter.
    2. Same—in whom vested. It follows, from the very nature of a corporation, that a franchise, or the right to be and act as an artificial body,, is vested in the individuals who compose the corporation, and not in the, corporation itself.
    3. Same—not the subject of sale or transfer. A corporation, in the absence of statutory authority, has no right or power to sell or transfer the franchise, or any property essential to its exercise, which it has acquired under the law of eminent domain.

      i. Corporation—defined. A corporation aggregate is an artificial 'being created by law, and composed of individuals who subsist as a body politic, under a special denomination, with the capacity of perpetual succession, and of acting, within the scope of its charter, as a natural person. It has, for most purposes, a distinct identity from that of the individual corporators.
    Appeal from the Circuit Court of St. Clair county; the Hon. B. H. Canbt, Judge of the City Court of Bast St. Louis, Judge, presiding, at the request of the Hon. William H. Sntdeb.
    Mr. F. A. McConaught, for the appellant:
    It is not proposed to argue this question. The authorities do not seem to be clear or uniform. Those which seem to support the position of the appellant are as follows: Stewart v. Hargrove, 23 Ala. 436; Lewis v. Gainsville, 7 id. 85; 3 Greenleaf’s Cruise, chap. 3, secs. 20-22.
    A number of cases holding contra, are cited in notes to the texts, in Angelí & Ames on Corp. sec. 191; Morawetz on Private Corp. see. 928. As far as the eases there cited, however, have been examined by counsel, the charters involved were other than banking corporations.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The People’s Bank of Belleville, incorporated under a special act of the legislature, approved and in force March 27, 1869, having become insolvent, on the 17th of April, 1878, made a general assignment of all its property and effects for the benefit of creditors. The assignee presented a petition to the county court of St. Clair county, at its March term, 1887, for leave to sell “all the rights, privileges, powers and immunities which were granted by the said act incorporating said bank.” The judge of the county court being interested in the result of the proceeding, the venue was changed to the circuit court of St. Clair county, where, upon due consideration of the petition, that court entered an order dismissing the same. The present appeal is from the order of dismissal.

The correctness of the decision of the circuit court depends entirely upon whether the title to the franchise created and conferred by the bank charter passed as an asset of the bank, to the assignee, under the assignment. That its language is sufficiently comprehensive and adequate to pass the franchise to the assignee, if, as matter of law, the bank could transfer it at all, we have no doubt. This is not questioned. The question, therefore, is, whether a corporate franchise, in the absence of statutory authority, is in law capable of being assigned or transferred. Differently put, the question, as formulated by the parties themselves, is, “Did the franchise of the said bank pass with the deed of assignment to the assignee as a salable asset of the said hank ?”

The word “franchise” is often used in the sense of privileges generally, but in its more appropriate and legal sense the term is confined to such rights and privileges as are conferred upon corporate bodies by legislative grant. It is in the latter sense, alone, the word is now to be considered. The franchise proposed to be sold is a corporate franchise, and the artificial body or political entity to which it pertains is what is known to the law as an aggregate corporation. Such a corporation has been well defined to be, “an artificial being created by law, and composed of individuals who subsist as a body politic under a special denomination, with the capacity' of perpetual succession, and of acting, within the scope of its charter, as a natural person.” Now, a franchise is nothing more than the night or privilege of being a corporation, and of doing such things, and such things only, as are authorized by the corporation’s charter. This right of a body of men to be and act as an artificial person, without, as a general rule, incurring individual responsibility, is declared by Blackstone to be “a royal privilege, or branch of the king’s prerogative, subsisting in the hands of a subject.” (2 Blackstone, 37.) Such right or franchise is defined by Bouvier to be “a certain privilege conferred by grant from government, and vested in individuals.” (1 Bouvier, 545.) Now, it is clear from these definitions, and from the very nature of a corporation, that a franchise, or the right to be and act as an artificial body, vests in the individuals who compose the corporation, and not in the corporation itself. This fact, we think, is not without significance in reaching a conclusion upon the main question to be determined, outside of the numerous authorities bearing directly on the subject.

