author: Mr. Justice Mulkey

text:
    Rudolph Wehrli v. Henry Rehwoldt.

      Filed at Ottawa June 16, 1883.

    1. Contract—seeking recovery upon executory contract—performance or offer to perform—notice to party alleged, to be in default. The general rule is, that in suing upon an executory contract for services, the plaintiff, before he will be entitled to recover, must aver, and prove, if denied, that he has either performed the services, or that he was ready and offered to perform them. »
    2. But where it is expressly stipulated, or where, from the nature of the contract itself, the plaintiff is entitled to notice or a request to perform, then it is sufficient to aver, and prove, if denied, a readiness to perform.

      3. "Where a party stipulates to do a certain thing in a certain specific event, which may become known to him, or with which he can make himself acquainted, he is not entitled to any notice unless he stipulates for it; but where he is to do a certain thing which lies within the peculiar knowledge of the opposite party, then notice ought to be given to him.
    4. "Where an architect was employed to superintend the erection of a building at a specified place, and within a definite time, and the work was let out to contractors, he being present when the bids were received, and might have known when the work was to be commenced if he had tried to ascertain, but he did not offer to perform at any time, and the other party, on his failure to offer to perform in proper time, employed another architect, who superintended the work and was paid therefor, it was held, that the architect first employed could not recover for a breach of the contract, the facts tending strongly to show a mutual abandonment of the contract.
    ' Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Mr. Joseph Peirshing, for the appellant:
    The declaration in a case like this must aver performance by the plaintiff, or what is equivalent to it, and this allegation must be proved. Gould’s Pleading, chap. 4, secs. 13, 15; 1 Chitty’s Pleading, 321, side page 322. See, also, Greenup v. Stoker, 3 Gilm. 212; Burke v. Shain, 2 Bibb, 241; Leopold v. Salkey, 89 Ill. 412.
    That plaintiff was not entitled to notice, see 2 Parsons on Contracts, (5th ed.) 669; Vyse v. Wakefield, 6 Mees. & Wels. 6 Exch. 442; 7 id. 126.
    A party having notice of such facts as would put a prudent man on inquiry, is chargeable with notice of all facts to which inquiry would have led. 4 Kent’s Com. 179; Babcock v. Lisk, 57 Ill. 327; Chicago, Rock Island and Pacific R. R. Co. v. Kennedy, 70 id. 350; Russell v. Ransom, 76 id. 168; Bent v. Coleman, 89 id. 364.
    The plaintiff can not recover without performance. The doctrine of constructive performance has been repudiated by the courts in England and in this country. Orchard v. Hor

      nor, 3 Carr. & Payne, 349; Smith v. Hayman, 7 Ad. & Ellis, 544; Fewing v. Tisdale, 1 Exch. 295; Cutter v. Powell, 2 Smith’s L. C. 48; Goodman v. Pocock, 15 Q. B. 576; Howard v. Daly, 61 N. Y. 362; Clark v. Marsiglia, 1 Denio, 317; Whitaker v. Sandifer, 1 Duval, (Ky.) 261; Chamberlain v. McAllister, 6 Dana, 352; Durkee v. Mott, 8 Barb. 423; Moody v. Leverich, 4 Daly, 401.
    Messrs. Tagert & Cutting, for the appellee:
    The citation from 2 Parsons on Contracts, 669, is an authority for the appellee. The knowledge of when the work was to commence was the “peculiar knowledge of the opposite party.” A defect in the declaration can be reached by a demurrer only. Cook v. Orne, 37 Ill. 186.
    The completion of the building within the stipulated time for its commencement, without notice of any kind to the employé that his services were required, was a direct breach of the contract by Wehrli, and there was not the slightest obligation upon Rehwoldt to demand of Wehrli, or tender to Wehrli, that which Wehrli had put it out of his power to give orto receive. Risinger v. Cheney, 2 Gilm. 84; 2 Parsons on Contracts, (5th ed.) 675, note n, 666, 667.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This action was brought by Henry Rehwoldt, the appellee, in the Superior Court of Cook county, against Rudolph Wehrli, the appellant, to recover damages for the breach of the following written contract:

“This agreement, made this 9th day of March, 1880, between Rudolph Wehrli and- Henry Rehwoldt, witnesseth: That for and in consideration of the mutual covenants and agreements between said parties hereinafter named and specified, the parties hereto have settled and discharged all matters of difference existing between them, of every nature and kind whatsoever.

“Wehrli, in pursuance and consideration of the foregoing, agrees to pay to Eehwoldt $100 at execution of this agreement,—the receipt of which is hereby acknowledged by Eehwoldt. Wehrli further agrees to employ Eehwoldt to superintend the erection of a block of buildings, to be built on. a lot in Chicago, according to plans drawn by F. Bauman, said buildings to be commenced on or before January 1, 1881, and completed as soon as can be without unnecessary delay; and Wehrli agrees to pay Eehwoldt, for his services as superintendent, $475, in installments, as work progresses, and all to be paid on or before the time when the buildings are completed. Eehwoldt, in consideration of the foregoing, agrees to superintend the erection of said buildings for the sum above named, at the time and manner above specified, and to give all necessary time, attention and ability to the superintending of the erection of said buildings, as superintending architect.”

The action is special assumpsit, the declaration being in the usual form. It avers a readiness and offer to perform the contract by the plaintiff during the period specified therein, and then charges that the “defendant erected said buildings during said time, and did not allow plaintiff to superintend the construction of the same, and refused to permit plaintiff to perform his part of said contract. ”

It appears from the testimony of both parties, that the plaintiff never performed, or offered to perform, any service under this contract, and although frequent conversations occurred between them just before the commencement of the work, and while bids were actually being received for the work, not a word was said by either of the parties in relation to the superintendence of the work by the plaintiff. The evidence also clearly shows the work was let out to contractors, and this was well known to plaintiff, for, as just observed, according to his own testimony, he was present, perhaps as often as twice, when the defendant was receiving bids on the work. The defendant in his testimony says: “I saw Rehwoldt during spring of 1880, while I was. opening or taking bids for the erection of that block of buildings on Yincennes avenue. Rehwoldt was’ present when I was opening bids. He knew I was going on with the work. Rehwoldt never offered his services to do the work. He never did any work about the buildings, and never offered to do any. I never prevented him from doing any work about the buildings. I saw him frequently during the time that I was opening bids, and getting ready to go on with the work, and saw him while the work was progressing. I employed some one else afterwards to do the work. I employed Mr. Bauman, and paid Bauman for doing the work. Mr. Rehwoldt did not, at any time, either before I commenced building or while it was going on, offer his services to superintend the erection of buildings, or to do any work about them. ” It also appears, from appellee’s own testimony, that he was living in Chicago, and knew when the contractor commenced the erection of the block of buildings in question. '

Under the instructions of the court the jury found for the plaintiff, and assessed his damages at $3.50. The court rendered judgment on the verdict, and the defendant excepted. On appeal to the Appellate Court this judgment was affirmed, and the defendant brings the case here for review, upon a certificate from the Appellate Court.

On the trial the defendant asked the court to instruct the jury as follows:

“The jury are instructed by the court, that if they find, from the evidence, that the plaintiff knew when and where defendant was going to erect the block of buildings mentioned in the contract in this case, and that defendant did not prevent plaintiff from superintending the erection of said buildings, and that plaintiff did not, in fact, do any work or perform any services for defendant under said contract, then the jury should find for the'defendant.”

—Which the court refused to do, but, on the contrary, told the jury, at the instance of the plaintiff, “that under the contract it was the duty of the defendant to notify the plaintiff when he was ready to go on with the work, and the plaintiff was under no obligation to offer his services till he was notified,”—to which several rulings of the court the defendant at the time excepted.

The only question arising upon the record, which we are permitted to consider, is, whether, under the evidence, the instructions in question properly laid down the law of the case to the jury, and we are clearly of opinion they did not. The error in instructing the jury is doubtless attributable to .a misapplication of a general principle applicable to a specific class of cases, analogous in some respects to the ease in hand, but differing from it in an important particular. The undoubted general rule is, that in suing upon an executory contract for services, the plaintiff, before he will be entitled to recover, must aver, and prove, if denied, that he has either performed the services, or that he was ready and offered to perform them. (Gould’s Pleading, chap. 4, secs. 13, 15; Chitty’s Pleading, (14th Am. ed.) 321, et seq.) But where it is expressly stipulated, or where, from the nature of the contract itself, the plaintiff is entitled to notice or a request to perform, then it is sufficient to aver, and prove, if denied, a readiness to perform.

The law on this subject is well and aptly stated by Parsons in his work on Contracts, vol. 2, page 669. The author says: “The rule to be collected from the eases seems to be this, that where a party stipulates to do a certain thing in a certain specific event, which may become known to him, or with which he can make himself acquainted, he is not entitled to any notice unless he stipulates for it; but when it is to do a certain thing which lies within the peculiar knowledge of the opposite party, then notice ought to be given him. That is the common sense of the matter, and is laid clown in all the eases on the subject.” The courts below must have assumed the case in hand fell within the specific class of cases referred to by the author in the last part of the paragraph just cited, which we think was clearly a misapprehension.

The work was to be done at a specified place, and within a definite time. It was also let out to contractors, as was doubtless contemplated by both parties at the time of making the contract, and the plaintiff had express notice that it was so let out, for, as we have already seen, he was present, talking with the defendant, when some of the bids were received. When the work passed into the hands of the contractors, it is hardly probable that either the plaintiff or the defendant knew the exact day on which they would commence operations. As to the defendant, he, so far as we can see, had no special interest in knowing, while the plaintiff’s duty required him to know, and which he could easily have ascertained by inquiry, if he had seen proper to do so. When the work commenced it was his duty to be there. Instead of that, he quietly sat by, willfully closing his eyes to the fact, and waiting for the plaintiff to make a formal request that he should go.to work. The law, as we understand it, did not require the defendant to do this. The plaintiff having failed to make an appearance, the defendant, some time after its commencement, employed another architect, under whose supervision the work proceeded to completion, when he was fully paid _by the defendant for the services which the plaintiff himself should have performed. During all the time, from the date of the contract to the hour of the completion of the work under another architect, the plaintiff, according to his own statement, so far from offering to do the work, never so much as said a word about it to the defendant, although he had repeated conversations with him about the time the work was let to the contractors,—nor, indeed, was there anything said by the defendant on the subject. These facts, we think, tend strongly to show a mutual abandonment of the contract by both parties.

