author: Mr. Justice Sheldon

text:
    John White, Jr. v. Mary White et al.

      Filed at Mt. Vernon January 31, 1883.

    1. Possession—evidence and presumption of. On proof of a person’s possession of land at a particular time, there may be a presumption of a continuance of such possession thereafter, but not of a prior possession.
    2. Same—evidence showing. Possession under an unrecorded deed, when shown some four years after its date, will naturally be referred back to a time at or about the date of the deed, when the proof shows that five years after the date of the deed the grantee had a"n old log house upon the tract, and was living in it, coupled with the unusual circumstance that the deed was for only one and a quarter acres in the corner of a forty-acre tract, indieating some special reason for such a sale and purchase, such as, that the house had been built by the grantee by mistake as to boundary lines on the adjoining quarter to the grantee’s other land, and that such deed was made on discovery of the mistake, to secure to the grantee the site on which the house and orchard stood.
    3. Same—constructive notice of grantee's equities. The possession of land by a grantee in a deed, which, by mistake, misdescribed the forty acres out of which the grantor intended to convey, is constructive notice of the occupant’s rights to any and all subsequent purchasers claiming under the grantor in such deed. And the removal of the house from such tract is no abandonment of such possession, where the tract remains inclosed, and the owner gathers the fruit yearly from an orchard on the same.
    4. Laches—when excused. The uninterrupted enjoyment of the possession of land under a deed which, by mistake, failed to properly describe the premises, for many years, without knowledge of the mistake, and without question of the party’s right, will excuse the party from the imputation of laches in not bringing suit to correct the mistake until an opposing claim was set up leading to a discovery of the mistake.
    Writ of Error to the Circuit Court of Perry county; the Hon. Amos Watts, Judge, presiding.
    Mr. Charles W. Thomas, for the plaintiff in error.
    Mr. John Boyd, for the defendants in error.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a bill in chancery, brought on September 15, 1877, by Mary White, the widow, and Eva White, the minor child and only heir, of Samuel White, deceased, against John White, Jr., and others, for the correction of a mistake in a deed from William Lackey to John White, Sr., made on Mayl, 1838.

The bill sets out that Samuel White, on May 12, 1876, died intestate, owning a tract of land containing one acre and a quarter, in a triangular shape, in the north-east corner of the south-east quarter of the south-west quarter of section 6, township 4 south, range 4 west, in Perry county, in this State; that he derived title to the land by deed from John White, Sr., dated February 6, 1868; that the quarter quarter-section was purchased from the United States by one William Lackey, prior to 1838, who sold said one and a quarter acre tract to John White, Sr., on May 1, 1838, and undertook to make him a deed for the same, but, by mistake, the tract was described in the deed as in the north-east quarter of the south-west quarter, instead of the south-east quarter of the south-west quarter. The court below, upon final hearing, on proofs taken, made a decree in accordance with the prayer of the bill, in correction of the mistake, and defendant, John White, Jr., appealed.

At the time of the making of his deed to John White, Sr., on May 1, 1838, William Lackey owned the said south-east quarter of the south-west quarter, and did not own the said north-east quarter of the south-west quarter. There is no question as to the alleged mistake in -the deed. It is conceded by defendant’s counsel. The only real question in the ease is, whether there was notice of the equity of John White, Sr., to John White, Jr., or to any of the grantees from or under Lackey, subsequent to his deed to John White, Sr. On May 8, 1838, but seven days after his deed to John White, Sr., Lackey conveyed to one Farris forty acres of said south-east quarter of the south-west quarter, and on May 6, 1841, Farris conveyed said forty-acre tract to one Lewis Day. T-Tis heirs conveyed the same to Sarah Day, whose heirs, on May 5, 1852, conveyed the same to John White, Jr.

This deed in question from Lackey to John White, Sr., was never recorded. There is nothing in the ease to affect any of the subsequent purchasers from Lackey, or from the grantees under him, with notice of the equity of John White, Sr., in the land they bought, unless it be the possession of John White, Sr., and his grantee, Samuel White. There is no direct evidence that John White, Sr., was in possession of this one and a quarter acre of land on May 8, 1838, the date of Lackey’s deed to Farris, nor on May 6, 1841, the date of Farris’ deed to Day. There is evidence that White was in possession of the land in 1842 and in 1843, and there might be a presumption therefrom of a continuance in possession, and that he was in possession at any subsequent time; but from the mere fact of possession in 1842 or 1843 there could be no presumption of a prior possession in 1841, or on May 8, 1838.

But there may be other facts which, coupled with such possession, would justify the inference of a previous possession, as long back as the date of the deed from Lackey to White, May 8, 1838. The possession being under a deed, the going into possession would naturally be referred back to a time at or about the date of the deed. The evidence of one witness is, that in 1842 John White, Sr.", was residing upon this one and a quarter acre tract, and of another, that in 1843 said White had an “old log house” upon this tract, and was living in it. Being an old house then, it must have been built for quite a time before, and, as might be supposed, as far back as in May, 1838. The fact of such an unusual conveyance of such a quantity of land as one and a quarter acres in the corner of a tract, indicates some special reason for such a sale and' purchase, such, as was doubtless the ease here, as that the house had been built where it was, at that early day, through a mistake as to boundary lines, and that upon discovery of the mistake the conveyance of this piece of ground was obtained for the purpose of securing the site upon which the house stood. John White, Sr., appears to have owned the adjoining eighty-acre tract on the east,'the west half of the south-east quarter of section 6, which, together with the one and a quarter acre tract, he conveyed to Samuel White, February 6, 1868.

We think the court below was justified in drawing the inference, from the whole evidence, that John White, Sr., was in possession of this piece of land on May 8, 1838, the time Lackey conveyed to Farris, and on May 6, 1841, when Farris conveyed to Day. If so, such possession was constructive notice to those grantees of White’s prior purchase of the premises. The proof is clear enough that from 1842 to 1876, the time of Samuel White’s death, John White, Sr., and Samuel White, successively, were in the continuous possession of the premises, so that there can be no doubt that all the subsequent purchasers after Day, including John White, Jr., were chargeable with notice of the interest of John White, Sr., and of Samuel White, in the land. Although the' log house was moved off on the eighty-acre tract in 1844, this was no abandonment of possession, as there was a fence maintained on this small tract in question, and there was an orchard on it, which was cared for, and the fruit gathered from it, by John White, Sr., and those claiming under him.

The delay in bringing the suit is made a point of objection. The bill alleges recent discovery of the mistake. The uninterrupted enjoyment of the possession of the land by John White, Sr., and Samuel White, for so long a period of time without question of its right, so far as appears, and after the death of Samuel White there being set up by John White, Jr., an opposing right, and a disturbance by him of the possession, induces the belief that this action on the part of John White, Jr., led to a discovery of the mistake in the deed. If this were so, it would sufficiently answer the imputation of laches in the filing of the bill.

Being of opinion that the decree is sustained by the evidence, it is affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Craig

license: Public Domain

text:
    James Powell et al. v. Asenah C. Rogers.

      Filed at Ottawa January 31, 1883.

      1. Estoppel—of the elements of an •estoppel. The doctrine of estoppels in pais or equitable estoppels is based upon a fraudulent purpose and a fraudulent result. If the element of fraud is wanting there is no estoppel, as, if both parties are equally cognizant of the facts, and the declaration or silence of the one party produces no change in the conduct of the other, he acting solely on his own judgment. There must be deception, and change of conduct in consequence thereof, to estop a party from showing the truth.
    2.. Where a mortgagee, after the sale of the mortgaged premises under a decree to enforce a mechanics’ lien, declined to purchase the certificate of purchase, or to redeem, saying he would do nothing more about the matter, and the purchaser under such decree, a party to the suit, after taking out his deed, erected a building upon the land, it was held, on bill to foreclose the mortgage after the decree of sale in the lien case had been reversed, that the mortgagee was not estopped from setting up a claim under his mortgage as against the improvements put upon the land by the prior purchaser before the decree was reversed.
    3. Purchaser—at judicial sale, not treated as mortgagee in possession. A party to a suit to enforce a mechanics’ lien, who goes into possession after his purchase of the premises, under the master’s deed, can not be regarded as a mortgagee in possession, so as to be allowed the cost of a new building erected on the land by him, as against a prior mortgagee, but is to be treated as a purchaser relying upon the validity of the¿judicial sale.
    4. Same—effect of reversal of decree under which he claims. A party to an erroneous judgment or decree is chargeable with notice of all errors in the record, and a reversal restores the parties to their original rights, and the title acquired under such judgment or decree is divested by the reversal, unless the purchaser is a stranger to the judgment, without notice, and any improvements put upon the land will be placed there at the peril of the purchaser, if he is a party to the suit.
    5. Same—application of surplus after satisfying prior incumbrance. Where a decree enforcing a mechanics’ lien, under which a party to the record has acquired title by purchase, has been reversed, and a decree entered foreclosing a prior mortgage on the same property and ordering a sale, it is error to direct that the--surplus arising from the sale, after the payment of the lien debt and the mortgage debt, be brought into court. Such surplus should be ordered to be paid to the purchaser under the prior sale, to apply upon the improvements made by him upon the premises, when the original owner and debtor makes no defence and claims nothing.
    6. Fobmeb adjudication—when a bar. While a decree dismissing a bill of review to impeach a decree for error upon the face of the proceedings, might be pleaded in bar of a writ of error to reverse the same decree, yet if it is not so pleaded, and the original decree is reversed and the cause remanded, the decree on the bill of review can not be held any bar in the original case, or to a proper distribution of the money arising from a sale of the premises among the several creditors having liens.
    7. Mechanics’ lien— sufficiency of petition. A petition to enforce a mechanics’ lien, which shows that the material was to be delivered and paid for within one year from the date of the contract, is sufficient.
    Appeal from the Appellate Court for ' the Second District;—heard in that court on appeal from the Circuit Court of ICane county; the Hon. Clark W. Upton, Judge, presiding.
    This case was originally a petition by Powell & Barrett for a mechanics’ lien, against Henry C. Stout, owner, and Mrs. Asenah C. Bogers, a mortgagee, of a lot of land in Miller’s subdivison, in the city of Aurora. A decree was had establishing the lien, under which the property was sold to A. D. Warner, for the amount of the decree, and costs. Warner transferred his certificate of purchase to Powell & Barrett, who received a deed for the premises. About three years after this decree Powell & Barrett' built a house upon the land, costing about $2700. Mrs. Bogers, after filing a bill of review to set aside this decree, (which bill was dismissed by the court,) procured a reversal of the decree on writ of error, and the cause was remanded. The petitioners amended their petition, setting up their claim for improvements on the land, and facts relied upon as an es'toppel, against Mrs. Bogers’ claim under the mortgage as to such improvements. The other material facts appear in the opinion of the court.

