author: Mr. Justice Walker

text:
    Mary L. Walker v. Esther Ray.

      Filed at Ottawa November 17, 1884.

    1. Limitations, and lapse of time aside from the statute — in equity, As a general rule, subject to a few exceptions, a court of chancery follows the law in applying the Statute of Limitations to cut off stale demands; and where there are exceptions, a sufficient equitable excuse should be alleged and proved to account for the delay.

      2. Same — adverse possession of land — to defeat a specific performance —laches, within the statutory limit. While a court of equity7, as a general rule, will give effect to the Statute of - Limitations, it 'goes further in the interest of justice, and holds there is laches in many cases where there would he no bar to an action at law. Adverse possession of land for the statutory period of limitation, under a legal title, is not necessary to defeat a bill in equity to establish an equitable title, and enforce a specific performance of a verbal contract.
    3. Same — laches as against infants. Laches will not be imputed to infants during the period @6 the disability. It will be imputed only from the removal of the disability.
    4. Pleading and evidence — defence as against imputation of laches —how availed of. Li equity, if a complainant has any grounds of exception to prevent the bar of laches, or repel the presumption arising from delay in asserting an alleged right, the proper practice requires him to state such matters of avoidance in his bill; but under the present liberal practice as to amendments, the court may allow such matters to be brought into the case by an amendment to the bill. This equitable bar to relief can not be avoided by proof showing an excuse for the delay, unless such excuse is alleged in the bill.
    5. In this case, a bill for thq specific performance of a verbal contract to convey an interest in land, was filed by the complainant about twenty-five years after the alleged contract, against a minor heir and her father, having a life estate. It failed to allege any excuse for the delay. On writ of error by the minor, on arriving at her majority, a decree against her was reversed on account of the insufficiency of the bill, it showing on its face a want of equity.
    6. It is a familiar rule of chancery practice that the allegations in the pleadings must agree with the proofs. Any evidence which has not its proper foundation in the pleadings, can not avail.
    7. Same — former decision. So far as anything here said is in conflict with the case of Trustees of Schools v. Wright, 12 Ill. 432, it is intended to overrule that case to that extent.
    Writ of Error to the Circuit Court of Cook county; the Hon. E. S. Williams, Judge, presiding.
    Mr. Edward Roby, for the plaintiff in error:
    The bill, on its face, shows such delay and laches as to form a bar to the suit. That appearing in the bill, advantage of it could have been taken by demurrer. 1 Daniell’s Chancery Practice, 559, note 9.

      Upon the face of the decree the hill was barred, and the decree shows conclusively that no claim ever existed, or that it has been surrendered or released. Powell on Evidence, 49, 327; Mathews on Presumptive Evidence, 5, 8, 11-13, 382, 387, 388, 413; Fonblanque’s Equity, 331; Broom’s Legal Maxims, 892, 893, 897; 1 Greenleaf on Evidence, sec. 32.
    In McDonald v. Stow, 109 Ill. 45, this court held that delay of seven years should bar the assertion of a resulting trust; fifteen years was held a bar in Whipple v. Whipple, 109 Ill. 424; fourteen years in Rogers v. Simmons, 55 Ill. 77; nineteen years in Castner v. Walrod, 83 Ill. 171; less than five years in Williams v. Rhodes, 81 Ill. 571; eighteen years in Carpenter v. Carpenter, 70 Ill. 463; and twenty years in Walker v. Carrington, 74 Ill. 446. In Dickerman v. Burgess, 20 Ill. 276, the court said: “It is also a rule that a party shall not claim the aid of a court of equity, who has been guilty of laches, unless that laches can be imputed to the party claiming against him.” And in McKean v. Vick, 108 Ill. 376, it was held that seven years’ delay, unexplained, bars all claims for money against the land of a deceased person.
    Courts will not enforce a resulting trust after a great lapse of time, or laches on the part of the supposed cestui que trust. Perry on Trusts, sec. 141.’
    A minor is entitled to the protection of the courts, whether his guardian pleads properly or not. Gilmore v. Gilmore, 109 Ill. 277; Stark v. Brown, 101 id. 395.
    A guardian or next friend is powerless to admit away any of the rights of a minor. Railroad Co. v. Kennedy, 70 Ill. 350; Greenman v. Harvey, 53 id. 389 ; Cochran v. McDowell, 15 id. 10; Reddick v. State Bank, 27 id. 148; Masterson v. Wiswold, 18 id. 48.

