author: Per Cubiam :

text:
    John Lee et al. v. The Town of Mound Station.

      Filed at Springfield October 6, 1886.

    1. Town peat—by whom, to be,certified—under the act in force in 1862. The statute in force in 1862 does not make it indispensable that a plat of a town or an addition thereto shall be certified by the county surveyor or a deputy county surveyor. It may be certified by either, or by any “competent surveyor."”
    2. Same—subsequent alteration of record of plat—effect upon the original, as recorded. The owner of a tract of land in 1862 laid out the same into town or village blocks and lots, with streets and a public square, and had the plat thereof recorded in the proper office. Afterward, thinking the plat was invalid because the surveyor making and certifying the same was not a county surveyor, he had the county surveyor to copy the same and certify it, and also had him erase from the record the name of the original surveyor and insert his own: Held, that such alteration of the record did not render it inadmissible in evidence. The record, when once made, is beyond the control of the parties making the same, and must be treated the same as if never changed.
    3. Dedication—by town plat. A plat of a town, properly certified, acknowledged and recorded, as required by the statute, operates as a conveyance, in fee simple, of such parts of the premises platted as are marked or noted on such plat as donated or given to the public, and as a general warranty against the donor, his heirs and representatives, to the corporation, for the uses and purposes therein named, and for no other use or purpose.
    4. Same—acceptance—revocation before acceptance—■the mode thereof. Until acceptance by the public of a public square, dedicated by a plat of a town or village, or an addition thereto, the party making and acknowledging such plat may, by deed, revoke the dedication, and thus reinvest himself with the title to the land. But this can not be done by an attempt to make and record a new plat after the record of the first.
    5. Same—evidence admissible to show acceptance. In an action by a town for breaking and entering a public square and removing fences, etc., in which its dedication and acceptance are disputed, evidence that the ground, for one year, was not assessed as private property for taxation, is admissible, as tending, though slightly, to show a public acceptance of the dedication, and an acquiescence on the part of the former owner, who is claimed to have made the dedication.

      6. Same—sufficiency of evidence to show acceptance. Where the inhabitants of a town or village, after the laying out of ground into blocks, lots and streets, and a public square, become duly incorporated, and from time to time thereafter elect the requisite officers, and the authorities adopt ordinances, work upon the streets, etc., this will afford conclusive evidence of the acceptance of the streets and other public grounds by the public, and will vest the legal title thereto in the corporation, in trust for the public use.
    7. Limitation—as against public rights — of adverse possession as against the public. A municipal corporation holds the legal title to the grounds dedicated for streets and public squares, in its governmental capacity, in trust for the public use, and therefore can not invest private parties with any rights inconsistent with that use; and the Statute of Limitations will not, therefore, run in favor of a private party to bar the rights of the public.
    8. The mere permitting of the dedicator of a public street or square to remain in possession of the same, when he, at the time, disclaims hostility to the public, could not form any bar to the public rights under the Statute of Limitations, even if it applied against the public.
    9. Estopped—municipal corporation—to assert public right to a street, after acquiescence in its use by private individuals. Where the public have long withheld the assertion of control over streets, and private parties have been, by the act of those representing the public, induced to believe the street has been abandoned, and on the faith of such belief, and, with the acquiescence of the public authorities, have placed themselves, by making structures or improvements in the street, in a situation where they must suffer great pecuniary loss if those representing the public be allowed to allege that the street has not been abandoned, the doctrine of equitable .estoppel maybe applied.
    10. Notice—possession by private person of property dedicated for a public square—whether notice to surrender is necessary. Where a private person is in the possession of a public square of a village, in subordination to the rights of the public authorities, holding by mere sufferance, he will be entitled to no notice to surrender the same. Neither will he if his possession is unlawful. In either case, the village authorities may enter and take possession for the public, and maintain trespass for any subsequent interference with the possession.
    11. Trespass — of the possession necessary to maintain the action. Where village trustees rightfully enter and dispossess a party, of a public square, and streets, who has no right thereto by contract, prescription or estoppel, their possession thus acquired will be lawful, and will enable them to maintain trespass against the party so dispossessed, and those acting under him as his servants, for an attempt on their part to regain possession.
    12. Bidd oe exceptions—what it must contain—in order to present the question of admitting in evidence a written instrument. Where it is claimed that an instrument of record, affecting title or other right, is improperly admitted in evidence, the instrument or record itself must be set. out accurately and at length in the bill of exceptions.
    13. To prove a statutory dedication of land for a public square, the plat of the town was given in evidence, but it was not copied into the bill of exceptions. The bill of exceptions simply recited that such plat, so read in evidence, was found on certain pages of a record book, and “consisted of twenty-two blocks, of the usual size in towns and villages, and a plat off ground designated ‘public square. ’ ” It was objected in this court, on appeal, that from this evidence the size, shape or boundaries of the public square-could not be determined, but it was held, that as the plat was not copied into-the bill of exceptions, it would be presumed that the plat warranted the ruling of the trial court, and proved what it was offered to prove.
    14. Law and pact—what is a question of law—so as to he the proper-subject of an instruction. Where the plat of a village is given in evidence, as showing the dedication of a public square, there is no error in telling the-jury, by an instruction, that it is a plat of the village, as the affect of the instrument is a question of law, for the court. KTor is it error to instruct the-jury that the act of becoming incorporated was an acceptance of the dedication, as the effect of the incorporation is also a question of law.
    15. Ebrob will not always reverse—improper instruction. Although an instruction relating to the sufficiency of a town plat to convey title to ai square to the public, and the evidence of its acceptance, may be erroneous, in submitting a question of law to the jury, yet if there is satisfactory and! conclusive evidence of such dedication and acceptance, the error working no injury, affords no ground of reversal.
    16. Presumption—m support of judgment and ruling below. On appeal or writ of error, the presumption is that the court below decided correctly, until the contrary is made to appear; and this must be, not from the-inferences of any one, but from the actual facts as they occurred on the trial.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Brown county; the Hon. S. P. Shops, Judge, presiding."
    This was an action of trespass. The declaration has three-counts. It is alleged in the first count that defendants, on the-4th day of June, 1883, broke and entered the close of plaintiffs, known as the “public square, ” in the town of Mound Station, in said county, and broke down, damaged, destroyed and converted to their own use, a certain fence and gates, composed of posts, planks, rails, etc., standing on said premises, of the value of $200, etc. The second count is substantially the same as the first, except no particular lands are described, further than that they lie in the corporate limits of the said town of Mound Station, charging defendants, on no certain day mentioned, with entering such close and tearing down, destroying and converting to their own use, a certain fence, gates, posts, and hinges thereunto affixed, of the like value of $200, etc. The third count is trespass to personal property, consisting of posts, planks, rails, gates, etc., and converting the same to the use of defendants. The damages were laid at $200.
    General issue was pleaded by all defendants, and similiter. Second plea by all defendants, of liberum tenementum as to defendant John Lee, and that all the property in the first two counts of the declaration mentioned as having been converted by defendants, was wrongfully and unlawfully upon, annexed to and incumbering the soil and freehold of defendant John Lee, and that defendant John Lee, in his own right, and the other defendants as his servants, and by his command entered upon said premises and removed said fence, gates, planks, posts, etc., as they lawfully might, etc. The third plea is by John Lee alone, to the second count of the declaration, averring that the lands and tenements therein referred to were the soil and freehold of him, the said John Lee, giving a proper description of the same, and that the property alleged to have been destroyed, damaged and converted by defendants, was wrongfully upon, annexed to and incumbering said premises, and that he, in his own right, and the other defendants as his servants, entered said premises and removed said property so incumbering the same, etc. The fourth plea is by all defendants, to the first count of the declaration, averring that said premises, therein described, were the soil and freehold of defendant John Lee, and that all the property charged to have been taken, damaged and converted by defendants, as in said count alleged, was wrongfully and injuriously put, placed and affixed upon and to said premises, and was incumbering the same, and that said John Lee, in his own right, and said other defendants by his command, as his servants, entered upon said premises and removed said gates, fences, planks, etc., doing no unnecessary damage, etc. Fifth plea of nul tiel corporation as to plaintiffs, and similiter.

    The first replication is a general traverse of the second, third and fourth pleas, and issue to the country. Second replication to pleas two, three and four, that while one McNitt owned said premises before defendant John Lee, and on the 17th day of January, 1865, he dedicated the same to the public; that said premises lie within the corporate limits of the town of Mound Station; that said town became incorporated thereafter under the laws of this State, and the corporate authorities of said town accepted said dedication, and that by said dedication and acceptance the use and control of said premises were by law transferred and conveyed by McNitt to said corporate authorities, and that plaintiff, as such corporate authorities, entered upon said closes, and have been in possession thereof ever since, and were so in possession at the time of the trespass charged in the declaration, and that defendants entered thereon of their wrong, and without right, etc., and issue thereon.
    The jury returned a verdict, finding defendants guilty, and assessing plaintiff’s damages at $60. The court, after overruling a motion for a new trial, entered judgment upon this verdict, and defendants prosecute this appeal, and assign numerous errors.
    Mr. William L. Vandeventeb, for the appellants:
    The plat of the town, in evidence, fails to show the size or shape of any of the lots, blocks, streets or other public grounds, and, from it, no one can locate the so-called public square. This defect is fatal. Winnetka v. Prouty, 107 Ill. 223.

