author: Mr. Justice Sheldon

text:
    The Chicago and Western Indiana Railroad Company v. The Illinois Central Railroad Company et al.

      Filed at Ottawa

      January 22, 1885.

    1. Eminent domain—acquiring right of wary by one railway company across the track of another. The sixth clause of section 19 of the general Railroad law of 1872, confers power upon any railroad corporation formed under that act, to cross, intersect, etc., any other railway before constructed, at any point in its route, and upon the grounds of such other railway company; and provides that if the two corporations can not agree upon the amount of compensation to be made therefor, or the points and manner of such crossings, etc., the same shall be ascertained and determined in the manner provided by law,—which means by a proceeding under the Eminent Domain act.
    2. The fact that a railway company has acquired a strip of land thirty feet wide across another railway company’s right of way, for a crossing, upon which to lay two tracks, at the expense of the former, by mutual agreement and for a consideration agreed upon, will not preclude the former from obtaining, under the Eminent Domain act, an additional right of way of twenty feet across the latter company’s road when rendered necessary by the increased business of the former road, where there is no restriction of such right in the agreement; and it matters not that such increased business is brought about by its contracts of connection with other railroad companies.
    3. Where a right of one railway company to cross another company’s road by two tracks has been acquired by purchase, and limited to a right of way thirty feet wide, and it does not appear that the relinquishment for the future of any right of further application for additional facilities of crossing in any way entered into the amount of compensation which was arranged, and the right to lay additional tracks across the same road is sought by condemnation, the company- seeking to condemn will not be required to surrender its rights acquired by the purchase in order that it may have the condemnation sought, and have compensation assessed for the four tracks in that proceeding.
    4. It matters not that the necessity for an increase of the right of way for additional tracks of a railway company is caused by the use of its road by other companies acting under its lease or by contract, nor does it matter by what corporation or corporations its road is actually operated. It is still a public use, and in such case the need of the lessees is that of the lessor company, and the lessees may proceed to condemn in the name of the lessor, when the public necessity so requires.
    5. Where a railway company has acquired, by agreement, the right to lay two railroad tracks across a railroad previously constructed, and it seeks to condemn, under the Eminent Domain act, an' additional strip on which to construct two other of its tracks across the same road, the fact that it will produce an obstruction and an inconvenience to the company whose road is sought to be crossed is no reason for enjoining the proceeding to condemn, as all the damages caused thereby, when ascertained, will have to be paid, and it will be presumed they will be fully awarded.
    Appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    Mr. Charles M. Osborn, for the appellant:
    The petitioner had the right to select its own route, and the place and manner of crossing other roads, and to determine the necessity for its acquiring any particular property. Railroad Co. v. Town of Lake, 71 Ill. 333; Railroad Co. v. Railroad Co. 97 id. 500.
    One railway company maycondemn a crossing over another, notwithstanding it may cause damage or inconvenience to the prior occupant. Railway Co. v. Railway Co. 108 Ill. 265.
    I believe it to be impossible to distinguish between those cases in which it is sought to take a tract of land or make a crossing of another road in the original construction of a road, and where it is desired to obtain additional property or obtain additional crossings rendered necessary by the increased business of the l’Qad. Railroad Co. v. Wilson, 17 Ill. 123; Low v. Railroad Co. 18 id. 324; Railroad Co. v. Railroad Co. 36 Conn. 196.
    The fact that additional crossings are made necessary by increase of business by making running arrangements with other companies, or by leasing, makes no difference to the exercise of the right to further condemn. Railroad Co. v. Dunbar, 100 Ill. 137; Chicago v. Railroad Co. 105 id. 73; Smith v. Railroad Co. id. 511; Kip v. Railroad Co. 13 N. Y. 224; 67 N. Y. (Hun,) 227.
    A lease for one hundred years does not change the relation of the lessor to the State, and does not vest in the lessee company the power to exercise the eminent domain, but such power remains with the lessor company. Mayer v. Railroad Co. 109 Mass. 115.
    The petitioner, by acquiring a partial right of way by contract, is not estopped from condemning a further one, and never did surrender its rights under, the Eminent Domain act.
    The State is not capable of permanently abandoning, or surrendering, or granting away, the exercise of the right of eminent domain. Cooley’s Const. Lim. (4th ed.) 343, 281, 282, 652, 653, 525; Railroad Co. v. Railway Co. 2 Gray, 1; Piscataqua Bridge v. New Hampshire Bridge, 7 N. H. 69; Backus v. Lebanon, 11 id. 20; Railroad Co. v. Railroad Co. Ill Mass. 125.
    Taking of property under this right is not an exhaustion of the right in respect to that property. Railroad Co. v. Railroad Co. 36 Conn. 196; Railroad Co. v. Kip, 67 N. Y. 227; 47 id. 546; 6 Hun, 26.
    Mr. W. C. Goudy, for the appellees, filed a lengthy and exhaustive argument as to the facts, and rights of the respective parties, and the public.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a bill in equity, brought by the Illinois Central Railroad Company, the Chicago and Northwestern Railway Company, and the Michigan Central Railroad Company, against the Chicago, and Western Indiana Railroad Company and. the Chicago, Burlington and Quincy Railroad Company, praying for an injunction to restrain the Chicago and Western Indiana Railroad Company from proceeding with a petition which it had theretofore filed in the county court of Cook county, to condemn a right of way over and across the St. Charles Air Line railroad, twenty feet in width. Upon hearing, on answer and proofs taken, the circuit court decreed in favor of the complainants, granting the prayer of the bill, and the Chicago and Western Indiana Railway Company appeals from the decree.

The piece of railroad known as the St. Charles Air Line railroad is half a mile in length, and extends from the Illinois Central railroad tracks on the lake front to the south branch of the Chicago river, just north of and parallel with Sixteenth street, in the city of Chicago. It is not a part of a main line of road, and its principal business is to transfer cars between the roads of its different owners. It was constructed prior to 1865, under some grant from the State, and by the special act of 1865 (see 2 Private Laws 1865, p. 171,) the present owners, being the complainants, and the Chicago, Burlington and Quincy Railroad Company, were authorized to maintain and operate it. The Chicago and Western Indiana Railroad Company was organized under the general Railroad law of 1872. The 6th clause of section 19 of that law confers power upon any corporation formed thereunder, to cross, intersect, join and unite its railway with any other railway before constructed, at any point in its route, and upon the grounds of such other railway company, with the necessary turn-outs, sidings, switches and other conveniences in furtherance of the object of its connection, and provides that every corporation whose railway is or shall be intersected by any new railway, shall unite with the corporation owning such new railway in forming such intersections and connections, and grant the facilities aforesaid; and if the two corporations can not agree upon the amount of compensation to be made therefor, or the points and manner of such crossings and connections, the same shall be ascertained and determined in the manner prescribed by law. This court has decided that the manner provided by law is a proceeding under the Eminent Domain act, as also that the corporation seeking the right of way, when the parties can not agree, may select the place and manner of the proposed crossing, and the character- and conditions of the use sought. Lake Shore and Michigan Southern Ry. Co. v. Chicago and Western Indiana Railroad Co. 97 Ill. 506; East St. Louis Connecting Ry. Co. v. East St. Louis Union Ry. Co. 108 id. 265.