      Mr. M. O. Southworth, and Mr. Charles Wheaton, for the appellants:
    A petition to enforce a mechanics’ lien is a chancery proceeding, and governed by chancery principles. Kimball v. Cook, 1 Gilm. 423; Garrett v. Stevenson, 3 id. 261; Ross v. Derr, 18 Ill. 245; Hamilton V. Dunn, 22 id. 259; Lomax v. Dore, 45 id. 379; Martin v. Eversol, 36 id. 222.
    A party having a legal right, in equity will not be permitted to use it for the purpose of injustice, fraud or oppression, and relief will be granted a party against inequitable loss, or injury from circumstances beyond his control, or from his own acts in good faith, without negligence. 2 Story’s Eq. Jur. sec. 1316; Weaver v. Boyer, 79 Ill. 417.
    The holder under a defective title, though with notice, may be held a mortgagee in possession, and be entitled to repayment of advances made in good faith, and expended in improvements. Morgan v. Clayton, 61 Ill. 35; McConnel v. Holobush, 11 id. 61; Blair v. Chamblin, 39 id. 521; Roberts v. Fleming, 53 id. 196; Patman v. Ritchie, 6 Paige, 390; Benedict v. Gilman, 4 id. 57; Bacon v. Cottrell, 13 Minn. 194; Troosh v. Davis, 31 Ind. 34.
    The decree dismissing the bill of review on the merits, is res judicata of all Mrs. Rogers’ rights under her mortgage, and binding on all .parties to the suit. Nimberly v. Hurst, 33 Ill. 166; Wight v. Wallbaum, 39 id. 555; Elston v. Chicago, 40 id. 514; Mulford et al. v. Stalsenback, 46 id. 303; Huls v. Buntin, 47 id. 396; Horton v. Critchfield, 18 id. 333; Dickson v. Todd, 43 id. 504; Jones v. Smith, 13 id. 301; Buckmaster v. Nidee, 12 id. 208; Lloyd v. Lee, 45 id. 277; Severin v. Eddy, 32 id. 189.
    A former adjudication of the matter in controversy is conclusive between the same parties in a subsequent suit upon the same matter, not only as to matters actually determined, but as to every other thing within the knowledge of the complainant, which might have been then set up as a ground for relief, and litigated in the first suit.' Hamilton v. Quimby et al. 46 Ill. 90; Rogers v. Higgins et al. 57 id. 244; Peterson et al. v. Nehf, 80 id. 25; Gaddis v. Leeson, 55 id. 522.
    That the laches of Mrs. Bogers should bar her claim to equitable relief, see Bush et al. v. Sherman, 80 Ill. 161; Winchell et al. v. Edwards et al. 57 id. 41; Cox v. Montgomery, 36 id. 336; Weaver et al. v. Poyer et al. 79 id. 417.
    The court erred in ordering the surplus of the purchase money to be brought into court. It should have been ordered to be paid to appellants, on account of their improvements.
    Mr. Charles D. F. Smith, for the appellee Mrs. Rogers:
    The petition for a mechanics’ lien is insufficient in statement of a contract, which is required. Cook v. Vreeland, 21 Ill. 431; Cook v. Rafmat, 21 id. 437; Moses v. Mott, 24 id. 94; Coburn v. Tyler, 41 id. 354; Fish v. Stubbings, 65 id. 492; Powell v. Webber, 79 id. 134.
    The proceeding is purely statutory, and whatever defeats the lien puts an end to the claim of any relief. McCarthy v. Neu, 93 Ill. 455.
    The declarations of Mrs. Bogers, relied on to estop her, were made after the purchase, and no fraud is shown, nolis it shown the other party acted upon them. There is no element of estoppel shown. Bigelow on Estoppel, 431, 437; Brant v. Virginia Coal and Iron Co. 3 Otto, 326; 3 Watts, 240; 4 Harris, 361; Davidson v. Young et al. 38 Ill. 145.
    A party to a judgment is presumed to be privy to all defects in the proceedings. Guiteau v. Wisley, 47 Ill. 433; Galpin v. Page, 18 Wall. 350; McJilton v. Love, 13 Ill. 486; Wadhams et al. v. Gay, 73 id. 415.
    Appellants are not entitled to improvements put on land as purchasers, as against the prior mortgagee. (Hughes v. Edwards, 9 Wheat. 489; Boonman v. Wood, 27 N. J. Eq. 371;
      Martin v. Bently et al. 54 Ill. 100.) And it makes no difference that the party making the improvements supposed his title to be good. Childs v. Dolan, 5 Allen, 319; Horn et al. v. Adams et al. 8 id. 363; Putnam v. Ritchie, 6 Paige, 390.
   Mr. Justice Craig

delivered the opinion of the Court:

It is first claimed by appellants that the decree is erroneous, for the reason that Mrs. Rogers is estopped from setting up a claim upon her mortgage as against the improvements placed on the property by them before the decree was reversed.

In Davidson v. Young, 38 Ill. 146, this court held, that “the doctrine of estoppels in pais or equitable estoppels is based upon a fraudulent purpose and a fraudulent result. If the element of fraud is wanting there is no estoppel; as, if both parties were equally cognizant of the facts, and the declaration or silence of the one party produced no change in the conduct of the other, he acting solely on his own judgment. There must be deception, and change of conduct in consequence, in order to estop a party from showing the truth. ” This decision will be found to be in harmony with the current of authority on the subject.

But does the evidence relied upon by appellants bring Mrs. Rogers within the rule announced ? It seems quite clear, from the proof, that Mrs. Rogers was well acquainted with the situation and value of the property; that after it was bid off under the decree, the certificate of purchase was offered to her at a discount of $50; that she declined to buy the certificate or redeem from the sale, and in substance said she -would do nothing more about the matter. This occurred in the summer of 1874, soon after the sale of the property under the decree. At the time the house was built, in August, 1876, it does not appear that Mrs. Rogers said or did any thing, or that there was any interview between her and appellants immediately before the building was commenced, or while it was being erected. We see nothing in this evidence to create an estoppel in pais. No fraud was shown on her part, nor was there any deception. The fact that in 1874 she declined to buy the certificate of purchase or redeem from the sale, and said she should do nothing more about the matter, could not, in any manner, deceive appellants, nor do we believe that such conduct or declarations induced them to do^anything in reference to the property that they otherwise would not have done. They, at the time, did nothing in consequence of the declarations, but waited until the time of redemption had expired, and took out a deed, and after they obtained a deed, in August, 1876, they erected the house. From the facts the more reasonable presumption is, that appellants erected the house relying upon the validity of the title they had acquired, rather than upon anything said or done by Mrs. Rogers, and if such was the case, they can not claim or rely upon the doctrine of estoppel.

It is next urged that appellants may be regarded as holding the property as mortgagees in possession, and thus be entitled to recover for money in good faith expended in improvements. There are cases which hold that a mortgagee in possession may lay out money to keep the estate in necessary repair to preserve it; but even a mortgagee is not authorized to make new improvements, except under very extraordinary circumstances. But appellants can not be treated as mortgagees in possession. They took possession of the property as owners, under a title acquired by virtue of a sale under a decree in a cause in which they were parties to the record. They occupied a different position from a mortgagee. The law which regulates the rights of purchasers under a judicial sale, where the judgment or decree under which the purchase is made is subsequently reversed, is well settled. A party to an erroneous judgment or decree is presumed to be cognizant of all errors in the record, and a reversal restores the parties to their original rights. The title acquired under an erroneous judgment is divested by the reversal, unless it has been purchased by a stranger to the judgment, without notice. McJilton v. Love, 13 Ill. 491; Wadhams v. Gay, 73 id. 415.

If we are correct in this view, it follows, as a necessary result, that money invested by appellants in the erection of a house on the property, was invested at their peril, and subject to the rights of appellee under her mortgage. There is a seeming hardship in the case, but that will not justify a departure from the well settled rules of law. Appellants are presumed to have known that the decree under which they obtained title was erroneous. They knew that appellee had five years from the rendition of the decree to sue out a writ of error, and knowing these facts they had no right to expend a large sum of money in erecting a house on the property,— at least they took upon themselves the hazard of losing the money so expended.