      In order to constitute a common law dedication, there must he shown a clear and unequivocal intention to dedicate some well defined and particular parcel of land. Warren v. Jacksonville, 15 Ill. 240; Chicago v. Johnson, 98 id. 618; McIntyre v. Storey, 80 id. 127; Princeton v. Templeton, 71 id. 68; Marcy v. Taylor, 19 id. 634; Gentleman v. Soule, 32 id. 571; Harding v. Town of Hal, 61 id. 193; Kelly v. Chicago, 48 id. 388.
    To consummate a dedication, the evidence must clearly show an acceptance before a revocation or withdrawal of the offer by the owner. Littler v. Lincoln, 106 Ill. 353; Winnetka v. Prouty, 107 id. 223; Forbes v. Balenseifer, 74 id. 183; Isurance Co. v. Littlefield, 67 id. 369; Proctor v. Lewiston, 25 id. 153; Grube v. Nichols, 56 id. 93.
    Although the Statute of Limitations does not run against the public in respect to public rights, yet if there has been a complete non-user on the part of the town for twenty years, and the owner has done some act clearly inconsistent with the original right or title of the town, an abandonment may be presumed. Winnetka v. Prouty, 107 Ill. 225; Peoria v. Johnson, 56 id. 51; Railroad Co. v. Joliet, 79 id. 26.
    Even the true owner of land can not resort to force or violence to recover or acquire pessession admitted to be wrongfully withheld by another in peaceable possession. Reeder v. Purdy, 41 Ill. 279; Page v. DuPuy, 40 id. 506 ; Farwell v. Warner, 51 id. 467; Reeder v. Purdy, 48 id. 261; Dearlove v. Herrington, 70 id. 251; Haskins v. Haskins, 67 id. 446; Doty v. Burdick, 83 id. 473; McCartney v. Hunt, 16 id. 76.
    Under the general issue, the plaintiffs must prove, first, that the party was in his possession at the time of the alleged injury, and that defendant committed the injury. 2 Green-leaf on Evidence, see. 613; Winkler v. Meister, 40 Ill. 349; Cook v. Foster, 2 Gilm. 652; Smith v. Wunderlich, 70 Ill. 426; Railroad Co. v. Cobb, 94 id. 55; 1 Chitty’s Pleading, (12th Am. ed.) 500, 502.

      When a party is expelled from a peaceable possession by a lawless violence, he may reenter at once, if he can, without a breach of the peace, and no such reentry will be a trespass against the original invader. Railroad Co. v. Cobb, 82 Ill. 183; 94 id. 57.
    Messrs. Irwin & Dobbin, for the appellees:
    Dedication is a mixed question of law and fact, and the jury should be instructed that surveying the land, acknowledging and recording the plat, and selling lots with the streets as an abuttal, amounted, in law, to a dedication. Waugh v. Leech, 28 Ill. 492; Trustees v. Haven, 11 id. 554; Stephani v. Brown, 40 id. 42; Gebhardt v. Reeves, 75 id. 303; Railroad Co. v. Hartley, 67 id. 439.
    If once dedicated, they, unless reclaimed by the owner in some mode authorized by law, remain public, and open to the use of the public whenever they may choose to appropriate them. Waugh v. Leech, 28 Ill. 492; Godfrey v. Alton, 12 id. 29 ; Trustees v. Haven, 11 id. 554; State v. Trash, 6 Vt. 355.
    Where there has been a statutory dedication of streets, public grounds, etc., such dedication can only be vacated by a deed of vacation, according to sections 6 and 7, of chapter 109, of the Revised Statutes of 1881. Littler v. Lincoln, 106 Ill. 353; M. E. Church v. Hoboken, 4 Vroom, 13.
    An acceptance of a proffered dedication may be shown or “proven” by user by the public, as, by travel, or by the acts of the public officers in repairs and works; but it is not essential that work should have been done, for it may not have been needed. Marcy v. Taylor, 19 Ill. 636; Rees v. Chicago, 38 id. 322; Dimon v. People, 17 id. 416; Alvord v. Ashley, id. 363; Smith v. Flora, 64 id. 93.
    Where there is a statutory or common law dedication of streets or “public grounds, ” it is an unrestricted dedication to public use. Railroad Co. v. Joliet, 79 Ill. 25 ; Trustees v. Haven, 11 id. 554; Hunter v. Middleton, 13 id. 50.

      A town has discretionary power as to the time of opening •streets, which can not be inquired into. Dunlap v. Mt. Sterling, 14 Ill. 251; Curry v. Mt. Sterling, 15 id. 320; Aurora v. Pulfer, 56 id. 270; Chicago v. Martin, 49 id. 241.
    A literal compliance with the statute in reference to town qilats is not necessary. Any competent surveyor may make ■the survey and plat. Gebhardt v. Reeves, 75 Ill. 303.
    Where a municipal corporation holds property in trust, neither mere non-action of its officers nor the Statute of Limitations can be set up against it. Railroad Co. v. Joliet, 79 Ill. 25; Logan County v. Lincoln, 81 id. 156; Piatt County v. Goodell, 97 id. 84; Prince v. McCoy, 40 Iowa, 533; Alton v. Transportation Co. 12 Ill. 38; San Francisco v. Canavan, 42 Cal. 541; 2 Dillon on Mun. Corp. secs. 529-533; Angell on limitations, sec. 29.
    Public squares, when dedicated, may be inclosed and beautified. 2 Dillon on Mun. Corp. (2d ed.) sec. 509, note; Princeton v. Auten, 57 Ill. 325.
    Doctrine of estoppel, as applied to municipal corporations, implies more than laches, neglect or non-action of officers, but is dependent upon affirmative acts of such officers. Railroad Co. v. Joliet, 75 Ill. 25; Peoria v. Johnson, 56 id. 51; Logan County v. Lincoln, 81 id. 158 ; Alton v. Transportation Co. 12 id. 38; 2 Dillon on Mun. Corp. secs. 532, 533.
    Where a record is once completed, no subsequent unauthorized alteration, mutilation or destruction can change its original effect. Merrick v. Wallace, 19 Ill. 496; Steele v. Boone, 75 id. 457; Shannon v. Hall, 72 id. 354; Midlum v. Pratte, 8 Mo. 138; 1 Greenleaf on Evidence, (12th ed.) sec. 566, note.
    The Statute of Limitations in no case applies to a municipal •corporation until it is incorporated. Riley v. Chouquette, 18 Mo. 220.
   Per Cubiam :

First, it is objected that it can not be determined, from the evidence in this record, what is the locality, size, shape or boundaries of the lots, streets, public square, etc., as claimed to be laid off, and Village of Winnetka v. Prouty, 107 Ill. 222, is cited in support of the objection. In that case, the plat of the town was fully set out in the record, so that the court could see everything which appeared upon it-Nothing was left to inference. It affirmatively appeared that no width of streets, or size of lots or block, was designated in the attempt to lay out the ground. That is not the case-here. It is here recited, in the bill of exceptions, that “said plat, so read in evidence, covers and occupies two opposite pages of said book ‘S, ’ numbered 292 and 293, and on the-reverse side of the leaf on which No. 293 is found, and on pages No. 294, 295 and 296 of said book ‘S,’ are field notes-of a town plat of Mound Station, made for Martin McNitt, with a certificate of acknowledgment made by a justice of the peace of said county, dated 19th November, 1862. * * * The said plat, so read in evidence, consists of twenty-two-blocks, of the usual size in towns and villages, subdivided into lots, with streets and alleys, and a plot of ground designated ‘public square.’ ” This, it is to be noticed, appears not as a, copy of anything appearing on the face of the plat, but as a, conclusion of the attorney writing the bill of exceptions. If he was authorized to conclude that the blocks were of the-usual size in towns, the inference is reasonable that the plat, in some way, showed the size of those blocks. The presumption is, that the court below decided correctly, until the contrary is made to appear,—and this must be, not from the inferences of anybody, but from the actual facts occurring, upon the trial: Where it is claimed, as here, that an instru-ment or record affecting title is improperly admitted in evidence, the instrument itself must be set out accurately and at length, in the bill of exceptions. (Rogers v. Hall, 3 Scam. 5; McLaughlin v. Walsh, id. 185; Thomas v. Leonard, 4 id. 556; Glancy v. Elliott, 14 Ill. 456; Ballance v. Leonard, 37 id. 43; Hayes v. Lawver, 83 id. 182.) The plat and field notes not being copied in the bill of exceptions, we must presume they warranted the ruling of the court.

Second—It is next objected that the court erred in admitting in evidence the record of the plat, because the plat first made and acknowledged by McNitt was subsequently erased and destroyed by his order, and he made no new plat. The facts conceded are: McNitt made and acknowledged a plat on the 19th of November, 1862. This plat was certified by Parke, surveyor. McNitt, afterwards, being under the impression that it was necessary that the plat should be certified by a county or deputy county surveyor, and ascertaining that Parke was neither, employed Black, who was deputy county surveyor, to make a new plat. He adopted the work of Parke, in substance, made a new plat and signed it, and then went to the record of the plat made by Parke, erased Parke’s name therefrom, and substituted his own, as deputy county surveyor. The statute does not make it indispensable that the plat shall be certified by the county surveyor or deputy county surveyor. It may be certified by either, or by any “competent surveyor,” and the certificate of Parke was sufficient under the requirement. 2 Starr & Curtiss’ Stat. p. 1764, sec. 2; Gebhardt v. Reeves, 75 Ill. 305.

It would seem too evident to need argument in its support, that after the record was made it passed beyond the control of McNitt. He might afterwards make a new and additional record, but he could not nullify or impair that. It would remain, in a legal point of view, just as it was when it was copied upon the records of the county. This principle is recognized and applied in Merrick v. Wallace, 19 Ill. 496, Shannon v. Hall, 72 id. 354, and Steele v. Boone, 75 id. 457. It is true, until acceptance by the public, McNitt might revoke the dedication by deed; but there is no pretence that this attempt at making a new plat was, or that it was intended to be, such a revocation. Its purpose was to perfect, not to destroy, a dedication. There was, therefore, in our opinion, •competent and sufficient evidence for the jury that the plat recorded was that made by McNitt, and that the several pages copied were of consecutive pages of the recorded plat and annexed field notes, and hence there was no error in admitting the record of the plat in evidence.

Third—Evidence was given, over the defendant’s objection, that this square was, on one occasion, not assessed by the assessor as private property. We think the evidence was admissible, as tending, though it may be very slightly, to •show a public acceptance of the dedication, and an acquiescence therein by McNitt. And inasmuch as it is the fact, and not the mere record, that can be of any significance in that respect, we think it was susceptible of proof by parol. But, in any view, the square ought not to have been assessed as private property, and the ruling could, therefore, do the defendants no harm.

