text:
    H. Leroy Thayer v. John Allison.

      Filed at Ottawa November 20, 1883.

      1. Error will not always reverse—admission of improper testimony. The admission of evidence having no bearing on the final decision of a case being tried by the court without a jury, and which it can be seen worked no injury to either party, and had no influence on the court in its judgment, will afford no ground for a reversal of the judgment.
    2. Contract—vendor and purchaser—right of the latter to rescind—as to the time fixed by the contract. A purchaser of land supposed to be coal land, made his first payment, and was to pay the balance in three installments, the first of the deferred payments on the first day of March following, the contract giving him the option to rescind at any time before such first deferred payment should become due, forfeiting his first payment. Prior to that time the vendor extended the time of payment to the first day of April following, to enable further tests to be made to find coal: Held, that the purchaser had the right, after such extension, to rescind at any time before the first day of April,—the time the deferred payment, under the extension, would become due.
    3. Same—indorsing a release as a condition to the right to rescind. Where the contract gave to the purchaser the option to rescind his purchase at any time before the second payment should become due, by delivering back to the vendor the contract, with an indorsement thereon releasing him from all obligation thereunder, the vendor in such case to retain the amount already paid, the purchaser may rescind the purchase by surrendering the contract to the vendor, and notifying him of his intention to rescind, before the second payment becomes due. In such case the indorsement of his release of the vendor upon the contract is not essential to the right to rescind, as the surrender itself would operate as a release.
    4. Consideration—for extension of time of payment. A money consideration is not necessary to a contract extending the time of a payment. One promise is a sufficient consideration to sustain another. So where one person does an act beneficial to another, or agrees to do so, that forms a sufficient consideration to support an agreement.
    5. Where a party had contracted for the purchase of coal land, which he was testing by boring for coal, and before his second payment matured he procured the written promise of his vendor to extend the time of such payment one month, to enable him to further develop its resources, which he agreed to do, so that he might find a purchaser at a price above ordinary farm land, instead of surrendering his contract, as he had the right to do, it was held, that the agreement to make the said tests and to endeavor to find purchasers, so as to enable the vendor to realize the contract price, was a sufficient consideration for the promise to extend the time of payment.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Will county; the Hon. Francis Goodspeed, Judge, presiding.
    Messrs. Olin & Phelps, for the appellant:
    Even if the trust deed had not been released before suit brought, it was no defence for the installment sued for, it not being the last one. Foster v. Jared, 12 Ill. 454; Runkle v. Johnson, 30 id. 332; Monson v. Stevens, 56 id. 336; Sheeren v. Moses, 84 id. 450.
    Appellant’s letter of February 15 should be read by itself, and construed by the words in it, in their ordinary acceptation. Fitzgerald v. Staples, 88 Ill. 236; Weaver v. Fries, 85 id. 359; 1 Greenleaf on Evidence, sec. 278.
    What a contract means is a question of law. 2 Parsons on Contracts, 492; Beldeii v. Woodmansee, 81 Ill. 25; Streeter v. Streeter, 43 Ill. 165; White v. Murtland, 71 id. 267.
    A contract under seal can not be modified or varied by a parol agreement. Chapman v. McGraw, 20 Ill. 101; Loach v. Farnum, 90 id. 369; Hume Bros. v. Taylor & Moss, 63 id. 45; Barnett v. Barnes, 73 id. 217.
    An agreement modifying an original one, is invalid, unless founded on an adequate consideration. 1 Parsons on Contracts, 427; McLean v. McBean, 74 Ill. 137; Weaver v. Fries, 85 id. 361.
    An agreement to extend the time for the payment of a note, if not supported by a proper consideration, is nudum pactum, and without binding force. It can not delay the suit. Glickauf v. Hirschhorn, 73 Ill. 574; Ralph v. Baxter, 66 id. 416.
    Even if appellant had extended the time for exercising the option to rescind, if it is exercised, it must be done in the manner provided in the contract. Packard v. VanShoick, 58 Ill. 82; Coey v. Lehman, 79 id. 176; Corbett v. Underwood, 83 id. 327; Peoria Marine and Fire Ins. Co. v. Whitehill, 25 id. 473; McAvoy v. Long, 13 id. 150.
    Messrs. Doud, Wing & Carter, for the appellee:
    Where the terms of a promise admit of more senses than one, the promise is to be performed, and it should be interpreted in that sense in which the promisor thought the promisee received it. Wells v. Carpenter, 65 Ill. 450; Potter v. Ontario and Livingston Mutual Ins. Co. 5 Hill, 147; Vermont Street M. E. Church v. Brose, 104 Ill. 206; Nichols v. Mercer, 44 id. 250.
    As to the consideration for the extension of time of payment, see Wadsworth et al. v. Thompson, 3 Gilm. 423; Low v. Forbes, 18 Ill. 569; Bishop v. Busse, 69 id. 407; Cooke v. Murphy, 70 id. 99; Underwood v. Hossack, 38 id. 208; North v. Kizer et al. 72 id. 172; Worcester National Bank v. Cheeney, 87 id. 602; Ives v. McHard, 103 id. 97.
    Parol agreement is good to enlarge the time of the performance of covenants of a sealed instrument. Baker v. Whiteside, Breese, 174; Wadsworth et al. v. Thompson, 3 Gilm. 423; Keating v. Price, 1 Johns. 22; Flemings. Gilbert, 3 id. 528; Thompson v. Ketchum, 8 id. 189; Langworthy v. Smith, 2 Wend. 587; Solomon v. Jones, 3 Brev. 54; North v. Kizer et al. 72 Ill. 172; Dearborn v. Cross & Thrasher, 7 Cow. 48; Trevidick v. Mumford, 31 Mich. 467.
    An executed parol agreement can change instrument under seal. White v. Walker, 31 Ill. 422; Dickinson v. Commissioners, 6 Porter, (Ind.) 128; Carpenter v. King, 9 Metc. 511; 1 Greenleaf on Evidence, sec. 302, note 1.
    As to estoppel, see Continental Bank v. Commonwealth Bank, 50 N. Y. 575; Carroll v. Manchester Ry. Co. 111 Mass. 1 ; Cornelius v. Thompson, id. 270; Eaton v. Winnie, 20 Mich. 156; Lacy v. Wilson, 24 id. 479; Truesdail v. Ward, id. 117.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action brought by H. Leroy Thayer, against John Allison, to recover $7500 claimed to be due on a certain contract, under which Thayer contracted to sell Allison three hundred and twenty acres of land in Grundy county, on certain conditions specified in the contract. A jury was waived and a trial had before the court, which resulted in a judgment against the plaintiff for costs. This judgment was affirmed in the Appellate Court.

The contract on which the action was brought was executed December 15, 1881. The purchase price of the land was $16,000, payable as follows: $500 cash in hand; $7500 March 1, 1882; $4000 September 1, 1882; $4000 March 1, 1883. The contract contains this provision: “And it is further agreed, that at any time before the second payment herein shall become due, said second party, without making any further or other payment, shall have the right and option of rescinding this contract; and upon his delivering back to the first party this contract, with an indorsement thereon releasing the first party from all the obligations thereof, said second party shall also be released from all obligations herein stated, said first party to retain said $500.” The defence interposed to the action was, that Allison had rescinded the contract, and under the above clause of the agreement he was released from any and all payments.

It is contended by appellant that the court erred in the admission of evidence offered by the defendant, and also in refusing to hold certain propositions of law in favor of the plaintiff. The defendant offered in evidence a trust deed given by appellant to one Hagar, in which the premises named in the contract were incumbered for the payment of certain money. This was read in evidence, but whether the court erred in this regard or not could have no bearing whatever on the final decision of the case, as it was proven that the trust deed was released long before this action was brought, so that if the court erred, it was an error that did no harm, and is no ground for a reversal of the judgment. There was other evidence introduced by the defendant that may have had no legitimate bearing on the issue involved in the case, but it will not be necessary to examine it in detail here, as it is apparent, from the rulings of the court on the propositions of law, that such immaterial evidence had no influence whatever on the court in the decision which was finally rendered in the case.