It will be kept in mind that the corporate body, for purposes of ownership, and, indeed, for most purposes, has a distinct identity from that of the individual corporators. The latter may be wealthy, when at the same time the former is insolvent, and vice versa. The corporation has no right to appropriate, sell, or otherwise dispose of any of the property or effects of a corporator. The relation of debtor and creditor may subsist between them in the same manner as between the company and other persons. The company’s entire properfcy may be swept away from it by sequestration, or other means, and yet its franchises will remain vested in the corporators until they are either abandoned or forfeited to the State. All these propositions are familiar to the courts and the profession, and are well sustained by authority.

If, then, the franchise is vested in and belongs to the corporators, and not to the corporation itself, how could the latter transfer or assign it to another ? On the plainest of principles this could not be done without legislative authority for that purpose, and we find nothing, either in the statute or the company’s charter, conferring such authority. While it is conceded the legislature might confer on the artificial body the power to sell or assign the franchise to strangers, yet this would be, in effect, to authorize it to commit a species of suicide, for it is manifest the corporation could not exist a moment after the franchise conferred upon its members had been transferred to others. Indeed, when we consider the attributes and essential elements of corporate existence, resulting from the grant of the franchise, and without which the artificial body could not accomplish the objects of its creation or perform the duties imposed upon it by law, the sale or assignment of the franchise without special legislative authority would seem to be wholly inadmissible. It is proposed here, it will be noted, to sell simply the franchise of the bank. Assuming this can be done, the question arises, what would be the effect of 'such a sale ? It clearly could not have the effect of making the purchasers, if more than one, an aggregate corporation, with the general banking powers conferred by the bank charter. To assert, such a proposition would be simply startling; and yet, if in such case the purchasers would take anything at all, they certainly could not take less than the right to be a banking corporation, with all the powers and privileges conferred by the charter for these rights,—are of the very essence of the franchise; and consequently, the one could not be thus acquired without, by the same act, securing the others,—a view which, as already indicated, has no sanction in reason or authority.

While statements are to he found on this subject in some of the text hooks, as well as in some of the decided cases, which can not be reconciled with the conclusion we have reached, yet we are clearly of opinion that a corporation, in the absence of statutory authority, has no right to sell or transfer its franchise, or any property essential to its exercise, which it has acquired under the law of eminent domain. This proposition, in our judgment, is sustained both by reason and the decided weight of authority. Black et al. v. Delaware and Raritan Canal Co. 24 N. J. Eq. 455; Freeman on Executions, secs. 179, 180; Pearce on Railroads, 496-1; Jones on Mortgages, sec. 161; Rorer on Judicial Sales, (2d ed.) 222; Archer v. Terre Haute and Indianapolis Railroad Co. 102 Ill. 493 ; Bruffett v. Great Western Railroad Co. 25 id. 353; Chicago and Rock Island Railroad Co. v. Whipple, 22 id. 105; Ottawa, Oswego and Fox River Valley Railroad Co. v. Black, 79 id. 262.

The circuit court having reached this conclusion, its order and judgment will be affirmed.

Judgment affirmed.


text:
    The People ex rel. Charles Gerstkemper v. Lots in Ashley.

      Filed at Jilt. Vernon September 28, 1887.