Fourth—It is objected that the first instruction is erroneous, because it submitted questions of law to the jury. Those questions relate to the sufficiency of the plat to convey title to the public, and the evidence of acceptance. Without caring to inquire whether the reasonable construction of the instruction sustains the objection, as a matter of fact, we content ourselves by saying, the error, if it exists, could do deféndants no harm. If we are right in holding that, inasmuch as counsel have not transcribed the record of the plat and field notes into the bill of exceptions, we must assume they sufficiently proved what they were offered to prove, it must follow, as a matter of law, that the record of a plat was read in evidence, which operated as a conveyance in fee simple of such portions of the premises platted as were marked or noted on such plat as donated or granted to the public, and as a general warranty against the donor, his heirs and representatives, to such donee or grantee, for the uses and purposes therein named, and for no other use or purpose, etc. (2 Starr & Curtiss’ Stat. p. 1764, sec. 3.) No one pretends that McNitt ever made any deed revoking that dedication. True, the proof shows that he remained in possession, but it also shows that throughout the time he remained in possession, at various intervals, up to July 8, 1875, he acknowledged, by indirection, if not directly, that he had made the dedication, and he also, during that period, made various •conveyances predicated upon the good faith and validity of his dedication, and in one deed conveying land in the same quarter section, but outside of this plat, he used this exception : “Except that portion of said quarter section laid off and included in the town of Mound Station, as recorded in the recorder’s office in Brown county, ” and then referring to the same book and pages from which the record of the plat here read in evidence is copied,—and as to these declarations, ■conveyances, etc., there is no countervailing proof. It is, moreover, further recited in the bill of exceptions, “that on "the 17th day of January, 1865, a vote was had in said town •of Mound Station upon the question whether the same should become incorporated or not, which resulted in favor of incorporation ; and it was admitted by defendants that said town was duly incorporated, under the law of 1845, on that day.” Other evidence recited shows the election of the requisite municipal officers from time to time, the adoption of ordinances, working upon streets, etc. And it is distinctly proved that the square in controversy is within the limits of the town as thus incorporated. In our opinion, this is conclusive evidence of the acceptance of the dedication by the public. McNitt lays off certain territory as an addition to a town, makes the necessary plat, etc., and that territory thus laid off and .platted becomes incorporated. Its limits must, in part, be the limits of McNitt’s plat, and its streets, alleys and squares must also, in part, be those indicated and marked as such on his plat. The Mound Station incorporated is the Mound Station created in part by MeNitt’s plat, for there is no other. It would seem difficult to give more conclusive evidence of the acceptance of the dedication. City of DesMoines v. Hall, 24 Iowa, 234.

There is no authority for holding that every street or square should have been forthwith opened and improved. The corporation has a discretion as to the time within which such things may be done. The court might, then, have told the jury, that, under the evidence, it was their duty to find that the fee of the square was vested in the public by the plat,— that the dedication had not been legally revoked, but had been legally accepted by the public,—for this is the legal effect of the record evidence before them; and their finding, under this instruction to that effect, could, in no view, be prejudicial to any rights of the defendants.

Fifth—It is objected that the second instruction given at the instance of the plaintiff is erroneous, because it does not specify what acts would constitute such a dedication as therein contemplated, and in requiring a longer period of adverse possession to authorize the jury to find that' the town had lost its right by non-user or non-claim, than is required by law. Inasmuch as there was ample evidence of a statutory dedication before the jury, it is but reasonable to conclude that the jury would understand it was that dedication to which the instruction had reference, and it does not appear to us that it was probable that they could have been misled by the instruction, in that respect. Assuming that there was a statutory dedication, and an acceptance by the public, the title to the property was vested in the corporation in trust for public use. The corporation held it in its governmental capacity only, and could therefore invest private parties with no rights in it inconsistent with the public use, and the Statute of Limitations would not, therefore, run in favor of a private party, to bar the rights of the public. (City of Alton v. Illinois Transportation Co. 12 Ill. 38; City of Quincy v. Jones, 76 id. 231, Logan County v. Lincoln, 81 id. 158.) It is true, that we have held that where the public have long withheld the assertion of control over streets, and private parties have been, by the acts of those representing the public, induced to believe the streets abandoned by the public, and on the faith of that belief, and with the acquiescence of those representing the public, they have placed themselves, by making structures or improvements in the street, in a situation where they must suffer great pecuniary loss if those representing the public be allowed afterwards to allege that the street was not abandoned, the doctrine of equitable estoppel may be applied. (Chicago, Rock Island and Pacific Railroad Co. v. Joliet, 79 Ill. 26.) But there is no evidence of any of the necessary elements of equitable estoppel here. The mere permitting the original dedicator to remain in possession,—he at the time disclaiming hostility to the public,— would not be a bar, even under the Statute of Limitations, if it were applicable in such cases. The instruction, if inaccurate, was more favorable to the- defendants than they were entitled to have the law stated. It could not prejudice their rights.

Sixth—What has been said will show that, in our opinion, defendants could not have been prejudiced by the plaintiff’s third instruction.

Seventh—It is objected, against plaintiff’s instruction numbered 4J, first, that the court assumes that the plat made by McNitt was the plat of a town; and second, that the corporate authorities accepted the dedication. The court can see, or, rather, could, if the plat had been incorporated into the record, as it should have been, by the counsel preparing the bill of exceptions, of what it is the plat, and the effect of the plat is a question of law. There was no error in telling the jury that it was a plat of a town, especially since the defendants admitted that the town named in the plat, and of which the plat formed a part, had since been incorporated under the general law. The effect of the incorporation was also a question of law, and we hold that, under the circumstances in evidence, it was an acceptance of the dedications in the plat, and so, in our opinion, the instruction is correct in both respects.

Eighth—The fifth of plaintiff’s instructions is objected'to-as a mere abstraction. It is entirely consistent with the law, as we understand it, and even if it be conceded that it was unnecessary, we fail to perceive how it could have misled the jury to the prejudice of the defendants.

Ninth—Plaintiff’s instruction No. 5g- is objected to, because it tells the jury that an acceptance may be proven by working upon the streets. If we are right in concluding that the incorporation of the town, under the circumstances in evidence, was a conclusive acceptance of the dedications on the plat, it is wholly immaterial whether the language of this instruction is correct or not, since it could, by no possibility, have-prejudiced the defendants.

Tenth—The question is presented, by rulings on other instructions, whether the plaintiff, having entered upon the public square while in the possession of Lee, and thrown down fences across the streets which run on its different sides, and enclosed the square and adjacent streets by a. fence, acquired such a lawful possession that it could maintain trespass against the defendants for afterwards entering upon the square, by virtue of whatever right Lee may have-had, and throwing down the fence around the square, destroying the fencing material, etc. It is not pretended that McNitt reserved any rights in this square by the plat which he made dedicating it to the public, and we have already said, that, in our opinion, he could acquire no rights therein subsequently, either by grant from the corporation or by mere-limitation. His possession, therefore, as against the public, must have been in subordination to its rights. If lawful, it must have been in trust for the public, and to enable those-representing the public to appropriate it to its distinct use at any moment they deemed advisable. He held by mere sufferance, and in the absence of statutory requirement or express, contract, one so holding is entitled to no notice to surrender-possession. So, also, if his possession was unlawful, he was a mere trespasser, and entitled to no notice to surrender. Wade on the Law of Notice, sec. 592; Taylor on Landlord, and Tenant, (2d ed.) secs. 4, 64.

We held in Fort Dearborn Lodge v. Klein et al. 115 Ill. 177, that where the owner of land having the right to the immediate possession, makes an entry thereon in a quiet and peaceable manner, or without actual force or violence, he is not liable in trespass to one who has neither the right of property nor a right to the possession. Plaintiff having lawfully obtained possession, then, by this act of entry, is unquestionably entitled to maintain trespass against those who-have tortiously invaded it.

These views sustain the ruling of the court below on all the other questions, not before herein specifically noticed, which, in our opinion, demand attention.

On the whole, we are unable to discover any such prejudicial error to the rights of the defendants, in the record, as will justify us in reversing the judgment below. It is therefore affirmed.

Judgment affirmed.

Mr. Chief Justice Scott, dissenting.

Mr. Justice Shops having tried this cause in the circuit court, took no part in the consideration thereof in this court.


source: Caselaw Access Project

author: Mr. Justice Mulkey

license: Public Domain

text:
    Caroline V. McClure v. Thomas J. M. Otrich et al.

      Filed at Mt. Vernon October 7, 1886.