But it is said the decree of the circuit court of Kane county, rendered in March, 1878, on the bill of review filed by appellee, against appellants, is a bar to the relief claimed by her in this proceeding. The bill which appellee brought was merely a bill of review to impeach the decree which had been rendered in the lien case, for error appearing upon the face of the record. The court, on the hearing, found that there was no error in the decree, and dismissed the bill. It may be, if appellants had pleaded the decree rendered on the dismissal of the bill of review in bar of the writ of error which was subsequently sued out to reverse the decree in the lien case, they might have prevented a reversal; but after the decree in the lien case was reversed and the cause remanded, how the decree in the Kane circuit court can be held to be a bar to a proper distribution of the money arising from a sale of the property in this case, we can not understand. As said before, the question presented by the bill of review was, whether there was error in the decree in the lien case. That was the question determined. Upon that point that decree might he regarded as final, but as the question here involved is a different one, that decree can have no bearing upon it.

There is, however, one point upon which the decree of the circuit court can not- be sustained. The decree directed the surplus, after the payment of the mechanics’ lien and the Rogers mortgage, to be brought into court. Stout, the defendant in this case, has never interposed any defence. He was defaulted. He finds no fault whatever with the decree. All that Mrs. Rogers can claim, is the amount of her- mortgage. Under such circumstances we see no reason why the surplus, after the mechanics’ lien and mortgage debts are paid, may not be decreed to appellants, to apply upon the improvements made on the property, and the taxes paid.

Appellee has assigned several cross-errors, which remain to be considered. It" is said that the allegations of the petition as to the time of payment are not sufficient. It is alleged that the lumber was to be delivered as fast as needed, and all to be delivered during the spring and fore part of the coming summer, and to be paid for within five or six months from the time the lumber was to be delivered. From the averment it is apparent that the lumber was to be delivered and paid for within one year from the date of the undertaking, and under the ruling in Clark v. Manning, 90 Ill. 380, that was sufficient.

It is also claimed that Mr. Brady, agent of Rogers, called on appellants before the loan was made to Stout, and they informed him that they had no lien on the property, and hence they are estopped from insisting upon a lien as against appellee’s mortgage. As to this point the evidence is so conflicting that a decree defeating the lien could not, with any degree of certainty, be predicated upon it. One witness testified that such a conversation occurred, while two deny it. Without undertaking to determine which witness was mistaken, as they all seem to he credible, it is sufficient to say-that the court did not err in refusing to sustain the defence, so far as it was predicated on this evidence.

It is also claimed that the amount of the decree is $300 more than was due from' Stout. The account of appellants, as shown by the hooks, was $864, less a credit of $130.10,— leaving a balance of $733.90. On the trial of the bill of review, appellant Powell, on cross-examination, testified: “Stout paid us, out of the Rogers money, a little over $300, and reduced the claim to $700, or thereabouts,—the books show the amount.” • We do not think this statement impeaches the account as shown by the books, and as was testified to be correct. The witness did not pretend to be . accurate as to the amount which had been paid, but in the statement expressly referred to the books to show the true state of the account. ■ The statement was a mere unguarded remark, where the amount of the account was not directly in issue, which does not in any manner" impeach appellants’ evidence introduced on the trial of this cause, which shows the amount of the account they held against Stout.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


text:
    Frederick C. Ryhiner v. Joseph Frank et al.

      Filed at Mt. Vernon January 31, 1883.

    1. Jtjdioiaii sale—time within which to procure the deed.' Where land was sold oil execution on August 10,1871, and the sheriff’s deed was not taken out until on December 21, 1878, under the act of March 22, 1872, which went into effect July 1,1872, it was held, that the certificate of purchase became void, because the deed thereon was not made within five years from the expiration of the time of redemption, and the sheriff’s deed thereon was a nullity, passing no title.

      2. Same—notice to purchaser of what record shows. Notice to a purchaser at a sheriff’s sale under execution, of the existence of a deed of trust given by the execution debtor for the purchase money after the date of the judgment upon which the execution issued, will not, in a court of law, affect the lights of the purchaser, as the records would show such deed of trust, and also that it was subsequent to the date of the judgment, nor would it avail in equity, as the taking of the trust deed is a waiver of the vendor’s lien.
    3. Limitation—retrospective effect. A statute limiting the time of taking out deeds on a certificate of purchase at sheriff’s sale, changing the time fixed by this court, and applying to sales made before its passage or before it took effect, if it gives a reasonable time for taking out such deed, is a valid law, taking away no vested right, but affecting and changing only the remedy.
    4. Judgment men—as against subsequent incumbrance. A judgment in a court of record is a lien upon the defendant’s land from its date, and the lien thereof will be prior to that of a deed of trust subsequently given on real estate by such defendant, though for the purchase money, and though the sheriff’s deed to the purchaser on execution is not made until after the recording of the trust deed. The sheriff’s deed, when made, relates back to the date of the judgment, and takes effect as of that date against intervening incumbrancers and purchasers.
    5. Vendor’s men—waimer by taking other security. The taking of a trust deed by the vendor of land is a waiver of his implied lien for the purchase money, and such deed of trust then becomes the sole measure of the vendor's right in the land for the security of the payment of the purchase money by the vendee.
    6. Homestead—only in favor of householder. It is not every person owning or occupying land that is entitled to a homestead in it, but only a “householder having a family. ” Without proof that a defendant in execution was such a person, no claim of exemption arises.
    Appeal from the Circuit Court of Effingham county; the Hon. Thomas S. Casey, Judge, presiding.
    Mr. J. N. Gwin, and Mr. W. B. Cooper, for the appellant:
    The Statute of Limitations as to the time of taking out a sheriff’s deed did not run against the deed, as the judgment and sale were made prior to the passage of the act of 1872. Rucker v. Dooley, 49 Ill. 383.
    A bona fide purchaser of property, who has failed to record his deed until after a judgment has been recovered against his vendor, but who records it prior to the sale under the judgment, can hold it against the purchaser at the execution sale. Davis v. Ownby, 14 Mo. 170; Valentine v. Havener, 20 id. 133; Stillwell v. McDonald, 39 id. 282; Porter v. McDowell, 43 id. 93; Read v. Owensby, 44 id. 204; Black v. Long, 60 id. 81; Chapman v. Sims, 53 Miss. 154; Pettingill v. Devlin, 35 Iowa, 353
    No difference exists between a purchase at private sale and one at a sheriff’s sale. Notice to an agent or attorney is notice to principal. Robinson v. Rowan, 2 Scam. 429; Williams v. Tatnall, 29 Ill. 553.
    Messrs. Wood Brothers, and Messrs. Gilmore & White, for the appellees:
    The certificate of purchase of F. W. Crcenbold, assigned to plaintiff, and the sheriff’s deed thereon, were null and void. Rev. Stat. chap. 77, sec. 30; Potter’s Dwarris on Statutes and Const. 73, 471-2; Brunson v. Kinzie, 1 How. 316; Green v. Biddle, 8 Wheat. 75; Story v. Furman, 25 N. Y. 233; Morse v. Gould, 11 id. 281.
    The title of Frank was prior and superior to that of plaintiff. Harris v. Cornell, 80 Ill. 54; Hernandez v. Drake, 81 id. 34; McHaney v. Schenk, 88 id. 357.
    His rights under his deed, by relation, were fixed when the judgment lien attached. Notice could not destroy rights already'accrued.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an action of ejectment, by Ryhiner, against Frank, to recover possession of lots 1 and 2, in block 1, in central Effingham, wherein there was judgment.in favor of the defendant, and the plaintiff appealed.

One Newbanks was the common source of title. On January 20, 1875, John G. McCoy became the purchaser of the lots at a trustee’s sale of them, under a trust deed thereof, executed by Newbanks on December 2,1872, McCoy receiving the trustee’s deed. On March 30, 1875, McCoy and wife executed a trust deed to A. F. Bandolier, trustee, to secure the payment of $1416.35, under which trust deed, Ryhiner, the plaintiff, became the purchaser of the lots on September 20, 1878, at a trustee’s sale of them, made by Bandolier, the trustee. This trustee’s deed is one source from which plaintiff claims title. The other source is a judgment against Newbanks in favor of one Crcenbold, rendered on March 6, 1871, which was prior to Newbanks’ said trust deed of December 2, 1872, an execution sale of the lots under the judgment, on August 7, 1871, to Crcenbold, and a sheriff’s deed of them, of date December 21,1878, to Ryhiner, the plaintiff, assignee of the certificate of purchase. Defendant claims title under a judgment in favor of Frank Brothers, against McCoy, rendered March 18, 1875, an execution sale thereunder of the lots to Frank, the defendant, on December 11, 1875, and a sheriff’s deed of the lots to him, made on August 2, 1878.

Plaintiff’s claim of title under the Crcenbold judgment against Newbanks evidently must fail. His sheriff’s deed thereunder, dated December 21, 1878, was based on the sheriff’s sale made August 10, 1871, such sale having been seven years, three months and upward, prior' to the taking of the deed, and five years, ten months and upward, from the expiration of the-time of redemption, it having expired November 10, 1872. The statute approved March 22, 1872, and which went into effect July 1, 1872, provides that the purchaser of real estate at execution sale shall be entitled to a deed at any time within five years from the expiration of the time of redemption, and if the time of redemption should have elapsed before the taking effect of the act, that a deed might be given within two years from the time the act took effect; and the statute provides further, that when such deed shall not have been taken within the time limited by the act, the certificate of purchase shall be null and void. (Laws, 1871-2, p. 510, sec. 30.) The sheriff’s deed not having been taken within the time limited by the statute, the certificate of purchase on which the deed was given became null and void, and the deed is of no effect.

The objection is not valid that the statute fixes a limitation for taking out the deed, different from that declared by this court in Rucker v. Dooley, 49 Ill. 383, and that the judgment and sale under it were prior to the passage of the statute. The statute was one of limitation, and affected only the remedy. It took away no vested right, and, like all other statutes of limitation, was free from objection on this score, where a reasonable time, as was the case here, is left for the pursuit of the remedy. It was surely competent for the legislature to change a time of limitation which had previously been declared by the court.