      Mr. Albert H. Veeder, Mr. A. H. Lawrence, and Mr. F. A. Smith, for the defendant in error:
    The defence of the Statute of Limitations, and laches, was not in any mode pleaded to Bay’s bill. If a party would rely upon such defence, he must set it up by demurrer, plea or answer.
    A person having an equitable interest in land can enforce it in equity, the same as he could at law, if his title were legal. If he would not be barred at law, .he would not in equity. Daniell’s Chancery Practice, 560; Kane County v. Herrington. 50 Ill. 232; Ryder v. Emrich, 104 id. 470.
    None of the cases cited relating to laches, involved resulting trusts. Until a title, be it legal or equitable, is denied, and a hostile possession taken, the limitation does not commence to run. Clark v. Lyon, 45 Ill. 388.
   Mr. Justice Walker

delivered the opinion of the Court:

In February, 1848, Thomas A. Speers paid to the receiver of the land office at Chicago, fifty dollars for the entry of the south-east quarter of the north-west quarter of section 17, town 37, north, range 15, east of the third principal meridian, containing forty acres, and received a certificate of entry therefor. In May, 1849, a patent was issued to him for the land. In 1854 or 1855 he died intestate, leaving no widow, but a child, named Josephine Speers, then ten years old, as his only heir at law, to whom the title descended. Subsequently, about the year 1860, she intermarried with Sidney P. Walker, and had one child, Mary Louise, born the 21st of December, 1863. In October, 1864, Josephine died intestate, leaving surviving, her husband, Sidney P. Walker, and Mary Louise Walker, then ten months old, her only child and heir, to whom this land descended. On the 31st of January, 1874, Samuel Bay, whose wife was an aunt of Mary Louise Walker, filed a bill against the latter and her father, Sidney P. Walker, who was tenant by the curtesy and guardian of Mary Louise, alleging the purchase and descent of the land as here stated, but claiming that complainant was entitled to two-thirds of the land, and Mary Louise held the title to his interest in trust for him. He alleged that himself, Speers, and Martin G-. Taylor, furnished the money, in equal parts, to enter the land, and it was the arrangement that each was to own an undivided one-third part, and it was to be entered and patented in the name of Speers, and he was to convey their several interests to complainant and Taylor. It is further alleged, that about the first of May, 1850, after the patent was issued to Speers, Taylor, for a valuable consideration paid to him by complainant, sold his interest and claim thereto to complainant, and afterwards, on the 23d of June, 1873, Taylor and wife quitclaimed their interest to complainant, which deed was recorded. On the 21st of July, 1877, on a hearing, the court rendered a decree directing the title for two-thirds of the tract to be conveyed to complainant, according to the prayer of the bill, which was done. On the 23d of January, Samuel Bay died testate, having devised the land to his widow, Esther Bay, and Sarah J. Mann, Harriet Smith and Josephine Kleinman, by his last will, which was, on the 6th of February, 1880, admitted to probate. On December 2 of that year, Esther Bay sold her interest to E. O. Kirkwood, who, through a third party, conveyed it to Alice Kirkwood, his wife, on the 28th of June, 1881. On the 21st of December, 1881, Mary Louise Walker became eighteen years of age, and on the 22d of August, 1883, filed a transcript of the record in this court, and in it assigned errors, questioning the correctness of the decree.