It will be observed that by the terms of the agreement under which the land was purchased, Allison had the right to rescind the contract on or before the 1st day of March, 1882, if he saw proper. That right was not exercised before the 1st of March, 1882; but Allison claimed that his right to rescind was, by agreement of Thayer, extended until the •1st day of April, 1882, and before that time he exercised the right, and rescinded the contract. Now, the only question in the case is, whether the time for rescission was extended, and whether Allison, within that time, exercised that right, and rescinded the contract. For the purpose of showing that the time for rescission was extended, Allison read in evidence the following letter to Thayer, and Thayer’s letter in reply:

“Gardner, III., February 14, 1882.
“Mr. H. L. Thayer, Joliet, III.:
“Dear Sir—I wish to inform you that we have bored another hole on your land, and the men that bored did not give us notice when they got to coal at 147 ft., so we were not satisfied, and will have to bore another hole in order to satisfy any company. I am informed that three of the men out of five that had thought of taking the lands we have taken options on, have dropped out and declined to take any part in the matter. So I would like to get you to extend the time from March the 1st to April the 1st, on your land, if I can, and
by so doing we will have plenty of time to bore another hole or two, and find some new parties to take our lands; but if you will not consent to this, I fear I can not get around in time, and you will likely have your land on your hands again. Let me hear at once, and oblige. _ , „
Jno. Allison.
“Joliet, III., February 15,1882.
“John Allison, Esq., Gardner:
“Dear Sir—Tours of the 14th instant received and noted, and in reply will say: If on or before the 1st day of April next, you make the payment due March 1st, I will convey s. J of 20, 32, 8, according to our contract bearing date December 15, 1881. Should any unforeseen circumstances seem to require other arrangements, you will please see they are made in writing before the 1st day of April.
“Respectfully yours, H. L. Thaybb. »

For the purpose of showing that the contract had been rescinded within the time, defendant read in evidence the following letter, which was sent to Thayer on the day it bore date:

“Gardner, III., March 29, 1882.
“Mr. H. L. Thayer, Joliet, III.:
“Dear Sir—Tou will here find your contract returned. I wish to say, if you see fit to indorse on back of this contract that you extend the time to July 1st, I feel nearly certain that we can sell the land at prices that we can pay you, and let me out as well. Wilber is here, and he says he is nearly certain of this,—as to the tests on the land, you know. I think you will do as I ask,—extend the time, and return this contract, please. Tou had better rent the land, and you shall have this year’s use of it, and we will make the payment on July 1st, instead of March the 1st, and the deferred payments as first stated. The great depression of R. R. stock, which continued for many weeks, added to the diminished coal sales on account of the long, open winter, has been a continued hindrance to the sale of coal lands.
“Truly yours. Jno. Allison,
Per 0.”

In reply to this letter, on March 30 Thayer returned the contract, and also the letter of February 15, 1882, which Allison had sent with it, and refused to extend time further, and insisted on the payment of the $7500. Upon this state of facts the court refused plaintiff’s ninth proposition, which, in substance, declared “that the letter dated February 15, 1882, did not extend the time fixed in the contract within which the defendant-was permitted to exercise his right of rescinding the same; that it did not give defendant any right to exercise such option and rescind the contract after March 1, 1882.” The court also refused the tenth proposition, which, in effect, declared “that the proper construction to be placed upon the letter of February 14, 1882, and upon the letter of plaintiff in reply, dated February 15, 1882, is, in effect, to obligate defendant to pay, and entitle plaintiff to recover, the second installment specified in the contract. ”

The land embraced in the contract was supposed to be coal lands, and it is apparent, from the evidence, that the option inserted-in the contract was to enable Allison to test the lands, and if it turned out that coal was found in proper quantities, sell them out; if not, let them go back to Thayer, he retaining the $500 which had been paid. From the letter of February 14, 1882, written by Allison to Thayer, it seems he had not succeeded in making sale, and as the time to exercise his option of taking the lands or rescinding the contract would expire on March 1, he writes as follows: “Í would like to get you to extend the time from March the 1st to April the 1st on your land, if I can, and by so doing we will have plenty of time to bore another hole, and find some new parties to take our lands. ” What time did he want extended ? It was not the time of payment, merely, that he wanted, hut it seems plain that what he desired was an extension of the option to take the lands under the contract or let them go back.

But it is said Thayer, in his reply, only extended the day of payment from March 1 to April 1,—that the option to rescind was not extended. Upon an examination of the contract it will be found that the language used is peculiar. The clause giving Allison the option to rescind, reads, “any time before the second payment herein shall become due. ” The second payment did become due March 1, but the letter of Thayer, written February 15, in clear terms extended the time when the second payment should be made until April 1. If it was extended it did not become due until April 1, and under the words of the contract just quoted, the extension of the day of the second payment also extended the time to exercise the option. The letter of Thayer changed the day when the payment became due until April 1, and when the contract is read, as changed, the option to rescind did not expire until April 1. Did Allison rescind before April 1? On the 29th of March he returned the contract to Thayer, and said: “You will here find your contract returned. I wish to say, if you see fit to indorse on back of this contract that you extend the time to July 1st, I feel nearly certain that we can sell the land at prices that we can pay you, and let me out as well. ” We think the return of the contract, and the letter, was ample notice to Thayer that Allison exercised the right of rescission unless Thayer saw fit to give a further extension, which he refused. It is true there was no indorsement on the contract that Allison released Thayer from the obligations of the same, but we do not regard that as necessary. A surrender of the contract of itself released Thayer from all liability, and that is all that was necessary.

But it is said there was no consideration for the extension of the time to rescind the contract, and upon this ground the agreement, if established, is not binding. A money consideration was not necessary. One promise is a sufficient consideration to support another, and where one person does an act beneficial to another, or agrees to do so, that forms a sufficient consideration to support an agreement. (Cooke v. Murphy, 70 Ill. 96.) Here, Thayer was anxious that Allison should take the lands at the contract price, and not rescind, as he had the right to do. Allison thought he could sell the lands, providing Thayer would give more time, so the proper tests could be made for coal. If he could sell, then, of course, Thayer would realize the contract price for the lands, which was much more than they were worth for farming purposes. The agreement of Allison to make the further test for coal, and to find new purchasers for the lands, in connection with the enhanced price he would receive above what the lands were worth, if Allison was successful, was the consideration for the extension, and we think it sufficient to support the promise.

In conclusion, we think the ruling of the court on the propositions of law which were refused, was correct.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Mulkey

license: Public Domain

text:
    John M. Secrist et al. v. Emily H. Petty.

      Filed at Ottawa November 20, 1883.

    1. Chancery—absence of evidence in support of the findings. Where the chancellor specifically finds all the material allegations of the bill to be true, if the evidence in the cause, upon which the findings of the chancellor may be supposed to be based, is not preserved in the record, so that this court will be unable to say that such findings were not warranted by the proofs, the intendment will be in support of the decree which is based upon the findings.

      2. Evidence—judicial notice—of the necessity of proofs to establish that of which the court is supposed to have knowledge. Proof is never required of a fact of which the court is bound to take judicial notice.
    3. A motion was made in a chancery suit that a paper purporting to be a certificate of evidence in the cause, be stricken from the files, upon the following among other grounds: that the paper had never been presented to or signed by the judge who heard and decided the cause, although his name appeared to be signed to the same; that it did not contain all the evidence. The chancellor allowed the motion without having heard any formal proofs in its support. It was held, no proofs were necessary in support of the motion, because the matters alleged as the grounds of the motion were within the personal knowledge of the judge to whom it was addressed.
    Appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    Mr. John McKeogh, and Mr. W. T. Burgess, for the appellants.
    Mr. J. Blackburn Jones, for the appellee.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Emily H. Petty, the appellee, being the owner of a house and lot in Chicago, subject to an incumbrance of $1500, on the 12th of February, 1879, sold the same to the appellant John M. Secrist, the deed for the premises being made, at his request, to his son, Oscar H. Secrist. As a part of the same transaction she executed to the former her two promissory notes, for the sum of $200 each, and paid him $14 in cash, and also agreed to pay $100 to Charles F. Swigart upon his surrendering to her four promissory notes given by one James -Henry to John M. Secrist, amounting in the aggregate to $1900, together with a mortgage securing them on a tract of land lying in DeKalb county, Indiana, these notes and mortgages being the only consideration for the house and lot, and the amount paid and agreed to be paid by appellee to and for Secrist. On the same day, and in pursuance of a previous understanding to that effect, John M. Secrist exchanged the house and lot with George W. Lackey for some hotel furniture, the latter claiming to be acting in the transaction for his wife, Mary G. Lackey, and the deed for the house and lot "was accordingly made to her. A short time after these transactions, to-wit, on the 14th of March, 1879, appellee filed in the Superior Court of Cook county the present bill against the two Seerists, Swigart and George W. Lackey, charging that the notes and mortgage received by her in exchange for the house and lot were worthless, and that the conveyance and execution of the two notes by her were induced by a fraudulent conspiracy between the appellants Secrist, George W. Lackey, and others acting in concert with them, and praying that the whole transaction be set aside as fraudulent and void. By an amendment to the bill Mary G. Lackey was subsequently made a party to the suit, and on the 7th of March, 1881, filed an answer in the cause. Upon the hearing the court found the equities with the complainant, and entered a decree accordingly, and the present appeal is brought to reverse" that decree.

In the view we take of the state of the record it will not be necessary to consider the case upon its merits. The trial court specifically found all the material allegations of the bill to be true, and if these findings are to control, as we think, under the circumstances of this case, they should, it is very clear they sustain the decree.

The record contains what seems to be a certificate of 'evidence purporting to have been signed and sealed by the Hon. John A. Jameson, the chancellor who heard the cause, though the record shows it was filed some time after the day fixed for the filing thereof by the order of the court. It further appears from the record, that after it had been thus filed, in contravention of the order of the court, appellee, by her counsel, filed in said cause a written motion to strike the so-called certificate of evidence from the files, for, among others, the following reasons, namely, that it had never been presented to or signed by the judge who heard and decided the cause; that it was not presented to the court or counsel within the time fixed by the order of the court; that it did not contain all the evidence, etc. Appellants, by their counsel, appeared and resisted said motion, though no affidavits or other evidence, outside of what the record itself showed, were offered or heard, either against or in support of the same. After hearing argument of counsel, and duly considering the matter, the court entered a”n order sustaining the motion, and directing the so-called certificate of evidence to be stricken from the files, which order is still in full force, and one of the errors assigned is the action of the court in thus disposing of this motion.