This somewhat extensive discussion of the facts is not done with the view of questioning the finding of the jury. So far as the hearing here is concerned, with respect to controverted issues of fact raised in the courts below, either by the proofs or pleadings, it is wholly immaterial what the evidence on the trial was, for all such controverted issues of fact are conclusively settled against the appellant by the affirmance of the judgment in the Appellate Court; but our discussion of the facts was for the sole purpose of showing, as clearly as we could, the instructions given, which would have been entirely proper in a certain class of cases, were not proper under the circumstances of this case.

The judginent of the Appellate Court is reversed, and the cause remanded for further proceedings in conformity with the views here expressed.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Scott

license: Public Domain

text:
    Mary Cleaver et al. v. Hetty H. R. Green et al.

      Filed at Ottawa June 16, 1883.

    1. Sale under trust deed—personal notice to grantors. A trust deed given to secure the payment of a note, with interest, provided that on default of payment of either principal or interest the trustee might sell the premises conveyed, on giving twenty days’ notice of the time and place of the sale, in any daily newspaper of the city where the property was situate, and waived any personal notice to the makers of the deed. Before any sale was made the makers sold and conveyed them equity of redemption to a third person. It was held, the fact that no personal notice of the time and place of a sale subsequently made was given to the makers of the trust deed, was no ground on which to have the trustee’s sale set aside.

      2. Same—of trustee’8 duty to subdivide land and sell in parcele. Where property conveyed by a trust deed, to secure the payment of money, is situated outside of the limits of a city, in a district ocoupied chiefly for residences, and is not larger in quantity than is desirable for a residence, a failure on the part of the trustee to divide the same and sell in parcels, there being nothing in the trust deed imposing such duty, was held no ground to avoid a sale made by him in pursuance of the power in the deed.
    3. Same—inadequacy of price. It is not to be expected that property will bring as much at a forced sale as if sold at a private sale by judicious advertising and management, and because it does not is no sufficient reason for setting aside the sale, when there are no unfair or fraudulent practices, and when there is no such inadequacy of price as to raise a presumption of fraud.
    4 Same—relief against, barred by laches. Where property is sold by a trustee under a power in a trust deed, the makers of 'which had conveyed their equity of redemption to one who had made no' complaint, and about five years afterward a subsequent purchaser reconveyed the property, when the original owners filed a bill to set aside the trustee’s sale and deed, for irregularities, it was held, that the laches in the case was of itself a bar to the relief sought, when no satisfactory excuse was given for the delay.
    Writ of Error to the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Mr. J. W. Waughop, for the plaintiffs in error.
    Messrs. Paddock & Ide, for the defendants in error.
    Messrs. McCoy, Pope & McCoy, also for the plaintiffs in ■ error, in reply.
   Mr. Justice Scott

delivered the opinion of the Court:

Prior to and on the 13th day of March, 1872, Mary Cleaver was the owner, in her own right, of the property in controversy. On that day her husband, Charles Cleaver, borrowed of Hetty H. E. Green the sum of $10,000, for which he gave her his note, payable five years after date, with interest at ten per cent per annum, the interest being made payable semi-annually. To secure the payment of the note, with the interest thereon, Mary Cleaver joined with her husband, Charles, in making a trust deed on the property which is now the subject of this litigation. Benjamin E. Gallup was named trustee in the deed. The trust-deed contained the usual power of sale on default being made in the payment of either the interest or principal of the note. Later on, default was made in the payment of the note, and the trustee, on the request of the holder, advertised the property for sale, as it is provided in the trust deed it should be done, and on the day appointed it was sold to Hetty H. B. Green, the holder of the indebtedness secured, for the sum of $8000. The sale was made in September, 1877, after the principal of the note had become due. In the spring of 1876, Mrs. Cleaver,—her husband joining with her in the execution of the deed,—conveyed the 195 feet in controversy, and another lot adjoining it, having a front of 80 feet, to Francis E. Hinckley, by warranty deed. The terms of the sale to Hinckley do not fully appear. It is proven, however, that Hinckley agreed to pay and discharge the indebtedness of Charles Cleaver secured by the trust deed, but that, he did not do. It further appears Mr. Cleaver left $4000 in the hands of Hinckley with which to pay the back and-current taxes on the property conveyed to him. Of the taxes charged against the property he only paid a part. Whether Hinckley paid Mrs. Cleaver anything on the property at the time he purchased it of her, is not shown by the testimony. Some time after the trustee’s sale of the property to Mrs. Green, Hinckley seems to have reconveyed the property to Mrs. Cleaver. The date of the reconveyance is not definitely fixed by the evidence. At first, Mr. Cleaver stated it was in 1878, but afterwards stated he thought it might have been as late as 1881. There is no doubt it was some time after the trustee’s sale.

On the 11th day of March, 1882, Mrs. Cleaver filed her bill in the Superior Court to set aside the trustee’s deed to Mrs. Green, and to be permitted to redeem the property, and tendered with her bill the full amount due on the note secured by tbe trust deed, with the accrued interest thereon. The principal grounds on which the validity of the sale is attacked are: First,, that the notice given of the sale was not sufficient, and that neither the owner nor her husband had any actual notice of the contemplated sale; second, that the land was susceptible of division, and had it been subdivided it would have sold to better advantage; and third, it was sold for an inadequate price. As respects the sufficiency of the notice, it is provided in the trust deed, in case default should be made in- its conditions the property might be sold by the trustee to the highest bidder, for cash, at the north door of the court house, in the city of Chicago, after having given twenty days’ notice of the time and place of the sale, by an advertisement in any daily newspaper that might be published at that time, in the English language, in the city of Chicago. Personal notice was expressly waived. The notice given, under which the property was sold, was published twenty-one times before the day of sale, in the “Chicago Evening Journal, ” a daily newspaper published in the city of Chicago, precisely as the trust deed provided it should be. No complaint is made that the “Chicago Evening Journal” is not a daily newspaper of general circulation, nor is any specific objection taken to the notice. It is said it was a “formal and not a general notice. ” How it could be less formal or more general is not perceived. It is precisely such a notice as the parties contracted should be given. But it is said no actual notice was given to complainant of the proposed sale. Two answers may be made to the objection taken: First, it was expressly provided in the trust deed personal notice was waived; and second, at the date of the trustee’s sale complainant had parted with the equity of redemption, and at that time it was in Hinckley, her grantee under a warranty deed, and, so far as this record discloses, it is not perceived that either complainant or her husband had any interest in the property. The proof is, Hinckley had agreed to pay the incumbrance on the property, and it would seem that personal notice to complainant at that time would have been of no sort of use. Notice to Hinckley, if any personal notice was necessary, would have been of more avail. It does not appear the trustee had notice that Hinckley had assumed to pay the incumbrance on the property, but his partner in the office with him was notified of that fact before the sale. There is no just reason for insisting that complainant should have had actual notice of the sale.

Great stress is laid on the point made that the property should have been subdivided by the trustee, and sold in smaller lots. No provision of the trust deed made it his duty to subdivide the property before making the sale, nor can it be said, as a matter of law, under the circumstances it was his duty to sell in parcels. It will be remembered this is not business property. It is what the witnesses call “suburban property, ”—residence property,—and is situated outside the limits of the city of Chicago, and in the north part of the village of Hyde Park. It is situated in the midst of residences. At most it is a small tract of land, being 195 feet front, with a depth of 200 feet. The evidence shows a number of persons residing in that vicinity have residence property as large, and some even larger, than this whole tract. The entire tract is a small lot for a suburban residence, and to subdivide it might, in the estimation of many persons, render it less desirable for residence property, situated, as it is, so far away from the populous portion of the city. Simply omitting to make any subdivision of the property before sale, when he was not required so to do by the conditions of the trust deed or the mortgage, is not evidence of bad faith on the part of the trustee. A prudent owner might have done the same thing with his own property.

It may be .the property was sold for less than its real value. The testimony shows property in that vicinity, at the date of the trustee’s sale, was unsalable for cash. At all events it was dull sale, and some of the witnesses say there was really no demand,—at least very little,—for it. The price at which the property was hid off was $8000. That may not have been the full value of the land. It is certain, however, no one appeared to bid more for it, although the sale was advertised for more than twenty days in one of the daily newspapers published in the city. As has been seen, Hinckley, although he had obligated himself to pay the incumbrance resting on the property, failed to do so. At that time the indebtedness secured on the property probably did not exceed $12,000 to $14,000, and had there been any great speculation in the' property at that price, it is hardly probable he would have allowed it to go to sale. In addition to the amount bid there were unpaid taxes on the property, the exact amount of which is not disclosed, which should be considered as an addition to the sum bid at the trustee’s sale. On the whole case considered, the price at wdiich the property was bid off is not so inadequate as to shock the judgment, or raise any presumption of fraud. It is not to be expected that property will bring as much at a forced sale as it could be made to do at a private sale, by judicious management and by unusual advertising, and because it does not, it is no sufficient reason for setting aside an official sale, wdiere there have been no fraudulent or unfair practices.