It is urged that a delay of over twenty-five years after the patent was issued vesting the title in Speers, before Bay filed his bill, unexplained, is such gross, laches as to bar all relief. As a general rule, subject to few exceptions, a court of chancery follows the law in applying the Statute of Limitations to cut off stale demands; and where there are exceptions, a. sufficient equitable excuse should be alleged and proved to account for and justify the delay. In Henry County v. Winnebago Drainage Co. 52 Ill. 299, it was said, that if complainant has any ground of exception to prevent the bar, or the presumption arising from the length of time, the bill should state it, — that it would not be subject to demurrer. This is no doubt the correct practice; but under our liberal practice allowing amendments, if the bill was defectively framed in this respect and a demurrer was sustained, or the bar of laches was set up as a defence, the court would permit an amendment of the bill to avoid the bar, if the case was within any exception to the statute, or complainant could show an equitable excuse for delay in filing his bill. The same doctrine was announced in Anderson v. Frye, 18 Ill. 94. It was there held that a party seeking specific performance must show himself not to be in default in performing the agreement, and “if he has been guilty of gross laches, or if he applies after a long lapse of time, unexplained by equitable circumstances, his bill will be dismissed.” The same rule was announced in Iglehart v. Gibson, 56 Ill. 81. In the case of Hough v. Coughlan, 41 Ill. 130, it was said: “It is the settled doctrine of courts of equity in England, and of this court, that great delay of either party, unexplained, in not performing the terms of the contract, or in not prosecuting his rights under it by filing a bill, or in not prosecuting his suit with diligence when instituted, constitutes such laches as would forbid the interference of a court of equity, and so amount, for the purpose of specific performance, to an abandonment, on his part, of the contract. ” This was a bill for a specific performance, and it showed that twenty-six years had elapsed after Bay’s rights accrued, and a bill could have been maintained for a specific performance at any time before the bill was filed. Nor does the bill allege any excuse for the delay. It was therefore defective, — so much so, that it not only failed to show a right to relief, hut on the contrary, it, on its face, showed defendant in error was not entitled to a decree. (Lloyd v. Kirkwood, 112 Ill. 329.) Had a demurrer been interposed, it would have been sustained, because there was no equity on the face of the bill. So far as anything is here said in conflict with the ease of Trustees of Schools v. Wright, 12 Ill. 432, it is intended to overrule that case to that extent.

A bill wholly insufficient to authorize the relief sought is never aided by proof. If every allegation of a bill that shows a want of equity, is proved, the proof shows no more equity than the bill; and if the proof goes beyond such a bill as establishes ground for relief, the relief can not be granted, because the allegations and proofs do not correspond. It is a familiar rule of practice that the allegations and the proofs must agree. Here, the bill showing defendant in error was not entitled to relief, it was error to decree it, because it was inequitable. It is therefore immaterial whether there was a certificate of evidence or not, or whether the court below was, or not, warranted in finding, by the decree, that the allegations of the bill were proved, because if they were, they constituted no ground of relief, because there was gross laches in filing the bill, — so gross as to preclude the decree for relief.

The cases of Kane County v. Herrington, 50 Ill. 232, and Ryder v. Emrich, 104 id. 470, are referred to by defendant in error as controlling this ease. We fail to perceive that the facts are at all similar. In the former of these eases the county entered upon and appropriated lots to which minor heirs held a trust, of which the agents of the county had notice. After arriving at age, the heirs filed a bill to enforce their trust estate. The county insisted that they were preeluded from relief because the claim was stale; but it was held that the portion of time they were minors should not be considered in determining that question; that the time, only, that elapsed after they arrived of age could be taken into account; that in analogy to the Statute of Limitations, a sufficient time must elapse after arriving at age, to bar an' action at law, before there could be a bar in equity. There, the party not under disability was seeking to invoke the bar against minors, — here, the minor interposes the bar against a party who was under no disability. In this there is a broad and clear distinction. If that case has any bearing on this, it is in favor of plaintiff in error, because she was a minor, and during that period laches can not be imputed to her. In the case of Ryder v. Emrich, laches was endeavored to be invoked against minors, and it was held that time did not run against them, in equity, any more than at law. Thus it is seen these eases -have no controlling effect in favor of'defendant in error, as he was not a minor, but they do establish the rule that laches will not be imputed to infants.