It is contended by appellants the ruling of the court upon this motion is necessarily erroneous, because no formal proofs were offered in support of it. The general rule unquestionably is, that all reasonable presumptions will be indulged in order to sustain a judicial proceeding. It is also a familiar doctrine that proof is never required of a fact of which the court is bound to take judicial notice. Applying these well established principles to the question in hand, we are unable to say the court erred in sustaining the motion. Although the instrument in question purported to be signed by the judge, yet one of the reasons assigned for striking it' from the files was, that it never was either presented to or signed by him. Now, whether it was ever so presented to or signed by him, was clearly a matter within his personal knowledge, and he had an undoubted right to act upon such knowledge. Supposing his name to have' been placed to the certificate without his authority, as is assumed by one of the grounds of the motion, what reason or propriety would there have been in hearing extraneous evidence of that fact, it being one which he, in his capacity of judge in that very suit, was bound to know without proof ? The doctrine is well recognized that a court will take judicial notice of the state of the pleadings, and the various steps which have been taken in a particular cause, and consequently the judge must take notice of his own official acts in the progress of such ease, and he therefore needs no proof to advise him of what he has done in it. 1 Wharton on Evidence, sec. 325.

As the evidence upon which the findings of the trial court are based is not all before us, we are unable to say such findings were not warranted by the proofs, and as we have already seen the findings fully sustain the decree, it will have to be affirmed, which is accordingly done.

Decree affirmed.


author: Mr. Justice Scholfield

text:
    Ernst F. C. Klokke v. Philiskey E. Stanley.

      Filed at Ottawa March 24, 1884.

    1. Tax deed—of a second deed to remedy omissions on the part of the holder—duty of the clerk. A county clerk who has once executed a tax deed at the instance of the holder of the certificate of purchase, upon evidence furnished by such holder, can not subsequently be compelled, by mandamus, to execute to the same party another tax deed under the same certificate of purchase, the holder thereof having filed with the clerk additional and more perfect evidence of his having complied with the law in respect to giving notice of his purchase, etc.
    2. Same—duty of clerk to remedy his own mistake. If, however, the county clerk himself makes a mistake in executing a tax deed, whereby it is rendered inoperative for the purpose for which it was intended, he may be compelled, by mandamus, to correct his mistake, and he may make the correction without being coerced thereto by the court.
    3. Mandamus—when granted. A party applying for a mandamus must show a clear legal right to have the thing sought by it to be done; and if the granting of the writ will be of no avail to the party applying for it, it will be refused.

      4. Same—not granted to relieve a party from his own mistake. It is contrary to the policy of the law that mandamus should issue, where its sole purpose and effect is to relieve the party seeking it from the consequences of his own mistakes or omissions.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    A petition for mandamus was filed in the Superior Court of Cook county, on the 22d of September, A. D. 1882, in the words following, omitting the caption:
    “The petition of Philiskey E. Stanley, of Cook county, State of Illinois, complains that on the 10th day of October, A. D. 1879, at a tax sale then being held in said Cook county, by Samuel H. McCrea, county treasurer and ex officio collector of revenue of said county, the petitioner bid off and became the purchaser at said sale of lot four (4), in block thirty-five (35), in school section addition to Chicago, situate in said Cook county; that thereupon petitioner paid to said collector the sum of $377.33, and afterwards, on said 10th day of October, 1879, the county clerk of said county made out and delivered to petitioner, duly executed and countersigned, a tax sale certificate of purchase of said lot, said certificate being numbered No. 15,663; that said petitioner, as owner of said certificate, duly caused to be served a partly written and partly printed notice of such purchase, on every person in actual possession or occupancy of said premises, and upon all the owners or parties interested in said premises, three months before the expiration of the time of redemption of said sale, in which notice petitioner stated when he purchased said lot, in whose name the same was taxed, the description of the premises so purchased, for what years the same was taxed, and when the time of redemption would expire; that petitioner caused diligent inquiry to be made for the person in whose name said lot was taxed; that upon such inquiry said person could not be found in said county, and thereupon petitioner caused said notice to be published in a newspaper printed in said county, said notice being inserted three times in said newspaper,—the first time not more than five months, and the last time not less than three months, before the time of redemption from said sale would expire; that said premises were not redeemed by any one from said sale during the time limited by law for such redemption; that on the 11th day of November, 1881, petitioner made affidavit, (still being owner and holder of said certificate of sale, supposed by him at that time to be in compliance with the conditions of section 216 of the Revenue act, chapter 120, of the Revised Statutes of the State of Illinois,) stating particularly the facts relied upon as complying with said act, and thereupon delivering said affidavit and certificate of sale, and the receipt for the payment of all taxes upon said premises for the two years following said tax sale, to the county clerk of said county; that petitioner at that time requested said county clerk to execute and deliver to petitioner a tax deed of said premises; that thereupon said county clerk duly filed said affidavit, certificate of sale, and the papers accompanying the same, in the office of the county clerk of said county, and afterwards, to-wit, on November 25, 1881, executed and delivered to petitioner a tax deed of said premises, said tax deed being tax deed No. K1952; that the papers upon which petitioner obtained said tax deed were, the affidavit of petitioner, the said tax sale certificate, the said tax receipts, the affidavits' of William E. Winholtz, George M. French and James Mois, the tax purchaser’s notices, the published tax sale notice, and the certificate of publication of said notice, certified copies of which are hereto annexed and made a part of this petition; that Mary Conners was in possession of said premises at the time when notices were served as aforesaid, but they do not show that said notice was at any time served upon said Mary Conners; that said notice was duly served upon said Mary Conners, by delivering a copy thereof to her, on the 15th day of March, 1881; that the same was served upon her by said George M. French, agent of petitioner, for that purpose, but at the time of making said affidavit of service of said notice by said French, the allegation that he had so served said notice upon said Mary Conners was left out of said affidavit by mistake, and that neither petitioner, nor said French, nor said clerk, nor any one else, discovered said mistake until long after the execution and delivery of said tax deed; that petitioner believes it to be the law that said tax deed, so far as it relates to the premises aforesaid, ‘was prematurely issued, unauthorized, and void, for the reason that said papers, so filed as aforesaid, show that said Mary Conners was in possession of said premises at the time of service of said notices, but show no service of said notice upon said Mary Conners, and that said papers so filed are not in compliance with section 216 of said act, and are not prima facie evidence that your petitioner had complied with the conditions of said section 216 at the time when said tax deed was issued;’ that petitioner has made no conveyance of said premises at any time after discovery of said mistake in the affidavit of said French; that petitioner made a new affidavit, accompanied with a copy of said notice and a second affidavit of said French, stating that he served said notice on said Mary Conners on the 15th day of March, 1881; that petitioner presented said last mentioned papers to said county clerk, Ernst F. C. Klokke, and requested him to file the same, and to deliver to petitioner a new deed for said premises, offering to pay any additional fee to said clerk which it might be necessary to pay, but said clerk refused, and still refuses, to deliver to petitioner such new deed; that the time limited for taking out a valid deed upon said premises will expire on the 10th day of October next; that petitioner believes it is the duty of said clerk to deliver to him a new deed of said premises in time for filing the same for record, before the 10th day of October, 1882; wherefore petitioner prays this court to grant a writ of mandamus to compel said Ernst F. C. Klokke to receive and file in his office said papers last presented to him, and to execute and deliver to petitioner a new deed of said premises, and to do such acts and things as the law requires, for petitioner’s relief. ”
    Copies of the affidavits, notices of purchase, etc., are referred to in the petition as exhibits.
    The defendant demurred to the petition, and for cause of demurrer assigned, “that as the county clerk of said county has regularly issued a tax deed in compliance with section 216 of the Revenue law, and that such deed having been in all respects issued regularly and according to law, as appears from said petition, the respondent, as such county clerk, has no power or authority in law to issue a second deed. ” The demurrer concludes : “Wherefore, and for other good causes of demurrer appearing in said petition, defendant prays judgment whether he shall be compelled to make further answer. ” The court overruled the demurrer, and the defendant making no further answer, the court adjudged that the petition be taken for confessed, and that a peremptory mandamus issue, etc. An appeal was prosecuted from that judgment to the Appellate Court. That court affirmed the judgment of the Superior Court, and the case comes here by appeal from the last named judgment, on certificate as to the importance of the question involved, by two of the judges of that court.
    Mr. E. R. Bliss, and Mr. H. W. Magee, for the appellant.
    Messrs. Abbott, Oliver & Showalter, for the appellee.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The question presented by this record is, whether a county clerk who has once executed a tax deed at the instance of the holder of the certificate of purchase at a tax sale, upon evidence then furnished by such holder, can be subsequently compelled, by mandamus, to execute to the same party another tax deed under the same certificate of purchase, the holder thereof having filed with the clerk additional and more per-feet evidence of his having complied with the law in respect to giving notice, etc., since the execution of the first deed. Our answer must be in the negative. It is true, where a clerk has himself made a mistake in executing a tax deed, whereby it is rendered inoperative for the purpose for which it was intended, he may subsequently be compelled, by mandamus, to correct his mistake, and, of course, may make the correction without being coerced thereto by judgment of court. (Maxcy v. Clabaugh, 1 Gilm. 26. And to the same effect is McCready v. Sexton, 29 Iowa, 356.) But here the clerk has made no mistake. The mistake made is that of the party applying for the deed, and relates to proof which it was his duty to furnish to the clerk, and which he assumed to furnish to the clerk, before applying for his deed. If he may have mandamus to compel the clerk to make a new deed upon his alleged correction of one mistake, may he not also have it to compel the clerk to make a new deed upon his alleged correction of another mistake ? Where is it to end ? The owner of the land to be affected is not before us, and has no opportunity to be heard upon this question. If this mandamus will lie, will it not afford a precedent whereby purchasers at tax sales may, by adroit manipulation, obtain the opinion of the court upon the validity of a given title before the land owner has any opportunity to be heard ? The rule is, a party applying for a mandamus must show a clear, legal right to have the thing sought by it to be done, and if the granting of the writ will do the party applying for it no good, it will be refused. People v. Chicago and Alton R. R. Co. 55 Ill. 95; Commissioners of Highways v. Bonker, 66 id. 339; People v. City of Elgin, id. 507; People v. Klokke, 92 id. 134; People ex rel. v. Dulaney, 96 id. 503; People ex rel. v. Johnson, 100 id. 537. And so the question of the sufficiency of the deed to convey the title, when made as asked, would always be a pertinent question in such eases.