The decree recites that a contract mentioned in the bill' was made between the parties, concerning the use by the Chicago and Western Indiana Railroad Company of a strip of ground thirty feet in width, across the right of way of the St. Charles Air Line railroad, and the building of two tracks across the same, as set out in the bill, and that the condemnation proceeding in question was subsequently commenced to obtain a strip of land twenty feet wide, across the St. Charles Air Line railroad, and it was therefore decreed that the Chicago and Western Indiana Railroad Company be enjoined from proceeding with its petition for condemnation. The decree seems to be rested upon that contract, and it is that contract which is mainly relied on for the support of the decree. The contract is in writing, of date March 11, 1880, and purports to be made between the Chicago, Burlington and Quincy Railroad Company, the Michigan Central Railroad Company, the Chicago and Northwestern Railway Company, and the Illinois Central Railroad Company, parties of the first part, and the Chicago and Western Indiana Railroad Company, party of the second part, and is executed by each of the companies, except the Michigan Central Railroad Company. Thereby the parties of the first part agree to grant to the party of the second part the right to use, for nine hundred and ninety-nine years, a strip of land thirty feet wide across the right of way of the St. Charles Air Line railroad, for the purpose of constructing thereon two tracks for the use of the party of the second part,—in consideration of which grant the party of the second part agrees to pay the sum of $3000. And as a further consideration, the party of the second part agrees to put in, at its own expense, and to the satisfaction of the parties of the first part, the crossing-frogs and necessary crossing-gates, with suitable targets, signal lights, and all necessary appurtenances, and to maintain the same to the satisfaction of the parties of the first part, at its own expense; also, to furnish and pay the wages of the necessary watchmen to attend said crossing-gates. The contract further provided that the right of way it granted should be used only for the construction of two tracks and crossings thereon, by the party of the second part, and that the grant should become absolutely void and at an end on any other use being made of said strip of land thirty feet wide, by the party of the second part. The party of the first part reserved the right to lay a third track on their right of way when in ' their judgment it should become necessary, in which event the party of the second part agreed to put in and maintain, at its own expense, the necessary frogs for such third track. The contract, - by its terms, is confined solely to the strip of thirty feet in width which it grants. It provides explicitly enough that within that thirty feet there shall never be constructed more than two tracks by the party of the second part, but as to the construction of any tracks outside of the thirty feet there is no restriction whatever.

If appellant, when it located its road so as to cross the St. Charles Air Line railroad, had been unable to agree with the owners of the latter railroad upon the points and manner of crossing and connection, then, it is conceded, a petition • might have been filed in the proper court, under the Eminent Domain act, to ascertain the compensation to be made for the crossing. But it is said that here the parties were able to and did agree; that- by the express language of the statute, duties are imposed upon both corporations; that mutual action is required, and that in the nature of things the crossing could not be constructed without joint, mutual cooperation; that all was here arranged by agreement,—the compensation, the point and manner of making a crossing, the connections and maintenance of such crossing, the number of tracks, etc.,—. and it is contended that this agreement was a complete and final disposition of the entire question of the crossing for all future time; that it was only in the absence of the ability to make the agreement that authority was conferred to condemn under the Eminent Domain statute, and that, having made such an agreement, the power to condemn did not exist. The having acquired property by a railroad company, for its use, by the exercise of the right of eminent domain, does not preclude the company from obtaining, through the exercise of such right, additional property, rendered necessary by the increased business of the road. It is a continuing power, which may be exercised from time to time, as the needs of the company may require. (Chicago, Burlington and Quincy Railroad Co. v. Wilson, 17 Ill. 123; Low v. Galena and Chicago Union Railroad Co. 18 id. 324. And see N. Y., H. and N. Railroad Co. v. B. H. and E. Railroad Co. 36 Conn. 196.) And the same, we regard, must be true with respect to a crossing of another railroad which had before been acquired, and where such original acquisition had been, as in this case, by agreement. Mr. Jeffery, the superintendent of the St. Charles Air Line and Illinois Central companies, and for whom he negotiated the agreement, says that it would not have been made if it had been known that other accommodations would be required. But this we understand to be but an expression of his opinion on the subject. He- does say that it was stated during the negotiations that the two tracks were all that would ever be asked for, and that if such statement had not been made, theynvould have made no contract. But there is in the testimony direct denial of the making of such statement, and we can not, from all the evidence, find that it was made.

We perceive nothing in the agreement, or in the written correspondence in evidence which led to the making of the agreement, or in anything else, to restrict the appellant ever after to the two tracks specified in the contract, or to afford support for the notion that no further crossing facilities would ever afterward be asked for, in ease the road’s increase of business should require them. The agreement was entered into, doubtless, in view, by both sides, of the present and prohable future wants of the Chicago and Western Indiana company, and with the supposition that the two tracks provided would be sufficient therefor, without anticipation by either party of the large increase of business which has come upon that company’s road. When the agreement was made (March 11, 1880,) for the crossing by two tracks on a strip thirty feet wide, the Chicago and Western Indiana Railroad Company had contracts with the Chicago and Eastern Illinois Railroad Company, and the Wabash, St. Louis and Pacific Railroad Company, by which said two companies entered city of Chicago over the tracks of the Chicago and Western Indiana railroad. Afterwards, in the summer and fall of 1880, the Chicago and Western Indiana Eailroad Company made similar contracts with the Chicago and Grand Trunk Railway Company, which is the western terminus of the Grand Trunk system of roads; with the Chicago and Atlantic Railroad Company, which is the -western terminus of the Erie system; and -with the Louisville, New Albany and Chicago Railroad Company. Thereby it is claimed that it became necessary for the operation of appellant’s railroad that it should have four tracks entirely through and beyond the city of Chicago, and that the use of a strip of land fifty feet in width is necessary for the construction of four tracks. Application was made by appellant, in November, 1880, to the superintendent, to make an agreement for permission to use a further strip, twenty feet -wide, across the right of way of the St. Charles Air Line railroad, and to lay two additional tracks, making four in all. A part of the owners declined to grant the permission to lay any additional tracks. On January 31, 1881, the Chicago and Western Indiana Eailroad Company filed in the county court the petition whose prosecution has been enjoined, to condemn the strip twenty feet wide, adjoining the strip thirty feet wide, previously obtained by the agreement.

It appears that the Chicago and Western Indiana Railroad Company has a strip of land fifty feet wide, from Polk street, in the city of Chicago, for a distance of five miles south, to Forty-ninth street, in the town of Lake, so that, except this intervening strip now sought for, thirty feet in length and twenty feet in breadth, the company’s right of way, fifty feet wide for the above distance, with four main tracks built upon it, is substantially complete. It appears in the case that there is a reasonable necessity for these two additional tracks, to accommodate the increased present business upon appellant’s road. We find nothing in the agreement in question which should estop appellant from procuring additional accommodations when the necessity arises therefor, or which should debar the company from proceeding with its present petition for condemnation. The bill alleges that it is the intention of appellant to use the additional tracks desired, for switching and yard purposes, which would produce damages to complainants which can not be computed. But appellant, by its answer and proofs, disclaims any desire to use the tracks for such purposes. We do not see that the condemnation sought will amount to anything approaching to a destruction of the uses of the St'. Charles Air Line road, but that it will produce only obstruction and inconvenience in its use. All damages which complainants will suffer thereby they are entitled to have jiaid to them, and we must suppose that they will be fully awarded by the jury to be sworn to assess them.

The Chicago and Western Indiana Railroad Company was incorporated under the general Railroad act now in force, and was authorized by its articles of association to build a railroad from Dalton, on the Indiana State line, to Chicago. The Chicago and Western Indiana Belt company was authorized to build tracks around Chicago, to make connections with other lines. These companies, with the South Chicago and Western Indiana Railroad Company, have been consolidated under the name of the Chicago and Western Indiana Railroad Company. The distance of the original line was about seventeen miles. The entire line of the consolidated company, including the Belt, is fifty-two miles. It is shown that the company does not own a single passenger or freight car, or locomotive, and does not transport passengers or freight; that it is the owner of certain rights of way, railroad tracks, and ground used for warehouses and depots; that the rights and privileges to use these are leased to other railroad companies. Upon this state of facts, the point is made that as, after the crossing had been secured, running arrangements were made with the three other railroad companies mentioned, much more than doubling the amount of business to be done, to accommodate which an additional crossing is made needful, that this is not a necessity of the Chicago and Western Indiana Railroad Company which will be recognized by the law as being sufficient to place it in the condition for obtaining additional facilities under the Eminent Domain law. The general Railroad act gives express power to railroad corporations formed thereunder to make arrangements with other railroad corporations for the leasing or running their roads, or any part thereof. This right, with reference to this same company, was recognized and affirmed in Chicago and Western Indiana Railroad Co. v. Dunbar, 100 Ill. 137. In City of Chicago v. Chicago and Western Indiana Railroad Co. 105 Ill. 511, where the objection was urged that the company had violated the ordinance giving it permission to enter the city, by allowing more than two roads to use its line for entrance into the city, and it was held that the ordinance compelled the company to allow the use of its line by two roads, but did not restrict it as to the number which should be admitted. The question is of the necessity for the public use of what is sought to be taken—whether it is needed for the operation of this railroad. Whether it be leased or not, or by what particular corporation or corporations the road may be actually operated, does not affect the question. As respects this matter, the needs of the lessees are as those of the lessor company, and any condemnation for their wants may proceed in such latter company’s name, and it all the while stands responsible for the running of the road. See Kip v. N. Y. and H. Railroad Co. 6 Hun, 24; S. C. 67 N. Y. 227.