It is urged that inasmuch ,as the statute will not bar an action of- ejectment unless there has been an adverse possession, the rule in equity must be the same, — that in this case plaintiff in error never took possession, but the premises are unimproved and vacant. This is not the rule as to laches, in equity. The delay or laches, in equity, does not in all cases conform to the statute, whilst equity, as a general rule, will give effect to the Statute of Limitations. It goes farther, in the promotion-of - justice, and hold's -there is laches' in many cases where there would be no bar to an action at law. There are numerous cases in this court where the doctrine of delay has been applied to defeat the relief sought, where the statutory period had not run. In some eases two years’ delay has been held to bar relief. Where there is such a change in the relations of the parties, or such a change in the subject matter of the suit, as to render it inequitable to grant relief, it will be refused, without reference to the statutory period; or where the delay is so great in asserting the right, as to create the presumption that complainant had abandoned his claim, relief will be denied. (Hough v. Coughlan, supra.) The court, in applying laches as a bar, acts on broadef and more comprehensive rules than the Statute of Limitations.

In this case complainant delayed the assertion of his rights for more than a quarter of a century after he could have filed his bill and obtained such relief as he was entitled to have. Such delay compels the inference that he had abandoned his claim long before he filed his bill, and a change of value of the property, or some other motive, induced him to revive his claim. Had he regarded his claim of any value, or had he intended to assert it, he surely would, on purchasing Taylor’s interest, have had some writing to evidence the purchase. On the contrary, he permitted it to lie on a mere verbal understanding with him, for twenty-three years. This, if not conclusive, is very satisfactory evidence that he had abandoned the claim. It is too stale to be enforced in equity. The laches is gross, and the decree .must be reversed and'the cause remanded.

Decree reversed.


source: Caselaw Access Project

author: Mr. Justice Ceaig

license: Public Domain

text:
    George M. De Land v. The Dixon National Bank.

      Filed at Ottawa November 17, 1884.

    1. Evidence — as to condition of bank account — countervailing testimony as to payment. Where a bank depositor, in a suit against the bank, shows his deposits of money, the burden will rest upon the bank to establish, by competent evidence, that the same has been paid out by or under the authority of the depositor.
    2. Credibility of witnesses — and weight of testimony — the jury to determine. The jury are the sole judges of the credibility of the witnesses and of the weight of the evidence, and the court, in its instructions, should not infringe upon this rule,' but should leave the jury free to determine for themselves the weight of the evidence, and on which side it preponderates.

      3. An instruction that if the jury believe, from the evidence in the case, that the plaintiff has proved his case by only one witness, and that he has been contradicted as to all material portions of his testimony by one witness of equal credibility and means of knowledge, then, as a matter of law, the plaintiff has not proved his case, is erroneous, even if there was no other testimony in the case except that of the two witnesses, and especially when the plaintiff had made out his case independently of the testimony of himself.
    4. Agency — ratification by acquiescence. The fact that a depositor in a bank remained silent for over two years after being informed that the cashier had signed his name to a check, and took no measures to assert his rights, may be regarded as a strong circumstance tending to show that the cashier was authorized to draw the check; but it is error to instruct the jury, as a matter of law, that if the depositor neglected to repudiate the act within a reasonable time after being informed of the facts, he thereby ratified and confirmed the act of the bank in charging him with such check.
    Appeal from the Appellate Court for the Second District;— heard in that court on writ of error to the Circuit Court of Lee 'county; the Hon. John Y. Eustace, Judge, presiding.
    Messrs. Barge, Rathbun & Barge, for the appellant:
    The defendant undertook to collect the Dart note for the plaintiff, and is responsible for the negligence or default of a notary, or correspondent, or its own servants and agents. Darcy v. Jones, 42 N. J. L. 28; Arnault v. Pacific Bank, 47 N. Y. 570; Walker v. Bank, 9 id. 582; Ætna Ins. Co. v. Alton City Bank, 25 Ill. 243; Commercial Bank v. Union Bank, 1 Kern. 203.
    A forged indorsement or check can not he ratified. Shisler v. Vandike, 92 Pa. St. 447; McHugh v. County of Schuyler, 69 id. 391.
    The burden of proof was on the bank to show it had paid out the deposit by authority. Watt v. Kirby, 15 Ill. 200.
    Bankers are presumed to know the signatures of their customers, and they pay checks purporting to be drawn on them, at their peril. Weissen’s Admr. v. Dennison, 10 N. Y. 68; Bank v. Ricker, 71 Ill. 439; Price v. Neal, 3 Burr, 1354 ; Wilson v. Alexander, 3 Scam. 392; Hoffman v. Bank of Mil