We think it is contrary to the policy of the law that mandamus should issue where its sole purpose and effect is, as it is here, to relieve from the consequences of the mistakes or omissions of the party applying for it.

The judgment is reversed and the cause remanded.

Judgment reversed.


author: Mr. Chief Justice Sheldon

text:
    Thomas J. Finucan et al. v. John A. J. Kendig et al.

      Filed at Ottawa March 6, 1884.

    1. Voluntary settlement—grounds for avoiding it—mistalce in omitting pou'er of revocation—acquiescence and delay. A person for whom another held the legal title to lands, upon the advice of counsel procured the property to be conveyed in trust for the benefit of himself and his wife, and the survivor, and on the death of both, the same to be conveyed to their children or descendants per stirpes. After the lapse of twenty years, during which time the disposition so made had been acquiesced in, it was held such deed would not be set aside on the ground of a mistake in not inserting a power of revocation, without proof of that fact of the most satisfactory kind. The evidence in this case was held not sufficient.
    2. Same—omission of power of revocation—and the want of advice in respect thereto—as grounds for avoiding the settlement. The want of a power of revocation in a voluntary settlement, or the want of advice as to the insertion of such a power, affords no ground, in equity, for the donor to set aside such a settlement, but the same is only a circumstance to be taken into account in determining upon the validity of the settlement, and is of more or less weight, according to the facts of each particular ease. In the absence of fraud, undue influence, or of any unfairness, and where the facts and situation of the parties show that the settlement was not improvidently made, it will not be set aside on the ground, merely, that the deed creating it contains no power of revocation.
    3. Statute of Frauds—must he pleaded, or it will be waived. Where the only grounds set out in a bill to set aside a voluntary settlement by a donor for his wife and family, are mistake in drafting the deed, absence of a power of revocation and of any advice in respect thereto, and the improvidence of the arrangement, he can not rely upon the Statute of Frauds as a ground to avoid the same. If it is not pleaded in some way, the party, by implication, waives the objection that there was no writing signed by the beneficial owner directing the trust deed.
    Appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    The original bill in this case was filed by Michael Finucan, November 29, 1881, in the Superior Court of Cook county, against John A. Kendig, Murray F. Tuley, Joseph N. Barker, and the children of the complainant, praying that a certain voluntary deed of trust made by the complainant may be canceled, or that it may be reformed. Pending the suit the complainant died testate, and his executors, Thomas J. Finucan and James L. Cleary, filed a supplemental bill.
    The original bill sets out that on the 1st day of June, 1860, Michael Finucan was the owner in fee of lots 1 and 2, in Hayne’s subdivision of lots 1 and 2 of the canal trustees’ subdivision of certain blocks in Chicago, and on that day made a deed of said lots to one Joseph Sexton; that afterward, Michael 0. Shaughnessy, having a judgment against complainant, filed a creditor’s bill against him, in which there was a decree subjecting the lots to sale for the satisfaction of the judgment, and on August 15, 1862, a master’s sale of the lots under the decree was made to one Bichard McCleavey, and a certificate of purchase delivered to him; that about the 1st of December, 1862, while acting under the advice of the defendants Tuley & Barker, who were his attorneys, complainant delivered to said Tuley,$220, with which to purchase from McCleavey the said certificate of purchase, and complainant being ignorant, and somewhat dissipated and reckless in his personal habits, was advised by his said attorney, Tuley, to have the title to said lots so arranged as to protect complainant and his wife during her life, to which he assented; that his said attorney then purchased the certificate of purchase with said money, and caused it to be assigned by McCleavey to Kendig, who occupied a part of his office, and on December 1, 1863, the master executed a deed of the lots to Kendig; that said Tuley then directed Kendig to prepare an ordinary deed of trust, containing a power of revocation, conveying the lots to Tuley & Barker, in trust for the use and occupancy of Michael Finucan, and his wife, Bridget Finucan, and upon the death of complainant, or of his wife, to convey the lots to the survivor, and containing certain other trusts, and gave Kendig a form to use as a partial guide from which to draft the deed, and explained the changes to be made; that Kendig gave the form to one Day, then a clerk in his office, to prepare the deed as directed by Tuley, and that on December 5, 1863, Day prepared, and Kendig and his wife executed, the deed of trust in question, which purports to convey the lots, by Kendig and his wife, to Tuley & Barker, and the survivor of them, “in trust, nevertheless, for the following uses and purposes, viz:
    “1. For the occupation and uses of Michael Finucan, and Bridget Finucan, his wife, and for the occupation and use of the survivor of them so long as he or she shall live.
    “2. In the event of the said Bridget surviving the said Michael, and failing, at any time after said Michael’s death, to occupy said real estate by actual residence thereon, then from that time until the conveyance to the children of said Bridget and said Michael, or the children of such children, as hereinafter provided, to take possession of and have said premises, and to receive the rents and profits thereof, and out of the same to keep the said premises in repair and properly insured, and to pay all taxes, assessments and charges that may be imposed thereon, and to pay the residue of such rents and profits to said Bridget Finucan, upon her sole and separate receipt, to the intent and purpose that she may enjoy the same free from any control, interference or liability of any husband (that she may have) during the time of her natural life.

      “3. By and with the joint consent of the said Michael and Bridget, to raise money upon said premises, by way of trust deed, mortgage, or other deed of conveyance; to sell the same, and with the said Michael and Bridget’s joint consent to make and execute bonds and notes for such money, deeds of trust, mortgages, absolute deeds of conveyance, or any deeds of conveyance of said premises, to any person or persons whomsoever, that may be necessary to raise money upon said premises, by way of mortgage or otherwise, or to sell, transfer and convey said premises; and the only evidence of the said joint consent of said Michael and the said Bridget required by this third section of this deed, shall be the said Michael and Bridget joining in the execution of any of the instruments of writing in this section and in this deed mentioned.
    “4. In event said premises shall not be conveyed by absolute deed in accordance with foregoing provisions, then-, upon the death of the survivor of said Michael and Bridget, to convey the said premises in fee simple to the children of the bodies of the said Michael and Bridget Finucan living at the time of the death of the longest liver of them, (said Michael and Bridget,) or to the children of such children lawfully begotten, per stirpes. ”
    The bill further states that Kendig and Day neglected to follow the instructions given by said Tuley, and negligently failed to insert in the deed the usual power of revocation, and by mistake inserted therein the first, second and fourth paragraphs contained in the deed defining the trusts; that complainant’s wife died October 7, 1879, and that it was not until 1880 that complainant learned, for the first time, of the erroneous paragraphs and provisions in the deed; that he has continuously occupied the premises as a homestead since 1859, has made valuable improvements on the lots, which he would not have made had he known of the provisions of the deed; that the deed is unreasonable and improvident, and was made without his knowledge or consent, and that he was never advised by his said attorney, or any one, to consent that such a deed be made. On hearing, upon proofs taken, the bill was dismissed, and the complainants appealed to this court.
    Mr. Frank A. Johnson, and Messrs. Windes & Sullivan, for the appellants:
    That a voluntary settlement contains no power of testamentary disposition or power of revocation, but conveys nearly all of the settler’s property to trustees, out of his control, which is improvident, and when he is not advised of the contents of the deed, or that it is irrevocable, and it is not the free, voluntary and well understood act of his mind, may be declared void, and a reconveyance ordered, counsel cite many authorities, among which are: Hill on Trustees, (4th Am. ed.) 84, note 1; Moore v. Pance, 9 Hare, 299; Noldred v. Gilham, 1 P. Wms. 576 ; Griffiths v. Robbins, 3 Mad. Ch. 105; Hunter v. Atkins, 3 M. & K. 113; Huguein v. Basely, 14 Ves. 273; Cooke v. Lamotte, 15 Beav. 234; Houghton v. Houghton, id. 298; Meadows v. Meadows, 16 id. 401; Nancy v. Williams, 22 id. 452; Forshaw v. Welsby, 30 id. 243; Fullager v. Clark', 18 Ves. 481; Blackie v. Clark, 15 Beav. 452; Nobclay v. Peters, 28 id. 349; Cobbitt v. Brock, 20 id. 524; Guarnsey v. Mundy, 24 N. J. Eq. 243.
    When the deliberate intent to make an irrevocable gift does not appear, and when no motive for such a gift is shown, the absence of a power of revocation is prima facie evidence of a mistake. The rule is the same when the motive has failed, as was the case in Hastings v. Orde, 11 Sim. 205.
    It is the duty of the solicitor who prepares the settlement, to see that the irrevocable nature of the instrument is fully understood by the settler. May on Voluntary Alienation, 452.
    The children have no special claims. Rutherford v. Morris, 77 Ill. 416 ; Uhlich v. Muhlke, 61 id. 499; Heuser v. Harris, 42 id. 425; Carwater v. Kimler, 43 id. 272.