The decision of this case might, with much propriety, be placed on the doctrine of what the law calls laches. This defence is set up in the answer of defendants, and insisted upon. It is seen, nearly or quite five years elapsed after the trustee’s sale before this bill was filed to impeach it. For several years of that time the equity of redemption was in Hinckley, So far as he is concerned he seems to have acquiesced in the sale,—at least no complaint is heard from him during all that period. After Hinckley made a quitclaim deed for the property to Mrs. Cleaver she brought this bill to-set aside the trustee’s sale. It is not questioned that complainants knew of the trustee’s sale within a few weeks after it was made. To avoid the effect of this unreasonable delay, it is said defendants held out that all they wanted was their money, and under that belief complainants made valuable improvements, on the understanding they would be permitted to redeem the property. It is not claimed complainants had any contract with defendant Green that she might redeem the property at any definite future time. The utmost that is claimed is, that the husband of Mrs. Green, the purchaser, when on a friendly visit at the home of complainant on the premises, on a Sunday afternoon, while viewing the improvements that had been recently made, said to Mr. Cleaver, to keep on,—that all he wanted was his money, and the sooner he got it the better it would suit him. The husband of the purchaser, in his testimony, denies that he made any such statement,, and further says he had no authority from his wife to make any arrangement to that effect. If it be conceded, which it is not, that the husband was the agent of his wife, he was not transacting any business for her at that time, so that what he said became a part of the res gestae, and therefore competent evidence. At most, this was but a casual conversation between two persons, neither of whom had any real interest in the property. Their wives were the parties in interest. Such a conversation is certainly not obligatory on the parties claiming to be the owners of the property. The improvements alleged to have been made by complainants were insignificant in value, and there is not the slightest evidence Mrs. Green had any knowledge they were doing anything on the property. At that very time Mrs. Green had caused her agent to place a board on the property that it was for sale. The doctrine of laches is stated by this court in Bush v. Sherman, 80 Ill. 160, where it is said: “The principle that lies at the foundation of all the cases in this court upon this subject is, the party who challenges a sale on account of irregularities that may have intervened, must be diligent in discovering that which he alleges will avoid the sale, and diligent in his application for relief. Unreasonable delay, not explained by equitable circumstances, has always been declared evidence of acquiescence in the sale, and a waiver of all mere irregularities.

A party will not be permitted to delay, to enable him to speculate on the chances of an appreciation in value of the property, and elect to avoid the sale only when it will be profitable to do so. He must make his election at the earliest practicable moment.” The principle of this case has its application to the one being considered, and ought to control it. Complainants have shown no satisfactory reason why they did not insist the sale was invalid many years before they did. They knew of the sale of the property very soon after it was made. There is not a particle of testimony that shows, or even tends to show, the purchaser at the trustee’s sale did or said anything to throw them off their guard, or to induce them to sleep on their rights, if they had any.

In no view that can be taken is there any tenable ground upon which the trustee’s sale can be set aside. After a most painstaking examination of everything in the record, nothing is perceived that the law will take hold of and afford the desired relief. So far as this record discloses, the trustee’s sale was fairly and honestly conducted, in strict compliance with the power contained in the trust deed, and must be permitted to stand.

The decree of the Superior Court will be affirmed.

Decree affirmed.


author: Mr: Chief Justice Sheldon

text:
    The City of Cairo v. Leonard Everett.

      Filed at Mt. Vernon June 16, 1883.

    1. Mandamus—to compel city to levy tax to pay judgment—of ike prior demand. A written demand by a creditor for the payment of a judgment against a city, and a neglect to pay, is sufficient to authorize a mandamus requiring the city council to levy a tax for the payment of the judgment. It is not necessary that the creditor should first demand the levy of such tax. The demand of payment is held to include a demand to do any particular thing necessary to such payment.
    2. Same—for payment of judgment after its affirmance. Where a judgment against a city has been affirmed, on error or appeal, it is not necessary that a copy of the order of affirmance be filed with the circuit clerk before filing a petition for a mandamus to compel the city council to levy a tax to pay such judgment. Section 82 of the Practice act has respect, alone, to proceedings in the lower court for carrying into execution the judgment, and has no application to independent proceedings upon the judgment elsewhere.
    3. An order in a judgment against a city for a certified copy thereof to be delivered to the city council, is a provision the performance of which is not at all essential to the validity of the judgment, nor'to the taking of any proceedings for its enforcement.
    Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of Alexander county; the Hon. Dayh> J. Baker, Judge, presiding.
    Messrs. Green & Gilbert, for the appellant:

      Mandamus is now hut an ordinary action at law, and the plaintiff must show a good cause of action. People v. Weber, 86 Ill. 285; People v. Glann, 70 id. 232.
    A party can not be compelled to- do an act unless it is shown clearly that it is his duty to do so. Hall v. People, 57 Ill. 316; People ex rel. v. Klokke, 92 id. 134; Moses on Mandamus, 202, 206, 322.

      A demand and refusal are held necessary to relief by mandamus, and the demand must be express and distinct, and express the precise thing which is required. Macoupin County v. People, 58 Ill. 192; 2 Dillon on Mun. Corp. sec. 698, note 3; Moses on Mandamus, 202, 206-208.
    A mandamus will not be awarded to compel officers to do any act they are not authorized to do. Supervisors v. United States, 18 Wall. 77; Reardon v. St. Louis Co. 36 Mo. 560.
    Relator’s first demand was premature, as no order of affirmance was filed with the clerk, and no copy of the judgment was certified to the council, as required in the judgment.
    Counties and corporations created for public convenience only are not required to seek their creditors to discharge their indebtedness, but when payment is desired the demand should be made at their treasury. People v. Tazewell County, 22 Ill. 147; Johnson v. Stark County, 24 id. 91; City of Pekin v. Reynolds, 31 id. 529.
    The demands averred in the petition, as well as the plea, “for payment of said judgment,” did not justify the prayer of the petition, nor the judgment of the court for a writ commanding a tax to be levied, since the law is, that the prayer of the petition, as also the writ, must correspond with the demand. To demand one thing and pray for and compel performance of another, is not in accordance with the settled rules applicable to mandamus. Buller’s Nisi Prius, 204; Tapping on Mandamus, 302, 493; 1 Redfield on Railways, 649.
    Mr. John M. Lansden, for the appellee:
    The appellee could not know whether appellee had money in its treasury or not, but the council did know. Appellee wanted his judgment paid, and demanded it, and it was the duty of the city council to take the necessary steps to enable them to pay the judgment.

      It is claimed the demand of payment was premature for two reasons: First, because no copy of the affirming order
    had been filed in the circuit clerk’s office; and second, because no copy of the affirmed judgment had been certified to the city council.
    • Section 82 of the Practice act applies only to cases where executions or other like process may be issued. It has no application to a case where no execution can be issued.
    There is no law requiring a judgment against a city to be certified to the city council. A direction in the judgment to that effect, while very proper, affects the judgment in no way whatever.
   Mr: Chief Justice Sheldon

delivered the opinion of the Court%

This was a petition filed in the circuit court of Alexander county, for a writ of mandamus to compel the city of Cairo to levy a tax to satisfy a judgment against it in favor of the petitioner. The circuit court gave judgment awarding the writ, which was affirmed by the Appellate Court for the Fourth District, and an appeal taken to this court.

The judgment was rendered upon the sustaining of a demurrer to the replication to the plea to the defendant’s answer, and the question presented is as to the sufficiency of the demand for the performance of the act sought to be enforced.

On the 1st day of July, 1879, appellee made a written demand upon the city council for the payment of his judgment, which was referred by that body to the corporation counsel, who never reported on the same. The demand stated the recovery of the judgment against the city on July 1, 1878, in the circuit court of Alexander county, for $1200, and costs of suit; that the city took an appeal from the judgment to the Appellate Court for the Fourth District, which court, at its February term, 1879, affirmed tbe judgment, and that it was in full force, and remained wholly unpaid and unsatisfied, and stating the amount due at the time of the demand. The petition was filed October 6, 1882.

It is objected to the demand that it did not demand the particular thing prayed for in the petition, viz: the levy of a tax. It was the duty of the city council to pay the judgment if there were sufficient funds in the city treasury to pay it therefrom; if not, then to take the necessary steps to bring into the city treasury the requisite funds. The judgment creditor would not be supposed to know whether there were, or not, funds in the city treasury for the payment of his judgment. We think it sufficient for him to demand the payment of his judgment,—that this may be held as including a demand to do any particular thing which was necessary to be done to enable the city council to make payment of the judgment.

Further objection is taken that the demand was premature, in its being made before a copy of the order of affirmance of the judgment of the circuit court was filed with the circuit clerk. This, is founded upon the 82d section of the Practice act, providing that when, upon an appeal or writ of error, a judgment is affirmed, upon a copy of the order of affirmance being filed in the office of the clerk from which the case was removed “execution may issue, and other proceedings be had therein, in all respects as if no appeal or writ of error had been prosecuted.” (Eev. Stat. 1874, p. 785, sec. 83.) This, we think, has respect alone to proceedings in the lower court for the carrying into execution of the judgment, and has no application to independent proceedings upon the judgment elsewhere, as in the present case. A copy of the order of affirmance was filed in the circuit clerk’s office on January 21, 1882.

It is objected further, that there had been no copy of the judgment certified to the city council, as required by the judgment itself of the circuit court. That judgment did thus order, but it was a provision whose performance was not at all essential to the validity of the judgment, nor, as we conceive, to the taking of any proceedings for the enforcement of its execution. There was a certified copy of the judgment delivered to the city clerk, at his office in the council chamber, on July 11, 1882, with a second demand of payment indorsed thereon. But what we have already said renders it unnecessary to consider the effect of this second demand.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


text:
    Henry B. Kepley v. Bernard Jansen.

      Filed at Mt. Vernon June 16, 1883.