There is a like failure to establish title in the plaintiff under the trustee’s deed of Bandelier to him. The deed of trust under which that trustee’s deed was made, was executed by McCoy to Bandelier, trustee, on March 30, 1875. But the judgment against McCoy, in favor of Frank Brothers, under which defendant claims, was rendered previous to that date, viz., on March 18, 1875, and so was a lien upon the lots from and after that time, making it a prior lien to the incumbrance of the trust deed executed March 30, 1875 ; and although the sheriff’s deed to the defendant under this McCoy judgment was not executed until August 2,1878, yet it related back to the date of the judgment, and took effect as of that date against the subsequent deed of trust of McCoy, and the trustee’s deed thereunder, making it a paramount title to the latter.

A point is made against defendant’s claim of title under the McCoy judgment, upon the fact that at the time of the execution sale, notice was given that Byhiner, the plaintiff, had a trust deed on the premises, given by McCoy to secure the purchase money, and the sale was forbidden. This was no more information, except as to purchase money, than the record of the deed of trust gave. The purchaser at the execution sale knew from the record that McCoy had given a deed of trust on the premises, but he saw that it was subsequent to the judgment, and therefore subordinate thereto. The added information the notice gave, that the deed of trust was to secure the purchase money, did not avail anything, as we see. We do not apprehend that there could be any going back to the time of McCoy’s purchase of- the lots on January 20,1875, and asserting a lien on the premises from that time as a vendor’s lien for the purchase money, but that the taking of the trust deed would be a waiver of the implied vendor’s lien, and that such deed would be the sole measure of the vendor’s right in the land for the security of payment of the purchase money. Besides, such a notice, given after a judgment rendered, would not, we conceive, affect the lien of the judgment which arose upon its recovery, and, at most, the notice was but of an equity with respect to the land, which would avail nothing in a court of law against the legal title in an action of ejectment.

It is set up, too, that there was a homestead estate in McCoy. It is not every person owning and occupying land that is entitled to a homestead in it, but only, in the language of the Homestead law, “every householder having a family. ” There is no evidence whatever in the record of McCoy being such a person.

We think the judgment right, and it is affirmed.

Judgment affirmed.


author: Mr. Justice Walker

text:
    The People ex rel. William F. Carroll v. Joseph E. Gary et al.

      Filed at Mt. Vernon January 31, 1883.

    1. Fees—a single fee for several parties.- On an application by the city of Chicago, in the Superior Court of Cook county, for a confirmation of special assessments of benefits, against several lot owners, for opening a street, all the defendants may join in filing objections, and the clerk of the court is only entitled to demand the payment of one fee of one dollar and fifty cents, and not that sum for each defendant, before filing their objections. Such a proceeding is but one suit, within the meaning of the statute relating to fees and salaries, though,there may be many defendants.
    2. The true meaning of section 33, chapter S3, Eev. Stat. 1874, is, that all persons, however numerous, constitute but one. .party plaintiff, and all, as such, are required to pay but one fee of six dollars, and that all the defendants, without regard to their number, constitute but one party defendant, and should be required, in an ordinary case, to pay but one fee of one dollar and fifty cents.
    3. Special assessment—is an indivisible proceeding, with but one judgment. A proceeding by a city to confirm an assessment of benefits on adjacent property, for the purpose of opening a street, is but one indivisible suit, without reference to the number of the defendants. The trial is one as to all the defendants, and only one judgment and execution are required, though the property is to be sold separately. The declaration in the statute that the judgment shall be held to be several, is intended only to control the mode of obtaining satisfaction, so that each lot shall be required to pay the sum assessed thereon.
    This was a petition for mandamus, filed in this ease by the relator, William F. Carroll, to compel the clerk of the Superior Court of Cook county to file the joint appearance and objections of several defendants on the payment of one fee, involving the construction of section 33, chapter 53, Eev. Stat. 1874, relating to fees and salaries.

      Mr. William F. Carroll, and Messrs. C. C. & C. L. Bonney, for the petitioner:
    No fees can be charged unless authorized by statute. Smith v. McLaughlin et al. 77 Ill. 596.
    The proceeding to confirm special assessments of benefits is regarded as but one entire and single suit, without regard to the number of the defendants. The trial as to all the objections is by one jury. Fagan et al. v. City of Chicago, 84 Ill. 230.
    In a common law or chancery case one attorney may represent any number of defendants. People ex rel. v. Gross, 101 Ill. 343.
    Mr. E. R. Bliss, for the respondent:
    A construction of the section of the statute, based upon the theory that the defendants are jointly interested in the subject matter of the suit, is not applicable to a condemnation or assessment proceeding. They are proceedings in rem, and even the entry of an appearance does not change the proceeding to one in personam. People v. Dragstran, 100 Ill. 286.
    The' statute having made an assessment proceeding several as to each lot, the persons interested in the several lots have no such connection as entitles them to plead, answer or demur together. They can have no joint interest. ’ Section 191 of the Revenue law declares: “The court shall give judgment for such taxes and special assessments, * * * and such judgment shall. be considered a several judgment against each tract or lot. ”
   Mr. Justice Walker

delivered the opinion of the Court:

This is a petition for a writ of mandamus, to compel the judge of a branch of the Superior Court of Cook county, and the clerk of that court, to file objections interposed by a number of lot owners to an assessment of benefits on adjacent property, for the purpose of opening a street in the city of Chicago. The petition. alleges that the assessment was made, and returned to the court for confirmation and judgment, for the amounts assessed; that sixteen property holders so assessed joined in objections to the confirmation of the assessments against their several lots; that the objections taken were the same by each, and were specified in one paper, and signed by the same attorney; -that such objections were presented to the clerk, with a request that he file the same, and one dollar and fifty cents was, at the time, tendered as the fee for filing the same, but the'clerk refused td do so unless each person so objecting should pay one dollar and fifty cents as the fee for filing the same.

This presents the question of the proper construction of section 33, chapter 53, Rev. Stat. 1874, entitled “Fees and Salaries.” The first clause of the section relates to the fees that shall be paid by plaintiffs on the commencement of suits, and provides that the party or parties, appellant or appellants, or, in case of application for judgment, by a town or city, shall pay to the clerk six dollars, to be taxed as costs. The second clause is this: “And the defendant or defendants, respondent or respondents, appellee or appellees, before he, she or they shall be entitled to enter his, her or their appearance, or file any pleas, answer or demurrer, in any suit in law or equity, shall pay to the clerk of the court the sum of one dollar and fifty cents, to be taxed as costs in the suit,” etc.

It is clear, beyond question, that the proceeding on the part of the city was one indivisible suit, without reference to the number of defendants to the suit. There was no proper means by which the suit could have been divided,"so as to 'have rendered it a several proceeding. The trial was one, as to all of these defendants, at least. There was but one judgment entered in fact,-.and but one execution; but in case of a sale each lot must be sold separately. It is true that the statute declares the judgment shall be considered and held to be several; but that is to regulate and control the manner of obtaining satisfaction. It was to prevent the judgment from holding the property of one owner for the damages assessed against another. But the statute does not declare that the case shall be considered as a several suit against each property holder assessed. The evident meaning of the statute seems to be, that all persons, however numerous, constitute but one party plaintiff, and all, as such, are required to pay but one fee of six dollars, and all the defendants, without regard to their number, constitute but one party defendant, and should be required, in an ordinary case, to pay but one fee of one dollar and fifty cents. Nor do we perceive that there can be a difference made in a case like the present. The statute has made no difference in terms, nor can we see that any could have been intended. It certainly can not be implied from the language of the section. It has not provided that when defendants hold separate interests, they shall each pay the required fee. If such a distinction may be made, then the clerk would* be justified, in every case, in requiring the full fee against each several plaintiff or defendant, because they have a several interest in the matter in' controversy, although suing or defending jointly. It is clear that such is not the meaning of the section.

It then follows, that relator was entitled to have the objections filed on the payment of one dollar and fifty cents, and having tendered that sum, and the clerk having refused to file the paper, a writ of mandamus must be awarded.

Mandamus awarded.


text:
    John W. Tilley v. James K. P. Bridges.

      Filed at Mt. Vernon January 31, 1883.

    1. Judicial sale—rule of caveat emptor applies. It is a general and well settled rule that the doctrine of caveat emptor applies to all judicial sales, under which falls an administrator’s sale of lands of his intestate to pay debts of the estate.
    2. An administrator or executor selling lands under a decree of court has no authority to warrant the title of the land he sells, and the purchaser at such sale is bound to examine the title, or purchase at his peril. If he buys without an examination, and obtains no title, he must, as a general rule, suffer the loss arising from Ms neglect, unless fraud or mistake has entered into the transaction.
    3. Former adjudication—as a bar to second suit. Where a bill filed by a purchaser of land at an administrator’s sale, to have the title to land purchased by him confirmed by decree, on the ground of a mistake in omitting the description of the land in the petition of the administrator and the decree of sale, and to correct the mistake, is dismissed for want of equity, the decree of dismissal will be a bar to a second bill in chancery by such purchaser seeking to recover of the estate the money paid for the land, and for taxes paid and improvements made by him upon the land before discovery of the mistake, and this though in the former bill another person, who had no interest in the subject matter involved, was joined as a co-complainant.
    4. Where the question of a mistake is involved in a bill in equity, and the question of mistake is decided against the complainant, the decree will be held binding and conclusive upon him in any subsequent suit seeking other relief on the same ground.
    5. Where some specific fact or question has been adjudicated and determined in a former suit, and the same fact or question is again put in issue in a subsequent suit between the same parties, its determination in the former suit, if properly presented and relied on, will be held conclusive upon the parties in the latter suit, without regard to whether the cause of action is the same in both suits or not. Such estoppel to relitigate the same question is equally available to the plaintiff as to the defendant.
    Appeal from the Appellate Court' for the Fourth District; —heard in that court on appeal from the Circuit Court of Washington county.