It is also contended that the statutes of the State prohibit any railroad company from entering a city unless with the consent of the municipal authorities, and that by allowing other railroad companies to use its tracks, appellant has violated the policy of the law. This would not seem to be a matter about which appellees should be heard to complain, but that it should rest with the city authorities. In granting the permission to construct a railroad in a city, it is done in view of the law allowing agreements to be made with other railroad companies to run their cars into the city upon the tracks of such railroad, and the city authorities have it in their power, by their ordinance granting permission, to restrict or forbid such use, if they see fit. It would seem to be for the public benefit that different railroad companies entering into a city should concentre upon as few lines of tracks as need be. And this policy would appear to have been recognized in the case of this very road of the appellant, by the ordinance giving it permission to enter the city expressly requiring that it should allow the use of its line in the city by at least two other roads.

It is suggested that as only the nominal sum of $3000, which was no adequate compensation, was exacted and paid under the agreement in question, upon the supposition that that was final and no additional accommodation would ever be asked for, it is but equitable, if appellant would proceed for a condemnation for additional tracks, that it should surrender all rights under the agreement, and resort to the court to ascertain the entire damages for the four tracks. We do not perceive, from the evidence, that relinquishment for the future of any right of further application for additional facilities of crossing, in any way entered into the amount of compensation which was arranged for by the agreement, and we can not recognize any equitable requirement on the part of appellant that it should surrender what it holds under the agreement, and stop the operation of its road over the thirty feet until the condemnation sought can be had.

The decree must be reversed, and the cause remanded for further proceedings in accordance with this opinion.

Decree reversed.

Walker and Scott, JJ., dissenting.

Mr. Justice Dickey : I think the agreement under which appellant acquired the right of way over thirty feet for a crossing, in its substance covered the entire subject of the crossings. Under that contract appellees had a right to limit appellant to the use of two tracks, and to have these tracks confined to the thirty feet acquired under that contract. That right, in my judgment, is property, and can not be taken away without just compensation. That property, however, like other property, may be taken by condemnation. The condemnation of the additional ground sought now, I think, necessarily includes the taking away from appellees the rights under that contract, and calls for damages for that taking, as well as the taking of the additional ground. With that view, I think, the proceeding ought to go on.

Mr. Chief Justice Scholfield concurs in what is said by Mr. Justice Dickey.


source: Caselaw Access Project

author: Mr. Chief Justice Scholfield

license: Public Domain

text:
    Stephen P. Lunt et al. v. John H. Wrenn.

      Filed at Ottawa

      February 7, 1885.

    1. Limitation—action for recovery of money paid on a consideration which fails entirely. In 1868, bankers in Nebraska ordered from the plaintiffs’ private bankers in this State, twelve pieces of land scrip for location on public lands of the United States, when plaintiffs applied to and bought of defendants, also private bankers, the desired amount of scrip, which was located. After such locations, and when the scrip was forwarded to the general land office, six pieces of the scrip were declared counterfeit and worthless, and the land officers refused to issue patents for the lands upon which they had been located, and vacated the locations. In May, 1875, the bankers first named sued the plaintiffs, and recovered judgment for the sum paid for the worthless scrip, and interest. The plaintiff immediately, upon being sued, notified the defendants of that fact, and asked them to defend the suit, which they failed to do. In 1878, the plaintiffs sued the defendants to recover the sum they had been compelled to pay, in defence of which action the Statute of Limitations was pleaded. It was stipulated that plaintiffs had notice that such scrip was counterfeit and worthless, prior to January 8, 1872: Held, that the action was barred by the statute, whether the action was to recover for a breach of the implied warranty of title, or for a total failure of the consideration of the payment.
    2. Measure op damages—suit by buyer against seller, for failure of title. Where the seller of public land scrip has knowledge that the same has proved counterfeit and worthless, he will not be justified in defending a suit against him, by one to whom he sold, and failing to pay until a judgment is rendered against him; and if he does, he can not recover the costs thereby occasioned, of his vendor, in an action against him. Costs unnecessarily made by a purchaser in defending the title of the property purchased, are not chargeable against his vendor.
    3. Action—to recover for money paid for counterfeit land scrip— whether a return or offer to return the scrip is necessary. The purchaser of land scrip which proves to be counterfeit and worthless, is not required to return or offer to return the same to the seller, before he can maintain an action to recover back the price paid for the same. The rule is different in respect to counterfeit bank bills. There a return is necessary, to enable the payer to trace out and fall back upon the person from whom he received them.