      1. Statute of Frauds—must be pleaded. The Statute of Frauds can not be relied on to defeat the specific performance of a parol contract for the exchange of real estate, unless it is pleaded or set up in the answer as a defence.
    2. Witness—competency—on the ground of interest in the result of the suit. The true test of the competency of a witness when challenged on the ground of interest, is, whether he will either gain or lose by the direct legal operation and effect of the judgment in the case in which he' is called to testify, or whether the record will be evidence for or against him.
    3. On bill by a devisee of a deceased testator for the specific performance of a contract for the conveyance of land devised to the complainant, against the husband and infant child of the other party to the contract, after her death, a child of the testator, not entitled to the land under the,will, is a competent witness to prove the contract upon which the relief is sought, having no interest in the result.
    4. The rule which disqualifies a witness not a party to the record, does not apply to one who is called to testify against his own interest.
    5. Specific performance—how far a matter of right. It is as much a matter of course for courts of equity to grant specific performance of a contract for the conveyance of land, when it is valid and unobjectionable in any of its features which address themselves to the discretion of the chancellor, as it is for courts of law to award damages for a breach of a like contract.
    6. Same—the particular case. A daughter made a contract with her father, whereby she agreed to convey to him her reversionary interest in the place occupied by him as his homestead, he having a life estate therein, in consideration of which he was to convey to her, in fee, another farm, and pay $1000. The father, by direction of the daughter, conveyed the farm to her husband, and paid him the $1000, shortly after which she died, leaving an infant child, without having conveyed to her father, who also died, having devised the home place to his second wife, and the latter filed a bill for specific performance: Held, that even if the Statute of Frauds had been pleaded, the complainant was entitled to the relief sought. In such case, the performance by the father was such as to take the case out of the Statute of Frauds.
    7. Parties—to bill for specific performance—in case of a devise by the purchaser. Where a party entitled to a conveyance of a tract of land under a contract fully performed on his part, devises the same to his widow, and she files her bill to enforce performance of the contract, the children of the deceased testator will not be necessary or even proper parties, as no decree ■can be entered either for or against them.
    Appeal from the Circuit Court of Alexander county; the Son. 0. A. Barker, Judge, presiding.
    Mr. John M. Lansden, and Messrs. Mulkey & Leek, for "the appellant:
    The witnesses Virginia Finley and Caroline S. McClure are ■clearly competent witnesses. 1 Greenleaf on Evidence, secs. 389, 390; 1 Phillips on Evidence, (3d ed.) 119; Bennett v. Heathington, 16 S. & R. 193; Bradshaw v. Combs, 102 Ill. 428.
    Mr. W. S. Day, for the appellees, contended that the heirs, •and all parties claiming under Thomas J. McClure, should have been made parties, and therefore the heirs were just as incompetent witnesses as if they were joined as parties. Alexander v. Hoffman, 70 Ill. 114; Packwood v. Gridley, 39 id. 388.
    As to their competency, see Marshal v. Peck, 91 Ill. 187; Bragg v. Geddes, 93 id. 39; Welcher v. Blowney, 104 id. 610; McCann v. Atherton, 106 id. 31; Fisher v. Fisher, 54 id. 231.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This is an appeal from a decree of the circuit court of Alexander county, dismissing a bill in equity, filed therein by the appellant, Caroline V. McClure, as devisee under the will of her late husband, Thomas J. McClure, deceased, against the ■appellees, Charles L. Otrich, and his infant son, Thomas J. M. ■Otrich, the former being the late husband, and the latter the ¡son and only heir, of Mary Otrich, a deceased daughter of the said Thomas J. McClure by a former wife, to compel the specific performance of an alleged contract of sale by the said Mary Otrich to the said Thomas J. McClure, of certain real ■estate particularly described in the bill.

We perceive no difficulty in the case, either as to the law or the facts. The land embraced in the contract, which is. sought to be enforced as to a part thereof in this proceeding, consists of two tracts, of fifty-three and eighty acres, respectively, and constitutes a part of what is known as the “McClure-homestead.” These two tracts originally belonged to Polly McClure, the first wife of Thomas J. McClure. She died intestate prior to 1853, leaving her surviving, Mary McClure, an infant daughter and only child. Her father, as tenant. by the curtesy, occupied and cultivated these lands as part, of the home farm, until his daughter Mary’s intermarriage-with appellee, Charles L. Otrich, which occurred in March, 1878. About the time of this event, McClure commenced, negotiations with his daughter for the purchase of her reversionary interest in the two tracts in question. After several interviews on the subject, an understanding was reached, between them in the month of November, 1878, by which the daughter agreed to exchange her interest in said lands for a. place in that vicinity belonging to her father, known as the-“James farm, ” and $1000 in cash, to be paid at the following, harvest. The James farm cpnsists of one hundred and sixty acres, and its rental value is shown to be some $700 or $800-per annum. In pursuance of this agreement, McClure, on the 12th of November, 1878, by the direction of his daughter, made and delivered to her husband, Charles L. Otrich, a deed for the James farm, who thereupon took possession of the. premises, and from thence hitherto has had the undisputed, control of the same. On the 30th of July, 1879, McClure-paid to Otrich, with his wife’s consent, $1000, the balance due her under the agreement, being in full performance of the contract of purchase on his part.

The conveyance by Otrich and wife to McClure, of her interest in the home farm, was not made at the time of the execution of McClure’s deed to Otrich, for the reason, as is-shown by the testimony, the parties did not know the description of the land. The matter was put off and neglected from time to time, until finally Mrs. Otrich died without its having been made at all, leaving her surviving, appellee Thomas J. M. Otrich, her only child and heir at law. Her death occurred in March, 1880, at the town of Anna, in Union county, where she had resided with her husband from the date of her marriage to the time of her death. The fact of her living at a distance, in another county, may, to some extent, account for her neglect and ultimate failure to make a conveyance to her father, as she should have done.

Thomas J. McClure died testate on the 23d of August, 1882. By his last will and testament he devised the fifty-three-acre tract in question .to his widow, the appellant, and the west forty of the eighty-acre tract to Claude McClure, an infant son by his last wife. The east forty of the eighty-acre tract was left, doubtless by inadvertence, undisposed of by McClure’s will, and the record in this case shows there was another suit in the court below, which was heard and determined together with this, the object of which was to settle the rights and claims of appellees and the children of McClure by his second wife, to the two forties just mentioned.

The foregoing facts, so far as material to the relief sought, are properly set forth in the bill, and were, in our opinion, sufficiently proved upon the hearing. It is difficult, therefore, to conceive upon what grounds the court below denied the relief prayed, for it is very clear none of the objections urged by counsel for appellees justify the action of the court in dismissing the complainant’s bill and denying all relief. The defence interposed by the answer was a simple denial of the making of the contract set up in the bill, and a claim that the James farm and $1000 were merely a gift from McClure to his son-in-law. Although the Statute of Frauds is referred to in the argument by appellees’ counsel, and is urged as a defence to the bill, yet no such defence is interposed, or even so much as referred to, in the pleadings, and consequently-that question is not involved in the case. (Lear v. Chouteau, 23 Ill. 39 ; Warren v. Dickson, 27 id. 115.) The decree, therefore, in view of the pleadings and proof, we regard as manifestly unjust. It not only deprives the complainant of all right and claim to the fifty-three-acre tract of land, but leaves Otrich in the absolute possession and ownership of the James farm, to say nothing of the $1000 paid by McClure' on the exchange. It is clear, Otrich’s title to this farm is absolute, at law, and if the widow and heirs are not entitled to equitable relief as to it, they are simply without remedy. As this farm is clearly shown, by the weight of evidence, to have been conveyed to Otrich upon the faith of his wife’s agreement to convey her interest in the home place to McClure, it surely would be a travesty on legal justice, and wholly inconsistent with the great principles by which courts are universally controlled in administering equitable relief, to permit Otrich to thus keep that farm, and his son to retain his mother’s interest in the home farm. We can not give our sanction to the proposition that the arms of equity are too short to reach such a case.

It is not to be,understood from what is here said that we regard the decree below erroneous because the court did not cancel and set aside the deed for the James farm. On the contrary, as will appear further on, we think it very clear no such a decree, under the bill as framed, could have been properly entered. What is said in this connection is for the purpo'se of bringing prominently to view the manifestly inequitable consequences that would result from" a denial of the relief prayed, and thus furnishing the most cogent of reasons why it should be granted.

It is claimed, however, by appellees’ counsel, that the contract sought to be enforced is not sufficiently proved. This claim is based chiefly on the alleged incompetency of two of complainant’s witnesses, namely, Virginia Finley and Caroline S. McClure, daughters of McClure, by appellant, his second wife, and complainants in the other case, which was submitted with this, as heretofore stated. It is true, the controlling question is the same in both cases, namely, whether the contract alleged to have been made between McClure and his daughter, Mrs. Otrich, is sustained by the evidence, and if so, whether a court of equity, under the circumstances shown, should specifically enforce its execution. The mere fact that the question is the same in both cases, is clearly insufficient to render the witnesses incompetent. The true test in every case where the testimony of the witnesses is challenged on the ground of interest, is, as is stated by Greenleaf in his work on Evidence, “that the witness will either gain or lose by the direct legal operation and effect of the judgment, or that the record will be legal evidence for or against him in some other action.” (Yol. 1, secs. 389, 390.) That this rule is substantially correct, is fully sustained by other text writers and the decided cases. 1 Phillips on Evidence, (3d ed.) 119-126; Bennington v. Heathington, 16 S. & R. 193 ; Bent v. Baker, 3 T. R. 27. Tested by these authorities, nothing could be clearer than that the witnesses in question are competent, and their testimony must therefore be considered in connection with that of the other witnesses, in determining the rights of the parties. It is manifest, that so far as the fifty-three-acre tract is concerned, which is alone in controversy in this suit, it is to them a matter of no legal consequence whatever whether a specific execution of the contract is decreed or not. If it is not decreed, the infant son of Otrich will take it subject to his father’s dower. On the other hand, if the complainant is successful, she will take it absolutely, in her own right,— so that in neither event would these witnesses take or lose anything. To the suggestion they would be interested to the extent of the alternative relief asked, we perceive no force in it. The alternative prayer is, that if the court can not grant the relief prayed, it will order and decree unto complainant “such compensation as the facts and circumstances of the case require, embracing, if necessary, the cancellation of the deed of November 12,1878.” It is sufficient to say, that there is nothing in the ease made by the bill or the proofs, either with or without the testimony of these two witnesses, upon which compensation could be allowed. The bill is not framed with a double aspect, looking to compensation. There is no claim, either by appellant or appellees, that any of the lands involved in the controversy are not just what they were represented to be in the negotiations between McClure and his daughter. Nor does either party pretend that there has been any fraud, overreaching or misapprehension on the part of any one connected with the transaction,—hence there is not the slightest foundation for the compensation theory. If this bill had been filed to rescind and.set aside the contract now sought to be enforced, together with the deed made in pursuance thereof, and the two witnesses in question had been called to prove the facts relied on for a rescission, there would be some force in the position of appellees; but as it is, there is none. In that case they would have been called to testify in their own interest, for if the suit proved successful, they would have been entitled, as heirs of McClure, to a part of the estate recovered. But looking at the ease in hand from that aspect, we find it directly the reverse of the one suggested. Here, the witnesses were called to prove a state of facts which, if true, would clearly defeat any proceeding they might commence to have the contract and conveyance in question set aside,—the only possible way in which they could successfully assert any claim to the James farm. This shows conclusively that these witnesses were called to testify against their own interest, in so far as the case may be considered from the aspect suggested. While we are satisfied there is reajly nothing in the objection in any point of view, this affords a complete answer to it from appellees’ own standpoint,—for it is well settled that the rule which disqualifies a witness not a party to the record, does not apply to one who is called to testify against his own interest, as was the ease here. 1 Greenleaf on Evidence, sec. 410.