      Mr. James A. Watts, for the appellant:
    The subject matter of the two suits is not identical. The former bill was by appellant and Mark Durant, who separately purchased land, part being other land not now in controversy. That suit was to perfect the title to the land described in the bill, while this is to obtain compensation for taxes paid, improvements made, and for subrogation. In the former suit the parties misconceived the form of action. In this case appellant is not trying to obtain the same result sought by the former suit, but seeks other and different relief, concerning a different subject matter, and by other parties. Dugger v. Oglesby, 3 Bradw. 94.
    The decree of the circuit court, compensating for repairs made and taxes paid, was proper. Right v. Boyd, 1 Story, 478; 2 id. 607; Bishop v. O’Conner, 69 Ill. 438.
    Mr. Daniel Hay, for the appellee:
    Appellant can not evade the bar of the former adjudication by claiming he was joined with another party. If wrongfully joined it was his own fault, and he must abide the result of his own action. If not, he profits by his wrongful act.
    An estoppel by verdict may exist without regard to whether the cause of action is. the same in both suits or not, or between the same parties. Hanna et al. v. Read et al. 102 Ill. 596.
    A party can not litigate a cause by parts, in different proceedings. Hamilton v. Quimby, 46 Ill. 94.
    The principle of res judicata embraces not only what was actually decided in the former case, but also extends to any other matter properly involved, and which might have been raised and determined in it. Rogers v. Higgins, 67 Ill. 244; Kelly v. Donlin, 70 id. 378; Ruegger v. Indianapolis and St. Louis R. R. Co. 103 id. 449.
    The doctrine of caveat emptor applies in eases of this kind.
   Mr. Justice Craig

delivered the opinion of the Court:

The executors of the estate of L. J. Bridges, deceased, obtained a decree, at the October term, 1874, of the Washington circuit court, to sell certain lands belonging to Bridges at the time of his death, to pay debts. The lands named in the decree were advertised and sold. The south-west quarter of the north-west quarter of section 31, town 3 south, range 1 west, was also advertised and sold by the executors, and bid off by appellant for $614, but this tract, although owned by the deceased at the time of his death, was not embraced in the bill or decree of sale. Appellant went into the possession of the land under his purchase, and made improvements thereon amounting to the sum of $453.53, and paid taxes amounting to the sum of $35.81.

It is alleged in the bill brought by appellant, that the executors intended to include all the land of the deceased in the bill, but, by mistake, the forty-acre tract was omitted from the bill and decree, which was not discovered until long after the salé and the making of the improvements. It is also alleged in the bill, that at the July term, 1872, of the probate court of Washington county, the executors obtained an order to borrow money, and mortgage certain lands; that the heirs of the deceased were parties defendant to the proceeding ; that under the decree the executors borrowed $1500 of one Spencer, and gave him a mortgage; that appellant, when he purchased the forty acres, paid ten per cent of the purchase in cash, and executed two notes for the balance, due in one and two years, for $277 each; that the note first due was assigned by the executors to Spencer, in payment of his mortgage; that in January, 1877, appellant paid Spencer the note which had been transferred to him, and paid the other note to the executors, and he seeks by his bill to obtain compensation for taxes paid, improvements made, and to be subrogated to the rights of Spencer under the mortgage, which he paid off. To the bill appellees interposed a plea of former adjudication, in which they set up that appellant and one Mark Durant heretofore impleaded defendants in the circuit court of said county to the October term, 1879, in a certain bill in chancery for relief, which is set out in lime verba in the plea. It is then alleged that the bill substantially sets up the same matters for grounds of relief that are set up in the bill in chancery in this cause, is between the same parties, and concerning the same subject matter; that such proceedings were had in that cause, that afterwards, to-wit, at the October term, 1880, by the consideration and judgment of the court, the defendants recovered judgment against' plaintiff herein, and said Mark Durant, of dismissal of the bill and judgment for costs, which judgment still remains in full force.

The question presented by the plea is, whether the former suit in equity is a bar to the relief claimed in this bill. It may be regarded as a general and well settled rule that the doctrine of caveat emptor applies to all judicial sales. An administrator or executor selling lands under a decree of court has no authority to warrant the title he sells, and the person who may buy at such sale is bound to examine the title, or purchase at his peril. If he deems it proper to purchase without an examination of the title to be sold, and through his negligence obtains no title, he must, as a general rule, suffer the loss arising from his neglect, unless fraud or mistake entered into the transaction. Appellant, realizing that a bill for relief, of any character, as against an administrator’s sale of real estate, where the purchaser had failed to obtain title at such sale, unless the facts relied upon would take the case out of the operation of the general rule, in his bill alleged, “that by virtue of the decree the executors advertised all the lands of said deceased for sale, on terms named in the decree, and on December 26, 1874, sold all the lands of said deceased, among which was the south-west quarter of section 31, township 3 south, range 1 west, in said county, which said tract was sold to your orator for the sum of $614, and he paid for the same, received a deed therefor, and entered into possession, and has so continued in possession; that it was the intention of said executors to obtain an order to sell all the estate of said deceased; that the above land was, by mistake, omitted in both. the said bill and decree ; that the fact of said error and omission was not ascertained by any one until long after the sale of said land.” Every other allegation of the bill rested upon this one, and unless it can be sustained all relief must be denied, as it is plain, as heretofore stated, if appellant attended the sale, and became a purchaser, no fraud or mistake intervening, and obtained no title, he must suffer the loss. This allegation then being the gist of the bill, the inquiry is, whether it was involved and settled in the former bill set up in the plea. Upon an examination of the former bill it will be found that it was averred that the executors, at a certain term of court, filed their bill for the sale of over two hundred and forty acres of land belonging to the estate, and obtained a decree of sale, “in which bill or petition, and decree, a piece of land in another township, not belonging to said estate, was described by mistake, in lieu of the forty-acre tracts hereinafter described,” (meaning the forty acres purchased by appellant, and the forty acres purchased by Durant.) It is then averred that the two forty-acre tracts last above described were advertised and sold, one to appellant,' and the other to Durant. The bill then contains this allegation: “That it was a mistake of said executors, by their solicitors, in not describing said lands correctly in said bill, * * * and said mistake was not discovered until within a few weeks last past, by them or the other defendants.” The bill contains other allegations, but it will not be necessary to refer to them.

From the averments which we have alluded to, it is apparent that the question of mistake was involved in the former bill, and as the question was there involved, the decree of the court in favor of appellees must be held binding and conclusive. Hanna v. Head, 102 Ill. 596, is an authority in point on the question. It is there said: “Where some specific fact or question has been adjudicated and determined in a former suit, and the same fact or question is again put in issue on a subsequent suit between the same parties, its determination in the former suit, if properly presented and relied on, will be held conclusive upon the parties in the latter suit, without regard to whether the cause of action is the same in both suits or not. This species of estoppel is known to the law as an estoppel by verdict, and is equally available to a plaintiff in support of his action, when.the circumstances warrant it, as when offered by defendant as matter of defence. ”

Here, even if appellant was entitled to any relief under the averments of his bill, which we do not decide, unless fraud or mistake was shown he could have no standing in a court of equity. The decree on the bill set up in the plea settled that question against him, and that decree will be held conclusive in any subsequent action involving the same question. It is true, in the former bill appellant sought to correct the mistake, and have the title in and to the land confirmed in him, while in the present bill he seeks compensation for the money paid for the land, for taxes, and for improvements made. But the fact that different relief is claimed under the two bills can make no difference. The allegations in each bill are substantially alike, and all the relief claimed under the present bill could as well have been granted under the former bill. '

But it is said Durant was a co-complainant in the former bill, and hence the two cases were not between the same parties. We do not understand that the mere fact that Durant was joined in the former bill will affect the question. The defendants in the two bills were the same, the subject matter of the litigation the same, and it would be establishing a precedent entirely too technical, to hold that for the reason alone that appellant had joined with him in the first bill a complainant who had no interest in the subject matter involved, such fact would deprive the defendants in the action of the right to rely upon a-former decree in bar.

We are of opinion that the former decree set up in the plea was a bar to the present action, and the decree of the court below will be affirmed.

Decree affirmed.


text:
    Rachel Cox et al. v. Henry L. Garst.

      Filed at Mt. Vernon January 31, 1883.