      The trust deed from Kendig and wife to Tuley & Barker was made by mistake, and should, for that reason, be reformed. The parties have not met upon a material point, and if the parties can be placed in statu quo, equity will correct the mistake. 1 Story’s Eq. Jur. secs. 115,162; Worden v. Williams, 24 Ill. 75; Lindsay v. Davenport, 18 id. 381; Carter v. Barnes, 26 id. 456; Hunter v. Bilyeu, 30 id. 246; Mills v. Lockwood, 42 id. 112.
    He only can create a trust who has the legal estate in the subject of that trust. 2 Washburn on Real Prop. 470, *195.
    No trust in this case, under the Statute of Frauds, could be created by Kendig, who only'held in trust for Finucan. A writing, to declare a further trust, must be signed, not only by the trustees, but by the beneficial owner. Browne on Statute of Frauds, 99; Tiernay v. Wood, 19 Beav. 330; Adlington v. Cann, 3 Atk. 151; Hill on Trustees, *282, 317, 509; 2 Story’s Eq. Jur. sec. 977.
    The burden of proof is on the party claiming a benefit under a voluntary deed, to show that it was the free, voluntary and well understood act of the grantor. Kerr on Fraud and Mistake, 151; Griffiths v. Robbins, 3 Mad. 105; Cooke v. Lamotte, 15 Beav. 234; Houghton v. Houghton, id. 278; Meadows v. Meadows, 16 id. 401; Phillipson v. Kerry, 32 id. 638; Sharp v. Leach, 31 id. 494; Guarnsey v. Mundy, 24 N. J. Eq. 243; Lyon v. Home, L. R. 6 Eq. 655; Coutts v. Ackworth, L. R. 9 Eq. 44.
    Messrs. Knickerbocker & Holdom, for the appellees,
    after reviewing the facts in detail, contended that there was no mistake in the deed of trust, and that the settlement made was a provident one, under all the circumstances, and a prudent and well advised act.
    After reviewing appellants’ authorities, counsel say, the rigor of the English law on this subject has not been' sanctioned by the courts of this country,—citing Jenkins et al. v.

      Pye, 12 Pet. 241; Eckert v. Gridley et al. 104 Ill. 306; Kerr on Fraud and Mistake, 434; Villiers v. Beaumont, 1 Vern. 100; Bayle v. Newton, id. 464; Petre v. Espinasse, 2 M. & K. 496.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

The allegations of mistake in the deed of trust in question, which are made in the bill, were not supported by proof. The evidence in that regard rests upon the testimony of Kendig. He testifies that he handed to Day an old deed, to be used as a form in the drawing of the deed in question, with two or three written slips of paper on which were stated terms of grant to be incorporated in the deed, and that Day missed these slips of paper entirely, and drew up the deed in question, which was wholly contrary to the instruction or meaning of all the parties,—Michael Finucan, Tuley and himself; that instructions were certainly given Day to insert in the deed a power of revocation, and it was omitted through Day’s carelessness; that he did not read it over after it was written by Day, and he fancies Tuley did not; that it was designed that the property should be for the use and occupation of Bridget Finucan, the wife, so long as she should live, and if Michael Finucan should survive her, to be conveyed to him in fee simple. In estimating the value of this testimony, regard is to be had to the distance of time after the transaction when it is given, (nearly twenty years,) and the situation of the witness in respect to the matter. Kendig, although the party executing the deed of trust as donor, was a mere medium of conveyance of the property.

At the request of Tuley, the attorney of Michael Finucan, the master’s deed of the lots was made to Kendig, in order that he might convey as to be requested. He had but a slight acquaintance with Michael Finucan, and never had any conversation with him or his wife in respect to the property. Judge Tuley says that he had conversations with Ken-dig in reference to the matter, but has no recollection of a conversation with him about the details of it; that Kendig was not consulted to any great extent, to his recollection; that Kendig was a very young lawyer at the time, and he did not rely very much on his assistance or advice. The mistake testified to by Kendig is in Day not following the instructions of Tuley in drawing the deed. Upon this point Judge Tuley himself must be the more competent witness. He testifies that he drew the original draft of the deed of trust in question, he has no doubt, and gave it to some clerk in the office to copy, and thinks the copy is in the handwriting of Day; that after it was copied he must have looked it over, from the fact that he finds two words in it which are in his handwriting. This is quite satisfactory evidence that he did revise the deed, and if he did so, we are satisfied there could not have been in it the mistake testified of by Kendig. Judge Tuley states he could not say whether there is anything in this deed in question that was not intended to have a place in it. Without adverting further to his testimony on this point, we will say, that taking it all together, to our minds it satisfactorily rebuts all evidence of the alleged mistake in this deed of trust.

The only question remaining is, whether the deed was made with the authority, consent and knowledge of Michael Finucan. Michael Finucan and Kendig testify that it was intended there should be in the deed a power of revocation, and that on the death of the wife, Bridget Finucan, the property should be conveyed to Michael Finucan. The deed speaks for itself, and it is cogent evidence that it was the instrument, in all its provisions, intended to be prepared. To allow one, at such a distance of time as in this case, to overturn a solemnly executed deed, made by his request and direction, by declaring that his intention was different from what the writing expresses, would be most dangerous to the security of instruments of writing. The evidence in this regard, to have avail, should be of the most satisfactory kind.

The unimportant connection of Kendig with the transaction has been referred to. It was so slight that he may almost be said to have had nothing to do with the making of the deed. His own intention in the matter is of no consequence, as his interest in the property was merely nominal. Of the intention of Michael Finucan, or his wife, he could know nothing from conversation with them upon the subject, as he states he had none, and we do not understand, from the evidence, he got any such knowledge from overhearing their conversation. Any knowledge of intention, aside from his own, it would seem, must have been derived from Judge Tuley, and any intention as derived from him, we have no doubt, was carried out in the deed.

The witness Michael Finucan, in view of the present changed condition of things, may see that the provisions above named, of a power of revocation, and of conveyance to him on the death of his wife, would have been very proper to have inserted in the deed; that they ought to have been inserted in it; that were he to make such a deed now, he would have inserted in it those provisions; and therefore his mind may be led to the belief that it was the intention the deed should have contained those provisions. The circumstances of the transaction shed light upon what was the intention and object. The suggestion to have the property placed in trust came from Judge Tuley, who had for several years been the trusted attorney and adviser of Michael Finucan. The latter, through his bad personal habits, had become embarrassed financially, and on the money being placed in Judge Tuley’s hands for the redemption of the lots which had been sold under a judgment against Finucan, the idea occurred to him that it would be judicious to have the title so placed that the property would be protected from the consequences of Finucan’s personal habits, and made secure for the benefit of the family of the latter. We say family, although Finucan disclaims that his children were spoken of or in contemplation. The proof shows that Michael Finucan carried on a saloon, and his wife kept a boarding house on the premises, and assisting in the saloon; that she was an extraordinary woman for her position in life, and hard working, intelligent, and very saving; that their joint accumulations, contributed to by herself, probably, as much as by her husband, went into the purchase of the property, and the improvements afterwards made upon it. This is mentioned, not as showing that she had any legal right in the property, but that she felt an interest in it, and would naturally desire to have sure provision made for herself and children. She took an active part in having the settlement made, and consulted, together with her husband, with Judge Tuley upon the subject. How much was confided to the latter in the making of the deed, appears from the words of Michael Finucan, that “in 1863, and prior to and since that time, I intrusted the whole of my matters to Judge Tuley; didn’t do anything outside of him; whatever he wanted me to do I generally- done; ” and in reference to the transaction in question: “He told me to make it over to my wife, just the same as he did. I told him to do just as he had a mind to with it. I gave him consent— consent in this way. ” We think, from the evidence, it was left with Judge Tuley to prepare such a deed as he thought would be proper in the circumstances; that there was the assent of Michael Finucan to such a deed, and that the deed which Judge Tuley prepared, and which was executed, should be taken as having been made with the authority, knowledge and consent of Michael Finucan. Mrs. Finucan, no doubt, exerted an influence in shaping the provisions in the deed, and we think, from the evidence, the provision as to the children was intentionally and deliberately inserted, after consultation with both Mr. and Mrs. Finucan, as being a proper one to make, and one in accordance with their wishes, —and the same with all the other provisions which appear in the deed.