      Appeal from the Appellate Court for the First District;—■ heard in that court on appeal from the Circuit Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    This was an action of assumpsit, by appellants, against appellee and Trefer & Ullman. The declaration contained two special counts, to which appellee pleaded, first, the general issue; and second, the Statute of Limitations,—that the suit was not brought within five years after the cause of action accrued. Eeplication was filed, taking issue upon the plea of the statute.
    The following are stipulated to be the facts: In April, 1868, McCann & Smith, private bankers' in Nebraska, ordered from the plaintiffs twelve pieces of “Agricultural College scrip,” so-called, being in the nature of warrants for the location, on public lands of the United States, of each of such pieces of scrip, to the extent of one hundred and sixty acres, and in pursuance of such order the plaintiffs applied to the defendants for the scrip to fill such order, and the defendants, who were then private bankers, offered to sell to the plaintiffs, who were also private bankers, such scrip, at the rate of $160 for each piece of scrip authorizing its location on one hundred and sixty acres of public land, which offer the plaintiffs accepted. Thereupon the defendants delivered to the plaintiffs twelve pieces of such scrip, purporting to have been issued by the United States to the State of Massachusetts, and authorizing the holders to locate each of such certificates or pieces of scrip on one hundred and sixty acres of the public unseated lands of the United States, for which the plaintiffs paid the defendants the sum of $1920, and immediately sent the same to said McCann & Smith, in compliance with their order, who by return mail remitted to the plaintiffs such cost of said scrip. Subsequently said McCann & Smith assigned said twelve pieces of scrip to one.Walker, who located the same on public lands of the United States, in Nebraska. After such locations, and when the said scrip, with duplicate receipts showing the locations, were forwarded to the general land office at Washington, to procure patents, the commissioner of the general land office at Washington pronounced six of said pieces of scrip counterfeit and worthless, and vacated and set aside the locations thereunder, and refused to issue patents for the lands upon which the same had been located, whereupon the said Walker sued the said McCann & Smith, in a Féderal court in Nebraska, for the money paid for such counterfeit scrip, and recovered a judgment for that amount, with interest and costs, against the said McCann & Smith, which they paid and satisfied. Afterwards, at the May term, 1875, the said McCann, who had succeeded to the rights of said McCann & Smith, brought a suit in the United States Circuit Court for the Northern District of Illinois, against the plaintiffs, to recover from them the amount paid for said six pieces of counterfeit scrip, and interest on the amount paid them therefor, and the expenses to which he had been subjected in the said suit of the said Walker, and immediately after the institution of such suit-the plaintiffs in this suit gave the defendants in this suit notice of the pendency thereof, and to assist in the defence of the same, and that they (the plaintiffs in this suit) would look to the defendants in this suit for indemnity against all loss in ease the said McCann should recover a judgment in his said suit. The defendants in this suit disregarded such notice, and took no part in the defence of said suit of McCann against the plaintiffs in this suit. Upon the trial of the said suit of McCann, in the Federal court for the Northern District of Illinois, evidence was offered by the defendants under their several pleas, among which was a plea of the Statute of Limitations, but the plaintiff, McCann, proved that the said six pieces of scrip, held by the commissioner of the general land office to be void, as above'stated, were in fact counterfeit and void; and on the 6th day of March, 1878, after the trial of such cause, the said Federal court for the Northern District of Illinois rendered a judgment in favor of said McCann, and against the plaintiffs in this suit, for the sum of $2025.84, besides the costs of such suit, and immediately after the rendition of such judgment, the defendants therein (the plaintiffs in this suit) paid the same in full to the said McCann. The items composing the said judgment for $2025.84 of damages, . were as follows:
    Original cost of six pieces of scrip, ... $960.00
    Interest on amount paid therefor, - 555.36
    Costs taxed in suit in Nebraska, - 192.86
    Paid attorneys’ fees in Nebraska suit, - 285.00
    $1993.22
    Additional interest on costs in Nebraska suit, - 32.62
    $2025.84
    It was further stipulated that the plaintiffs in this suit had notice that the scrip above mentioned as having been purchased by plaintiffs from defendants, was counterfeit and worthless, prior to the 8th day of January, 1872.
    On the trial of the said cause, the following proceedings were had:
    “This cause came on to be tried, on this day, by the court, without a jury, a jury having been waived, and thereupon, the counsel for the plaintiffs confessing in open court the plea of bankruptcy and discharge pleaded by the defendant James E. Tyler, the issue on that plea is found in favor of said James E. Tyler, and judgment in his favor ordered accordingly ; and thereupon counsel for the plaintiffs, and for the said defendant John H. Wrenn, submitted to the court a stipulation, in writing, signed by them, respectively, of all the facts in the case, to be received by the court as evidence, and the court here, thereupon, finds the facts in the case to be as stipulated by the parties in the above stipulation. And thereupon the counsel for the plaintiffs submitted to the court, in writing, the following propositions of law upon the facts so stipulated and found, to be held as law in the decision of the issues in this case between the plaintiffs, and the defendant John H. Wrenn, to-wit:
    “First—The plaintiffs are entitled to recover against said defendant their said damages by occasion of the premises, unless their action therefor was barred by the Statute of Limitations when they commenced this suit,—which proposition of law the said court here holds and finds as asked.
    “Second—Upon the facts .as stipulated and found by the court, the plaintiffs’ action to recover their damages, sustained by reason of the premises, was not barred by the Statute of Limitations when this suit was commenced, and the plaintiffs are entitled to recover their damages against the defendant,—which proposition of law the court here refuses, and finds, as matter of law upon the facts so stipulated and found, that the plaintiffs’ action to recover their said damages was barred by the Statute of Limitations when this suit was commenced, and therefore finds the issue on the plea of the Statute of Limitations for the said defendant Wrenn, and orders judgment accordingly. To which last refusal and finding by the court the counsel for the plaintiffs, in due form of law, excepted, whereupon it was ordered and considered by the court that the defendant Wrenn go hence, without day, and recover of said .plaintiffs his costs in and on his behalf expended, to be taxed and have execution therefor.”
    Messrs. Sleeper & Whiton, for the appellants:
    When the firm of which appellee was a member, sold the scrip to appellants which proved counterfeit, the sale was accompanied by an implied warranty that the scrip was genuine. Benjamin on Sales, secs. 607, 608 ; Hurd v. Hall, 12 Wis. 135.
    In Ripley v. Wither, 27 Texas, 14, it was held that an action for damages growing opt of the assignment of a forged bounty warrant, did not accrue until after the certificate had been presented to and rejected by the court of claims. In Hutchinson v. Sheboygan County, 26 Wis. 402, it was held that the Statute of Limitations did not run, on a claim of a grantee in an invalid tax deed to have his purchase money refunded, under the laws of that State, until such grantee had clear and positive knowledge that the deed was invalid. So if a surety pays the debt of his principal, the statute begins to run from the time of actual payment, and not from the time he became liable, or from the time when suit is brought to enforce payment. Thayer v. Daniels, 110 Mass. 375; Benton v. Rutherford, 49 Mo. 255; Rodman v. Hedden, 10 Wend. 500; Reeves v. Pulliam, 7 Bax. 119; Barnesback v. Reiner, 8 Minn. 59; Norton v. Hale, 41 Vt. 471; Walker v. Lathrup, 6 Iowa, 516; Church v. Moore, 10 Pa. St. 273.
    The rule is the same in compelling contribution among sureties. Singleton v. Townsend, 45 Mo. 379.
    A cause of action against an officer for not paying money collected on execution, does not accrue when the money is collected, nor until demand is made for its payment. State v. Miner, 44 Mo. 373; Bank v. Waterman, 26 Conn. 324; Weston v. Ames, 10 Metc. 244; Governor v. Stonaur, 11 Ala. 679; Rice v. Hosmer, 12 Mass. 127; King v. Rice, 12 Cush. 161; Childs v. Jordan, 106 Mass. 321; Lynch v. Jennings, 43 Ind. 276.
    If money is left on deposit, and not loaned for a definite time, the statute will not run till a demand. Payne v; Gardiner, 29 N. Y. 146; Sullivan v. Fosdick, 10 Hun, 173; Hamell v. Adams, 68 N. Y. 314; Brown v. McElroy, 52 Ind. 404; Beam v. Adkins, 77 Ill. 263; Bank v. Bank, 39 Pa. St. 92; Brummegin v. Tallant, 29 Cal. 503; Tripp v. Curtenius, 36 Mich. 494; Bank v. Benoist, 10 Mo. 519; Bank v. Bank, 10 G. & J. (Md.) 422; Bank v. Wister, 2 Pet. 318.
    Where money is paid upon a consideration that ultimately fails, the statute does not run till such event, because till then there is no right of recovery. Richards v. Allen, 17 Maine, 296; Eames v. Savage, 14 Mass. 425; Taylor v. Rowland, 26 Texas, 293; Hall v. Fenton, 105 Mass. 516; Baxter v. Gay, 14 Conn. 119; Hellan v. Duncan, 1 Cold. (Tenn.) 313; Coppinger v. Vaden, 5 Humph. 629; Harris v. Harris, 70 Pa. St. 170; Gross v. Kierski, 41 Cal. 111; Collins v. Thayer, 74 Ill. 138.
    The statute begins to run in favor of sureties on executors’ bonds from the time of the judicial ascertainment of the principal’s liability. Bennor v. Young, 68 Ala. 35; Alexander v. Bayan, 110 U. S. 414; Newton v. Hammond, 38 Ohio St. 430.
    Messrs. J. P. & T. R. Wilson, for the appellee:
    The time limited is to be computed from the time at which the creditor has a cause of action, or at the date when he might first have brought suit upon his claim.
    When a person pays money for a bill, bank note, bill of exchange, etc., which proves to have been forged, he may recover it back as paid on a consideration which has wholly failed. Chitty on Contracts, 931; Byles on Bills, 333; Jones v. Ryde, 5 Taunt. 488; Young v. Cole, 3 Bing. (N. C.) 724; Westrop v. Solomon, 8 C. B. 345; Gompertz v. Bartlett, 2 E. & B. 849 ; Tyler v. Bailey, 71 Ill. 34; Benjamin on Sales, secs. 607, 608.
    As soon as a vendor has sold a certificate or scrip which proves counterfeit, and got the money therefor, on that instant a right of action accrues to the purchaser. Westrop v. Solomon, 8 C. B. 345; Farlin v. Stone, 12 R. I. 437; Bishop v. Little, 3 Greenlf. 405; Scott v. Scott’s Executors, 2 Marsh. (Ky.) 217; Chancellor v. Wiggins, 4 B. Mon. 201; Terry v. Bissell, 26 Conn. 23.
    The cause of action, here, was not upon a warranty, but upon a want or failure of consideration for the money paid for the scrip. In addition to the above authorities, see Wilkinson v. Johnson, 3 B. & C. 428; Gurney v. Womershy, 92 E. & L. 133; Kempson v. Saunders, 12 Moore, 44; Addison on Contracts, *1000, 1183; 2 Parsons on Notes and Bills, 40; Aldrich v. Jackson, 5 R. I. 218; Canal Bank v. Bank of Albany, 1 Hill, 287; Webb v. Odell, 49 N. Y. 583; Tyler v. Bailey, 71 Ill. 34; Murray v. Judah, 6 Cow. 491; Wilcox v. Plummer, 4 Pet. 172.
    There need be no return of the forged scrip in such a case. Paul v. City of Kenosha, 22 Wis. 270.
   Mr. Chief Justice Scholfield

delivered the opinion of the Court:

It would seem to be more accurate, in this class of cases, to say that the right of recovery is for the purchase money, because of the failure of the consideration upon which it was paid, than to say that it is for the breach of an implied warranty that the article is that which was professed to be sold. That which was delivered by the seller to the buyer was not that which was sold, but only a worthless counterfeit resemblance of it. The seller has got the buyer’s money, and the buyer has received nothing from him for it. It is not the case of a failure of title, but one of the non-existence of the subject matter of the sale.