    1. Remedy—error or mistake in decree—how corrected. The proper mode for the correction of error in a decree, such as a mistake in the description of land ordered to be sold, is by appeal or writ of error, or upon motion or bill of review in the same court which pronounced it. The circuit court has no power, on original bill, to correct any error in a decree of the county court for the sale of lands of a deceased person for the payment of debts.
    2. Redemption—widow of mortgagor must contribute. Where a wife joins with her husband in a mortgage of his land, releasing her dower, after the death of the husband only an equity of redemption descends to the heirs, in which the widow is entitled to dower as against the heirs or purchaser at administrator’s sale, upon contributing her ratable share of the redemption money. She will not be required to pay the whole mortgage debt to protect her dower. As between the widow and heirs, or one succeeding to the rights of the heirs, each will be required to contribute a ratable proportion, according to the value of their respective interests.
    3. Doweb— rights of widow on redemption by heir from mortgage. If the heir, or purchaser of the equity of redemption, discharges a mortgage given by the ancestor, in which dower is released, such heir or purchaser will have an equitable lien upon the estate, which he may hold against the widow until she contributes her proportion of the charge, according to the value of her interest.
    4. Same—purchaser at administrator’s sale—subject to prior mortgage. A purchaser of land at an administrator’s sale, subject to a mortgage given by the intestate and his wife, by which the wife released her dower, after payment of the mortgage is not chargeable for rents and profits as mortgagee in possession, in a contest between him and the widow claiming dower in the equity of redemption. As respects the right of dower, he would be chargeable with nothing until demand made for the assignment of dower, and refusal.
    5. Subrogation—purchaser of equity of redemption, to right of mortgagee, on payment of mortgage debt. A purchaser of the equity of redemption at administrator’s sale of lands to pay the debts of the deceased mortgagor takes only the interest which the latter held, and occupies the same position as the heirs; and if such purchaser discharges the mortgage by payment, he will not, as against the widow of the mortgagor, be entitled to be subrogated to the rights and equities of the mortgagee, and to foreclose the mortgage against the widow and heirs so as to cut off her dower unless she redeems from the mortgage.
    6. Estoppel—widow not estopped by statements of administrator at sale of lands. A widow will not be estopped from asserting her claim to dower in lands sold, by the administrator of the estate of her husband, by any statements or assurances made by the administrator at the sale that such sale was free from her claim of dower, when she was not present when they were made, and no authority from her to make them is shown.
    Writ op Error to the Circuit Court of Clay county; the Hon. William C. Jones, Judge, presiding.
    Caleb Franklin, and Eachel, his wife, on December 1, 1874, executed a mortgage or deed of trust, with due relinquishment of homestead and dower, of one hundred and forty acres of land, then owned by said Caleb, to secure the payment of a promissory note for $900, payable in five years, with ten per cent interest. On February 13, 1876, said Caleb died intestate, owning the premises, subject to the mortgage, and leaving him surviving said. Eachel, (now Eachel Cox,) his widow, and several children, his heirs. On March 5, 1877, the lands were sold, subject to the mortgage, at an administrator’s sale, for the payment of debts of the deceased, under an order of the county court of Clay county, which had been obtained for the purpose, and Henry L. Garst became the purchaser, for $600. Mrs. Cox, with her family, was then living upon the premises, tand a few days afterward they moved out, and Garst went into, and has ever since been in, possession. Subsequently, Garst paid off the mortgage debt, and the mortgagee executed a release of the mortgage.
    In the above named order of the county court for the payment of debts, one twenty-acre tract of the land was, by mistake, misdescribed, as being in range 8, when it should have been described as being in range 7, and it being described in the inventory of the estate, and in the petition for the sale, as in range 7. This mistake was not discovered until just before August 31, 1881, on which day Garst "filed his bill in equity in the Clay county circuit court, for the correction of said mistake, and for the foreclosure of the aforenamed mortgage, claiming that he was entitled to treat the mortgage as still subsisting, and to be subrogated to all the original rights of the mortgagee. The widow of Franklin, Mrs. Cox, filed her cross-bill, claiming dower and homestead in the premises. On final hearing, the circuit court found the mistake as alleged, but denied a decree for its correction, on the ground of the want of jurisdiction to make such decree, and made a decree of foreclosure, ordering a sale of the land in default of payment to complainant, within a time limited, of the sum of $1500, the amount of the mortgage debt which complainant had discharged, and dismissed the cross-bill for dower and homestead. Defendants bring this writ of error.
    Messrs. Hague & Finch, for the plaintiffs in error:
    The widow is not estopped to claim dower in the land, as she said nothing-to the purchaser. He acted and relied alone on the statements of the administrator, not made in her presence. Her moving off the premises did not mislead him, and cause him to purchase. There is wanting every element of estoppel. People v. Brown, 77 Ill. 435; Flower v. Elwood, 66 id. 438; Noble v. Chrisman, 88 id. 186.
    The purchaser of land at a judicial sale, when he buys subject to a mortgage, will not be entitled to be subrogated to the rights of the mortgagee on payment of the mortgage debt. Bishop et al. v. O’Conner et al. 69 Ill. 431.
    It is the duty of the heir to pay off liens, which are paramount to dower, and when such liens are paid off by the heir out of the proceeds of his property, dower revives to the widow. 1 Scribner on Dower, 525; Rossetter v. Cossit, 15 N. H. 38; 1 Washburn on Real Prop. 190; Hitchcock v. Harrington, 6 Johns. 292; Wedge v. Moore, 6 Cush. 8.
    Garst has been in possession since his purchase, and if he is to be treated as the equitable assignee of the mortgage he pai’d, having the right to foreclose, then he is the mortgagee in possession after condition broken, and the rents and profits for the five years he has had possession should have been applied as a credit on the mortgage debt. Harper v. Ely, 70 Ill. 581; Mosier v. Norton, 83 id. 519; Clark v. Finlan, 90 id. 245.
    Mr. F. G. Cockrell, for the defendant in error:
    The mistake in the description of part of the land in the decree not having been discovered until six years, the remedy to correct the mistake by motion or writ of error is lost. The mistake was merely a clerical error. Schnell et al. v. City of Chicago, 38 Ill. 382; Ward v. Brewer, 19 id. 291.
    Dower having been released in the mortgage, the mortgagee was the legal owner of the land, and upon condition broken could maintain ejectment. Carroll v. Ballance, 26 Ill. 9.
    The purchaser paid off the mortgage, and having the fee to the land, we think the mortgage merged, and under the covenants of warranty in the mortgage the widow is estopped from asserting dower in the land. Hoppin v. Hoppin, 99 Ill. 265; Jones v. King, 25 id. 338.
    A widow may estop herself from claiming dower in her deceased husband’s estate, by acts. Collins v. Wood, 63 Ill. 285; Skinner v. Newberry, 51 id. 203; 1 Washburn on Real Prop. 205; Heffner v. Vandolah, 57 Ill. 520.

      The fact that a release was taken of the mortgage instead of an assignment, cuts no figure. Young v. Morgan, 89 Ill. 199.
    The cases cited to show that no subrogation lies, have no application.
   Mr. Justice Sheldon

delivered the opinion of the Court:

There was a palpable clerical error in the decree of the county court of the sale of the lands, in describing the twenty-acre tract as being in range 8, instead of range Y; but we think the circuit court did right in declining to correct the decree in that respect. The appropriate mode for the correction of error in a decree, is by appeal or writ of error, or upon motion or bill of review in the same court which pronounced the decree. We are referred to no authority to justify the correction of the alleged error in the decree of the county court, which is here asked, and where there is but mere error, as in this ease, we are aware of no precedent for the exercise of the power, upon original bill, by one court to correct errors in the judgment of another court,—and we take the rule to be the same whatever the character of the error, whether clerical or otherwise.

In the argument the claim of homestead is not insisted upon, it being conceded that the homestead right in the premises has been lost by abandonment.

In respect to the dower right, we think there was error in the decree in allowing the subrogation it did to the rights of the mortgagee, and decreeing foreclosure of the mortgage for the sole benefit of Garst. Upon the death of Franklin, the mortgagor, it was an equity of redemption which descended to his heirs. His widow was dowable of this equity of redemption. As she joined her husband in the mortgage, in claiming dower she would be bound to contribute ratably toward the redemption of the mortgage. (4 Kent’s Com. 48.) But by the decree rendered, in order to the protection of her interest she will have to pay the whole mortgage debt. As between themselves,—the heirs and.widow,—in redeeming, it would be the duty of each to contribute a ratable proportion of the redemption money, according to the value of their respective interests. The heirs, by paying off the mortgage debt, should not be permitted thereby to impose the whole burden of redemption from the mortgage upon the widow, in order for her to avail herself of her dower right, by compelling her, as under this decree, to refund to them the whole payment made. It is only her proportional part which she should be required to pay. Swaine v. Perine, 5 Johns. Ch. 482; Russell v. Austin, 1 Paige, 192; Woods v. Wallace, 10 Foster, 384; Hartshorne v. Hartshorne, 1 Green’s Ch. 349; Selb v. Montague, 102 Ill. 446; Montague v. Selb, 106 id. 49.

By the discharge of the mortgage the heirs would have acquired an equitable lien upon the estate, which they might hold against the widow till she contributed her proportion of the charge, according to the value of her interest. (1 Washburn on Real Prop. (2d ed.) 186.) This, we consider, was the principle applying to the facts of this case, and not the right of subrogation, which was given by the decree. Garst, the purchaser at the administrator’s sale, took but the interest of the decedent mortgagor in the lands, and occupies the same position in this respect as the heirs. See Selb v. Montague, 102 Ill. 446.

It is contended that the widow is estopped from claiming dower in this case. There is no doubt that it was the understanding of both Garst and the administrator, at the time of the administrator’s sale, that the lands were sold free from every claim except the mortgage, and free from the claim of dower. Such understanding might be derived from the statements made by the administrator at the sale. But the widow was not present at the sale. Any statements made by the administrator would not affect her unless she authorized the making of them. He could not sell any interest of the widow without authority from her. There is no sufficient evidence of any such authority, or of authority to make the statements the administrator did. We do not find any element of estoppel in the case.

It is claimed that Garst should be charged with the rents and profits of the land since he took possession. This might so be on the theory of the decree that Garst stood in the place of the mortgagee, and was entitled to have a foreclosure of the mortgage for his own benefit. But such was not the condition. Garst had paid off and extinguished the mortgage, and he went into possession as full owner, subject only to dower, and as respects the right of dower would be chargeable with nothing, as the heirs themselves would not have been, until, at least, there had been a demand made for the assignment of dower, the statute giving damages from the time of the demand of and refusal to assign dower. Rev. Stat. 1874, p. 428, sec. 41.

The cross-bill for dower should not have been dismissed. The widow’s ratable share of the redemption money should have been ascertained, a day given for its payment, and on failure thereof the cross-bill should have been dismissed, but on making the payment dower should have been assigned.