    1. Lien foe taxes—upon other lands. The statute does not make the taxes due on one tract of land a lien upon another tract.
    2. Same—purchaser under judgment which includes taxes not a lien on the land sold—prior incumbrance. Where a tract of land is sold on execution issued upon a judgment which includes taxes on other lands besides the tract sold, the sale will be regarded as having been made Under an ordinary judgment, where personal service was had, and the purchaser will take the same subject to a mortgage lien thereon made before the judgment became a lien.
    3. Fobeclosuee—as to taxes paid before principal is due. Where the interest on a mortgage debt is payable annually, the mortgagee, in foreclosing for unpaid interest due, may have included in the decree taxes paid .by him to preserve his security, and is not bound to wait until the principal debt is due.
    4. Party—to bill to foreclose. On bill to foreclose a mortgage, a purchaser of the land, on sale under a judgment against the mortgagor which is not a prior lien, is not only a proper but a necessary party defendant, as the holder of the equity of redemption.

      Appeal from the Appellate Court for the Fourth District; —heard in that court on writ of error to the Circuit Court of Effingham county.; the Hon. Thomas S. Casey, Judge, presiding.
    ' Mr. Henry B. Kepley, pro se:

    The tax on real estate is a lien thereon from the first day of May in the year in which it is levied, and this lien takes precedence of all others, though created before. Bev. Stat. chap. 120, sec. 253; The People v. Stahl, 101 Ill. 346; Eaton’s Appeal, 83 Pa. St. 152; Dunlap v. Gallatin County, 15 Ill. 7; Dennis v. Maynard et al. id. 477; Almy v. Hunt, 48 id. 45; Binkert v. Wabash Ry. Co. 98 id. 205; Rogers v. Dickey, 1 Gilm. 645; Cooley on Taxation, 305, 306, and causes cited; Burroughs on Taxation, 371, 374; Stokes v. The State of Georgia, 46 Ga. 412; The People v. Biggins, 96 Ill. 481.
    A title based on a sheriff’s sale of real estate under a judgment for the purchase money thereof, takes precedence of the right of homestead, or other claims or liens, even when the fact that it is for purchase money does not appear from, the judgment, but has to be shown by extrinsic evidence. The People v. Stahl, 101 Ill. 346; White v. Clark et al. 36 id. 285; Stevenson et al. v. Marony, 29 id. 532; Durham v. Bostick, 72 N. C. 353; Freeman on Judgments, 180, 181.
    The suit and judgment in “any court of competent jurisdiction” do not change the nature of the demand or cause of action, but only change the form. of it; and this change does not affect any lien that secured it. Eschback v. Pitts, 6 Md. 71; Wyman et al. v. Cochran, 35 Ill. 152; The People v. Stahl, 101 id. 346; Almy v. Hunt, 48 id. 45; Ober v. Gallagher, 93 U. S. 206; Jones on Mortgages, secs. 1215, 1220, 1226; Dunkley v. Van Buren, 3 Johns. Ch. 330.
    The money paid for taxes being future advances, could not be tacked to the mortgage as against the title of appellant. Frye v. Bank of Illinois, 11 Ill. 367; 4 Kent, 175.

      Appellant is not a proper party to the bill, his claim of title being wholly adverse and hostile to that of Luke. Gage v. Perry, 93 Ill. 176; Carbine v. Sebastian, 6 Bradw. 564; Gage v. Board of Directors, 8 id. 410; Eagle Fire Co. v. Lent, 6 Paige, 637.
    Messrs. Wood Brothers, for the appellee:
    Kepley was a necessary party. His rights were obtained subsequently to the mortgage. He was the owner of the equity of redemption. 2 Jones on Mortgages, secs. 1425, 1406; Kenyon v. Schrick, 52 Ill. 386; Ohling v. Luitjens, 32 id. 386; Fitch v. Pinckard, 4 Scam. 69; Vallette v. Bennett, 69 Ill. 635; Hubble v. Vaughn, 42 Mo. 141.
    In a proceeding against the land for taxes the purchaser acquires a new title,0 freed from all prior liens, but in a proceeding against the owner it is subject to prior liens. Blackwell on Tax Titles, 547; Gage v. Perry, 93 Ill. 179.
    Taxes due on one tract are no lien on another. Binkert v. Wabash Ry. Co. 98 Ill. 215.
    It was the duty of the mortgagor to pay the taxes, and if he did not, the mortgagee had the right to pay them, and have a lien on the land for the same. 2 Jones on Mortgages, sec. 1137; DeLeuw v. Neely, 71 Ill. 45; Harper v. Ely, 70 id. 584.
   Mr. Justice Scott

delivered the opinion of the Court:

On the 12th day of October, 1874, Joseph Luke, being indebted to Bernard Jansen in the sum of $1950, executed and delivered to him his promissory note for that amount, bearing date of that date, and payable on or before the 12th day of October, 1884, with interest at six per cent per annum, payable annually, and to secure the payment of his note, Luke,—his wife joining with him,—on the same day executed and delivered to Jansen a mortgage upon 200 acres of land, a part of which is involved in this litigation. The mortgage is in the statutory form, and was duly recorded in the proper office in the county where the lands are situated. The principal, in the note was not due when the bill in this case was filed, on, the 8th day of April, 1881. The bill was brought by the mortgagee to foreclose the mortgage for the interest that had accrued on the principal debt from October 12, 1878, to the 12th day of October, 1880, which it is alleged was due and unpaid. It is also alleged the mortgagor failed to pay the taxes on the mortgaged premises, and that the lands were sold for taxes at the regular sale, in 1880, for the taxes of 1879, from which sale complainant was compelled to, and did, redeem the mortgaged lands to preserve his security, and that the mortgagor failing to pay the taxes for 1880, complainant had to, and did, pay the same. It is sought to have a decree for the taxes paid by complainant to preserve his mortgage security, as well as for the unpaid interest. To the bill alleging these and other facts, complainant made the mortgagor and his wife, and the county of Effingham, Charles E. Hartman, Henry B. Kepley, and Caroline Suppeger, defendants. A rule was laid on defendants to answer the bill, but all of them except Henry B. Kepley made default. In his separate answer he claimed that he was and is the owner of a part of the mortgaged lands, under deeds made to him by the sheriff of Effingham county, and alleges the title so acquired is paramount, and is free from the lien of complainant’s mortgage, and from any lien for taxes paid by the mortgagee. Other matters are set up in the answer, some of which will be noticed in the further consideration of the case. On the hearing in the circuit court a decree of foreclosure was rendered for the interest due on the principal debt, and also for the taxes paid by complainant on the mortgaged premises, and in default of payment by a day fixed, a sale was ordered, as is usually done in such cases. That decree was affirmed in the Appellate Court for the Fourth District, and defendant Kepley brings the case to this court on appeal, a majority of tlie judges of the Appellate Court having certified the case “involves questions of law of such importance, on account of collateral interests, as that it should be passed upon by the Supreme Court.”

The facts necessary to an understanding of the defence insisted upon appear in the answer of defendant Kepley, which is admitted to be true so far as it states facts, but not as to the conclusions of law stated. It* appears that two suits were commenced,—doubtless under section 230 of the Revenue act, Rev. Stat. 1874,—by the county of Effingham, in the name of the People of the State of Illinois, against Joseph Luke, before a justice of the peace, to recover taxes due on lands owned by the defendant, and of which he was then in possession,—a part of which are the lands in controversy. In one case judgment was rendered against the defendant for the sum of $156.85, and costs of suit. Of this amount $94.68 was for the taxes due on certain lands in section 17, township 8 north, range 6 east, and $62.17 was for the taxes due on the south-west' quarter of the north-east quarter of section 23, township 8 north, range 5 east. In the other case, judgment was rendered against the defendant for $198.63, and costs of suit. Included in this judgment were the taxes due on the north half of the south-west quarter of section 16, township 8 north, range 5 east, for $136.47, and also the taxes due on the south-east quarter of the north-east quarter of section 23, township 8 north, range 5 east, for $62.06. Executions issued on these judgments were returned by the constable having them, “nulla bona” Afterwards, transcripts of both judgments were filed in the office of the clerk of the circuit court, as is authorized by statute to be done. The executions issued on these transcript judgments by the clerk of the circuit court were levied by the sheriff having the same to collect, on the lands involved in this litigation, viz., the north half of the south-west quarter of section 16, and the south half of the north-east quarter of section 23, all in township 8 'north, range 5 east, and certain lands in section 17, township 8 north, range 6 east, not. involved in the .present, controversy. At the sheriff’s sale, made on the 24th day of January, 1880, these lands were sold to the county of Effingham for the amounts of both judgments and accruing costs, and the sheriff issued to the county the usual certificates of purchase. These certificates, by authority of the county board, were assigned to defendant Kepley. The lands embraced in the certificates not having been redeemed by the judgment debtor, or any one else, within the time limited by law, the sheriff made the assignee of the purchaser deeds for the same, in the usual form.