The point is also made, that Mrs. Finley and Caroline S. McClure should have been made parties to the bill, and that they were omitted merely for the purpose of making them witnesses in the cause, which the law will not permit, and that for the purpose of determining their competency they must be treated as parties. We fully recognize this principle, but it has no application whatever to the facts in this case. As has already been shown, these witnesses had no interest, -either present or prospective, in the subject matter of this suit. Under the bill and proofs, no decree could have been rendered either for or against them, and no relief was asked -of them. It would therefore have been altogether improper to have made them parties to the bill.

As already indicated, counsel for appellees has treated the case as though the Statute of Frauds had been interposed as a defence, and his argument seems to assume that the question to be determined is, whether the facts established show such performance by McClure as to take the case out of the statute, —and doubtless the court fell into the same error, otherwise there is no accounting for its action, for, leaving the Statute -of Frauds out of view, no rule is better settled than that it is just as much a matter of course for courts of equity to grant •specific performance of a contract for the conveyance of land, where it is valid atxlaw, fairly entered into, and unobjectionable in any of its features, which address themselves to the judicial discretion of the chancellor, as it is for a court of law to award damages for a breach of a like contract; and in such case, a court of equity is equally bound with a court of law to grant the appropriate relief, where properly applied to for that purpose. Here, as already seen, it is not claimed or pretended that the contract in question is objectionable in any particular whatever, and the evidence clearly shows there is no foundation for any such claim. The appellees simply deny the existence of the contract, and urge in argument, merely, that not being in writing it is obnoxious to the Statute of Frauds. The courts of one or two of the States hold, it is true, that the statute may be availed of under a general denial of the plaintiff’s right, such as was set up in the answer in this case; but the general and more reasonable doctrine on. the subject, and that to which this court is fully committed, is, that the statute, to be made available, must be pleaded. But even if the statute had been interposed in a proper manner, we think it clear there was such a performance on the part of McClure as would have taken the case out of the-operation of the statute; for, as already shown, to deny the relief in this case would be to aid, by inaction, the perpetration of a palpable fraud on the complainant, as devisee of her husband. It is true, the mere payment by the purchaser, of a moneyed consideration, will not, of itself, take a case out of the statute, where that defence has been pleaded. But that is not the case here. Mrs. Otrich and her husband quietly stood by and permitted McClure to convey to the latter, in part performance of his contract, a valuable farm, which the grantee-is still holding and enjoying, and now the only thing appellees propose to do is to turn the devisees and heirs of McClure over to a court of law, to make what they can, in the way of damages, out of the broken contract,, while the appellees, between them, propose to hold all the lands involved in the controversy. Even if the Statute of Limitations had nob already run at law, is it not manifest the legal remedy would not be so efficacious,—indeed, would be wholly inadequate?' The proposition seems too clear to admit of serious discussion.

The decree of the court below is reversed, and the cause-remanded, with directions to the circuit court to set aside the order dismissing the bill, and to enter a decree for the specific performance of the contract, as therein prayed.

Decree reversed.


text:
    Frank H. Warren v. The City of Chicago.

      Filed at Ottawa January 25, 1887

      Rehearing denied March Term, 1887.

    1. Water works in towns and cities—laying lateral service pipes— assessment of vacant lots, therefor. The municipal authorities of a city-provided for the laying of lateral service pipes from the main water supply pipes to lots abutting on the street in which the main supply pipe was laid, and a special assessment was levied upon each lot for the cost of the lateral pipe conducted to it. Among these lots so assessed were some that were-vacant, and the owner of them claimed that because they were vacant there was no use, public or private, for the improvement for which the property was assessed, and that the assessment was invalid on' that ground. But it was. considered that, in the absence of any statutory provision on the subject, the action of the city authorities in that regard was not such an abuse of the discretionary power vested in them as to justify any interposition on the ground suggested.
    2. Same—discriminating between properly owners—subdividing lots for purposes of assessment for lateral service pipes. Abutting upon a street in which lateral service pipes were proposed to be laid in order to connect the water main with adjacent property, were certain vacant lots having a frontage of forty-five feet. The city authorities, for the purposes of assessment for the improvement, made an equal subdivision of these lots, proposing to lay a service pipe to each half lot, and a special assessment was levied upon the property accordingly,—that is, for one service upon each half lot, being for two service pipes ujion each whole lot. Other lots having a frontage of twenty-five instead of forty-five feet, were, under the scheme adopted, to be provided with but one service pipe for each entire lot, and these lots were assessed as. entire lots. It was held, that, conceding the power to make the assessment, the scheme adopted, as far as the lots having the greater frontage were concerned, was unauthorized and void. Under the circumstances, that property should not have been assessed for more than one service pipe to each whole lot.
    Appeal from the County Court of Cook county; the Hon» Bichard Prendergast, Judge, presiding.
    Mr. F. C. Hale, and Mr. M. W. Bobinson, for the appellant r
    It is a well settled rule of law that the taxing power, and the power to levy special assessments, can be exercised only to raise money for public purposes. A public use or purpose is the essence of a tax; and the same rule applies to sjiecial assessments. Dillon on Mun. Corp. (3d ed.) secs. 593, 736; Cooley on Taxation, 42.
    A tax for a private purpose is a solecism in language. In re Wapello County, 13 Iowa, 405.
    A tax for a private purpose is unconstitutional, though it pass through the hands of public officers. Sharpless v. Philadelphia, 21 Pa. St. 147.
    In order to justify an assessment, the improvement must be for a public purpose, since the public have no right to tax a citizen to make improvements for his own benefit, solely. Hammett v. Philadelphia, 65 Pa. St. 146.
    A tax can not be levied on any portion of the public for the ■construction of a drain in which the public are not concerned. Even the owner of the land benefited can not be taxed to improve it unless public considerations are involved, but he must foe left to improve it or not, as he may choose. People v. Supervisors, 26 Mich. 22.
    The power of the city to perform the work does not depend upon the benefits to be derived by property owners. The work is done for the benefit of the public. The assessment for its payment is levied upon abutting lots because the public good demands it. Morrison v. Hershire, 32 Iowa, 271.
    The common council were not authorized to construct sewers for the mere private convenience or benefit of particular individuals. They could be lawfully made only when the eommodiousness of the highway for its proper purposes, and its safety, and the healthfulness of the vicinity, require them. Cone v. Hartford, 28 Conn. 363.
    The question of what is a public purpose, is not one of public policy, determinable by a municipal legislative body, but is a judicial question, for the court to determine. Dillon on Mun. Corp. (3d ed.) sec. 600, and cases cited; Cooley on Taxation, pp. 42, 67, and cases cited.

      Mr. George M. Haynes, for the appellee:
    The authority for making the assessment in question is found in section 1, article 9, of chapter 24, and reads as fol.lows: “That corporate authorities of cities and villages are hereby vested with power to make local improvements by ■special assessment or by special taxation, or both, "of contigu- ■ ous property, or general taxation, or otherwise, as they shall by ordinance prescribe.”
    If it appears from the record in this case, that the laying -of water service pipes on the street in question is a local improvement, within the meaning of the statute cited, then we take it that the first objection, to-wit, that the assessment is not for public purposes, of appellant, is answered.
    The improvement, ive concede, is not, in one sense, a gem •eral public improvement; but that it is, in a somewhat restricted sense, a public improvement, local to the street and ■ property thereon, there is no question in our minds. There, •too, is a feature to this improvement that makes it general.
    The testimony brings this case within the rule laid down in the case of Levy v. City of Chicago, 113 Ill. 650.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This is an appeal, by Parker H. Warren, from a judgment • of the county court of Cook county, confirming a special assessment levied by the city of Chicago upon thirty-two lots belonging to appellant, and fronting on South LaSalle street, in said city, for the purpose of constructing “water service pipes” to be laid from said lots, and connected with the main water pipe in said South LaSalle street. The appellant is a non-resident, and the property in question is vacant, and not in use for any purpose. One-half of the lots in question front •on the east, and the other on the west side of LaSalle street, .are forty-five feet wide, one hundred and twenty feet deep, «-and having an alley in the rear for an outlet. For the purposes of the assessment each of these lots is divided east and west, the. north portion being designated as the north half, and the south portion as the south half. As thus divided, each half lot, by the proposed scheme, is to be provided with and is assessed for one service pipe. Each service pipe 'on the west side of the street is estimated at $21.75, and on the east side at $28.35, making them cost, on an average, $25.05 apiece. A.t this rate, the assessment amounts to $50.10 for a whole lot, or $1603.20 for the thirty-two lots. It further appears that lots belonging to others, having a frontage of twenty-five instead of forty-five feet, are, under the scheme adopted, to be provided with but one service pipe for each lot, the cost thereof being the same as above stated,—-that is to-say, $21.75 for lots on the west side of the street, and $28.35 for lots on the east side.

It is objected that an ordinance which thus discriminates between the owners of property, for the purposes of an assessment, is unreasonable, oppressive and unjust, and for that reason .is void. It is also claimed, that because the property in question is vacant, there is no use, public or private, for the improvement for which the property is assessed, and that the assessment is invalid on that ground. AVith respect to-this last objection but little need be said. That incorporated towns and cities have the power to establish and maintain water works within their corporate limits, and thus provide for the convenience, health and public welfare of such municipalities, can not be questioned. It is also equally well settled that they have a large and wholesome discretion in such matters, with the exercise of which courts have no right to interfere, except where such discretion is clearly about to be abused. In the absence of any statutory provisions relating to the subject, it is for the corporate authorities to say in what streets the main and lateral service pipes shall be laid down, so as to* bring the water within the reach of consumers. Their chief, if not only, guide, in the exercise of their discretion with respect to these matters, is the wants, true welfare and necessities of the people. Everything considered, we are not prepared to say there has been such an abuse of the city’s discretion in this respect, as to justify the court in interposing on the ground last suggested.