      waukee, 12 Wall. 181; United States Bank v. Bank of Georgia, 10 Wheat. 333; Marine Bank v. Chandler, 27 Ill. 525; Marine Bank v. Rushmore, 28 id. 463; Linkham & Co. v. Hey worth, 31 id. 519.
    Mr. A. K. Tbusdell, for the appellee:
    That appellant’s acquiescence amounts to a ratification of the cashier’s act in signing his name to check, see 1 Livermore on Agency, 44; Paley on Agency, 171; Bank v. Warren, 15 N. Y. 577.
    Where the court is satisfied, from the whole record, that substantial justice has been done, it will not reverse. Glickauf v. Hirschhorn, 73 Ill. 577; Railway Co. v. Ingraham, 77 id. 309.
   Mr. Justice Ceaig

delivered the opinion of the Court:

George M. DeLand, appellant, was a depositor with the Dixon National Bank from 1873 until 1877. In the month of April, 1877, the bank made out and delivered to DeLand a pass book and forty-two vouchers, which contained a full statement of moneys received by the bank and moneys paid out, as shown by the forty-two vouchers. From 1873 to 1877 DeLand had no book showing his transactions with the bank, but the entire account was kept by the bank. The statement of account, as furnished by the bank in April, 1877, showed the account balanced, and nothing due DeLand. No steps were taken by him in regard to the transaction until October 17, 1879, when he brought this action, claiming a balance due from the bank. The declaration contained the common counts, under which the plaintiff claimed to recover for money deposited with the bank, and for money collected by the bank from other parties in his favor, and not paid over. The defendant pleaded non assumpsit, and also a plea of set-off. In the latter plea the defendant claimed to recover two promissory notes, — one dated May 8, 1878, amount $127, and one for $707.62, dated November 15, 1877, executed by DeLand and one Trueman, who was at the time cashier of the bank. On a trial of the cause before a jury, the bank recovered a judgment for $1093.93, — the amount of the two notes and interest set out in the plea of set-off. This judgment was affirmed in the Appellate Court, and DeLand, the plaintiff in the action, has appealed to this court.

It was claimed on the trial that certain checks which purported to have been signed by DeLand, and which were charged against him in the account rendered by the bank, were never executed by him or by his authority. One of the checks, — and, indeed, the only one over which there seems to have been reasonable ground for controversy, — was dated February 3, 1876, payable to J. O. Wiswell, or bearer, for $600, signed “Geo. DeLand.” The plaintiff testified that he never signed this check or authorized it signed, while on the other hand, Trueman testified that he drew and signed the check for and at the request of DeLand, — that the money was used to cover the loss in a wheat deal on the board of trade in Chicago, in which the two were engaged. Whether this check was drawn with or without the authority of DeLand, was a question purely for the determination of the jury, and the testimony bearing upon the point was in the main confined to the evidence of DeLand on behalf of himself, and of Trueman for the bank. It was therefore necessary, in order that the jury might arrive at a correct result, that the instructions should be accurate. Among others, the court, on behalf of the bank, gave the following instruction:

“The court further instructs you, that the burden of proof in this case is upon the plaintiff to prove his case; and if you believe, from the evidence in the case, that the plaintiff has proved his case by only one witness, and that he has been contradicted as to all material portions of his testimony by one witness of equal credibility and means of knowledge, then, as a matter of law, the plaintiff has not proved his case. ”

This instruction was calculated to mislead the jury. The plaintiff claimed that he was entitled to recover the $600, which he was, unless the check drawn in favor of Wiswell was in some way authorized or sanctioned by him. But as to this part of the case the burden of proof did not rest on the plaintiff. When he established that the money had been deposited in the bank, the burden of proof rested upon the bank to establish, by competent evidence, that the money had been paid out by or under the authority of the plaintiff. But the instruction ignores this rule, and informs the jury that the burden of proof is on the plaintiff to prove his ease.