The position taken, as a defence to the foreclosure of the mortgage and a consequent sale of the premises is, that the tax on real property is made a lien thereon, by the statute, from the first day of May in the year in which it is levied until paid, and this lien, it is said, is prior to all other liens, demands or claims, and will, therefore, take precedence of a mortgage made before the tax is levied; and hence, a title based upon a sale under a judgment rendered for such tax against the owner, in an action of debt, on personal service, as in other civil actions, takes precedence of and is not subject to the lien of a mortgage; though made before the rendering of the judgment, or even before the tax for which the judgment was rendered was in fact levied. In the view taken of the case, the question made and so elaborately argued does not fairly arise on the present record, and no discussion of it need be had at this time. One of the judgments under which the lands were sold was rendered for taxes due and owing by the judgment debtor on a part of the lands claimed by defendant, and the other judgment was for the taxes due .on the residue of these lands, and also included taxes due on other lands not involved in this controversy. Neither judgment was for the whole of the taxes due on the specific lands embraced in the mortgage and now claimed by defendant. It appears from defendant’s answer, the lands were sold on judgments rendered for taxes on other lands, as well as on the lands in controversy. The statute has not made the taxes due on one tract of land a lien upon another tract; (Binkert v. Wabash Ry. Co. 98 Ill. 205.) So where a tract of land is sold on a judgment recovered for taxes due on other lands, the sale can not he regarded otherwise than as having been on an ordinary judgment, where personal service was had. If the proposition contended for was correct,—as to which it is not necessary now to express an opinion,—it could have no application to the ease being considered. It distinctly appears the lands were sold on a judgment for taxes, which included.taxes due on other lands. 'It is stated in thé answer, the sheriff, “while said executions were in' full' forc.é and effect, levied the same upon the said lands, and after-wards, at a sale of said lands by said sheriff, by virtue of said judgments, executions and levies, * * * on the 24th of January, 1880, the county of Effingham * • * * became the purchaser for the amount of said judgments. ” How the lands were sold—whether certain tracts were sold on one judgment and other tracts on the other judgment—does not appear. It is suggested in argument “that each-tract of land was sold for the amount of the judgment for taxes thereon, and costs,” but that fact nowhere appears in the record. Nor is it perceived how it is practicable to make it so appear. Certainly the sheriff has no authority to divide the judgment into distinct parts, and say that one part was for taxes on a certain tract of land, and it shall be sold for that sum, and no more, and that another distinct part is the taxes on another tract, and it shall be sold in the same way, and so on until the whole judgment is satisfied. No authority exists for the plaintiff to make any such division. But this question need not be further discussed, as it does not appear that any effort was made to sell “each tract of land for the amount of the judgment for taxes thereon.” It simply appears the “said lands” were sold on executions issued on both judgments. One judgment was certainly rendered for and included taxes on other lands,'that were not and could not become a lien on the specific lands. The judgments under which the sales were made must, therefore, be treated as ordinary judgments where personal service was had, whether the subject matter of the suit was taxes or other indebtedness. (Douthett v. Kettle, 104 Ill. 356.) It follows, from what has been said, that all that defendant acquired under the purchase at the sheriff’s sale, was the equity of redemption in the lands that was in the mortgagor,—nothing more.

It is insisted the taxes paid by complainant can not be included in the decree, either as against defendant Kepley, or against the mortgagor, for the reason, it is said, where an advancement is made on a mortgage under circumstances that would enable the mortgagee to tack it to or recover it with the original mortgage debt, such advancement or payment is made, in law, upon the same terms and upon the súme time of payment as the principal debt, and, therefore, can not be foreclosed for, or recovered, till the principal debt is due. Without admitting the proposition to be correct as broadly as it is stated, it is a sufficient answer to the position taken in this ease that the payment of taxes on the mortgaged lands was made as much to secure the annual installments of interest:—ten- in number—as the principal debt, and where the mortgagee can foreclose for unpaid interest he may also foreclose for taxes advanced to preserve the mortgage security, as he could do if the principal debt were due and he was foreclosing for it. In principle there can be no difference.

The point is also made that defendant Kepley is not a proper party to the bill, and that it should have been dismissed as to him on the hearing. The objection proceeds on the ground, as defendant claims, the title he sets up is adverse and hostile to that of the mortgagor at the time of the filing of the bill to foreclose, and could not be litigated in a suit to foreclose the mortgage. The rule of law, as stated in Gage, v. Perry, 93 Ill. 176, has no application whatever to the facts of this case. Both parties here claim under the mortgagor. All the title defendant has is the equity of redemption that was in him. The owner of the equity of redemption was always regarded as a necessary party to a bill to foreclose a mortgage. Indeed, he is an indispensable party, and his interest in the subject matter of the suit would not be barred by any decree to which he was not a party.

The judgment of the Appellate Court affirming the decree of the circuit court must be affirmed, which is done.

Judgment affirmed.


author: Mr. Justice Ceaig Mr. Chief Justice Scott :

text:
    William Thompson v. Luther Dearborn et al.

      Filed at Springfield March 29, 1883

      Rehearing denied Jume Term, 1883.

    1. Default—what is admitted thereby. The default of a defendant in a bill in chancery admits such facts as are properly alleged in the bill, but not their sufficiency to authorize the decree sought. .
    2. Contract to pay a third person—who may sue—Statute of Frauds. Where one person enters into a simple contract with another for the benefit of a third person not a party thereto, the latter may maintain an action for the breach, and such a contract is not within the Statute of Frauds.
    3. Purchaser—subject to prior incumbrance—assuming payment thereof—of his personal liability. Where a person becomes the purchaser of real estate by deed, which is incumbered by mortgage, and in the deed it is stipulated and agreed that the purchaser assumes and is to pay the debt as a part of the consideration, the contract creates a personal liability on the purchaser, which may be enforced in an appropriate action.
    4. The mere fact, however, of the execution and acknowledgment of a deed for land by a mortgagor, with a clause therein that the grantee should pay the mortgage indebtedness, and its being recorded, is not sufficient to create a personal liability on the part of the grantee to pay such indebtedness. To bind him, it must be further alleged and proved that he assented to such clause, and this may be shown by proof that he signed and sealed the deed, or that the deed was delivered to and accepted by him. By the acceptance of the deed his assent to all it contains may be inferred.
    5. In a suit in equity by a mortgagee against the grantee of the mortgagor, to obtain a personal decree for the sum due on the mortgage, the bill alleged that the mortgagor and wife, by their deed of a certain date, under their hands and seals, duly acknowledged according to law, sold and conveyed all the premises described in the mortgage to the defendant, in and by which deed the defendant assumed payment of said mortgage, and covenanted and agreed to pay the same as part of the consideration or purchase money to the grantors for the land, which deed was duly recorded, etc.: Held, that the averments of the bill, which was taken for confessed, were not sufficient to authorize a personal decree against the defendant for the mortgage indebtedness. His assent to such clause in the deed to him should have been shown in some manner. The use of the words “sold and conveyed,” in the bill, could not be regarded as an averment of such assent on the part of the grantee.
    6. Delivery and acceptance of deed—recording, as evidence thereof. While the recording of a deed for land may afford prima facie evidence of its delivery and acceptance, this must be understood as applying to a deed simply conveying the premises, and not as applying to a deed which imposes an obligation upon the grantee to assume and pay a preexisting incumbrance on the property.
    Writ of Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of Mason county; the Hon. Lyman Lacey, Judge, presiding.
    Messrs. Rowell & Hamilton, and Messrs. Stevenson & Ewing, for the plaintiff in error:
    The allegations in the bill are not sufficient to support the decree finding appellant personally liable for the debt of his grantor.
    A deed can only take effect at and from its delivery. Any delivery and acceptance must be by mutual and concurrent acts. Proof of an acceptance subsequent to the delivery is not sufficient to give validity to the deed. The presumption that a party will accept a deed because he is to be benefited thereby, is never carried so far as to consider him as having accepted it. Hulick v. Scovil, 4 Gilm. 159; Ferguson v. Miles, 3 id. 363, Jackson v. Phipps, 12 Johns. 418; Jackson v. Dunlap, 1 id. 114; Jackson v. Bodie, 20 id. 188; Maynard v. Maynard, 10 Mass. 456; Lloyd's Lessee v. Giddings, 7 Ohio, 375.
    A deed not delivered and accepted, though recorded, passes no title, and to constitute a complete delivery it is necessary there should be acceptance by, or on behalf of, a grantee. Herbert v. Herbert, Breese, 354; Wiggins v. Lusk, 12 Ill. 132; Ferguson v. Miles, 3 Gilm. 358.
    The act of registering a deed does not amount to a delivery of it, there not appearing an assent on the part of the grantee, or any knowledge that the deed had been executed in his favor. Maynard v. Maynard, 10 Mass. 456; Harrison v. Phillips Academy, 12 id. 456; Berkshire Ins. Co. v. Sturgis, 13 Gray, (Mass.) 177; Heys v. Davis, 18 N. H. 600; Derry Bank v. Webster, 44 id. 264; Gaither v. Gibson, Phill. (N. C.) 530; Kingsbury v. Burnside, 58 Ill. 310; Krebaum v. Cordell, 63 id. 23.
    Where a deed not executed by the grantee imposes an obligation upon him, it is the acceptance of the deed that renders the obligation binding upon him. Guild v. Leonard, 18 Pick. 511; Newell v. Hill, 2 Metc. 180.
    A decree pro confesso only concludes a party as to the averments in the bill, and does not amount to a confession of any fact not alleged in it. DeLeuw v. Neely, 71 Ill. 473; Martin v. Hargardine, 46 id, 322; Cronan v. Frizell, 42 id. 319; Frye v. Bank of Illinois, 5 Gilm. 332.
    Mr. W. H. Campbell, Mr. R. E. Williams, and Mr. L. Deabboen, for the defendants in error :
    The language of the bill and decree, that Eunk and wife, by their deed, under their hands and seals, duly acknowledged according to law, “sold and conveyed” to Thompson, implies a delivery and acceptance. Bouvier’s Die. “Conveyances;” West v. Krebaum, 88 Ill. 263; Williams v. Souther, 55 id. 130; Whitten v. Whitten, 36 N. H. 326; Fleming v. Potter, 14 Ind. 486; Story’s Eq. Pl. sec. 253.
    The fact that a deed is recorded is prima facie evidence of its delivery. The bill avers the recording. Himes v. Keighblingher, 14 Ill. 469; Warren v. Town of Jacksonville, 15 id. 236; Blake v. Fash, 44 id. 302; Dale et al. v. Lincoln, Assignee, 62 id. 25; Union Mutual Life Ins. Co. v. Campbell, 95 id. 267; Hammell v. Hammell, 19 Ohio, 17; Rowell v. Hayden, 40 Me. 582; Buckley v. Buffington, 5 McLean, 457; Bensley v. Atwill, 12 Cal. 231; Wilborn v. Weaver, 17 Ga. 267; Ingraham v. Gregg, 21 Miss. (13 S. & M.) 22; Bullitt v. Taylor, 34 Miss. 708; Chess v. Chess, 2 N. J. L. (1 Pa.) 32; Balbeck v. Donaldson, 2 Gratt. (Pa.) 459; Javenal v. Jackson, 14 Pa. St. 519; Boardman v. Dean, 34 id. 252; 3 Washburn on Real Estate, (4th ed.) 295, *582, 308, *587; Story’s Eq. Pl. sec. 253.
    Delivery always implies an acceptance. 3 Washburn on Beal Estate, (4th ed.) 292, *581.
    Where a person purchases real estate incumbered by a trust deed, and in the conveyance to him it is set forth that he assumes and agrees to pay the trust deed as part of the consideration, it creates a personal liability upon him in favor of the holder of the trust deed, which the courts will enforce. Flagg v. Geltmacher, 98 Ill. 293; Rogers et al. v. Herron et al. 92 id. 583; Klapworth v. Dressler, 2 Beas. 62 ; Halsey v. Reed, 9 Paige, 446; Marsh v. Pike, 10 id. 595; Cornell v. Prescott, 2 Barb. 16; Blyer v. Monholand, 2 Sandf. Ch. 478; Ferris v. Crawford, 2 Denio, 595; Flagg v. Thurber, 14 Barb. 196; Russell v. Pistor, 7 N. Y. 171; Bently v. Vanderhayden, 35 id. 577; Snyder v. Robinson, 35 Ind. 311; Crawford v. Edwards, 33 Mich. 354; Hoff's Appeal, 24 Pa. St. 200; Corbett v. Waterman, 11 Iowa, 86; Thompson v. Berram, 14 id. 476; Burr v. Berris, 24 N. Y. 178.
   Mr. Justice Ceaig