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

Decree reversed.


author: Per Curiam:

text:
    Ernst H. Steinman v. Margaret Steinman, Adm’x.

      Filed at Mt. Vernon January 31, 1883.

    1. County court—its jurisdiction as to matters relating to estates. Ihe county court has express statutory jurisdiction, on the application of an administrator of an estate, to inquire and determine whether another person has in his possession property belonging to the estate; and such question is one purely of fact.

      2. Appeals—reviewing question of fact by this court. On a trial had by the circuit court, without a jury, on appeal from an order or judgment of the county court, in a proceeding to determine whether the defendant had in his possession property, etc., belonging to the estate of a deceased person, no instructions were asked, nor were any propositions of law submitted to the court. On appeal to the Appellate Court the judgment of the circuit court was affirmed. On a further appeal to this court, it was considered, as no questions of law were presented, and the court was precluded from reviewing the facts, the judgment must be affirmed.
    Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of Clinton county; the Hon. George W. Wall, Judge, presiding.
    Messrs. VanHoorebeke & Ford, for the appellant.
    Messrs. Murray & Andrews, for the appellee.
   Per Curiam:

The statute conferred jurisdiction on the county court to determine whether appellant had in his possession property belonging to the estate of Charles S. Steinman, deceased; and whether the property involved in this controversy belonged to the estate or to appellant, was purely a question of fact, for the determination of the circuit court, before whom a trial was had, without a jury, on appeal from the county court. The circuit court, upon the evidence introduced, found the issue in favor of appellee, and that judgment was affirmed in the Appellate Court. On the trial in the circuit court no instructions were asked, nor were any propositions of law submitted for decision. This appeal, therefore, presents no questions of law for our decision, and as we are precluded by the statute from considering controverted questions of fact, the judgment of the Appellate Court was conclusive, and will have to be affirmed.

Judgment affirmed.

Mr. Chief Justice Scott dissenting.


text:
    Mary E. Kennedy v. Lavica M. Kennedy et al.

      Filed at Mt. Vernon January 31, 1883.

    1. Will—rule of construction. In the construction of a will the principal inquiry is the intention of the testator, from the words used, and if this satisfactorily appears from the will, it should prevail over any artificial rule of construction.
    2. Same—devise of the “homestead”—life estate, with power of disposition. A testator, being the owner of six hundred and thirty acres of land, forming one connected body of land, upon which he resided, and which he cultivated and carried on as one common farm, besides some disconnected • tracts, made a devise to his wife, as follows: “I give and bequeath to my wife, Mary, my homestead, to have and to hold during her life, to occupy and use the same, or dispose of it, at her. will and pleasure, and use and control the proceeds thereof, in lieu of her dower in my real estate, and one horse,” etc.: Held, that the word “homestead” was not used in the statutory sense, as known in the Homestead Exemption law, but it was meant to embrace the entire farm upon which he resided, being six hundred and thirty acres, but not the detached tracts; that only a life estate was given, and that the power of disposition in the wife was limited to the life estate.
    3. Executors—circuit court not authorized to appoint. The appointment of executors belongs to the jurisdiction of the county court, and when one of several executors dies, the circuit court should not appoint another ■ on bill for construction of the will, but should leave that with the county court.
    Writ of Error to the Circuit Court of Washington county; the Hon. Amos Watts, Judge, presiding.
    Mr. W. Henry Moore, for the plaintiff in error:
    The widow takes a life estate in the homestead. Johnson et al. v. Johnson et al. 98 Ill. 564; Welsch v. Belleville Savings Bank, 94 id. 191; Weed v. Aldrich, 5 Thomp. & Cook, (N. Y.) 105.
    As to the meaning of the word “homestead, ” in a devise, and its extent, see Gregg v. Bostwick, 33 Cal. 220; Hopkins v. Grimes, 14 Iowa, 73.

      The power of appointment and control of executors, and general administration of estates, is in the county court. Rev. Stat. chap. 37, sec. 93; chap. 3, sec. 38, and administration of estates generally.
    Messrs. Hosmer, Rountree & Akins, for the defendants in error:
    The only tests of a homestead are use and value, which the statute fixes. Gregg v. Bostwick, 33 Cal. 220.
    The tests of a homestead are the same as between the claimant' and a vendee, mortgagee, creditors, and the heirs. Estate of Delaney, 27 Cal. 180.
    Redfield on Law of Wills, rule 16, vol. 1, page 427, says, “that words in general are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another can be collected, and that other ascertained. ” Rule 17, same page: “Where a testator uses technical words he is presumed to employ them in their legal sense. ” And again, same volume, sec. 3, page 434: “In seeking for the expressed intention of the testator, his words are to receive that construction which a long series of decisions has attached to them, unless it is very certain they were used in a different sense. ”
    See Fairman v. Real, 14 Ill. 244: “If land be devised to a person, with general power to dispose of the same, an estate in fee simple passes. Such a power of disposition amounts to an absolute gift of the property. ” And see Funk v. Eggleston, 92 Ill. 515, and Markillie v. Ragland, 77 id. 98, for the same doctrine.
   Mr. Justice Sheldon

delivered the opinion of the Court:

The principal object of the bill in chancery in this case was to obtain a judicial construction of the following clause of the will of Dempsey Kennedy, deceased, viz: “After the payment of all my just debts and expenses, I give and bequeath to my wife, Mary, my homestead., to have and to hold during her life, to occupy and use the same, or dispose of it, at her will and pleasure, and use and control the proceeds thereof, in lieu of her dower in my real estate, and one horse and carriage, and harness, two cows, all my household and kitchen furniture, $2000 in money, and my family library, for her own property. ” And the particular in which construction is sought respects the word “homestead,”—the meaning thereof, and what estate it embraces.

The will bears date September 6, 1869. The testator died about the month of October, 1870. His wife, Mary, was his second wife, by "whom he had three children living at his death, and she was then about seventy years of age. By his first wife he had five children, two of whom were living at his death, and descendants of the three others. The testator, at the time of the making of his will and of his death, was the owner of a body of land of about six hundred and thirty acres, situated in Washington county, in this State, and in sections 16, 17 and 20, in township 2 south, range 2 west of the third principal meridian,—the part in section 16 lying along the whole extent of its west line; the part in section 17 lying along the whole extent of the east line, and the part in section 20 being the west half of the north-east quarter, and the east half of the north-west quarter. These lands formed one connected body of land, upon which the testator resided, and which he cultivated and carried on as one common farm, having owned the lands in sections 16 and 17 from thirty to forty years, and the others about fifty-nine years. His dwelling house and out-buildings were situated on the west half of the north-east quarter of section 20. There were four tenant houses on the premises,—one in the yard where the dwelling house stood, and the others in different places. • The testator also owned a detached tract of one 'hundred and forty-five acres of timbered land in the southeast quarter of section 5, in the same township, and a two-thirds interest in three hundred and twenty acres of land in Williamson county, and some three or four lots in Fayetteville. .The testator left no minor child, nor had one, when he made the will. There were devises over of the remainder. The circuit court decided that Mary Kennedy, the widow, was entitled only to a homestead of the value of §1000, and appointed three commissioners to set the same off, who set off to the widow the dwelling house and thirty acres of land upon which it was situated, in the west half of the north-east quarter of section 20.

In support of the decree, counsel for defendants in error insist upon the application of the rule, that where a testator uses technical words he is presumed to employ them in their legal sense, and contends that the term “homestead” in this will must he held to mean the estate of homestead which is given by our Homestead Exemption act. The point of inquiry must be the intention of the testator, what did he mean by the term employed, and if that be satisfactorily ascertained from the will, it should prevail over any artificial rule of construction.

. It would be strange that a testator should undertake, understandingly, to devise the estate of homestead which is given by the Homestead Exemption act, and that, too, in lieu of dower. The law itself gives it, and it would be an idle act to attempt to give it by devise. And the law gives dower as well, and it would not be in the power of a testator to give that estate of homestead in lieu of dower, or of anything else. We are of opinion that the testator in this ease did not employ the term “homestead” in the statutory sense, as known in the Homestead Exemption law, but that he used it in the untechnical, ordinary acceptation of the word,—that he meant by it his home place, the place upon which he lived. And we do not know how we can restrict this in extent to any particular legal subdivision, or to any definite quantity of land short of the entire place which was used - and occupied together,—which is to say, the testator intended here to embrace his home farm, this whole body of land in sections 16, 17 and 20, which was all connected together, which he lived upon, and carried on as one single farm. . This would not include the detached tract in section 5, or any other land. It is only a life estate which is given, and the power of disposition mentioned in the clause under consideration is to be limited to the life estate. Boyd v. Strahan, 36 Ill. 355; Henderson v. Blackburn, 104 id. 227.

We are satisfied with the finding that no waste had been committed.

Three executors of the will were appointed. The bill represents that one has died; that since his death it has been impossible to transact any business, on account of one of the two remaining executors refusing to act; that the will requires the cooperation of two executors, and the appointment of an executor in place of the one deceased is asked. The decree makes appointment of another executor. The appointment of executors belongs to the jurisdiction of the court of probate, (the county court,) and we think it should have been left with that court to make such appointment.

The decree of the circuit court is reversed, and the cause remanded for further proceedings in conformity with this Opinion.

Decree reversed.


text:
    Sallie G. Owens et al. v. Russell Crossett.

      Filed at Mt. Vernon January 31, 1883.

    1. Injunction—to prevent a trespass. An injunction will not lie to prevent a simple trespass to property, consisting of a single act, where the person committing or threatening the trespass is able to respond in damages; but if he is insolvent, and trespasses of a grave character are threatened to be repeated, equity will interfere to prevent the wrong by restraining the threatened trespass.