The distinction pointed out by Lord Abinger, in Chambs v. Hopkins, 4 Mees. & Wei. 399, has been generally approved, and seems to be sufficiently accurate. He said: “A good deal of confusion has arisen from the unfortunate use made of the word 'warranty.’ Two things have been confounded together. A warranty is an express or implied statement of something which the party undertakes shall be part of a contract, and though part of the contract, yet collateral to the express object of it. But in many of the cases, some of which have been referred to, the circumstance of a party selling a particular thing by its proper description has been called a warranty, and a breach of such a contract a breach of warranty ; but it would be better to distinguish such cases as a non-compliance with a contract which a party has engaged to fulfill, as, if a man offer to buy peas of another, and he sends him beans, he does not perform his contract, but that is not a warranty. There„is no ivarranty that he should sell him peas. The contract is to sell peas, and if he sells him anything else in their stead, it is a non-compliance of it.” Benjamin, in his work on Sales, (1st Am. ed.) p. 443, after copying this quotation, observes: “There can be no doubt of the correctness of the distinction here pointed out. If the sale is of a described article, the tender of an article answering the description is a condition precedent to the purchaser’s liability, and if this condition be not performed, the purchaser is entitled to reject the article, or, if he has paid for it, to recover the price as money had and received for his use; whereas, in case of warranty, the rules are very different. ” He then adds that there is no controversy as to this principle, and as illustrative, cites and quotes from a number of modern English cases, after "which he says: “Under this head may also properly be included the class of cases in which it has been held that the vendor who sells bills of exchange, notes, shares, certificates, and other securities, is bound, not by the collateral contract of warranty, but by the principal contract itself, to deliver, as a condition precedent, that which is genuine,—not that which is false, counterfeit, or not marketable, by the name or denomination used in describing it. ” And he cites, in support of this, Jones v. Ryde, 5 Taunt. 488; Young v. Cole, 3 Bing. (N. C.) 724; Westrop v. Solomon, 8 C. B. 345; Gompertz v. Bartlett, 2 E. & B. 849; 23 L. J. (Q. B.) 65,—and the cases cited fully sustain his language. To like effect, see, also, 1 Smith’s Lead. Cases, (7th Am. ed.) 325; 2 Sehouler on Personal Prop. 320; Chitty on Contracts, (11th Am. ed.) 931; Story on Sales, (2d ed.) secs. 147, 148, 377; Biddle’s Warranties on the Sale of Chattels, sec. 89; Smith v. McNair, 19 Kan. 330; Paul v. City of Kenosha, 22 Wis. 266; Webb v. Odell, 49 N. Y. 583. It is true, this court, in Tyler y. Bailey, 71 Ill. 34, without alluding to the distinction between a breach of an implied warranty and the non-performance of a condition of sale, speak of an implied warranty of the genuineness of the thing sold; but at the same time, it will be observed, it is held that the right of recovery in the ease of a contract to sell land warrants, and the delivery of counterfeits in their stead, is of the money paid by the buyer, on the ground of failure of consideration.

If the right to recover is upon the ground of failure of consideration, it is quite evident that the Statute of Limitations is a complete defence, since, in that event, it began to run from the date of the transaction, for the condition of the scrip was then precisely what it is now,—counterfeit and worthless,—and the evidence discloses no circumstance whereby, in any contingency, legitimate profit could be derived from its possession, either then or prospectively. And if we shall concede that the liability to recover is upon the ground of an implied warranty of genuineness, we think it is equally clear that the Statute of Limitations, on the facts admitted in this record, is a complete defence. The implied warranty, if it existed, was broken eo instanti it was made. (Blethen v. Lovering, 58 Maine, 457.) The scrip was then counterfeit, and a nullity. There was nothing of title or value that passed by the change of its possession, and no future contingency could possibly affect its legal character. In this the case is essentially different from the class of eases wherein some courts have held that a warranty of title to personal property, where the property has been delivered, is not broken until the purchaser is dispossessed. Those cases proceed upon the theory that until dispossessed, the purchaser has all that he bought, and his possession, alone, may ultimately become sufficient evidence of title. There was no necessity to return, or to offer to return, the scrip, because it could be of no possible value to the owner. (Paul v. City of Kenosha, and Smith v. McNair, supra.) The reason why it is held, where payments have been made in counterfeit bills, the bills must be returned within a reasonable time to authorize the payee to recover from the payer, is to enable the payer to trace out and fall back upon the person from whom he received them. (Simmons v. Clark, 11 Ill. 137; Magee v. Carmack, 13 id. 289; Bank v. Baldenwick, 45 id. 375.) But this can have no application to the present case, for this scrip can be traced back- to its original holder as well without as with its possession.

We can perceive no reason why appellants should have waited until prosecuted successfully by their vendees on account of a subsequent sale by them of the same scrip. The only effect of such an action was to judicially establish the fact that the scrip was counterfeit, and if that fact was known before, appellants were not justified in defending the suit, and they could not charge appellee with the costs occasioned thereby, for, in that event, the suit was unnecessarily resisted, and costs are not chargeable against the vendor in such cases. Sedgwick on Measure of Damages, (2d ed.) 292; Chitty on Contracts, (11th Am. ed.) 658; Wrightup v. Chamberlain, 7 Scott, 598. See, also, Penley v. Watts, 7 Mees. & Wel. 609.

It is here stipulated that “the plaintiffs in this suit had notice that the scrip above mentioned” (i. e., the scrip on account of the sale of which the suit is brought,) “as having been purchased by plaintiffs from defendants, was counterfeit and worthless, prior to the 8th day of January, 1872,”—and this was long before the trial of the suit in which appellants’ vendees were plaintiffs, and appellants were defendants, and more than five years before the bringing of the present suit. The admission of notice was not, as counsel for appellants insist, simply from “common rumor and suspicion,” but that the plaintiffs had notice of the fact. No mitigating or qualifying circumstance is inserted in the stipulation,—and thus the ease is entirely different from Ripley v. Wither, 27 Texas, 14, cited by counsel for appellants. The admission of notice in this general, unqualified language, is equivalent to an admission of knowledge of the facts as they existed. 2 Bouvier’s Law Dic. (15th ed.) 307; 1 Story’s Eq. Jur. sec. 399. See, also, Wade on Notice, sec. 3, et seq.