delivered the opinion of the Court:

The default of William Thompson, plaintiff in error, admitted such facts as were properly alleged in the bill, but the default admitted nothing more. The, important question presented by the record then is, whether the allegation contained in the bill is sufficient to authorize the money decree which the court rendered against him for $3168.67. The allegation in the bill which is relied upon, is as follows: “Your orators further show unto your honor, that after the making of said notes by said Funk, the making of said deed of trust by said Funk and wife, and the recording of the same, to-wit, on the 20th day of February, A. D. 1877, said Absalom C. Funk and Chloe E. Funk, by their deed of that date, under their hands and seals, duly acknowledged according to the law of the State of Illinois, sold and conveyed all the premises described in said trust deed to one William Thompson, and in and by said deed the said William Thompson assumed payment of said trust deed, and covenanted and agreed to pay the same as part of the consideration or purchase money, to said Funk and wife, for said land, which said deed is recorded in the recorder’s office of Mason county, Illinois, in book ‘S,’ page 240, a copy of which deed is herewith filed, marked ‘Exhibit C,’ and made a part of this bill.”

It is contended by defendants in error that the language, “sold and conveyed” by deed, under hand and seal, and duly acknowledged, etc., was a sufficient averment to show that the deed was valid, and binding upon both parties to the instrument, in every particular; while, on the other hand, it is contended that the allegation is insufficient to establish a personal liability upon Thompson, the grantee in the deed, to pay the mortgage indebtedness on the premises.

The deed purported to convey five hundred and sixty acres of land, in Mason county, and contained this clause: “Covenants of warranty herein contained are subject to a mortgage of $3500, which grantee assumes and agrees to pay as part of the consideration of this deed.” As early as 1856 this court, in Eddy v. Roberts, 17 Ill. 505, where the authorities upon the question are cited, held: “Where one person enters into a simple contract with another for the benefit of a third person, such third person may maintain an action for the breach, and such a contract is not within the Statute of Frauds.” 'This doctrine has been followed and announced in many subsequent cases. Following the same principle, this court has also held that where a person becomes the purchaser of real estate by deed, which, at the time, is incumbered by mortgage, and in the deed conveying the property it is stipulated and agreed that the purchaser assumes and agrees to pay the mortgage as a part of the consideration, the contract creates a personal liability on the purchaser in favor of the holder of the mortgage, which may be enforced in an appropriate action. (Flagg v. Geltmacher, 98 Ill. 293; Rogers v. Herron, 92 Ill. 583.) The same principle has often been decided in the courts of other States. Burr v. Beers, 24 N. Y. 178; Thorp v. Keokuk Coal Co. 48 id. 253.

In so far, then, as the liability is concerned, the law may be regarded as well settled; but the important inquiry is, whether the averment in the bill establishes a contract which brings the case within the rule announced.- Had the bill averred that Thompson had signed and sealed the deed, or that the deed had been delivered to him and he had accepted it, the case would have been relieved of all difficulty; but such was not the averment. It may be that an averment that land has been sold and conveyed, is enough from which it may be implied that a deed was delivered, where no question is involved except the mere conveyance of land, as was held in Whitten v. Whitten, 36 N. H. 326, and other eases cited in the brief; but the question before us is of a different character. A contract to assume an incumbrance on land purchased is not one of the essential parts of a deed of conveyance,—indeed, such a contract is a stranger to a deed,— and when the complainants in the hill undertook to bind Thompson by an averment, they should, in some mode, allege the making of a contract between Punk and Thompson, under which the latter would be bound to pay and discharge the mortgage indebtedness. The mere fact that Punk and his wife executed and acknowledged a deed, and inserted therein a clause that Thompson should pay the mortgage named in the deed, would not create a personal liability upon him. In order to make the assumption clause in the deed binding and obligatory on Thompson, it was necessary to go one step further, and show that he assented to that clause in the instrument. This might be done by showing that he signed and sealed the deed. Had he done this, then he would have been a party to the contract. Or it might be shown that the deed was delivered to and accepted by him. Had he accepted the deed, his assent to all that it contained would have been inferred in like manner as if he had signed and sealed the instrument. The law requires something more than the mere insertion by the grantor of a clause in a deed that the grantee assumes an incumbrance. The grantee’s assent to the contract must, in some, way, appear, otherwise a fraud might, in many cases, be perpetrated upon a grantee. Suppose A owned a tract of land, mortgaged for $5000, but worth only one-half that amount. He executes, acknowledges and places upon record a deed conveying the land to B, the deed containing a clause binding B to pay t-he mortgage. Could B, who never accepted the deed or assented to its terms, be held liable for the mortgage? The answer is obvious, that he could not be held liable for the mortgage, for the reason that he never, in any manner, assented or agreed to the contract contained in the instrument. Had the assumption clause incorporated in the deed been an essential part of the deed, the question would have been different; but it was not a necessary part of the deed, as said before, and, in our judgment, the allegation that the land was sold and conveyed was not sufficient to bind the grantee to the terms of an independent contract which is not a necessary part of the instrument.

But it is said the deed was recorded; but that does not obviate the difficulty in the case. The act of recording a deed can not amount to a delivery and acceptance when there does not appear an assent or knowledge by the grantee of the act. This was held in Herbert v. Herbert, Breese, 354, and approved in Wiggins v. Lusk, 12 Ill. 132. There are cases where the recording of a deed might he regarded as prima facie evidence of a delivery, as was Himes v. Keighblingher, 14 Ill. 469; hut the recording alone, in a case of this ■character, can not be held sufficient to prove a delivery of the deed, and thus establish a contract against the grantee of the deed, binding him to pay a mortgage on the premises.

In conclusion, we are satisfied that the averment in the hill was not sufficient to authorize a money judgment against Thompson.

The judgment of the Appellate Court will be reversed, and the cause remanded.

Judgment reversed.

Mr. Chief Justice Scott :

I do not concur in this opinion. It seems to me the allegations of the hill are sufficient to support the decree.

Dickey and Mulkey, JJ., also dissent from the above opinion.


author: Mr. Justice Walkek Mr. Justice Dickey,

text:
    John McManus v. Robert McDonough et al.

      Filed at Ottawa May 10, 1883.