The instruction is also liable to another objection. While it was the duty of the jury, where there was a conflict between the evidence of two witnesses, as here, to weigh and consider all facts and circumstances introduced in evidence, in connection with the testimony of the two witnesses, and from all the facts in evidence determine on which side the weight of evidence may be, the jury were, in effect, directed, as a matter of law, that where one witness testified to a certain fact, and was contradicted by another of equal means of knowledge and credibility, no case was made out. Had there been nothing before the jury save only the evidence of the two witnesses, we are not prepared to say the instruction would have been correct. It is an unsafe rule to announce to a jury that there is no preponderance in such a case. The jury are the sole judges of the weight to be given to all evidence introduced for their consideration, and the instructions of the court should not infringe upon this rule, but leave the jury free and untrammeled to determine for themselves the weight of all evidence, and also upon which side of the case the evidence may preponderate.

In defendant’s fifth instruction the jury were informed that it was the duty of DeLand to repudiate the act of Trueman in signing his name to checks, within a reasonable time after he was'informed of the fact, and if he neglected to do so, he ratified and confirmed the act of the bank in charging him, in his account, with the amounts of such checks. The fact that DeLand remained silent, and did nothing in the way of asserting his rights, for about two years and a half after he received from the bank a full statement of his account, together with the checks which he now claims were unauthorized, may be regarded as a strong circumstance for the consideration of the jury, tending to establish that the giving of the checks was authorized by him; yet we are not prepared to hold that such conduct on his part should be regarded as a ratification and confirmation of such an unauthorized act, if it was unauthorized. We are aware of no authority which carries the doctrine of ratification of an unauthorized act to the extent that does the instruction. This instruction, and several others announcing the same rule, were calculated to mislead the jury, and should not have been given.

The judgment will be reversed and the cause remanded.

Judgment reversed.


author: Mr. Chief Justice Scholfield

text:
    Isaac Z. Stiger et al. v. Lucinda G. Bent.

      Filed at Springfield September 27, 1884.

    1. Usury — who may avail of the defence. A party not injuriously affected by an usurious transaction, is not allowed to complain or take advantage of the usury. So if a party sells land subject to a mortgage thereon, which is given to secure a debt, with usury reserved, and the purchaser assumes the payment of the debt as a part of the purchase money, such purchaser or those claiming under him can not interpose the defence of usury to a bill to foreclose the mortgage.