Merchants’ National Bank v. First National Bank, 4 Hughes, 9, (3 Fed. Rep. 66.) cited on behalf of appellants, was an action brought on this state of facts : On the 16th of March, 1867, the treasurer of the United States made his draft on the First National Bank of Baltimore, a government depository, for $1609.55, payable to the order of William Orndorff. This draft, apparently indorsed by the payee and one Haggart, was forwarded by the Shenandoah Valley National Bank, with its own indorsement, to the Merchants’ National Bank of Baltimore, for collection. On the 22d of March it was indorsed by the Merchants’ National, and, on presentation, paid by the First National in due course of business, both parties supposing the name of Orndorff was genuine. When the payment was made, the amount was charged in account by the First National against the United States, and the draft forwarded with the next weekly statement to the treasurer, for credit, which was allowed without objection. Ten years afterwards, the United States having become satisfied that the indorsement of Orndorff was forged, sued the First National Bank to recover the amount of this credit. The Merchants’ National Bank having been notified of the suit, employed counsel to assist the First National in making a defence. Upon the trial, the forgery was proven, and judgment rendered against the First National for the amount claimed. The First National paid the judgment, and then brought this suit against the Merchants’ National to recover what was so paid, "on the ground that the latter bank, by its indorsement of the draft, and receipt of the money thereon, became responsible for the genuineness of Orndorff’s signature. To this suit the Merchants’ National pleaded the Maryland Statute * of Limitations, and the question presented was, whether the statute began to run when the draft was paid, or when the judgment in favor of the United States, against the First National, was rendered. The court held that the statute only began to run when the judgment in favor of the United States was rendered. The decision is based upon the authority of Cowper v. Godward, 9 Bing. T88, (23 E. C. L. 452,) where it was held, in an action for money had and received, to recover the consideration money of a void annuity, (where the annuity was granted more than six years before the action brought, but was treated by the grantor as a subsisting annuity within that period, although subsequently avoided at his instance,) that the Statute of Limitations did not begin to run until the annuity had been avoided.' In that case, Tindal, Ch. J., in speaking of the question when the statute began to run, said: “That question depends upon another: At what time did the cause of action arise ? The cause of action comprises two steps. The first is the original advance of the money by the grantee; the second is the grantor’s election to avail himself of the defect in the memorial of annuity. The cause of action, therefore, was not, complete till the last step was taken, in Michaelmas term, 1830. If we were to decide otherwise, the grantor of a defective annuity might, in every case, defraud the annuitant by paying the annuity for six years, and then having set aside the securities by pleading the Statutes of Limitations. ” Ch. J. Wait, in Merchants’ National Bank v. First National Bank, supra, having quoted from this reasoning of Tindal, Ch. J., adds: “In the present case, also, the warranty contemplated two things: First, the giving of credit by the United States; and second, its continuance. As the first requirement of this undertaking was complied with, no right of action could arise until the second was broken. * That certainly did not occur until the United States elected to take back the credit .it had given. * * * Here the consideration was paid to get a credit with the United States, and the failure was not complete until the credit which had once been given was withdrawn. ”

In the present case, if the United States land officers, on the first presentation of the scrip to them, had treated it as valid, and issued patents for lands accordingly, and the forgery of the scrip had only been discovered afterwards, and proceedings had then been instituted declaring the patents invalid on that account, the analogy to those eases, though not complete, would have been much greater than it is, and there would have been plausibility in claiming the rule announced in those cases is applicable here. But the United States land officers discovered the forgery of this scrip, and repudiated it, upon presentation. No one was lulled into a moment’s inaction by the conduct of those officers in regard to the scrip. It never accomplished any purpose, either temporary or otherwise, and no impediment lay in the way of bringing the suit, from, at least, the time it is admitted appellants knew of the forgery and worthlessness of the scrip.

We perceive no cause to disturb the judgment below, and it is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Scott

text:
    Mary Bozarth v. W. D. Landers et al.

      Filed at Mt. Vernon

      February 5, 1885.

    1. Appeal—on certificate of Appellate Court—in a suit to foreclose mortgage. On bill to foreclose a mortgage, where the circuit court found against the validity of a tax title claimed by the wife of the mortgagor, acquired by her independent of her husband, an appeal by the wife will lie from the judgment of the Appellate Court affirming the decree barring the wife from the assertion of her title, when the Appellate Court makes the necessary certificate to enable her to do so.
    2. Foreclosure—trying independent title claimed by the wife of the mortgagor. On bill to foreclose a mortgage given by a husband to secure a debt of Ms own, -in which his wife joined, the latter set up a title subsequently obtained at a tax sale, being an adverse claim of title in no way connected with the title of the mortgagor. A decree of foreclosure was entered, which provided that in default of payment, “all right and equity of redemption of said defendants therein be forever barred and foreclosed. ” This was held to be error. The decree should have been one simply of foreclosure, leaving the purchaser under the decree and the claimant under the tax title, to settle their respective rights in a court of law, where legal titles are more properly cognizable.
    Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of Wayne county; the Hon. Chauncey S. Conger, Judge, presiding.
    Messrs. Creighton & Sibley, and Mr. Edwin Beecher, for the appellant:
    There being no covenants or false representations by the appellant, there can be no estoppel. Stookey v. Hughes, 18 Ill. 55; Botsford v. Wilson, 75 id. 132.
    A deed of bargain and sale, (or, under our practice, a quitclaim,) has never been held to estop a party from setting up an after acquired title. Jackson v. Wright, 14 Johns. 193; Jackson v. Winslow, 9 Cow. 14; Sparrow v. Kingman, 1 Conn. 247; Allen v. Sayward, 5 Greenlf. 227.
    At common law a, feme covert who joined with her husband in conveying his land, was not estopped from setting up an after acquired title. Jackson v. Vanderheyden, 17 Johns. 167; Rogers v. Higgins, 48 Ill. 211; Bank of America v. Banks,. 101 U. S. 247; Martin v. Dwelly, 6 Wend. 9; Holbrook v. Debo, 99 Ill. 372; Murvin v. Smith, 46 N. Y. 571; Bernies v. Call, 10 Allen, 512.
    In this State, prior to 1874, even after the passage of the act of 1861, known as the Married Woman’s law, the wife was not bound by express covenants in her deed. Strawn v. Strawn, 50 Ill. 33; Botsford v. Wilson, 75 id. 132.
    The statute has not increased the liability of the wife except when acting in relation to her individual property. She can now acquire, hold and transfer property as if she were single. Patten v. Patten, 75 Ill. 449; Cooper v. Cooper, 76 id. 64; Tomlinson v. Matthews, 98 id. 178; Edwards v. Schoeneman, 104 id. 278; Thomas v. Mueller, 106 id. 36.
    A wife may maintain ejectment against her husband to recover possession of -her lands. Wood v. Wood, 83 N. T. 575.
    If appellant was not liable for taxes, or bound to keep them paid, she would have the same right to purchase at a tax sale as a stranger. Ervin v. Morris, 26 Kan. 664; Sands v. Davis, 40 Mich. 14; Blackwood v. Van Vliet, 30 id. 122; Bleakley v. Bestor, 13 Ill. 708.
    It is for the party objecting to the tax deed to show appellant’s liability for taxes. Blealdey v. Bestor, 13 Ill. 714.
    Messrs. Hanna & Adams, for the appellees:
    The doctrine of estoppel applies in this case from the use of the words “grant, bargain and sell, ” which in the statute express covenant of title. (Rev. Stat. 1874, chap. 8, sec. 30.) That being so, appellant can not be heard to say she had no interest in the land when she executed the deed of trust. Van Rensalaer v. Kearney, 11 How. 325.
    While it may be true that a wife is not hound to respond in damages on her covenants of warranty, yet'as against her deed, in which apt words are used indicating assurance of a transfer of property, she can not set up an after acquired interest to defeat her former conveyance. Lessee of Hill v. West, 8 Ohio, 226; Jackson v. Vanderheyden, 17 Johns. 167; Fowler v. Shearer, 7 Mass. 21; Gilbert v. Swan, id. 291; Massie v. Sebastian, 4 Bibb. 436.
    The wife can not acquire a title adverse to the trust, by purchase of a tax title. Anson v. Anson, 20 Iowa, 55; Phillips v. Lube, 25 Pa. St. 56. Nor can she be permitted to procure an adverse title to land claimed and owned by her husband.
   Mr. Justice Scott

delivered the opinion of the Court:

The position taken by counsel for complainants, that this appeal ought to be dismissed because this court has no jurisdiction to hear and determine it, is not tenable. Dobbins v. Cruger, 106 Ill. 383.

This is the usual bill to foreclose a mortgage, and sets forth that Martin E. Bozarth, being indebted to complainants, made his mortgage on the lands involved, his wife, Mary Bozarth, joining with him in its execution, to secure such indebtedness. Among other covenants contained in the mortgage, it appears the mortgagor, Martin E. Bozarth, covenanted, for himself and his heirs, to pay all taxes on the mortgaged premises, but in that covenant his wife does not seem to have joined. Both the mortgagor and his wife are made defendants to the bill, and file separate answers. The mortgagor admitted the making of the note and mortgage, but alleges the transaction was usurious, and that he has paid all that was justly due to complainants. Mary Bozarth, the wife of the mortgagor, admits, as does her husband, the making of the note and mortgage, but avers she had no interest in the land except the prospective right of dower; that the money received by the mortgagor was borrowed and expended by Martin E. Bozarth for his individual use, and that she never received any part of it, and that since the making of the mortgage she has acquired a tax title to the mortgaged premises, under which she claims to be the absolute owner of the property. To the answer, setting up with sufficient fullness the manner in which she acquired the tax title to the lands in controversy, and all matters insisted upon as a defence, the court sustained an exception filed by complainants, and upon her refusal to answer further, a decree was rendered against her as upon default. Thereupon the court decreed a foreclosure of the mortgage, and provided that in the default of payment of the sum found to be due, “all right and equity of redemption of said defendants therein be forever barred and foreclosed.” That decree was affirmed in the Appellate Court, and a majority of the judges of that court having made the necessary certificate to enable her to do so, Mary Bozarth brings the case to this court on her appeal.