    ■ 1. Taxation— assessment—by whom—wnd herein, of the power of review. The assessor, alone, is the person or officer who can, in the first instance, determine the value of property for taxation; and no appeal to or right of review by any tribunal, other than the boards mentioned in the statute, is given.
    2. The courts are powerless to revise an assessment or change or set aside a valuation of property made by an assessor, or by the boards authorized by law to review the same, where the assessment has been honestly made upon property subject to taxation, and upon the proper basis. Such assessment can not be impeached or set aside except for fraud or want of jurisdiction of the property. The courts will not interfere on the ground that the assessor erred in judgment by assessing too high or too low, if he acted honestly.
    3. Where a deputy assessor views the property, and sets down, in the proper column, its fair cash value as determined by him, it can make no difference that he supposed his work was subject to review by some one else, or that his assessment would be reduced one-third in amount; and his statement to the owners that such reduction would be made, affords no valid reason for their not appearing before the board of review and seeking a reduction of the valuation.
    4. A county board is powerless to change the assessments returned according to law, except upon complaint that they are too high or too low, or by way of equalization under the statute.
    5. Same—inequality in assessment—-as affecting the validity of the tax. The law requires all taxable property to be assessed at its fair cash value, and the fact that some property may be assessed at only one-third that value will not render invalid an assessment of other property at its cash value.
    6. So the omission of the assessor to assess the property of some persons liable to taxation, or the assessing of the property of some at less than its fair cash value and that of others at its cash value, while it may cause the tax-payer whose property is assessed 'at its cash value to bear an undue portion of the public burden, it will not affect the validity of his tax.
    7. Same—fraud in assessment—to invalidate tax. The fraud which will authorize the courts to interfere and declare an assessment void, is such as affects the assessment itself. The statement of the assessor, to those assessed, that his valuation will be reduced to one-third of the fair cash valuation made by him, is not such a fraud as will authorize the court to interfere, and will not excuse the tax-payer from seeking redress before the proper board of review.
    Appeal from the County Court of Washington county; the Hon. George Verner, Judge, presiding.
    This was an application to the county court of Washington county, for judgment for taxes against certain lands and lots returned delinquent by the collector of that county. Objections were filed by John L. Sargent and others, as follows:
    “Comes John L. Sargent, and files objections to judgment being rendered against lots 18 and 19, block 6, Ashley; and for special objection says, excess in assessment: lot 18 assessed at $25, lot 19 assessed at $300, when lot 18 should have been ■assessed at $12, and lot 19 should have been assessed at $125.

      May 17, 1886. John L. Sabgent.”
    Objections of M. Kerstine and twenty-six other tax-payers, as follows:
    State of Illinois, ) gg^ jn Qoun^y Court, May term, 1886. Washington oounty, ) J J ’

      In matter of application for judgment against delinquent lands and lots:

    “Now come the undersigned owners of real estate hereinafter described, limiting their appearance for that purpose, and resist application for following reasons: First, because no sufficient notice of application; second, because valuation of real estate being unjust, erroneous and excessive in the extreme, and the said owners were induced not to appear before the county board to have assessment corrected, by false and fraudulent statements of the assessor that he was assessing said property at the same figure as had been done the year prior; third, because of want of uniformity in assessment; fourth, because the amount of assessed valuation was increased by the assessor, after same was listed, without notice, to owners; fifth, because, in fact, no assessed valuation was ever made or fixed by the local assessor.”
    Then follows a description of property owned by objectors, with the assessments of 1884 and 1885. The objections are signed by the land owners, per Forman & Watts, attorneys.
    Upon hearing, the court, against the collector, permitted the objectors to introduce evidence as follows:
    D. G. Pose, being duly sworn, stated that he was deputy assessor in the year 1885 for the south half of township 2 south, range 1 west, in Washington county, Illinois, in which territory the lands of said objectors are situated; that he fixed the values of lands at their fair cash value, as understood by him; that he did not understand he was making any assessment at all; that he thought the county board or assessor would make the assessment from his figures, and that he told parties assessed that their assessment would be about as the year before,—which would be one-third of his figures. On cross-examination, said Bose stated that he placed his figures in a book furnished him by the county assessor, in the column headed “fair cash value;” that he supposed the county board or county assessor would reduce these figures to one-half or one-third, or whatever proportion would be necessary to raise the requisite amount of taxes; that whenever asked about the matter by land owners, he told them his figures were the fair cash value, and that the county board or county assessor would reduce them to one-half or one-third, or whatever proportion might be necessary to raise the requisite amount of taxes; that as a matter of fact he made no false or fraudulent representations, unless these statements, honestly made, amount to fraudulent representations.
    Hugh P. Green, on oath, stated that he was assessor of-Washington county, Illinois; that D. G. Bose was one of his deputies, and as such deputy assessed the property of objectors, together with other property; that all his deputies received their books and instructions, in a body, at the same time, and were instructed to assess real estate at about one-third its fair cash value, and to put it in the column marked “fair cash value;” that Bose was present with the others, and-heard these instructions; that real estate assessed by other deputies was assessed at about one-third its fair cash "value.
    J. P. M. Harrison, on oath, stated that the mill property was valued, in his presence as one of the owners, at $15,000, and that Bose told him the final assessment would be $5000, and that the assessment of property would be one-third of his figures.
    Other witnesses were offered, but it was admitted that they would swear substantially the same as Harrison as to the manner of assessing.