      2. Parties — on bill to foreclose — wife of the debtor, after sale by the mortgagor. On bill to foreclose a mortgage given by a husband and wife to secure the note of the former, after they have sold and conveyed the mortgaged premises, the purchaser having assumed payment of the mortgage debt as a part of the purchase price, the wife of the mortgagor, having no interest in the matter, is not a necessary party, and no decree could be had against her if made a party.
    3. Same — as to administrator of a remote grantee of the mortgagor— liability of such grantee in respect to incumbrance assumed by his grantor. A mortgagor conveyed the mortgaged premises to one who assumed payment of the mortgage debt as a part of the purchase price, and he conveyed the same to another, who, out of the purchase money, paid the amount due on the mortgage, to the trustee named in the instrument, who had no right to receive the same, and wrongfully entered satisfaction of the trust deed on the record. It was held, on bill by the holder of the note secured to foreclose the trust deed, that the administrator of the last grantee was not a necessary party, for the reason that the estate he represented was under no liability for the payment of the mortgage debt.
    4. Administration of estates — payment of prior incumbrance on land purchased by the intestate. Where a person acquires land subject to an incumbrance for the debt of a prior owner, and dies, his administrator is not authorized by law to pay such debt or incur expense on account of it.
    5. Mortgage — deed of trust — assignment of the debt — rights of the assignee as respects the security. In equity a deed of trust is but an incident to the debt it secures, and will pass with an assignment of the debt to the holder.
    6. Same — unauthorised entry of satisfaction by trustee — of its effect upon the rights of parties and purchasers. An entry of satisfaction of a deed of trust by the trustee when the indebtedness secured by it has not been paid, and the act is not authorized by the holder of the indebtedness, will have no effect upon the deed of trust as between the original parties, or as to subsequent-purchasers with notice.
    7. Same — foreclosure without setting aside an entry of satisfaction wrongfully entered. AVhere a trustee in a deed of trust, without.the authority of the holder of the note thereby secured, accepts payment, and enters satisfaction on the record, it will not be necessary, on bill to foreclose the trust deed, for a formal order setting aside the entry of satisfaction before a decree of- foreclosure. If such entry ought to be set aside, it may in equity be treated as if never having been made, although at law the rule may be different.
    8. Same — notice to purchaser of the want of authority in the trustee to accept payment of the debt. Where a trustee enters satisfaction of a trust deed duly recorded, in consequence of a negotiation for the purchase of the land, and for the purpose of consummating the sale, and accepts payment of the amount of the debt secured from such purchaser without producing and cancelling the note, and without authority from the holder thereof, the purchaser can not be said to have purchased without notice of the rights of the holder of the note.
    9. Same — inference as to trustee’s authority to receive payment of a note. No authority in a trustee in a trust deed to collect the principal debt secured, and to enter satisfaction on the record of the trust deed, can be inferred merely from the fact that the money was borrow'ed of the holder of the note through a firm of brokers of which the trustee was a member, and that payments of interest on the note had been made to him before.
    10. Same — production of the note secured — as evidence of non-payment. The production of a promissory note secured by a trust deed, on the hearing of a bill to foreclose, raises a prima facie presumption that it has not been paid, and is still lawfully belonging to the complainant.
    11. Payment to an agent — burden of proof to show agent’s authority. Where an agent has the possession of a promissory note after due, it may be inferred that he has authority to receive payment of it; but the burden is on the debtor who makes payment to the agent relying upon such inference, to show that the note was in his possession when the payment was made, and the fact that the note is neither surrendered nor offered to be surrendered, affords evidence the agent did not have it.
    12. Purchases — of his right to remove a prior incumbrance — and of other resulting rights — subrogation. " The purchaser of land subject to a prior incumbrance has the right to pay off the debt and thus relieve his land, and to receive the note evidencing the debt, for his own protection; and if such payment is not made under a previous contract with the party owing the same, the party so paying is entitled to be subrogated to all the rights of the holder of the indebtedness.
    13. If payment of a note is made by one, of the note of another, pursuant to a contract that he shall pay the same, the party paying may be regarded as the agent of the debtor, and as such is entitled to receive and hold the note as an evidence of his having made payment, as well as for his own protection.
    14. Laches — effect of delay in giving notice of mortgagee’s right, to a pun-chaser. The failure of the holder of a note secured by deed of trust, to give prompt notice to a subsequent purchaser of the land, making payment to the trustee and procuring his release of the trust deed, of the want of authority' in the trustee to receive payment and make the release, will not bar the holder’s right to a foreclosure, when it does not appear that the delay in giving the notice has worked an injury to the purchaser so paying the trustee.
    15. Same — in equity — within the statutory period of limitation. A court of equity applies the doctrine of laches in denial of relief sought, when the statutory period of limitation has not expired, only when, from all the circumstances in evidence, to grant the relief to which the complainant would otherwise be entitled will presumptively be inequitable and unjust to the defendants because of the delay.