It will be perceived that Mary Bozarth claims to be the owner in fee of the mortgaged premises, by a title adverse to that of the mortgagor. She does not claim anything under the mortgage or under the title of the mortgagor, but independent of that title. The court, by rendering a final decree against her, barred all her rights in default of the payment of the mortgage indebtedness, assumed to pass on the validity of her title. This, it is thought, could not properly be done on a bill to foreclose a mortgage. Undoubtedly, the mortgagees were entitled to a foreclosure as against the mortgagor, who it is conceded was the owner of the premises at the time the mortgage was made; and if their title shall be suffered to become absolute under such foreclosure, the question whether the mortgage title will prevail over the title subsequently acquired by Mary Bozarth under the tax deed, can be best tried in a court of law. That is the usual forum in which to settle and determine adverse legal titles to real property. In Gage v. Perry, 93 Ill. 176, it was held ah adverse claim of title, in no way connected with the title of the mortgagor, was not a proper subject for consideration in a suit to foreclose the mortgage. The principle of the case cited would seem to be conclusive of the same question in the case now being considered. The questions made on the argument as to the validity of the title insisted upon by Mary Bozarth, and whether she could be permitted to acquire a title adverse to the mortgage title, were not fairly within the jurisdiction of the court to determine, and it was error to bar her rights under her alleged deed, whatever they may be, as was attempted to be done by the decree. She should have been left free to assert her title, whatever it may be, if the title of complainants under the mortgage should become absolute, and they should seek to obtain possession-of the premises in an action at law. , The court should give complainants no writ of assistance, but should leave the parties to test the strength of their respective titles in the law courts, where such matters are usually cognizable.

The judgment of the Appellate Court will be reversed, and the cause remanded, with directions to that court to reverse the decree of the circuit court and remand the cause, with directions to the circuit court to so modify its decree as to save the rights of Mary Bozarth under her alleged title to the mortgaged premises, whatever they may be, that she may assert the same in any court of law as a matter of. defence or attack, as she may be advised, and in all other respects to decree as in its former decree.

. Judgment reversed.


author: Mr. Justice Craig

text:
    Sarah Woods v. Mary Evans et al.

      Filed at Mt. Vernon

      February 5, 1885.

    1. Specific pebformance—whether matter of right. The specific performance of a contract in equity is not a matter of right in the party seeking it, but a matter of sound discretion in the court, which may grant or deny relief, as may appear equitable under all the facts and circumstances of the case.
    2. Same—as to certainty and fairness—and of the consideration. A contract which is not certain, or which is not fair and just in all its provisions, will not be specifically enforced in a court of equity.
    3. The only significance of a contract to adopt one as an heir, or to give him a child’s part, being to secure a right to property, it is too uncertain as to the amount of property to be reached by it to be specifically enforced, in equity, against the heirs of the party making the same.

      i. A contract by one having at the time an estate of the value of $20,000, and a wife living, but no children, to take, maintain and educate an orphan girl, eleven years old, and for her services until she should attain the age of eighteen years to leave and give to her, at his death, a child’s part of his estate, is not based upon a sufficiently adequate consideration, and can not be regarded as so fair and just and certain as to be specifically enforced.
    5. Same—of the evidence to prove contract. Where an attempt is made to effect a distribution of property of an estate different from that provided by law, under a contract resting in parol, or to be established by parol evidence, as, where the contract is lost or destroyed, the evidence relied upon should be looked upon with jealousy, and weighed in the most scrupulous manner.
    Appeal from the Appellate Court for the Fourth District; —heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.
    Mr. R. F. Wingate, and Mr. J. B. Bowman, for the appellant :
    The contract is not uncertain. A “child’s part” of an estate imports as large a part, or such share, of the estate of the deceased as a child would take under the Statute of Descents.
    The generality of express provisions is supplied and obviated by implications of the law. Pomeroy on Specific Per. sec. 161.
    A party may bind himself to dispose of his estate, and it will be enforced against his heirs after his death. Leeders v. Austry, 4 Ves. 501; 3 Sandf. Ch. 279; 41 N. Y. 485; 30 Mo. 396 ; Gupton v. Gupton, 47 Mo. 40; Johnson v. Hubbell, 10 N. J. Eq. 335; Sutton v. Hayden, 62 Mo. 101.
    A contract to make mutual wills, for like reasons will be enforced if one of the parties has died having made a will in conformity with the contract, and the survivor has enjoyed the benefit of the will thus made. Story’s Eq. sec. 785; Dufour v. Pereria, cited in Walpole v. Oxford, 3 Ves. 412; Newell on Contracts, chap. 6, p. 711; Hinch v. Simmons, 4 Ves. 160; Fry on Specific Per. sec. 678.

      Mere inadequacy in price or subject matter of the contract will not prevent the enforcement of a contract. Pomeroy on Specific Per. secs. 192-195; Viele v. Troy & Boston, 21 Bart. 381; Adams’ Eq. (6th Am. ed.) 78, 79.
    Short’s promise operated as a continuing request, and compliance with the request on the part of the complainant was a sufficient consideration for the promise. 2 Smith’s Leading Cases in Eq. 1082; Railroad Co. v. Evans, 6 Gray, 26; Perkins v. Hadsell, 50 Ill. 216.
    A parol promise by a father to convey to a child when the . child takes possession and makes valuable improvements, will be enforced. Kurtz v. Hibner, 55 Ill. 514; Bright v. Bright, 41 id. 97; Bohanon v. Bohanon, 96 id. 591. And a promise in consideration of personal services is enforeible in equity. Warren v. Warren, 105 Ill. 576; Story’s Eq. Jur. sec. 761; Allen v. Cerro Gordo County, 40 Iowa, 349; Cooper v. Pena, 21 Cal. 404; Pomeroy on Specific Per. secs. 167-172, note 1.
    Complainant does not claim as an heir, but under a contract, and hence Keegan v. Geraghty, 101 Ill. 26, has no application.
    That a specific performance is governed by fixed principles, and not by an arbitrary discretion, see Hetfield v. Willey, 105 Ill. 286.
    Mr. M. W. Weir, and Mr. W. C. Kueffner, for the appellees :
    The contract is not mutual, and therefore can not be enforced. Pomeroy on Specific Per. secs. 162-166.
    . Specific performance rests upon a sound legal discretion. Railroad Co. v. Schoeneman, 90 Ill. 258; Alexander v. Hoffman, 70 id. 114; Morse v. Jones, 73 id. 508.
    The contract must be founded on a good consideration, and it must be reasonable, fair and just. Lear v. Choteau, 23 Ill. 39 ; Stone v. Pratt, 25 id. 25; Fish v. Lear, 69 id. 394; Pomeroy on Specific Per. secs. 175, 179, 185.

      The contract must not be uncertain in any of its parts. Bowman v. Cunningham, 78 Ill. 48; Gosse v. Jones, 73 id. 508; Pomeroy on Specific Per. sec. 157; Story’s Eq. Jur. secs. 764, 767.
    A “child’s part” is vague and uncertain as to the share or interest to be taken. Wallace v. Rappleye, 103 Ill. 249; Graham v. Graham, 31 Pa. St. 475.
   Mr. Justice Craig

delivered the opinion of .the Court:

This was a bill in equity, brought by Sarah Woods, to enforce the specific performance of an alleged contract with one John Short, now deceased.' A second amended bill was filed, to which a demurrer was sustained, and the complainant electing to" stand by her bill, the court ordered the bill dismissed. The question for determination is the sufficiency of the bill.