Appellants’ counsel have, in their argument, gone very elaborately into the doctrine of the court of chancery on the subject of voluntary settlements, in the particular of there being the absence of a power of revocation in such a settlement, citing very many English authorities upon the subject, in some of which may be found remarks going quite far in the direction that a power of revocation ought to be inserted in such a settlement, or the settler should have been advised that there should be a power of revocation inserted in it; but we think the conclusion to be drawn from all the authorities is, that there is no such rule that the want of a power of revocation in a voluntary settlement, or the want of advice as to the insertion of such a power, will afford ground, in equity, for the donor to set aside such a settlement, but that the same is a circumstance, and a circumstance merely, to be taken into account in determining upon the validity of the settlement, and of more or less weight, according to the facts of each particular case. See Toker v. Toker, 3 DeG. J. & S. 487; Hall v. Hall, L. R. 8 Ch. App. 437; Bill v. Cureton, 2 Mylne & Keene, 503; Petre v. Espinasse, id. 496; Kekewich v. Manning, 1 DeG. M. & G. 176; Jenkins v. Pye, 12 Pet. 241.

We do not find in the present case, outside of the absence of a power of revocation, and of advice as to its insertion, any element which should go to impeach the validity of the deed. Moreover, the deed here does contain a limited power of revocation, in providing that by and with the joint consent of Michael and Bridget Finucan the property might be mortgaged, or sold and conveyed. The lots, at the time of the making of the deed, appear to have been worth not more than $300 or $400, and the improvements on them, consisting of a frame building, were of the value of about $400. There was nothing of fraud, undue influence, or of any unfairness whatever about the transaction. There was no improvidence in the arrangement, but it appears to have been a very proper and judicious one in the circumstances.

Ii'-is remarked upon as showing the improvidence of the deed, that since the making of it Michael Finucan reformed from his former bad habits; that the distribution of the property among the children now would not be just; that two of the daughters are married and well circumstanced, and stand in no need of any of the property; that two of the children are in delicate health, and need more than an equal share with the rest, and that it was needful, at the time of the filing of the bill, that Michael Finucan should have power to mortgage the lots in order to raise money to erect a building on lot 2, to bring in an income for the support of the family. These might he considerations against the making of such a deed in the present position of things, but the deed, as to its reasonableness, must be judged of in view of the situation at the time it was made. In Eckert v. Gridley, 104 Ill. 306, we held that a voluntary settlement upon a child could not be revoked.

A further point is made, that in order to create a trust upon a trust in lands, it must be proved by a writing signed by the beneficial owner, and that there is here no declaration of trust by a writing signed by Finucan. However this may be, it is enough to say that no such ground for the avoidance of the deed is set out in the bill. The only .grounds in the hill for the impeachment of the deed are, mistake in the drafting of the deed, absence of a power of revocation, of any advice in respect thereto, and the improvidence of the arrangement. The well settled rule requires that one who would avoid the obligation of a' parol contract by reason of the Statute of Frauds, must set up the statute, and rely upon it by pleading in some way, and if this is not done, he thereby impliedly waives the objection that the contract was not in writing. That rule applies here.

Upon the whole, we see no just ground for setting the deed aside, and the decree dismissing the bill must be affirmed.

Decree affirmed.


author: Mr. Justice Dickey

text:
    Rebecca C. Stamposki v. Philiskey E. Stanley.

      Filed at Ottawa March 6, 1884.

    1. Taxation and tax sales—entry of judgment—whether prior to act of 1879—as affecting the right to interpose objections. On application for judgment against delinquent lands and lots at the June term, 1879, of the county court, a rule was entered requiring all objections to be filed by June 16 of that year, on which latter day judgment by default was ordered in all cases in which no objections were filed, but the consideration of the objections to the other lands and lots was not concluded until after July 1, 1879, when a general judgment was entered against the lands and lots, except those as to which objections were sustained: Held, that the judgment as to the lands in respect of which no objections were filed, was to be regarded as having been rendered on June 16, 1879, and as to them the amendment of section 224 of the Revenue act of 1879, in force July 1, 1879, in respect to the conclusiveness of the judgment as against certain objections, did not apply.
    2. Same—sale of several lots as an entire tract. Where a fraction of lot 7, and lot 8, were both assessed as one tract in 1878, and judgment was obtained against the same before July 1,1879, the whole tract was held rightfully sold for the taxes of 1878, and to redeem from such sale within six months, the owner was required to pay the amount of the bid, with twenty-five per cent added thereto.
    3. Same—back taxes—must be added to the taxes of the current year, not extended separately. The sale of a lot for the “back tax and forfeitures,” extended separately, without being added to or combined with any tax for the current year, is irregular, and no penalty of twenty-five per cent can be demanded on a redemption from such sale.
    4. The only lawful mode of collecting back taxes is as a part of an aggregate made by the county clerk adding the back tax and the tax for the current year together. It is only the back tax upon “such real property” as has been
      valued for the current year by the assessor, which is to be added to the back tax “upon such real property” as the clerk is then dealing with in the making up of tax due for the current year.
    5. There is no authority given by statute to the court to render judgment against any land “for back tax and forfeitures,” except in cases where such back taxes have been placed in the collector’s warrant by the county clerk by adding the same to the amount of the taxes for the current year against the same property as*that forfeited, and when such back taxes are made upon the warrant a part of an aggregate amount so added together. The tax-payer is not required to search the books in more than one place for the taxes against his land, when no cause exists for placing several charges in different places, nor can he be harassed by more than one judgment and one sale of his property.
    6. Where the owner has procured several adjoining lots to be listed as an integer for the current year, he by necessary implication consents that the sum of the back tax and forfeitures for each lot shall be brought forward as a charge upon the whole.
    7. Same—redemption—in case lot is sold twice for different years’ taxes. Where a lot is forfeited to the State for taxes, and the amount of the taxes of that year is not added to the next year’s tax, but each is extended separately, and two judgments are rendered against the same for the taxes of the different years, and two separate sales of the lot are made, the owner will have the right to redeem from the sale for taxes of the last year by paying the statutory penalty to the purchaser, and from the sale for the back taxes by paying the purchaser the amount of his bid, with six per cent interest thereon from the day of sale.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. W. H. Barnum, Judge, presiding.
    Mrs. Stamposki (the appellant) in 1879 was the owner and occupant, and for many years had been, of a parcel of land in Chicago, consisting of a strip of land two feet wide, adjoining Wabash avenue on the west side of the street, (described as “west half, except street, of lot 7, in Brown’s subdivision, ” etc.,) and of lot 8, in the same subdivision, which adjoined lot 7 on the west thereof. This parcel of land was inclosed with a fence, and was occupied as one property. For the taxes for 1877 this land was listed separately, as two tracts, and for the taxes for that year each tract was returned as delinquent, and judgment went against each for sale for taxes and costs, and at the tax sale, for want of bidders, was struck off as forfeited to the State, thus: “West half of lot 7, except street, forfeited for $42.57; lot 8, forfeited for $489.33.”
    In preparing the list of lands for the assessor, for the taxes of 1878, the clerk listed this property as,one property, and the assessor valued the same as an integer, so that the assessor’s book, when returned to the clerk for the extension of taxes against the property, stood thus:

    When the clerk was making up the amount of tax due upon this property, he extended against this whole property so valued as an integer, the taxes for 1878, (the current year,) amounting in all, with costs, to $168.79. He then inserted above the line, “for taxes for the current year, ” a new line, thus: “W. j-, except street, of lot 7,” and extended a tax against the same, on that line, for “back tax and forfeitures, ” $42.57. He also, at the same time, interlined below the line in which taxes for the current year were extended, another line, thus : “Lot 8, ” and extended a tax against the same, on that line, for “back tax and forfeitures,” $489.33. In this condition the list, duly certified, went into the hands of the collector, as his tax warrant. These taxes not being paid, the warrant came into the hands of the county collector, and these lands, in this form, were returned as delinquent, and such proceedings were had that judgment was rendered upon the list, so that one judgment was rendered against the part of lot 7 for $42.57, for “back tax and forfeitures,” and another judgment against the entire property, consisting of part of lot 7 and all of lot 8, for $168.79, for taxes of 1878, and another judgment against lot 8, for “back tax and forfeitures,” for $489.33. Bach of these judgments embraced costs. The taxes and costs remaining unpaid, at the tax sale three separate sales were made, on October 2, 1879,—the part of lot 7 to H. Combs, for $42.59, for “back tax and forfeitures; ” the entire property for $168.79, taxes for 1878, to P. E. Stanley, (the appellee,) and lot 8, in another sale, to P. E. Stanley, for $489.33, as “back tax and forfeitures, ” and a separate certificate of sale was issued upon each sale. Combs assigned his certificate to Stanley, and from that sale appellant redeemed the part of lot 7, paying the amount of the bid and twenty-five per cent thereon,— that is, $53.21. In less than six months from the date of these sales appellant offered to redeem all this property from' the two last sales, and by her agent tendered to Stanley $725, as full redemption from these sales. This Stanley refused, insisting-it was not enough, but refused to state exactly how much he deemed sufficient, referring her agent to the county clerk to ascertain the amount required. The agent applied at the clerk’s office for information, but failed to get any satisfactory information, being there referred to Stanley for information.
    On March 23, 1880,—being less than six months after the date of the sale,—appellant filed her bill, setting out substantially the above facts, claiming that her redemption was good, and asking that the outstanding certificates of sale be canceled, and to that end offering to pay whatever amount was necessary to redeem, to be determined by the court. Appellee answered, insisting the amount tendered was not enough. The suit was continued from time to time, until more than two years from the date of the sale, and after this, appellant, on leave, amended her bill, and after this, aj>pellee answered the bill as amended, and in that answer insisted that the redemption tendered was not sufficient, and claiming that he was entitled to the full amount of his bids and the penalties provided by the statute in such eases. On hearing, the court dismissed complainant’s bill for want of equity. She appealed to the Appellate Court. There the decree was affirmed, and the cause comes here on appeal, upon the certifie ate of the judges of the Appellate Court, as provided in the statute. Other facts are stated in the opinion.
    Messrs. Dent & Black, for the appellant:
    It is only in ease of appearance and defence that a judgment against land for taxes is conclusive. Belleville Nail Co. v. People, 98 Ill. 399; Gage v. Bailey, 102 id. 14.
    The amendment of 1879, to section 224 of the Revenue law, should not he held to apply to taxes of 1878, or prior years. But in point of fact the judgment against this land was rendered on June 16, 1879, and is not embraced in that amendment.
    Including compound interest in the judgment avoids the tax sale. McLaughlin v. Thompson, 55 Ill. 249; Cooley on Taxation, 344; Kimball v. Ballard, 19 Wis. 634; Kemper v. McClellan's Lessees, 19 Ohio, 327.
    In making up the tax warrant the clerk had no right to make such a separation of the back taxes from the current year’s tax as to require two judgments against the same property, and more than one sale thereof. It was not reasonable to sell this property three times at the same sale under the same judgment. Shoemaker v. Lacey, 38 Iowa, 277.
    Messrs. J. P. & T. R. Wilson, for the appellee:
    The amendment passed May 31, 1879, to section 224 of the Revenue law, is applicable to the judgment on which the tax sales in question in this suit took place. The judgment of the county court was on August 21, 1879.
    The judgment under which the sale was made is conclusive evidence of its regularity and validity.
    Both the objections now urged against the judgment, viz: that it is for too large a sum, and that two distinct judgments were rendered against the same land, could have been presented as a defence to the application for such judgment, and the parties are now estopped from raising these objections.
    That it is competent for the legislature to make a judgment rendered upon constructive notice by publication, final and conclusive, this court has decided by repeated adjudications. Gage v. Parker, 103 Ill. 528; People v. Brislin, 80 id. 423; Lehmer v. People, id. 601; Prout v. People, 83 id. 154; Andrews v. People, id. 529.
    It is contended by counsel, in argument, that the statute permits the judgment to be impeached if it includes an unauthorized charge. This is a mistake. It allows the judgment to be impeached if the property is not liable to the tax sought to be collected. It is not claimed that this property was exempt from any taxes whatever. The Illinois cases cited by counsel were decided upon the statute as it stood before the amendment to the Eevenue law, making the judgment conclusive.
   Mr. Justice Dickey

delivered the opinion of the Court:

The application for judgment on the delinquent list embracing these lands was made at the June term, 1879. A rule was entered requiring all objections to be filed by June 16, 1879. As to these and other lands no objections were filed. As to other lands objections were filed. On June 16, a judgment by default was ordered in all cases wherein no objections were filed, and the consideration of the objections, in the cases where objections were filed, was not concluded until after July 1, 1879. After this, and after objections in some eases had been sustained, a general judgment, in the form provided by statute, was entered against ail lands in the delinquent, list as to which no objection had been sustained by the court. These lands were embraced in that general judgment.

Appellee insists that the amendment of section 224 of the Eevenue act, should be held to apply to these judgments against these lots, because this final judgment was not entered until after July 1, 1879, and by reason of such amendment no question can now be raised to such judgments which existed before the judgment. We think this amendment does not apply to these judgments. They were, in substance, rendered June 16, 1879, when the default was entered, and this was before the amending act came in force. This judgment by default, on June 16, 1879, was, in substance, a judgment that each tract in the delinquent list, to the sale of which no objections had been filed, should be sold for the amount claimed in the delinquent list. This judgment embraced these tracts. Examining the sales (from which the privilege of redeeming is sought) in the light of the statute as it was when the judgments were rendered, and without reference to the amendment of July 1, 1879, we see no valid objection to the sale of the whole tract, for the taxes of 1878, for the sum of $168.79. To redeem from this sale on March 17, 1880, when the tender was made, appellant was required to pay the amount bid, and twenty-five per cent added thereto, making $210.98|.

As to the sale of lot 8 separately, for the “back tax and forfeitures” extended separately, without being added to or combined with any tax for the current year, we think it was irregular, and no penalty of twenty-five per cent can be demanded on account of such sale. The only authority found in our statutes for selling land for “back tax and forfeitures, ” upon an extension of the same upon the tax warrant, is contained in sections 129 and 229 of the Revenue law. Where real estate has been forfeited to the S^ate, the county clerk is authorized by section 129, “when he is making up the amount of tax due upon such real property for the current year, ” to add to the tax of the current year “the amount of back tax * * * remaining due upon such real property, with one year’s interest, at ten per cent, on the amount of tax due, and the aggregate amount, so added together, shall be collected in like manner as the tax on other real property for that year may be collected. ” Section 229 declares: “The amounts due on lands and lots previously forfeited to the State * * * shall be added to the tax of the current year, * * and the amount so charged shall be placed on the books, collected, and paid over in like manner as other .taxes. Said additions and sales shall be continued from year to year until the taxes on said property are paid, by sale or otherwise.”

It is plain, from the terms of these sections, that the back taxes to be added must regularly be back tax against the same land, precisely, against which the taxes of the current year are being extended, and that the only regular mode by which such back tax can be placed in the collector’s warrant by the clerk, is that of adding the same to the taxes of the current year, and the only lawful authority for this mode of collection of such back tax is, as a part of an aggregate made by the county clerk adding the back tax and the tax for the current year together. It is only the back tax upon “such real property” as has been valued for the current year by the assessor, which is to be added,—the back tax “upon such real property” as the clerk is then dealing with in making up the amount of tax due for the current year. It is only as part of the aggregate amount, “so added together, ” that such back tax is authorized by this statute to be collected in this way. There is no authority given by statute to the court to render judgment against any land “for back tax and forfeitures,” except in cases where such back taxes have been placed in the collector’s warrant by the county clerk, by adding the same to the amount of the taxes for the current year against the same property as that forfeited, and where such back taxes are made upon the warrant a part of an aggregate amount, “so added together.” It is only as a part of such aggregate that back taxes of this kind are authorized by the statute to be collected “as other taxes” are or may be collected. This is not a matter of mere form,—it is matter of substance. The tax-payer is not required to search the tax books in more than one place for the taxes against his land, where no cause exists for placing the several charges in different places upon the tax books and tax warrants. The taxpayer failing to pay his taxes, is not to be harassed by more than one judgment and one sale of his property, without some necessity. There are special eases provided for by statute where different classes of taxes may be collected separately, but this is not such a ease. As well might the clerk, in making up the tax list, charge the same property with county taxes for the current year in one place, and in another place charge the same property with the State taxes for the same year, and thus lay the foundation for separate judgments and separate tax sales, when the law provides for but one judgment and one sale for these items, in an aggregate.

It is suggested that this ruling will enable an owner of contiguous properties, which have been forfeited separately for back taxes, to defeat the collection of -the same by demanding that the several adjoining tracts be listed as an integer for the taxes of the current year. We think not. When an owner, in such case, makes such demand, he by necessary implication asks and consents that the sum of the back tax and forfeitures for each part shall be brought forward as a charge upon the whole.

The listing by the clerk, of lot 8 separately, to be charged separately, with back tax and forfeitures, not in combination with current taxes, and not as a part of an aggregate formed by adding the two classes together, was so irregular upon its face as to render the sale invalid, and no penalty of twenty-five per cent upon the amount of the sale for back taxes attached to the same. These back taxes, however, were a charge upon lot 8, and by the payment of the amount of his bid on that lot by Stanley, this charge in favor of the State was discharged. He has, therefore, a right to insist that the owner ought not to be allowed to redeem from the sale for the taxes for 1878, without refunding to him (Stanley) also the money paid on account of these back taxes on lot 8, with six per cent interest thereon from the day of sale until the day of redemption. This amount, on March 17, 1880, was $500.34. This, added to the regular redemption money, (say $211,) made, at that date, $711.34,—the full redemption money. The tender was $725, being more than sufficient.