    1. Highway—presumption that decision of highway commissioners was publicly announced. Where commissioners of highways indorse upon or attach to the petition for the laying out of a road, a memorandum of their decision to grant the petition, which bears date on the day of the hearing, it will be presumed, on certiorari to quash the proceedings, that the commissioners did, at the hearing, publicly announce their decision, as required by law.
    2. Same—law requiring decision to be publicly announced on hearing, ■ construed as directory. The plain object of section 73 of the Eoad law, requiring the commissioners of highways to decide a petition for a road, and publicly announce them decision, etc., is to prevent delay in disposing of the matter, and afford parties in interest an opportunity to appeal in the time limited, and such provision may be regarded as directory, unless its omission can be seen to have defeated the purposes of its enactment.
    3. Same—sufficiency of description of road in certificate to justice of the peace. A certificate of commissioners of highways to a justice of the peace for the purpose of having damages assessed for right of way, described the road as commencing at a point twenty-five feet west of the south-west corner of the south-east quarter of section 17, township 13 north, range 8 east, fourth principal meridian, on the section line between sections 17 and 20, in the same township; running thence in a northerly direction, on the most eligible route, to a point in the public highway twenty-five feet west of the center of section 17, in the same township: Held, that it described the road and its route with sufficient certainty. Under such description it would have been proper to give in evidence, on the trial, a survey of that part of the road, or other minute description, to enable the jury to ascertain the accurate amount of damages.
    4. The statute does not require the certificate to give a minute description, by courses and distances, of the whole road, or even the portion for which damages are claimed, but a general description of the portion for which damages are claimed will suffice.
    5. Teiae by juey—of the number—on assessment of damages for public highway, before a justice of, the peace. Under section 5, article 2, of the constitution, the legislature is authorized to provide for a jury of less than twelve men in the trial of civil cases before justices of the peace. Under this, a general law for the assessment of damages for land condemned by commissioners of highways for roads, may constitutionally provide for a jury of six men, and their assessment will be valid and binding on the land owner. Such á proceeding before a justice of the peace is a civil case.
    6. Said section 5 elearly authorizes and refers to two classes of juries,— the one of twelve men, in all judicial proceedings not before justices of the peace, and the other of a less number, which is confined to civil cases before justices of the peace. The word “jury,” in the 13th section of article 2, relating to the ascertainment of the compensation of damages for property taken for public use, is employed to embrace all eases specified in section 5.
    7. Commissioners oe highways— are a quasi corporation, and must act as a body. Commissioners of highways of a town are a quasi corporation, and can only act together as a body, and not as individuals, to bind the body. So where a paper was signed by them, agreeing to dismiss a proceeding to assess damages for land for a road', no two of them being together when signing, and they had never met and conferred together in reference, to the agreement, and had made no minutes or entry thereof, it was held no error in the justice to refuse to dismiss the proceeding.
    8. Certiorari at common raw—no evidence allowed aside from the record returned. On an application for a common law writ of certiorari to quash proceedings to establish a public road, the trial must be had on the record of the proceedings returned, and oral evidence can not be heard to aid or contradict the record, yet the court may indulge all natural presumptions and proper conclusions from the record.
    9. Process—defect in justice’s summons cured by appearance. Although a justice’s summons, issued against an owner whose land is sought to be condemned for a public road, giving him notice of the time and place of the assessment of his damages, does not run in the name of the People, as required, his appearance at the trial without objection is a waiver of the defect, and gives the court jurisdiction of his person.
    Writ op Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Marshall county; the Hon. N. M. Laws, Judge, presiding.
    Messrs. Barnes & Muir, for the plaintiff in error:
    The statute requires the justice to name eighteen persons having the qualifications of jurors, two-thirds of whom shall not he residents of the town where the road is located. (Rev. Stat. 187é, p. 925, see. 80.) The record does not show but what all, or whether any, of the persons named by the justice as jurors, were residents of the interested town. This renders the proceeding invalid.
    Again, the question of damages was submitted to a jury of six persons, which we submit was not a legal jury for that purpose, under our constitution. Section 13 provides that private property shall not be taken or damaged for public use, etc., compensation to be ascertained by a jury. This means a common law jury. Cooley’s Const. Lim. 319; Copp v. Henniker, 55 N. H. 179; S. C. 20 Am. Rep. 194; Ross v. Irving, 14 Ill. 171.
    This proceeding is not a civil case, within the meaning of section 5, article 2, of the constitution. Johnson v. Joliet and Chicago R. R. Co. 23 Ill. 203.
    Where the constitution provides for a jury, without further explanation, it means one of twelve men. Lamb v. Lane, 4 Ohio St. 167.
    The certificate presented to the justice failed to give him jurisdiction of the subject matter, it not describing the line of the road with sufficient certainty to enable the jury to pass on the owner’s damages. Rev. Stat. 1874, chap. 121, sec. 174.
    The record is fatal in not showing that the commissioners publicly announced their decision on the day of the hearing. (Sec. 73, Eoad law.) If the statute is not followed the road fails. Mitchell v. Indianapolis and St. Louis R. R. Co. 68 Ill. 286; Commissioners v. People, 4 Bradw. 391; Commissioners v. People, 2 id. 24.
    Mr. Fred S. Potter, for the defendants in error:
    It is objected that the record contains no specific statement that the commissioners decided, and publicly announced, that they had granted the prayer of the petition. The statute is directory, and involves a mere matter of procedure, and is in no sense jurisdictional. The law will presume that the commissioners did their duty, from the fact they did indorse the petition on the day of the hearing.

      The description of the road in the certificate is sufficient. The courses and distances need not be given. Besides, all the papers, including the survey, were before the justice as a part of the plaintiff’s case.
    If there had been no summons in fact, appellant’s appearance gave the justice jurisdiction. Buel v. Trustees of Lockport, 3 N. Y. 199; Randolph County v. Ralls, 18 Ill. 29; Cooley’s Const. Lim. 409.
    The constitutional provision guaranteeing trials by jury is directed to proceedings known to the common law, and the same is true, in regard to process. Curry v. Hinman, 11 Ill. 420; Cooley’s Const. Lim. 410, note 2.
    Section 80 of the Boad law is directory, only. The selection of the jury is ministerial, not jurisdictional. It will be presumed the persons selected had the requisite qualifications. If the jury was unlawful, appellant should have challenged the array. A jury of six was enough. This court has held that a jury of six is no violation of the constitution in a proceeding to declare a female “a dependent, ” the result of which was to confine her until her majority. Petition of Ferrier, 103 Ill. 367.
   Mr. Justice Walkek

delivered the opinion of the Court:

Appellant, McManus, filed his petition in the Marshall circuit court for a common law writ of certiorari. The writ was served on the defendants, the commissioners of highways, the town clerk, and a justice of the peace. They made return of the record establishing a highway in the town of Saratoga, and assessment of damages in favor of McManus for locating a part of the road over his land. On the return, such proceedings were had thereunder in the circuit court that a judgment was rendered affirming the action of the commissioners sought to be set aside. On appeal to the Appellate Court the judgment of the circuit court was affirmed, and the case is-brought to this court on appeal.

A number of objections are urged for a reversal, a portion of 'which we shall proceed to consider, the others being wholly unimportant.

It is insisted that inasmuch as it does not appear from the record returned the commissioners publicly announced their conclusion or decision at the time of the'hearing, the whole proceeding is void, under the 73d section of the Eoad and Bridge law, as it requires them at the hearing to decide, and publicly announce, whether they will grant or refuse the prayer, and shall indorse upon or annex to the petition a brief memorandum of such decision, to be by them signed. The return shows that such a memorandum was indorsed and signed on the date of the hearing of the petition. An effort was made to disprove the daté of this indorsement, and to show it was not made until the next day, and after the petition had been returned to the town clerk’s office; but in a proceeding of this character the trial must be had on the record of the proceedings as returned, and oral evidence can not be heard to aid or contradict the record. We must, therefore, consider the case on the supposition that the indorsement was made on the day that it bears date, and at the end of the hearing. Inasmuch as this indorsement was made at the end of the hearing, we must presume that the decision was then made and publicly announced.

Although the trial must be had on the record as returned, we may indulge all natural and proper conclusions from the record. That the decision was made at the hearing in this case is an almost irresistible conclusion, from the fact that the indorsement was then made. The controlling purpose of this provision of the statute was to prevent delay in disposing of such petitions, and to prevent the commissioners from taking the case under advisement, and holding up their decision, and filing it with the town clerk, in such a manner as to prevent parties interested from learning the fact in time to take legal steps to have the decision reviewed, by appeal or otherwise. And even if the decision was not publicly announced, none of the results followed in this case that were intended to be prevented. That provision may be regarded directory,- unless its omission can be seen to have defeated the purpose of the legislature, and produced the ■wrong intended to be suppressed by the enactment. The objection is merely technical.

It is insisted that the justice of the peace failed to acquire jurisdiction of the • person of appellant, because the summons did not run in the name of the People. As has been repeatedly held by this court, the purpose of service is to obtain jurisdiction of the defendant, and when he enters his appearance the object is attained; and it -waives all defects in the process, and even dispenses with process. In this ease it appears, from the transcript of the justice’s docket, that the parties appeared at the trial for the assessment of damages, and the appearance of appellant waived all defects in the summons. This practice is so elementary and familiar, that we had not supposed we would be called on to announce it again.

It is urged that the certificate of the commissioners to the justice of the peace does not describe the road with sufficient certainty, and describes no route. It states that the proposed road commences at a point twenty-five feet west of the south-west corner of the south-east quarter of section 17, township 13 north, range 8 east, fourth principal meridian, on the section line between sections 17 and 20, in the same township; running thence in a northerly direction, on the most eligible route, to a point in the public highway twenty-five feet west of. the center of section 17, in the same township, which road passed over and is claimed to damage the land described and--owned as follows, etc. The 78th section of the Road and Bridge law requires the commissioners, when they are unable to agree with the owner as to the amount of damages to be paid him, and they have not been released, to certify tlie fact to a justice of the peace, and to describe the- road, and the land over which it is to run. In this case there is no objection that the land is not sufficiently described, and we think that the description of the road conforms to the requirements of the statute. It does not require the certificate to give the survey or the courses and distances, but simply a description of the road, and here is a description sufficient to enable that part of the road to be found. It would, under this description, have been proper on the trial to introduce the survey of that part of the road, or some more minute description, to enable the jury to ascertain the accurate amount of damages. The statute, we think, does not require the certificate to contain a minute description, by courses and distances, of the whole road,, or even the portion for which damages are claimed, but a general description of the portion for which damages are claimed will suffice. We are strengthened in this conclusion from the fact that some portions of the act require a minute and others but a general description. The 70th section of the act requires the petition for the laying out and establishment of a new road to describe the road sought to be established. Such description is no more minute than this. No other exception is taken to the certificate, and no objection is perceived to its sufficiency.

We now come to consider the important question in the ease, and that is, whether there was a constitutional jury impaneled to assess the damages in this case. The 5th section of article 2 of our constitution provides, that “the trial by jury, as heretofore enjoyed, shall remain inviolate; but the trial of civil eases before justices of the peace by a jury of less than twelve men maybe authorized by law.” This was a trial by a justice of the peace, and a jury of six men had been provided by law, and such a jury, in this class of cases, must be held constitutional, unless inhibited by some other provision of that instrument. There is no provision of the constitution that limits the power of the General Assembly to confer jurisdiction on justices of the peace, except that it shall .be uniform. This jurisdiction to assess damages in road cases by a jury of six men is uniform, and is conferred on every justice of the peace, and the practice regulating such trials is uniform, and applies to all justices of the peace. The power to enact the law is not prohibited. Nor was the trial by jury ever enjoyed at the. common law, in England or in this State, before the adoption of our present constitution, in condemning property for public use, under the power of eminent domain. The assessment of damages for property thus taken, before the adoption of the present constitution, was by commissioners, and not by jury. Nor does that instrument. limit or. control the power of the legislature in the mode of assessing damages when they are to be paid by the State. The limitation only extends to eases where the damages are not paid by the State, and in such cases they must be assessed by a jury.