It is alleged in the bill that on the 20th day of May, 1847, the complainant was an infant orphan, eleven years of age, and the inmate of a charitable institution in the city of St. Louis, and under the immediate charge of Sister Benedicta; that one John Short, who then was a married man, childless, but possessed of property of the value of about $20,000, applied to the institution to take her into his service and employment; that thereupon, to-wit, on the 20th of May, 1847, at said city of St. Louis, at the special instance and request of said- Short, and by and with the consent "of said Sister Benedicta, and of her, the complainant, a contract, in writing, was then and there entered into by and between said Short and the' complainant, and signed by him by his mark, and by said Sister Benedicta on the part of the complainant; that by the terms and stipulations of the contract it was understood and agreed by and between said Short and the complainant, in substance and to the effect, that she, the complainant, should enter into the service of him, said Short, and with him live and continue to live from thence to and until she should become eighteen years of age, and that for and during all that time she should well and faithfully serve and obey him, said Short, as a good and orderly servant and as a dutiful child should, in all respects, and in all such lawful business and employment as she should be put to do or perform by the direction or command of him, said Short; and that in consideration of the promises and undertakings so to be done, fulfilled and performed by the complainant, he, Short, undertook and faithfully promised the complainant to take her from said institution into his service, adopt her into his family, support, maintain, educate and instruct her in all the employments and business in which females were ordinarily occupied, and leave and give her, at his death, a child’s part of his estate. The bill further alleged that the complainant performed the matters on her part to be kept, and that when Short died, in the year' 1877, he left a large estate, of the value of about $25,000, the bulk of which, after some minor bequests, he, by his last will and testament, devised to his sisters and niece. It is also alleged in the bill that the contract, when it was entered into, was placed in the hands of Short, for safe keeping, but that (the complainant believing, charged the fact to be,) the contract has been lost or destroyed, and that she can not produce it to the court, or make it a part of her bill. The complainant, among other things, prays that the estate, real, personal and mixed, that may remain after the payment of all claims allowed against it, and the said items of $200 and $100 to the priests, shall be decreed to and be vested in her, and for such other and further relief in the premises as might seem fit, and to justice and equity appertain.

The specific performance of a contract, in equity, is not a matter of right in the party, but a matter of sound discretion in the court, which may grant or deny relief, as may appear equitable under all the facts and circumstances of the case. (Story’s Eq. Jur. sec. 769.) A contract which is not certain, and which is not fair and just in all its provisions, will not be specifically enforced, by decree, in a court of equity. Story, in the section supra, says: “An agreement, to be entitled to be carried into specific performance, ought to be certain, fair and just in all its parts.” It is also a well settled doctrine, where an attempt is made to effect a distribution of property different from that provided by law, by a contract resting in parol, the evidence relied upon to establish such a contract is looked upon with jealousy, and should be weighed in the most scrupulous manner. (Wallace v. Rappleye, 103 Ill. 229.) Here, the contract set up in the bill is nothing more than a verbal contract. It is alleged that the contract was reduced to writing, but it has been lost or destroyed. The contents of the agreement will have to be established by parol evidence, and it stands in no better light and occupies no better position than it would occupy if it had never been reduced to writing.

The contract set up and relied upon in the bill is very peculiar. By its terms and provisions, as set out in the bill, Short, who, at the time of the making of the contract, was worth about $20,000, agreed to adopt complainant into his family, support, educate and instruct her in all the employments and business in which females were ordinarily occupied, and leave and give her, at his death, a child’s part of his estate. The compensation which Short was to receive for what he undertook to do, was seven years’ service. Complainant was to serve him from the time she was eleven years of age until she arrived at the age of eighteen years. While it may be true that the services agreed to be rendered might be regarded as a sufficient consideration to support an agreement to make one an heir, or to bestow upon such a person a certain share of an estate, yet it is apparent that the services agreed to be rendered, here, could in no just sense be regarded as an equivalent for the property agreed to be given. On the other hand, it is plain to any person of ordinary intelligence that the support and education would fully compensate complainant for all the services agreed to be rendered; but, notwithstanding this, if a specific performance of the contract set out in the bill should be decreed, she will receive, in addition to what she has already received, quite a large fortune. Under such circumstances, can the contract be regarded as fair and just in all its parts ?

In the circuit court it was held that the clause of the agreement that Short would leave and give complainant, at his death, a child’s part of his estate, taken in connection with the other provisions of the agreement, merely required him to adopt the complainant as a child, and that after, his death she would have the same rights that a child would have had if he had died leaving children. If this is the proper construction to be placed on the agreement, complainant would not be entitled to any portion of Short’s estate, as a person always has the right to dispose of property by will, regardless of the claims of children. It will not, however, be necessary, here, to determine whether or not this is the proper construction to be placed on the agreement. If the language employed leaves the intention of the parties who executed the contract, in doubt, or if there is uncertainty in regard to what was intended, a court of equity will not undertake to decree a specific performance. In speaking upon this subject, Story (sec. 767) says: “If they (the contracts) are not certain in themselves, so as to enable the court to arrive at the clear result of what all the terms are, they will not be specifically enforced. It would be inequitable to carry a contract into effect where the court is left to ascertain the intentions of the parties by mere conjecture or guess, for it might be guilty of decreeing precisely what the parties never did intend or contemplate.” In Wallace v. Rappleye, 103 Ill. 219, where a bill was filed by an illegitimate child to enforce an agreement made by the father to make the child an heir, it was held that the uncertainty of a contract to make one an heir, as to the amount of property to be affected, is a circumstance to be considered by the court. It is there said: “The only significance of a contract to make one an heir, is in securing a right to property. But what is the amount of property involved in such a contract ? How much interest will be left to be inherited? Such a contract existing, suppose Wallace in his lifetime had given away his property, or made a will of it to his two lawful children, or others, would that have consisted with the right under the contract ? And if not, how much of this property might he have given away or devised away, and how much must he have retained to satisfy the contract ? The contract would be uncertain as to the amount of property reached by it. This is a circumstance to be considered in the exercise of the discretion of the court as to decreeing specific execution. ”

If a contract to make one an heir is to be regarded uncertain, it seems plain that a contract or a promise to give a child’s part of an estate to a person, must, upon the same principle, be held to be uncertain. What is a child’s part of an estate ? Is a child’s part one-tenth, one-fifth or one-third of the property belonging to a person at the time of his death ? What share a child may be entitled to receive after the death of a father, will always depend upon a variety of circumstances. If a man dies intestate,' leaving ten children, a child’s part of the estate would be one-tenth, after the payment of all debts. If five children were left, a child’s part would be one-fifth of the estate. Should there be a widow left surviving the decedent, she would be entitled to one-third of the personal estate, absolutely in her own right, and one-third of the lands during her natural life. A child’s part would, in such a case, be materially affected by the fact whether or not a widow survived. Again, should the property be disposed of by will, duly executed as provided by law, to some charitable institution or to a college, there would be no child’s part for distribution. It seems plain that the amount of property which may be embraced under the term “child’s part, ” is quite indefinite and uncertain. A child’s part may be nothing, or it might be more or less, always depending upon various circumstances. At the time the agreement set out in the bill was made, what portion of Short’s property was complainant entitled to receive, under the contract ? Was it one-third, a fourth, a fifth or a tenth ? The answer is obvious. The contract is so uncertain that it is impossible to determine what amount of property, or what part of Short’s property, the contracting parties intended should pass to complainant under it. Under such circumstances, the specific performance of the contract can not be enforced in a court of equity.

There is another serious objection to the enforcement of the contract in a court of equity. Its enforcement would work great injustice to the wife and lawful heirs of Short. At the time the agreement was made, Short had a wife,- but no children, and upon his death, under our laws, after the payment of debts, his wife would be entitled to all his personal estate and one-half of his real estate. This right of the wife could not be cut off by any will Short might make,—and yet, if this contract is to be enforced, the wife would be deprived of inheriting as an heir of the husband, and would be compelled to accept, merely, dower in her husband’s estate. This would be oppressive, and manifestly unjust to the wife. It is true, in this case the wife died before the husband; but that does not change the principle involved. It is enough that the enforcement of a contract of this character may be productive of injustice to others. When such results are to follow, it ought not to be enforced in a court of conscience.

Other questions have been raised, but it will not be necessary to consider them here.

After a careful consideration of the whole record, we think the decision of the Appellate Court correct, and it will be affirmed.

Judgment affirmed.