      The judgment of the court is in the usual form, except as to lands and lots of objectors, and, after describing such lots and lands, is as follows: “On all the above lots, parts of lots, tracts or parts of tracts, or parcels of real estate, judgment is rendered for one-third of the amount for which judgment is applied, and judgment is refused as to the other two-thirds, and the sheriff and ex officio collector to be credited with the other two-thirds.”
    From the judgment so rendered as to the tracts and lots of objectors, the collector prosecutes this appeal.
    Mr. Chables T. Moobe, State’s Attorney, for the appellant:
    The court erred in allowing the introduction of parol evidence to impeach the assessment. Spencer v. People, 68 Ill. 510.
    The objectors had a complete remedy before the county board sitting as a board of equalization, and failing to pursue it, can not be heard to object on the application for judgment. The statements of the .deputy assessor show no fraud in the assessments made by him. He assessed as the law required, at the fair cash value of the property, and there is no fraud in so doing. His duty did not depend on what others may have done.
    The courts have no power to revise or set aside an assessment. Spencer v. People, 68 Ill. 510; Porter v. Railroad Co. 76 id. 561.
    The tax-payer must take notice of his opportunity to have his assessment corrected. Humphreys v. Nelson, 115 Ill. 46.
    Messrs. Fobman & Watts, for the objectors:
    The authorities cited by appellant are cases where there was no fraud, either in fact or in law, and the parties carelessly, and without excuse, failed to appear before the board.
    The evidence in this case establishes the fact that the owners of the property did not appear before the board, on account of the assurance of the assessor that the valuations were the same as previous years.
    The evidence of Harrison and the assessor as to the mill is, that Harrison was informed that the assessed valuation of the mill was $5000. It is, in fact, $15,000. It is admitted that other property holders were so informed as to their property. Belying on these statements, and believing them to be true, there was no need of their appearing before the board.
    Will it be wise to hold that the people dare not rely on statements of the assessor as to valuations made by him, when such statements are made in the performance of his duty as an officer ?
    In addition to this, the assessor, who is said to have fixed the value, swears that he did not place any assessed value upon the property at all. If he did not, was there any legal valuation of this property? Such conduct of the deputy assessor is a fraud in fact, and for that reason the judgment of the county court was right and proper.
   Mr. Justice Shope

delivered the opinion of the Court:

The questions presented by this record, involving the correctness of the judgment for taxes against the lots and tracts of land therein mentioned arise upon the assessment of such lots and tracts. All other requirements of the statute, precedent to the right of the People for judgment for taxes levied, seem to have been strictly conformed to. ' The taxes were levied for purposes authorized by law, and within the limit prescribed.