It is the opinion of the court that it was error in the trial court to dismiss appellant’s bill. The judgment of affirmance by the Appellate Court is therefore reversed, and the cause remanded, that the decree may be reversed and the cause remanded, with directions that a decree be entered holding the amount tendered for redemption by appellant to be adequate, and ordering the certificates of sale in question to be canceled upon the payment by appellant of the sum of $725, with interest from the date of the tender, or offer to pay that amount, within a time to be limited in said decree, with interest on that amount from the day of entering such decree.

Judgment reversed.


author: Mr. Justice Craig

text:
    The International Bank et al. v. R. E. Jenkins, Assignee, et al.

      Filed at Ottawa March 6, 1884.

    1. Appeal—only from final judgment, and what is a final judgment in the Appellate Oowrt. The fact that a decree of the circuit court is affirmed in two particulars, and reversed in all other respects, without any direction to the circuit court, does not constitute a final judgment of the Appellate Court from which an appeal or writ of error lies.
    .2. To give an appeal or writ of error from or to the circuit court, there must be a final disposition of the whole case as to all the parties. A cause can not be removed to a higher court for review as to one party at one time, and as to another party at another time. Hence no appeal lies from an order of the Appellate Court reversing a decree of the circuit court in part and affirming in part, when the judgment of the Appellate Court is not such that no further proceedings can be had in the court below except to carry into effect the mandate of the Appellate Court.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. William Brown, Judge, presiding.
    Messrs. Rosenthal & Pence, for the plaintiffs in error.
    Mr. W. T. Burgess, and Mr. A. Crawford, for the defendants in error.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill brought by Augustus Bauer, on the 29th day of August, 1874, against Samuel J. Walker and others, to foreclose certain trust deeds on different tracts of land in Cook county, which had been pledged as collateral security for the payment of certain notes executed by Walker, and payable to the International Bank, for moneys loaned. Various persons who had an interest in the mortgaged premises (in all about one hundred) were made parties defendant to the bill. Among others, Williams & Thompson, who claimed to have purchased a part of the mortgaged property, known as block 28, were made defendants to the bill. Miller & Leibenstein, who held a trust deed on a certain other part of the mortgaged premises, were also made defendants. They filed a cross-bill to foreclose a trust deed held by them, and made Russell M. Darned, who claimed to own the premises described in the trust deed, a party thereto. Walker put in an answer to the bill, in which he set up various transactions between him and the bank, and divers loans of money by the bank to him, and that all of the loans were at usurious rates of interest, and that the assignment of the notes to Bauer was not made in good faith, but to cover up such usurious interest; that Bauer was a stockholder in the bank, and had notice of the usurious dealings. Walker called for an accounting between him and the bank, and that all usurious payments should be allowed, which, if done, would, as he claimed, pay all the notes held by the bank, Bauer, or any other person under the bank. Walker also filed a cross-bill. Most of the other defendants put in answers to the bill, and the court, on the hearing, on the pleadings and evidence, entered an interlocutory decree, in which it was, among other things, found that neither Walker nor any of the other parties are entitled to any set-off or deduction to any of the principal notes on the ground of usury, and the master, to whom the cause was referred to state the account, was directed not to consider the question of usurious payments of interest upon any of the notes. After the coming in of the report of the master, and on the 25th day of April, 1878, a final decree was rendered granting relief upon the original bill of Bauer as to all property embraced in it. The court, however, held that the $15,000 note and trust deed on block 28 had been released, and were no longer a lien, and that neither Bauer, Kohn & Bros., nor the bank, had any interest in said block, and the bill was dismissed as to this block. The court also dismissed the cross-bill of Miller & Leibenstein, in which they sought to foreclose a trust deed on a tract of land claimed by Bussell M. Larned, holding that the tract so claimed by Larned had been released from the trust deed.

On April 26,1878, Walker filed his petition to be adjudged a bankrupt. After he was adjudged a bankrupt, and on June 18,1878, he sued out from the Appellate Court a writ of error to reverse the decree of the circuit court winch had been rendered in the case of Bauer v. Walker et al. On the 18th day of October, 1879, Bauer and others filed a plea in bar of the writ of error, claiming that Walker had no right to sue out or prosecute a writ of error, after he was adjudged a bankrupt, to reverse a decree rendered before he was a bankrupt. After this plea was filed, Jenkins, assignee of Walker, entered a motion in the Appellate Court to substitute the assignee in place of Walker, with leave to prosecute the writ of error. This motion the court allowed. On the 14th day of June, 1881, the Appellate Court rendered a judgment in the cause, in which the decree of the circuit court was affirmed as to block 28, which was claimed by Williams & Thompson, and also affirmed the decree as to the Larned tract. Every other portion of the decree was reversed, and the cause remanded. From this judgment Miller & Leibenstein appealed to this court, and the judgment of the Appellate Court as to the Larned tract was reversed, and the cause remanded. (Miller v. Larned, 103 Ill. 562.) After the decision was announced in the case last cited, this writ of error was sued out by the International Bank and Augustus Bauer, to reverse the decision of the Appellate Court rendered on the 14th day of June, 1881.

Several motions have been entered by different parties to dismiss this writ of error, some of them upon one ground, and some on another. The defendant in error Jenkins, assignee of Walker, predicates his motion to dismiss on the ground, mainly, that the judgment of the Appellate Court sought to be, reversed is not a final judgment. íhis case involves large and conflicting interests, and it is highly important to all concerned that when a decision is made in the ease in the court of last resort, the case should be in such a situation that the rights of all parties in interest could be considered, passed upon, and settled by that decision. The question, however, whether this writ of error will lie, depends upon whether it is authorized by the statute.

Section 90 of the Practice act, which is the statute under which the writ of error was sued out, provides: “In all criminal cases, and in all cases where a franchise, or freehold, or the validity of a statute is involved, and in all other cases where the sum or value of the controversy shall exceed $1000, exclusive of costs, which shall he heard in any of the Appellate Courts, upon errors assigned, if the judgment of the Appellate Court be that the order, judgment or decree of the court below be affirmed; or if final judgment or decree be rendered therein in the Appellate Court; or if the judgment, order, or decree of the Appellate Court be such that no further proceedings can be had in the court below except to carry into effect the mandate of the Appellate Court, any party to such cause shall be permitted to remove the same to the Supreme Court, by appeal or writ of error. ” It will be observed that there are three contingencies named in the statute, under either of which an appeal or writ of error will lie, and only three. Have either of these contingencies named in the statute arisen in this case ? An examination of the record containing the judgment of the Appellate Court will show that they have not. The judgment of the Appellate Court, as appears from the record, is, that the decree of the circuit court, so far as it relates to the deed of trust executed by Samuel J. Walker and wife to Francis A. Hoffman, conveying block 28, and to the deed of trust executed by William Hansbrough to John G. Rogers, conveying the east half of the north-west quarter of section 4, town 38, range 13, in Cook county, be affirmed. In all other respects the decree of the circuit court is reversed, and the cause remanded for further proceedings. Here the judgment or decree of the circuit court was not affirmed, nor was a final judgment entered in the Appellate Court, nor was the judgment of the Appellate Court such that no further proceedings can be had in the court below except to carry into effect the mandate of the Appellate Court. It is apparent that the case falls within no provision of the statute which authorizes an appeal or writ of error.

In Buck v. Hamilton County, 99 Ill. 507, the statute which authorizes an appeal or writ of error was considered, and it was expressly ruled that where the judgment of the circuit court is reversed and the cause remanded, no appeal lies from the Appellate to the Supreme Court, as such judgment is in no sense final. In Thompson v. Follansbee, 55 Ill. 427, where, on demurrer, a bill was dismissed as to a part of the defendants, it was held that a writ of error would not lie. In the decision of the case it is there said: “It is a well settled rule that a writ of error will not lie except to a final order of court. If the bill is dismissed as to one or more parties, the complainant can not prosecute a writ of error until there has been a final disposition of the case as to all other parties. A cause can not be reviewed as to one party at one time, and as to another party at another time. ” See, also, Moore v. Robbins, 18 Wall. 588.

The mere fact that the decree of the circuit court was affirmed in two particulars, when it was reversed in all other respects, did by no means constitute a final judgment of the Appellate Court. The main part of the decree was reversed, and the cause was remanded for another hearing, but whether the larger or smaller portion of the decree was reversed was a question of no moment. It is enough that the statute has not authorized an appeal or writ of error where a decree may be reversed in part and affirmed in part. Where the cause is remanded for another trial on the merits, for a trial de novo, an appeal or writ of error will not lie under our statute, although the decree may have been affirmed as respects some of its provisions. Should it turn out on the next trial of this cause in the circuit court, on the merits, that Walker is not indebted on any of the trust deeds which the bill was brought to foreclose, that would end all controversy in regard to the rights of purchasers under Walker, such as Williams & Thompson, hence the fallacy of the attempt to force a decision on this branch of the case until there shall have been a final decision of the whole case. We are of opinion, however, that it would have been a better practice if the Appellate Court had reversed with directions to the circuit court to dismiss as to Williams & Thompson on the final hearing, rather than affirm that part of the decree. But we will regard the order of affirmance in effect as an order directing the circuit court to dismiss as to block 28 on the final hearing.

The writ of error will be dismissed.

Writ of error dismissed.