The other objection is of a more serious character. That the plan or scheme of assessment adopted discriminates unjustly against appellant, is too plain to admit of serious doubt. The fact that his lots happen to be twenty feet wider than the lots of some of the others, affords no reason why he should be arbitrarily compelled to pay for an extra service pipe, for which neither he nor the public has any present or prospective use. Had an estimate been made of the entire frontage of appellant’s lots, and he had then been required to pay the same as others in proportion to such frontage, the plan would have had at least the appearance of justice; but as it is, it has not. Computing his assessment on this basis, his entire assessment would have been $1442.88, whereas his assessment, as made, unless we have inadvertently committed some error in the calculation, exceeds this sum $160.32.

Conceding the power to make the assessment, we are clearly of opinion that the scheme adopted, so far as appellant’s property is concerned, was unauthorized and void. Under the circumstances, the property should not have been assessed for more than one service pipe to each whole lot. This would reduce the assessment to $801.60,—just one-half of what is now demanded. The only shadow of justification which is shown for this discrimination against appellant, is the arbitrary subdivision made of his lots for the purposes of the assessment, which was done without any authority, either in law or fact. There is no pretence it was done with the sanction of appellant, or that the property was ever theretofore known or designated as it is described in the assessment proceeding. Had two tenements been erected on each lot, thereby showing an intention on the part of the owner to divide the lots for residence or business purposes, quite a different ques: tion would be presented. No such question, however, is raised by this record, and it would therefore be useless to discuss it.

The judgment of the county court will therefore be reversed, and the cause remanded for further proceedings in conformity with the views here expressed.

Judgment reversed.

Scott and Sheldon, J7., dissenting.

Subsequently, on March 15, 1887, on an application for a-rehearing, the following additional opinion was filed:

Per Curiam : The conclusion reached upon the former consideration of this case was rested upon two distinct grounds, one of which, as it now appears, was founded, in part, upon a misapprehension of facts. While this does not at all affect, the judgment itself, it has made it necessary to modify the-opinion so as to make it conform to the facts as we now understand them. This has been done. Adhering, as we do, to-the conclusion heretofore announced, the petition for a rehearing must be overruled.

Petition denied.


author: Mr. Justice Magbudeb

text:
    Darius L. Vigus v. Matilda O’Bannon.

      Filed at Springfield October 6, 1886.

    1. Limitation—fraudulent concealment of cause of action, as affecting' the running of the statute. If an agent to collect the amount of a life policy of insurance, receives a sum of monej7 largely in excess of that which he paj-sover to his principal, a right of action will arise in favor of the latter to recover the sum retained; and mere silence as to the collection of such excess, when the principal has no knowledge of the fact, is a concealment of the cause-of action, and is perhaps a fraudulent concealment, within the meaning of section 22 of the Limitation act. But if the agent goes further, and makes-affirmative statements which are untrue, and resorts to active measures to-quiet any suspicions that his principal might have that he has not accounted' for all he has collected, this will unquestionably show such fraudulent concealment.
    2. Same—of the diligence required to discover the fraud—and of the• relation of trust and confidence, as affecting the question of diligence. The rule that in cases of fraud the Statute of Limitations begins to run only from, the time of the discovery of the fraud, does not apply when the party affected, by the fraud might, with ordinary diligence, have discovered it.
    3. The failure to use ordinary diligence to discover the fraud may be excused where there exists some relation of trust and confidence, as, principal and agent, client and attorney, cestui que trust and trustee, between the party committing the fraud and the party who is affected by it, rendering it the-duty of the former to disclose to the latter the true state of the transaction, and when it appears that it was through confidence in the party who committed the fraud that the other was prevented from discovering it.

      4. In this case, the beneficiary in a life policy of insurance of $5000, after the death of the assured placed the same in the hands of a relative for collection. The latter went to Chicago, where the office of the insurance company-was, and returned and reported to his principal that the company disputed its. liability, and that he had settled the claim for $2000, not being able to collect more, and advised the principal to accept such sum in full, falsely stating-that he saw evidence making his right to recover on the policy doubtful. The principal, relying on the truth of his agent’s statements, accepted of the latter-the $2000 in full, and made no examination to discover whether his agent’s-representations were true or false: Held, that if the agent, either before or at the time of making such statements, collected from the company on such claim an additional sum of $3000, and concealed that fact from the principal, the latter was not guilty of laches in relying on his agent’s statements, and might collect the latter sum of his agent’s estate, notwithstanding five-years had elapsed from the time the agent received the money.
    5. Witness—competency of party—as against one defending as administrator. In an action against an estate upon a cause of action which accrued, more than five years before the commencement of the suit, in which it is claimed there was a fraudulent concealment of the facts, and that knowledge-of the claimant’s right came to him within the five years, he is a competent witness, under the first exception to section 2 of the statute relating to evidence, to state such facts occurring after the death of the intestate, having-reference to his acquiring knowledge of his rights.
    6. Evidence—degree and quality required. The law does not require-that a party shall produce all the evidence that- may exist, or the strongest, evidence, of any matter in dispute. The law only excludes such evidence as„ from the nature of the case, supposes there is other evidence, superior in grade or quality, in the power of the party to produce.
    7. Same—degree of evidence to prove a negative. Full or plenary proof, when a party has the burden of proving a negative, is never required. In ■such case, it is sufficient if he offers such evidence as, in the absence of all counter testimony, will render the existence of the negative probable, even though it may be vague.
    8. So where it became necessary for a plaintiff to show that he had no notice”or knowledge that the intestate whose estate he was seeking to make liable, had received a larger sum of money belonging to the plaintiff than he had accounted for, until within five years before filing his claim, it was held, that evidence of the manner in which the plaintiff learned the facts, and that he seemed greatly surprised on learning them, was proper and admissible.
    9. Same—a receipt as evidence—and of its weight. An agent’s receipt for money belonging to his principal, when the signature thereto is shown to be in his handwriting, is evidence of a satisfactory character, against him or his estate, that he did receive the sum therein named; and to overcome the same, the testimony should be convincing, and the burden of proof to contradict such receipt rests upon the party disputing it.
    10. Same—to siioto fraud■—admissibility. In the investigation of questions of fraud, the court should be liberal in the admission of evidence tending to disclose the true nature of the transaction. Circumstances apparently trivial in themselves, may, in connection with other facts, afford very strong evidence.
    11. So where a person intrusted with the collection of a demand, reported to his principal his inability to collect the same, and that he had compromised the matter by accepting less than one-half, and to reconcile the principal to the pretended compromise, the agent told him he had seen certain letters of parties stating facts which, if true, would defeat the claim, and thereby induced the principal to settle with him, when, in fact, he had collected the entire demand, it was held, in an action by the principal against the agent’s estate, to recover the balance of the money received by him, that it was error to refuse to allow the parties named by such agent, to testify that they had never written any such letters as those he pretended to have seen.
    12. Pbopositioh oe law—in the abstract. The rule that an instruction is improper which is expressed in general or abstract terms, is applicable only when the trial is before a jury. The rule has no application in a trial by the court without a jury.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Montgomery county; the Hon. Jesse J. Phillips, Judge, presiding. * • ■

      Mr. Geobge L. Zink, and Mr. James M. Tbuitt, for the appellant:
    The third proposition relates to the proof of the negative averment that appellant had no notice. In support of the proposition, see Barnum v. Barnum, 9 Conn. 242; Lockhart v. Jones, 9 R. I. 381; 1 Greenleaf on Evidence, sec. 82; 1 Halstead on Evidence, 156.
    The principle announced in the sixth proposition is fully supported by Winchester v. Grosvenor, 44 Ill. 425, and Rosenmueller v. Lampe, 89 id. 212. See, also, Gove v. Campbell, 4 Bradw. 661.
    As to cases requiring clear proof, or clear and satisfactory proof, see Wilson v. McDowell, 78 Ill. 514; Blasey v. Delius, 86 id. 558; Tunison v. Chamblin, 88 id. 378; Sapp v. Phelps, 92 id. 588; Hancock v. Harper, 86 id. 445; Maher v. Farwell, 97 id. 56; Root v. Curtis, 38 id. 192; Eames v. Hartlin, 111 id. 634; 1 Greenleaf on Evidence, sec. 2.
    The rights of a principal as against the fraud of the agent are in some respects more sacredly guarded than are the rights of a client as against his attorney. Bigelow on Fraud, 222.
    If the conduct of Mr. O’Bannon was not flagrantly fraudulent, we confess that we can not imagine how an agent can commit fraud against his principal. Gerry v. Dunham, 57 Me. 334; Brickner v. Lightner's Exr. 40 Pa. St. 199; Way v. Cutting, 20 N. H. 187; Turnpike Corporation v. Field, 3 Mass. 201; Haynie v. Hall, 5 Humph. 290; Livermore v. Johnson, 27 Miss. 284; Findley v. Stewart, 46 Iowa, 655.
    The presumption is that appellant relied on the false statements of Mr. O’Bannon in relation to the collection of the money in controversy, and that it was not laches in appellant to rely on such false statements until he had reason to doubt the truthfulness of the same. Halbrook v. Burt, 22 Pick. 546; Mead v. Bunn, 32 N. Y. 275; Partridge v. Usborne, 5 Russ. 232; Sankey v. Alexander, L. R. 9 Irish Eq. 316; Reynell v. Sprye, 1 DeG., M. & G. 709; Benjamin on Sales, 386, note c, and cases cited; Kerr on Fraud, 80, 81; Bigelow on Fraud,, 67, note 3, and cases cited.
    In order to excuse the use of proper diligence, there must-exist some relation of trust and confidence, as, principal and agent, client and attorney, cestui que trust and trustee, between the party committing the fraud and the party who is affected by it, which rendered it the duty of the former to disclose to-the latter the true state of the transaction, and showing that, it was through confidence in the acts of the party who committed the fraud that the other was prevented from discovering it. Buckner v. Colcote, 28 Miss. 431; Wilson v. Ivy, 32 id. 233; Harrisburg Bank v. Forster, 8 Watts, 12; National Bank v. Harris, 118 Mass. 147; Way v. Cutting, 20 N. H. 287 Wear v. Skinner, 46 Md. 257; Bigelow on Fraud, 445.
    Mr. B. McWilliams, Mr. L. Allen, and Messrs. Lane & Cooper, for the appellee:
    A slight error in the exclusion of evidence, which would not change the result, is no ground for reversal. Hill v. Parsons, 110 Ill. 108.
    It is not error to refuse propositions of law which are mere-abstract propositions, (Wadhams v. Swan, 109 Ill. 55,) or if the judgment is clearly proper, (Railway Co. v. Lake View, 105 Ill. 184,) or if they are inapplicable. McCleary v. Menke, 109 Ill. 103.
    The concealment, to take a case out of the Statute of Limitations, means some positive, affirmative act of concealment, so that the plaintiff, by using diligence, could not have found, out the truth. As to proof to take the case out of the statute,, see Cole v. McClathey, 9 Me. 131; McKown v. Whitmore, 31 id. 448; Penobscott v. Mays, 65 id. 561; Buckner v. Calcote, 28 Miss. 592; Kuhlman v. Baker, 50 Texas, 630; Breman v. McLean, 45 id. 18; Sweet v. Henting, 24 Kan. 497; Munson v. Hallancrell, 26 Texas, 425; Boyd v. Boyd, 27 Ind. 429 ; Robinson v. State, 57 id. 113; Sutton v. Dyr, 60 Ga. 449;.
      Freeman v. Cover, 56 id. 161; District, etc. v. Frend, 40 Iowa, 601; Foster v. Rison, 17 Gratt. 322; Finley v. Stewart, 40 Iowa, 613; Hauyne v. Hall, Humph. 293; Jones v. State, 14 Ind. 120; Blenthing v. Loveing, 58 Me. 438; Quigle v. Gould, 91 Ill. 384; Hayward v. Green, 82 id. 389; Beatty v. Nicholson, 73 id. 605; Campbell v. Vining, 23 id. 530; Wood v. Carpenter, 11 Otto, 135; Nudd v. Hamblin, 8 Allen, 130.
    Appellant had the means of knowledge of the supposed concealment, and this was equal to knowledge itself. Wood v. Carpenter, 101 U. S. 135; Buckner v. Calcote, 28 Miss. 596.
   Mr. Justice Magbudeb