The county court, upon the application for judgment, heard evidence in respect of 'the assessment, and rendered judgment, against the several tracts involved in this appeal, for .one-third of the taxes extended against the same, severally, upon the assessment as returned by the assessor, and refused judgment as to the residue. The constitution provides, that “the General Assembly shall provide such revenue as may be needed, by levying a tax, by valuation, so that every person and corporation shall pay a tax in proportion to 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.”

The legislature, in counties under township organization, and those not under township organization, has designated and directed the persons who shall determine the value of property for the purposes of taxation, and prescribed the method, not only for the ascertainment and certification of such values, but also for the correction of any errors that may have been made in the assessment. (Revenue act, secs. 76, 84, 90, 97; Starr & Curtis’ Stat. 2052, et seq.) The second clause of section 97 provides that the county board, at its July meeting, shall, “on the application of any person considering himself aggrieved, or who shall complain that the property of another is assessed too low, * .* * review the assessment, and correct the same, as shall appear just.” In counties under township organization, provision is also made for review of the assessment by the township board, prior to the July meeting of the board of supervisors. The assessor, alone, is the person or officer who can, in the first instance, determine the value of property for the purposes of taxation; and no appeal to or right of review by any tribunal, other than the boards mentioned, is given b'y law. It has been so repeatedly held by this court, under this and similar statutes, that the courts are powerless to revise an assessment, or change or set aside a valuation of property made by an assessor, or by the boards authorized by law to review the same, when the assessment has been honestly made upon property subject to taxation, and upon the proper basis, that a re-statement of the reasons for such holding would seem unnecessary. See Spencer v. The Peoples, 68 Ill. 510; Lyle v. Jacques, 101 id. 644; English v. The People, 96 id. 566; Adsit v. Lieb, 76 id. 198; Porter v. Rockford, Rock Island and St. Louis Railroad Co. id. 561; Re public Life Ins. Co. v. Pollak, 75 id. 292; The People v. Big Muddy Iron Co. 89 id. 116; Felsenthal v. Johnson, 104 id. 21; Humphreys et al. v. Nelson, 115 id. 45.

Here, the property was subject to taxation, the tax legal, and the assessment, as returned by the assessor, apparently made in conformity to the mode prescribed by the statute, and by the proper officers. The assessment was returned within the time required, verified by the oath of the assessor, as required by the 90th section of the act, showing, among other things, that the values designated therein were the fair cash values of the lots and tracts of land severally assessed by him. The determination of value by the assessor, when exercised in ■conformity to.the statute, is judicial in its character; and so long as he keeps within the rules prescribed by law for his guidance and conduct, his acts, except in the manner provided by the statute, are not the subject of review, nor can they be impeached or set aside except for fraud or want of jurisdiction of the property assessed. (Ottawa Glass Co. v. McCaleb, 81 Ill. 556.) So it has been held, where the assessor has acted honestly, but erred in judgment by assessing too high or too low, the court will not interfere or disturb the assessment. [City of Chicago v. Burtice, 24 Ill. 489; Elliott v. City of Chicago, 48 id. 294.) And that therefore evidence tending to show ex-excessive valuation was properly excluded. Spencer et al. v. The People, supra, and authorities cited."

But two points are urged against the validity of the assessment of the lots and tracts here involved, all other objections being wholly unsupported by the evidence introduced, and abandoned by counsel in argument- in this court. It is said, first, that no assessment of these lots was in fact made; and second, that the assessment of the same was excessive, and that by the false statement of the assessor at the time of the assessment, objectors were prevented from applying to the ■county board for redress. It is manifest, if no assessment was in fact made by the assessor, the court should have sustained the objection to the whole tax. If the assessment and return could be contradicted by parol, the evidence fails to sustain the contention of counsel.