It is true the 13th section of article 2 provides that compensation for property taken or damaged for public use shall be ascertained by a jury, but it does not specify the number of which it shall be composed. The same article, by section 5, as we have seen, has recognized a jury of less than twelve men in the trial of civil cases tried before a justice of the peace. We then have two juries specified by that article,— one of legs than twelve men, in trials before a justice of the peace, and twelve in other judicial tribunals. The first clause of section 5 manifestly refers to a jury composed of twelve men as the general rule, but the latter clause makes an exception to the rule by expressly authorizing a smaller number in civil cases before justices of the peace,—and we must suppose the framers of the 13th section used the term to embrace all cases specified in the 5th section. Had they not, they surely would have limited the term to one or the other of the provisions of the 5th section. This is a civil ease. Actions are divided into two classes,—civil and criminal. This is not criminal, and must, therefore, be civil. The proceeding does not possess a single element of a crime. It is authorized by the constitution and the statute, and violates no law, and is, therefore, a civil action, and is embraced in the 5th section.

It is also urged that the court erred in refusing to dismiss the writ, on the paper claimed to be an agreement for that purpose. It purports to be signed by the commissioners; but they are a quasi corporation, and can only act as a body, and not as individuals, to bind the body. (See Commissioners v. Baumgarton, 41 Ill. 254.) There is no evidence that they ever so acted. No resolution of the board was produced in evidence showing that question was ever before or acted upon by the board, and it co'uld not be bound by an agreement of the different members not acting as a corporate body. The affidavits show that no two were together when they signed the paper, but it was the several act of each. They never had conferred or consulted in reference to the agreement. Had they done so, and agreed to dismiss the suit, and made a minute of their action, it may be the agreement thus signed would have been evidence. But no such minute was ever made in their records, and it was insufficient to bind the corporation.

We perceive no error in the record that requires a reversal of the judgment, and it is affirmed.

Judgment affirmed.

Mr. Justice Dickey,

dissenting:

In my judgment, what is said in section 5 of the Bill of Bights, contained in article 2 of the constitution of 1870, about “a jury of less than twelve men,” in “the trial of civil cases before justices of the peace, ” does not at all affect the meaning to be given to the phrase “a jury,” as used in section 13. The subjects matter of the two sections are not the same. Section 5 declares that “the right of trial by jury, as heretofore enjoyed, shall remain inviolate.” Section 5 preserves inviolate a right heretofore enjoyed. Section 13 furnishes a new protection not enjoyed before that time. The preservation, in section 5, of the old right of trial by jury, as enjoyed before that time, is qualified by the words, “but the trial of civil cases before justices of the peace by a jury of less then twelve men may be authorized by law. ” These words plainly refer to the ordinary civil eases before justices of the peace, and can have no reference to eminent domain proceedings, for the right of trial by jury in such cases had not been enjoyed before that time. Section 13 enters upon a new subject, and furnishes a new protection to the citizen,— one not before that time secured by constitution or statute. It provides that (except where it is to be made by the State) the compensation to be paid for private property taken for public use shall be ascertained by a jury, as shall be provided by law. This new guaranty of the constitution is not qualified by any provision that a jury of less than twelve men may be authorized where the proceedings are before a justice of the peace. The declaration is unqualified. Such compensation “shall be ascertained by a jury.” The phrase “a jury,” when not qualified by the context, means “a jury of twelve men, ”—a common law jury. So the authorities all teach. “Shall be ascertained by a jury, as shall be provided by law,”—not such a jury as shall be provided by law, but a jury, a common law jury of twelve men, to be procured as shall be provided by law. I therefore think these proceedings faulty for want of the verdict of a jury of twelve good and lawful men.

If it be the constitutional law of Illinois that the legislature has unlimited power in conferring jurisdiction upon justices of the peace, exclusive jurisdiction in all condemnation cases may be conferred upon justices of the peace without appeal, and if, in all such cases, a jury of less than twelve may be authorized, a jury of two or three men may be authorized to ascertain the compensation in all such cases, no matter what may be the magnitude of the interests involved. What, then, would he the value of the guaranty that such compensation shall be ascertained by a jury? In my judgment, to so hold fritters away this guaranty of the constitution, and renders it practically nugatory.


text:
    The South Park Commissioners v. The Chicago, Burlington and Quincy Railroad Company.

      Filed at Ottawa June 16, 1883.

    1. Special assessments under the Park act—only upon abutting property—not upon right of way over the street proposed to be improved. Section 2, of the act of' 1879, relating to special assessments or taxes by the park commissioners, etc., for the improvement of public streets leading to parks, authorizes such assessments or special taxes only upon contiguous property abutting upon such streets or avenues. A street or avenue ean not abut upon itself, nor can a mere right of way of a railway company over such street be included in that act as property liable to special assessment for improving such street.
    2. It is clear that nothing but tangible property can be said to abut on a street or avenue. Mere intangible rights or privileges can not abut on anything, and hence a special assessment upon the same is not authorized by that act. There is, however, no question but that the legislature may lawfully provide for the taxation of such property.
    3. In this case a railway company had a mere right of way over and upon Michigan avenue, in the city of Chicago, which was a public street leading to one of the parks in that city. The park commissioners, for the purpose of improving such avenue, caused special assessments to be made upon the lots, blocks, etc., abutting upon such improvement, in which was included “the right of way of occupancy, franchises, property and interests of” such railway company. This assessment was confirmed, and the company appealed to the Appellate Court, which reversed the judgment as to the com-' pany: Held, that the judgment of the Appellate Court was proper, and that such assessment was unauthorized by law.

      Appeal from the Appellate Court for the Eirst District;— heard in that court on writ of error to the Circuit Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    This was a proceeding instituted in the circuit court of Cook county, by appellants, for the apportionment of an assessment for improving Michigan avenue, in the city of Chicago. The authority under which appellant acted was derived from an act of the General Assembly, entitled “An act to enable park commissioners or corporate authorities to take, regulate, control and improve public streets leading to public parks, and pay for the improvement thereof, and in that behalf to make and collect a special assessment or special tax on contiguous property,” approved and in force April 9, 1879; and also from an act, so far as applicable, entitled “An act to enable corporate authorities of two or more towns, for park purposes, to issue bonds in renewal of bonds heretofore issued by them, and to provide for the payment of the same; to make, revise and collect a special assessment on contiguous property, for benefits by reason of the location of parks and boulevards, and to make necessary changes in their location,” in force July 1, 1871. The appellant filed in the circuit court an assessment roll, showing a description of the contiguous lots, blocks and parcels of land abutting upon said improvement; also, the amount assessed by the commissioners as special benefits to each of said lots, blocks or parcels of land, and the names of the owners thereof, so far as known. Included in this assessment roll was property described as “the right of way of occupancy, franchises, property and interests of the Chicago, Burlington and Quincy Bailroad Company, in Michigan avenue, in the city of Chicago, at its crossing north of Sixteenth street, between lot 5, block 27, and lot 6, block 28, of assessor’s division of the north-west fractional quarter of section 21, town 39, range 14 east, ” against which was assessed, as benefits, the sum of

      $1052.16. This assessment roll was confirmed by the circuit court, and to th.at judgment of confirmation a writ of error was sued out of the Appellate Court, upon the hearing of which said judgment was reversed, and the park commissioners come here on appeal..
    Mr. Melville W. Puller, and Mr. Jesse B. Barton, for the appellants:
    In Guild v. Chicago, 82 Ill. 473, the city was held to be empowered to make local improvements by special assessment, or by special taxation, or both, of contiguous property, and there it was held that property not actually touching the improvement was liable to assessment. This property is in the street, and for the purposes of assessment abuts it, just as much as the street railway’s property was contiguous to the street, and subject to its burden of benefits, as held in Chicago City Ry. Co. v. Chicago, 90 Ill. 573; Parmelee v. Chicago, 60 id. 267; Chicago v. Baer, 41 id. 306.
    Messrs. J. P. & T. B. Wilson, for the appellee:
    The statutes under which the assessment in question was levied do not authorize any assessment upon the property described in the record. It strictly limits the power of assessment to property contiguous to and abutting upon the street. Sec. 2 of act of 1879.
    The franchise of the appellee is incorporeal, and as such is not capable of being contiguous or abutting upon a street. It does not appear from the assessment roll, or any of the proceedings connected therewith, that the property of appellee is benefited by the proposed improvement.
   Mr. Justice Mulkey

delivered the opinion of the Court:

It is apparent from the foregoing statement, the only question presented for determination is, whether “the right of way of occupancy, franchises, property and interests of” the appellee, in Michigan avenue, are, within the meaning of the acts above cited, “contiguous property abutting upon such avenue,” for no other description of property is authorized to be assessed. It does seem to us the very statement of this question furnishes its own solution. It is clear that nothing but some tangible object or thing can, with propriety, be said to abut on a street or avenue, and it is not pretended the subject of assessment in this case is anything of the-kind. If the interests or rights assessed can be said to have any corporeal or physical existence, so that they could, with any propriety of language, be said to be contiguous to or abutting upon anything, they must be represented by the avenue itself, and, as is well said by the Appellate Court, it would be a legal solecism to say the avenue was contiguous to and abutted on itself. Property, in its appropriate sense, is that dominion or indefinite right of user and disposition which one may lawfully exercise over particular things or subjects. But the term is often used to indicate the res or subject of property rather than the property itself, and so we understand it to be used in the second section of the act of 1879, above referred to, which authorizes the park commissioners “to levy, or cause to be levied and collected, a special tax or assessment on contiguous property abutting upon such street,” etc. And as a street can not, in the nature of things,' abut on itself, and as mere intangible rights or privileges, for the same reason, are incapable of abutting on anything, it is clear the assessment was unauthorized.

The authorities cited as sustaining a contrary view we do not regard as in point. There is no question but that the' legislature may lawfully provide for the taxation of property of this character, but that is not the question here.

The judgment will be affirmed.

Judgment affirmed.