      2. Where a party, claiming to act as a road commissioner, had removed complainant’s fences a considerable number of times, claiming they were obstructions to a public road, and had said he would remove' them as often as replaced, and he had no property subject to execution, and the proofs failed to show the road was in fact located over the place in dispute, it was held, that the case fell within the exception to the general rule, and that a court of equity had jurisdiction to enjoin the defendant from again removing such fences, for the reasons there was no adequate remedy at law, and to prevent multiplicity of suits.
    3. Highway—party removing fences must show they are on the road. A party attempting to justify the removal and threatened removal of fences on the ground they are on a legally established road, must not only prove the establishment of the road, but also that such road was established and located at the precise places where the fences are built.
    4. Same—proof of., by user for twenty years. Evidence tending to prove that a road had been traveled over uninelosed prairie land for forty years, in a general direction, but the line of travel varying considerably, and had been changed within twenty years past, is insufficient to show a road by user or prescription over a particular place in question, so as to justify a road commissioner in removing fences placed thereon.
    5. Because a road is traveled, or even legally established, does not authorize a road commissioner to open or remove fences not within the boundaries of the road. His power to act is confined within the limits of the road, and to obstructions within those limits, and where he attempts to justify such a removal he must prove that his acts were done between the outer lines of the road.
    6. Evidence—of field notes, to show location of a road. To prove the establishment and location of a public road by commissioners appointed by an act of the legislature in 1847, some field notes were read in evidence, purporting to be those of the surveyor, dated in 1847, with certain pages cut out. The county clerk testified that he, on search, had not been able to find in his office any record of the road across a particular tract of land, and that the paper purporting to be the field notes was handed to him by a person collecting materials for a history of the county. There was no evidence of its authenticity, or how the person giving it to the clerk became possessed of it, or that it was ever filed as a part of the records establishing the road, or that the person making it was surveyor of the county, or was appointed by the commissioners to make the survey, and there was no proof of the signature of the surveyor, or that the notes were ever filed or intended to be filed: Held, that the evidence was not proper, and was inadmissible.
    Appeal from the Circuit Court of Marion county; the Hon. George W. Wall, Judge, presiding.

      Mr. William Walker, and Mr. Henry C. Goodnow, for the appellants:
    Injunction is a proper remedy to enjoin a continuous trespass. Smith y. Bangs, 15 Ill. 400; Smith v. Price, 39 id. 28; City of Peoria v. Johnson, 56 id. 48; McIntyre v. Story et al. 80 id. 127.
    The act of 1847 is in violation of sections 8 and 11, of article 8, of the constitution of 1818, that “no citizen shall be deprived of his property without due process of law, nor without just compensation.” The terms' “law of the land,” and “due process of law,” are synonymous. Reynolds v. Baker, 6 Cold. 221; State v. Statin, 6 id. 234; Bullock v. Geomble, 45 Ill. 218.
    Those terms mean a general public law, equally binding on all members of the State. Vaughn v. Haddell, 2 Yerg. 260; Walby v. Kennedy, id. 554; State Bank v. Cooper, id. 599; Jones v. Perry, 10 id. 59.
    To give the public a right by user to a road, the user must be adverse. 3 Kent, 419.
    There can be no adverse user so long as the owner has no desire or occasion to use the land. Warren v. Jacksonville, 15 Ill. 236; Kyle v. Town of Logan, 87 id. 67.
    Mr. M. Schæffer, and Mr. T. E. Merritt, for the appellee:
    The use of land for a highway for a period of twenty years is sufficient to establish the existence of the highway. Daniels v. People, 21 Ill. 439; Town of Lewistown v. Proctor, 27 id. 414.
    A public road may be established by user as well as by the record of its being laid out, and the evidence of such user may be by parol. Commonwealth v. Low, 3 Pick. 412; Green v. Canaan, 29 Conn. 167; Folger v. Worth, 19 Pick. 108; Washburn on Easements and Servitudes, 173.
    The failure, if any, to file the plat in Marion county, should not vitiate the action of the commissioners. This was merely directory. School Directors v. School Directors, 73 Ill. 249.
   Mr. Justice Walker

delivered the opinion of the Court:

This was a bill in equity, filed by appellants, to enjoin appellee from removing the fence on the opposite sides of a field, where it is claimed a road enters and passes through the field. Complainants deny that there is any regular, legally laid out or established road that passes through the field, and defendant claims there is, and justifies his acts on the ground that he is a road commissioner, and has the right, and that it is his duty, to remove the fence as an obstruction, and keep the road open and free to travel by the public. These are the grounds of the controversy.

It is first urged in affirmance of the decree dismissing the bill, that it will not lie to enjoin a trespass. Such is undoubtedly the rule where it is a simple trespass to property, and is but a single act, and the person committing or threatening the trespass is able to respond in damages; but where he is insolvent, and repeated trespasses of a grave character are threatened to be repeated, equity will interfere to prevent the wrong, by restraining the threatened trespass. Here, the fence had been removed a considerable number of times, and it is admitted that defendant had said he would, and intended to, remove it as often as it should be replaced, and that he has no property subject to execution. This brings the case within the exception to the general rule, and authorized the court to entertain jurisdiction of the case, because there was not an adequate remedy at law, and also to prevent a multiplicity of suits at law.

Appellee has endeavored to establish his defence by showing that the road was located and established by commissioners appointed by the act of the legislature, adopted the 27th of February, 1847. (Sess. Laws, 93.) Also, by proof that, under the appointment of commissioners by the county commissioners’ court, at its September term, 1842, a road was located, and is established, of which the portion in controversy is a part, and further, that the road is established by user as a .public highway for twenty years or more. The claim that this portion of the road is any part of that located by the county commissioners’ court, in 1842, is not shown. There is no evidence showing, or tending to show, where that road was in fact located. The general direction no doubt appears, but there is no evidence that it passed over any portion of the land of appellants. For aught that appears, it may not have passed within miles of this road at that point. It devolved on appellee not only to prove that the road was established, but that it was at the precise places where he removed the fence, to establish this defence. This he has clearly failed to do.

Has appellee proved that this is a part of the road located by the commissioners appointed by the General Assembly ? The proof shows that they located a road, but it does not show that this is any part of that road. Some field notes were read in evidence, purporting to be connected with the location of a road by the commissioners appointed by the act of February 27, 1847, and purporting to be signed by Seth Fuller, surveyor of Bond county, and bearing date the 19th day of August, 1847. The paper has the file mark of the county clerk of Marion county, on the 14th day of November, 1881, but it is not signed. It also appears that pages 21 and 22 of these notes of the survey had been cut out. The county clerk of Marion county swears that he had searched, but had been unable to find any record of a road running across this land, in his office; that the paper purporting to be the field notes of the survey of the road located by the commissioners under the act of 1847, was handed to him by a person who was collecting facts from which to write a history of the county, who had been searching among old papers pertaining to his office. There was no evidence of its authenticity,—not even the evidence of the person who handed it to the clerk as to how he became possessed of it, or that it was ever filed as a part of the records establishing the road of which it purports to be a survey. There is no evidence Fuller ever lived in or was the surveyor of Bond county, or if he did live in that county, that he was appointed by the commissioners to make the survey, nor is his signature proved to be genuine, nor is there the slightest proof that the commissioners intended the paper to be filed, or that it ever was his purpose to or that he did file it. We have but the paper, without knowing by whom made, or the purpose for which it was made, or in whose custody it has remained. This falls far short of legitimate evidence, and was not admissible. It does not matter, therefore, whether these field notes call for a road across this land at the place traveled as a road, or not, as the field notes are not proved to have been made according to the requirements of the law, or to be authentic. There is nothing to show they are not fabricated, or were made for other purposes than to be filed as evidence of the place where the road was located.

As to the claim of user, there is a large amount of evidence, extending back more than forty years. It tended to prove, and does prove, that there has been a road traveled in the general direction, and near to where appellee claims it was located; but there is little, if any, that proves or tends to prove that the travel has ever been, or now is, within the lines within which it was located, or within the same lines traveled for twenty years. In fact, the decided preponderance is, that the line of travel has constantly varied, and that it is more than the width of the road, as claimed to have been laid out, from where it was formerly traveled, and these changes have been made within less than that period. Again, this portion of the road ran through uninclosed prairie lands, and the people traveled as they chose, not being confined to any definite track. ■ The evidence not only fails to prove that the road was traveled at the places where appellee removed the fence, continuously for twenty years, but it, to our minds, satisfactorily proves that it was not thus traveled. Because a road is traveled, or even legally established, that does not authorize a road commissioner to open or remove fences not within the boundaries of the road. His power to act is confined to the territory of the road, and to obstructions within that territory; and when he justifies, he must prove that his acts were done between the outer lines of the road. The evidence shows that the road authorities made diligent search for the evidence that a road was located on this land, but were unable to find any to prove the fact, and they believed that none existed, or if it did, there was no evidence of the fact, and for that reason, and to accommodate public travel, compromised, and took from appellants a strip for the purpose, on one side of the land, and agreed to abandon the old traveled way. A road may no doubt be acquired over uninclosed prairie land by user, but it is more difficult to confine the travel continuously over precisely the same track or line of travel, and even when that is done, it is more difficult of proof, than when confined by lanes, or, when in the timber, by trees, and other objects that confine travel within the boundary lines of the road. But in all cases, to establish the justification of removing obstructions, it must be shown that they are actually within those lines.

All the evidence considered, we are clearly of opinion that appellee failed to establish a right to remove or break down the fence, as he claimed a right to do, and the court below erred in dismissing the bill, and the decree must be reversed and the cause remanded.

Decree reversed.