By the statute, (sec. 16,) the assessor, between the first day. of May and the first day of July, is required to actually view and determine, as nearly as practicable, the fair cash value of each tract or lot of land listed for taxation, and set down in the proper column, in the book furnished him, the value of each tract or lot, etc., and by section 90 is required to return his assessment on or before the first day of July, verified by his affidavit, etc. The evidence shows that the deputy assessor actually viewed the premises, and did determine the actual cash value of the lots and tracts of land of objectors, severally, and set down, in his book, opposite each tract, under the appropriate heading, such fair cash value as determined by him, and that the same was returned as the assessment of such tracts and lots. It can make no possible difference that the deputy supposed that his work was subject to review by some one else, or that his assessment would be reduced. His valuation was upon the basis fixed by law for determining the valuation of property for taxation, and no other basis could have been adopted that would have been a compliance with the law.

It is shown that the valuation of the lots made by the assessor was made and entered in the presence of the objectors, and they knew he made the same upon the basis of then: fair cash value. No objection seems to have been made then, nor is it urged now, that there was any over-valuation upon that basis. Objectors are presumed to have known that the assessor was required by law to assess then property at its fair cash value, and return, under oath, that he had done so, and that there was no authority of law for reducing the valuation below such value. It is true the evidence shows that the county assessor instructed his deputies to assess at one-third of the fair cash value, all property, and that some of the property of the,county, ; —to what extent does not appear,—was so assessed; but that can form no basis for resistance to the payment of taxes by objectors, for the reason, as we have seen, if the property of others was assessed too low, they might have appeared before the county board, and upon complaint, and the inequality appearing, the board would have reviewed the assessment and have corrected the same', as should appear just. The omission to assess others liable to taxation, or to assess portions of their property, or the assessment of the property of others at less than its fair cash value, while it may cause the tax-payer whose property is assessed at its fair cash value, to bear an undue portion of the public burden, will not affect the validity of the tax. Dunham v. City of Chicago, 55 Ill. 357; Spencer et al. v. The People, supra.

It is not shown or contended that the deputy assessor was guilty of any fraud in making the assessment complained of. On the contrary, it is shown that he acted honestly, and' in good faith determined the fair cash value of the property of objectors, and entered it in the assessor’s book accordingly but it is urged that objectors were misled into supposing that some one else would reduce their assessment. It is shown that the deputy stated to Mr. Harrison, that property he estimated at $15,000 as its fair cash value, and so put down by him, would be reduced to $5000; and to others, that the county board would reduce his valuation to one-third thereof, or to whatever would be sufficient to raise the requisite amount of taxes, etc. And it is said, but for these statements objectors could have applied to the county board, and would have done so, and had their assessments reduced. There are several manifest answers to the position that such representations would affect the validity of the assessment. The objectors are presumed to know the law, and that the assessor was required by law to assess their property at its fair cash value, and return his assessment, under oath, that it was so assessed, and that the county board were not authorized to determine the amount of taxes required, -except for county purposes, and were powerless to reduce the assessment upon that basis or any other, except upon complaint that an assessment was too high or too low, or by way of equalization of the whole assessment of the county. But the fraud contemplated, and which will authorize courts to interfere and declare an assessment void, is such as affects the assessment itself. If, however, such representations were fraudulently made, they were not in respect of the assessment as then made by the deputy, and if prejudicial to objectors, are so only in that they prevented their taking other steps to reduce the assessment. The only duty of the assessor was to view, assess and return an assessment of property at its fair cash value. Except when sitting as a member of the board of town review, he is not authorized to reduce assessments; and any statements he might make at the time of making an assessment, could have no greater force than if made by a stranger, and objectors having had notice of the assessment, were not relieved by his declarations from petitioning the county board, if entitled to have then* assessment reduced.

But the complete answer to the contention is, that there is no pretence that injustice has been done objectors. While the statute remains as it is, assessments are rightly and justly made upon the basis of the fair cash value of the property assessed.

We think that the evidence was improperly admitted, and that the county court erred in not rendering judgment for the full amount of the tax extended against the land of objectors.

The judgment of the county court is therefore reversed, and the cause remanded for further proceedings in conformity with this opinion.

Judgment reversed.