delivered the opinion of the Court:

Richard W. O’Bannon died November 15, 1883. On June 30,1884, a claim for $3000, and interest thereon from March 4, 1875, amounting to $4670, was filed against his estate, in the county court of Montgomery county, by Darius L. Yigus, the appellant in this cause. The claim was disallowed by the county court, and taken, by appeal, to the circuit court of that county, where the case was tried, by agreement, before the circuit judge, without a jury, and judgment rendered, in favor of the estate, disallowing the claim. Such judgment of the circuit court has been affirmed by the Appellate Court of the Third District, and appellant prosecutes his further appeal to this court.

On May 22, 1872, the Protection Life Insurance Company of Chicago issued a policy of insurance on the life of appellant’s mother, Eliza Yigus, for the sum of $5000, payable to appellant. Eliza Yigus died on October 12,1874, at Raymond, in Montgomery county, and the disease of which she died, according to the statements in the proofs of death, furnished to the company, was paralysis. In January, 1875, Richard W. O’Bannon went from Raymond to Chicago to collect the insurance money for appellant at the request of the latter, and as his agent, taking the policy with him. Upon Ms return, in the same month, he paid to appellant $2000, stating that the company refused to pay any more, and that he had compromised the claim for that amount. It is charged by appellant, that O’Bannon collected the full sum of $5000, named in the policy, and failed to pay over $3000. To recover said sum of $3000 is the object of this proceeding. 'The claim of appellant, as sworn to and filed in the county ■court, alleges, that the collection of the $3000 “was by the said O’Bannon fraudulently concealed" from the claimant, during the lifetime of the said O’Bannon. ”

Three questions of fact were presented for the determination of the trial court: First, did B. W. O’Bannon collect the $3000 in question from the insurance company? Second, did he fraudulently conceal the fact of such collection from the appellant ? Third, did appellant file his claim in the county court, within five years, after he discovered, that the company had paid the $3000 ? As bearing upon these questions of fact, certain propositions of law were submitted to the circuit court upon the trial of the cause, and the action of that court, in reference to those propositions, is the only feature of the case, which it is proper for us to consider. Hobbs v. Ferguson’s Estate, 100 Ill. 232; Tibballs v. Libby, 97 id. 557.

The circuit court refused to hold, as law, appellant’s sixth proposition, which is as follows:

“The court holds that the receipt indorsed on the back of the policy of insurance in evidence in this case,—the signature to the same being admitted to be in the handwriting of the said O’Bannon,—is evidence of a satisfactory character that the said O’Bannon received the amount of money in said receipt specified, and that to do away with its force the testimony should be convincing, and the burden of proof to explain or contradict said receipt, rests on the defendant. ”

The receipt, here referred to, bears no date, and is as follows:

“Beceived of the Protection Life Insurance Company five thousand dollars, being the amount in full on the within policy.
D. Vigus,
By B. W. O’Bannon. ”

It was indorsed upon the back of the policy, and was found among the records and files of the insurance company about November 20, 1883. The signature, “D. Vigus by B. W. O’Bannon, ” is admitted to be in the handwriting of B. W. O’Bannon.

The language of the sixth proposition is almost identical with the language, used by us in Winchester v. Grosvenor, 44 Ill. 425, and subsequently approved of in Rosenmueller et al. v. Lampe, 89 Ill. 212.

There are circumstances, developed by the testimony, which tend to substantiate the recital, contained in the receipt. W. J. Terpenny, the head book-keeper of the insurance company, swears, that there was collected of the policyholders, by assessment, the sum of $5000 to pay the Vigus loss. It is also proven and is not disputed, that, on March 4, 1875, the insurance company issued a check of that date for $3000, on account of the Vigus claim, payable to appellant, and drawn on the Fidelity Savings Bank and Safe Depository of Chicago, and that this check for $3000 was paid by that bank some time in June, 1875. It is not claimed or contended by anybody, that appellant ever received the $3000, so paid on the last named check. O’Bannon’s business with the company in Chicago was transacted mainly with one A. W. Edwards, the secretary of the company, who was O’Bannon’s friend. The evidence tends to show, that O’Bannon made a second visit to Chicago late in May or early in June. It is undisputed, that he removed, in the latter part of May or early in June, 1875, from Baymond, where he had been living, to Litchfield, distant about sixteen miles, where he built himself a house, costing some $4000 or $5000.

There are also circumstances, which tend to contradict the recital, contained in the receipt. It is not shown, by any positive testimony, except the language of the receipt^ that the check for $3000 was delivered to O’Bannon, or that he received the money on it. The check itself can not be found among the records of the company. Edwards, the secretary, whose deposition was taken by appellee, and is a part of the record, can remember nothing about the payment or settlement of this particular claim. The body of the receipt, indorsed on the policy, with the exception of the amount, was written by Terpenny, who left a blank space for the amount to be inserted. The amount so inserted, to-wit: the words, “five thousand dollars, ” are in the handwriting of Edwards. The proof tends to show, that these words, written by Edwards, and the signature, written by O’Bannon, were written with the same ink and at the same time, but whether in January, or March, or June, 1875, does not appear. The person, who drew the money from the bank on the check for $3000, must have indorsed the name of appellant, who was the payee therein, upon the back of the check. " If the indorsement was so made by Edwards, it was a forgery. If it was made by O’Bannon, he may have signed appellant’s name, by himself as agent, upon the back of the check, in the same way, and under the same supposed authority, as he signed such name to the receipt. Appellee introduced certain expert testimony to show, that the word, “Jive, ” in the receipt, had the appearance of being changed from the word “two, ” while appellant introduced an exactly equal amount of expert testimony to show, that the word “Jive” was so written in the first place, and had never been changed from the word “two.”

We have thus alluded to some of the circumstances, which tend to sustain, and some, which tend to contradict the receipt. It was, to be sure, the province of the trial court to decide upon the value of these circumstances, as evidence, and also to pass upon all the other facts in the case. But it was, at the same time, the duty of that court to apply proper rules of law, in determining, what weight should be given to the receipt introduced, and what kind of proof should be re■quired to overcome it, and what party should assume the burden of explaining or contradicting it. We are, therefore, ■of the opinion, that the circuit court erred in refusing to hold, ■as law, appellant’s sixth proposition.

The circuit court also refused to hold, as law, the followingi propositions, numbered ten and twelve, which were submitted “to it by appellant on the trial:

“The court holds, that if the evidence shows that a relation ■of trust and confidence existed between the claimant and the said O’Bannon, and that O’Bannon, as claimant’s agent, collected from the Protection Life Insurance Company the full amount of a policy in said company for $5000, held by claimant ; that when the said O’Bannon accounted with claimant for the amount collected, he concealed from the knowledge of the claimant that he had collected said sum of $5000, but, ■on the contrary, stated to claimant that said company disputed the justness of his claim, and refused to pay the same in full, and that he, the said O’Bannon, had not and could ■not collect from said company the full amount of said policy, and could only collect, and had only collected in a compromise with said company, the sum of $2000, and then and there advised the claimant to ratify and approve said compromise, and accept said sum of $2000 in full of claimant’s said claim for $5000, which statements the claimant relied on, believing the same to be true, and that the claimant, so relying on said statements, and believing the same to be true, made no •examination to discover whether said statements were true ■or false, but acted upon said advice and statements, and did then and there accept said sum of $2000 in full of claimant’s said claim for $5000, then the court holds that said O’Banmon fraudulently concealed from the knowledge of the claimant the cause of action which existed in favor of claimant, against said O’Bannon, to recover said $3000, and the Statute of Limitations did not commence running against said cause of action, so concealed, as aforesaid, until the claimant discovered, or might by reasonable diligence on his part have discovered, that such cause of action existed in his favor.
“The court holds, that if the evidence shows that a relation of trust and confidence existed between the claimant and the said B. W. O’Bannon, and that the said O’Bannon, as claimant’s agent, went to Chicago to settle claimant’s claim for a loss against the Protection Life Insurance Company, and that xvhen the said O’Bannon returned from Chicago he reported to claimant that said insurance company disputed the justness of claimant’s claim, and refused to pay the same in full, and that he, the said O’Bannon, had been able, by compromising said claim, to collect from said company the sum of $2000 in full of claimant’s claim for $5000, but could not collect more, and then and there advised claimant to accept said.sum of $2000 in full of his said claim; and if the evidence shows that the claimant, relying on said statements and representations, and believing the same to be true, and by reason thereof made no examination to discover whether said statements were true or false, but acted upon the same as true, and ratified the compromise so reported by the said O’Ban-non to have been by him effected, and then and there accepted said sum of $2000 in full of his claim against said company for $5000; and if the evidence further shows that the said O’Bannon, either before or after making said statements and representations, collected from said company on said claim an additional sum of $3000, and concealed such fact from the-knowledge of the claimant, then the court holds that it was not laches for the claimant to rely on the representations and statements of the said O’Bannon, and accept and act upon them as true, and make no examination to discover whether they were true or false.”

The 22d section of the Limitation law (Starr & Curtis’ Stat. chap 83, p. 1558) of this State, is as follows: “If a person, liable to an action, fraudulently conceals the cause of such action from the knowledge of the person, entitled thereto, the action may be commenced at any time within five years after the person, entitled to bring the same, discovers, that he has such cause of action, and not afterwards. ” The propositions in question asked the court to hold, that certain facts, if found to exist, would constitute such a fraudulent concealment, as is contemplated by the statute. If O’Bannon collected the $3000, he was bound to pay it over at once, and a cause of action arose at once, in favor of appellant, to recover the amount so collected. Mere silence as to the fact of such collection would amount to concealment, and,, perhaps, to fraudulent concealment. But if he went further than this, and made affirmative statements, which were untrue, and resorted to active measures to quiet any suspicions, that appellant might entertain, there was unquestionably a fraudulent concealment. He represented, that the company disputed the claim, and urged this fact, as a reason for settling for $2000. There is proof tending to show, that Mrs. Vigus had cancer, when the policy was taken out, but that the company had no knowledge of it, unless they received the letters, hereinafter mentioned. Three witnesses swear, that O’Ban-non stated on his return from Chicago, that he saw, in the possession of the company, letters written by appellant’s uncle, John Barrett, and by appellant’s aunts, Mrs. Lea, Mrs. Burns and Mrs. Dibble, two of whom lived in Litchfield, and two in St. Louis, informing the company of the existence of cancer before the issuance of the policy. There is no dispute about the fact, that O’Bannon claimed to have seen these letters in Chicago. The information, that his uncle and aunts had written these letters estranged appellant from them, so that communication between him and them ceased. No such letters, upon search therefor, can be found among the records and files of the insurance company. John Barrett, the uncle, ■.swears, he once asked O’Bannon, after the latter moved to Litchfield, if he claimed to have seen such letters in the company’s hands, and O’Bannon replied: “Sir, I never heard of such a thing. ”

These propositions also announce a correct rule, as to the ■degree of diligence, which appellant was required to exercise, under the facts of this case, in inquiring and examining for himself, as to the truth of O’Bannon’s statements to him. The rule, that, in cases of fraud, the Statute of Limitations begins to run only from the time of the discovery of the fraud, will not apply, where the party, affected by the fraud, might, with ordinary diligence, have discovered it. But the failure to use such diligence may be excused, where there exists some relation of trust and confidence, as, principal and agent, client and attorney, cestui que trust and trustee, between the party committing the fraud and the party, who is affected by it, rendering it the duty of the former to disclose to the latter the true state of the transaction, and where it appears, that it was through confidence in the acts of the party, who committed the fraud, that the other was prevented from discovering it. Atlantic National Bank v. Harris, 118 Mass. 147; Harrisburg Bank v. Forster, 8 Watts, 12; Wear v. Skinner, 46 Md. 257; Wilson v. Ivy, 32 Miss. 233; Buckner v. Calcote, 28 id. 432; Bigelow on Fraud, 445. The proof tends to show, that, in January, 1875, appellant was only about twenty-two years old; that his sister had married a son of R.W. O’Ban-non ; that he had been “in the employ of O’Bannon a great deal, ” and “was almost raised up under the eye of Mr. O’Ban-non;” that the Vigus and O’Bannon families had been intimate for years; that appellant had, for years, been closely associated with O’Bannon, and had regarded him, as a father, and respected and obeyed him, as such; that, at this time, O’Bannon and wife, and O’Bannon’s son and wife, and appellant, all lived in the same house; that appellant was with O’Bannon’s son fifteen years or longer and until about December 25, 1877; that the $2000, brought by the elder O’Bannon from Chicago, were turned over to J. D. O’Bannon, ■appellant’s brother-in-law, to buy an interest for appellant in said J. D. O’Bannon’s store; that R. W. O’Bannon was about his son’s store most of the time; that, in view of the relations thus existing, and the confidence, growing out of them, appellant surrendered the policy of insurance to R. W. O’Bannon, and appointed the latter his agent to go to Chicago and collect the insurance money.

We are of the opinion, that the tenth and twelfth propositions should have been held by the trial court to be the law. Gerry v. Dunham, 57 Me. 334; Brickner v. Lightner’s Exr. 40 Pa. St. 199; Way v. Cutting, 20 N. H. 187; First Massachusetts Turnpike Corporation v. Field, 3 Mass. 201; Livermore v. Johnson, 27 Miss. 284; Findley v. Stewart, 46 Iowa. 655.

Appellant produced Mrs. Lea, Mrs. Burns and Mrs. Dibble upon the trial, and had them sworn, and offered to prove by them, that they had never, either singly or together, written the letters, which O’Bannon stated that they had written, and which, so written by them, he also stated that he had seen in Chicago. The court refused to allow them to testify. The ■exclusion of this offered testimony was excepted to by appellant, and is one of the errors assigned upon the record. We think the court erred in excluding it. If it had been admitted, it would have tended to show, that O’Bannon had told appellant a falsehood, in order to keep him from entertaining any suspicions, and in order to reconcile him to the compromise, that was alleged to have been made. The question was, whether there had been a fraudulent concealment. “In the investigation of a question of fraud, courts should be liberal in the receipt of evidence, tending to disclose the true nature of the transaction. Very slight circumstances, apparently trivial in themselves, when joined with other facts, may afford irrefragible proof of fraud. ” Bigelow on Fraud, 476.

We also think, that the trial court erred in refusing to hold, as law, the following proposition, marked No. 3, submitted by appellant upon the trial of the cause:

“The court holds that no rule of law requires all the evidence, or the strongest evidence of the matters in dispute, but only that is excluded which, from the nature of the ease, supposes evidence superior in quality or grade behind, in the power of the party whose duty it is to produce the same,— that is- to say, the party whose duty it is to prove a fact must produce the best evidence which, from the nature of the case, must be supposed to exist, of such fact, and to be within the control of the party. ”

There can be no doubt but that the doctrine, announced in this proposition, is correct, as an abstract principle of law. The first section of the proposition is almost a literal copy of the language of the court in Barnum v. Barnum, 9 Conn. 241. The second section is substantially the same as the rule laid down in 1 Halsted’s Law of Evidence, 156.

The rule, that an instruction is improper, which is expressed in general and abstract terms, is applicable only where the trial takes place before a jury. The reason of the rule is, that such an instruction is apt to mislead the jury. No ground can exist for the enforcement of such a rule, where the trial is, as here, before the court. Chicago and Alton Railroad Co. v. Utley, 38 Ill. 410; McNair v. Platt, 46 id. 211.

The facts, to which the third proposition was intended to apply, were those bearing upon the question, whether appellant had begun his suit within five years, after the discovery of his cause of action. To require a party to show, that he had no notice of a particular fact, until within five years before filing his claim, is to require him to prove a negative. 1 Greenleaf on Evidence, see. 78, says: “In those cases, in which the plaintiff grounds his right of action upon a negative allegation, and where, of course, the establishment of this negative is an essential element in his case, * * * it is obvious, that plenary proof on the part of the affirmant can hardly be expected; and, therefore, it is considered sufficient, if he offer such evidence as, in the absence of counter testimony, would afford ground for presuming, that the allegation is true.” In Beardstown et al. v. Virginia et al. 76 Ill. 34, we said: “Full and conclusive proof, however, where a party has the burden of proving a negative, is not required, but even vague proof, or such as renders the existence of the negative probable, is, in some cases, sufficient to change the burden to the other party. ”

The testimony tends to show, that, in November, 1883, after the death of R. W. O’Bannon, appellant went to Chicago to testify, in some suit, to which A. W. Edwards was a party; that he was there told by Terpenny, that the receipt on the back of the policy was for $5000, and seemed to be greatly surprised at the information; that he had never before talked with Terpenny on the subject; that he never saw the policy, on which the receipt was indorsed, after he gave it to O’Ban-non, in January, 1875, until it was exhibited to him in Chicago in November, 1883, etc. Such testimony had a tendency to show, that appellant had no notice of the cause of action, until after the death of O’Bannon. When appellant offered himself as a witness upon this subject, the circuit court refused to allow him to testify, holding his evidence to be incompetent, under section 2 of chapter 51 of the Revised Statutes, entitled “Evidence and Depositions.” Under the first exception to section 2, as set out in the statute, appellant should have been allowed to state such facts, having reference to the date of his receiving the notice in question, as occurred after the death of R. W. O’Bannon.

For the reasons, here stated, we are of the opinion, that the Appellate Court erred in affirming the judgment of the circuit court. The judgments of the Appellate and circuit courts are, therefore, reversed, and the cause is remanded to the circuit court.

T 7 7 Judgment reversed.