      16. Same — in the particular ease. A purchaser of land mortgaged by a former owner was unwilling to conclude the purchase without a satisfaction or release of the incumbrance, when the trustee, without having the note secured or authority from the holder, accepted payment of the debt, and made an entry of satisfaction upon the record of the trust deed, and converted the money paid, to' his own use, and failed. In 1876 the holder of the note learned of the fact of such satisfaction, when he placed his note in the hands of attorneys for collection, giving no notice to the purchaser. Suit was not brought until in 1880, during which time the purchaser had died, giving by will the land to his wife for life, and directing that at her death it be sold, and of the proceeds $1500 be paid to a grand-son, and the residue be equally divided among his sons and daughters. On the hearing, the court decreed a foreclosure against all the defendants except the widow and grandson, whose interests were protected, by reason of the delay in filing the bill. On appeal by some of the residuary legatees, the decree was affirmed, as it did not appear that they were injuriously affected by the delay.
    17. Witness — competency of parly against legatees and devisees. On a bill to foreclose a mortgage on land of a deceased subsequent purchaser from the mortgagor, against Ms legatees and devisees, the complainant is not a competent witness in his own behalf against those defending as legatees or devisees.
    Appeal from the Appellate Court for the Third District; — • heard in that court on appeal from the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.
    Mr. M. W. Packabd, for the appellants:
    Without setting aside the satisfaction of the trust deed, no foreclosure should have been had.
    Louisa Arbogast being the owner of the land when the trust deed was given, was a necessary party to the bill; and so was the administrator cle bonis non of Stiger. McCall v. Lesher, 2 Gilm. 47; Winkelman v. Kiser, 27 Ill. 21.
    There was usury in the transaction, which the court below ignored. Payne v. Newcomb, 100 Ill. 611.
    The entry of satisfaction of the trust deed made a prima facie case that the debt was paid, and shifted' the burden of proof upon appellee to show it had not in fact been paid. Fleming v. Parry, 12 Harr. 47; Vallé’s Admx. v. American Iron Mountain Co. 27 Mo. 455 ; Harrison v. Johnson, 18 N. J. Eq. 420; Freeholders v. Thomas, 5 id. 39; Allard v. Lane, 16 Maine, 1.
    Dayis was held out as an agent of appellee by allowing him to collect the interest coupons, and to extend the time of payment, and by entrusting him with the trust deed.
    Silence of the principal after notice of the acts of one assuming to act as his agent, may be sufficient evidence of a ratification of his acts. Frothingham v. Haley, 3 Mass. 70 ; Shaw v. Nudd, 8 Pick. 9; Thayer v. White, 12 Metc. 343; Foster v. Rockwell, 104 Mass. 167; Johnson v. Jones, 4 Barb. 369; Williams v. Merritt, 23 Ill. 623; 1 Livermore on Agency, 396; 2 Kent’s Commentaries, 614; Barbour v. Mortgage Co. 102 Ill. 123; Martin v. Judd, 60 id. 78; Booth v. Wiley, 102 id. 84; Ward v. Williams, 26 id. 451; Searing v. Butler, 69 id. 575; Story on'Agency,-secs. 253, 255; 2 Greenleaf on Evidence, sec. 67.
    Appellee should have repudiated Davis’ act at once, and notified Stiger of his want of authority, if such was the fact, so as to enable him to secure himself.
    Counsel also set up the laches in bringing suit, as a bar to equitable relief, besides making various other points.
    Mr. Iba J. Bloomfield, for the appellee:
    The fact that Larrimore and Davis collected the installments of interest, did not authorize them to collect the principal, nor justify the parties in paying over the money to Davis. Cooley v. Willard, 34 Ill. 68.
    Biggs, by assuming this indebtedness, and agreeing to pay it as a part of the purchase money when he bought the land, thereby became the principal upon that note, and was guilty of gross negligence in paying the money and not taking up the note. Keohane v. Smith, 97 Ill. 156.
    Davis did not profess to act as agent for appellee in collecting this money, but claimed it in his own right, and in that way, through the gross negligence of the parties, defrauded them.

      Appellants are not in a position to set np usury. Besides, there was no usury in this transaction. By the agreed evidence appellee “never received anything above ten per cent, in any way. ” Kihlholz. v. Wolf, 103 Ill. 362.
   Mr. Chief Justice Scholfield

delivered the opinion of the Court:

On the 16th of September, 1868, William B. Arbogast, and Louisa, his wife, to secure the payment of his promissory notes to Lucinda G. Bent, of that date, — namely, one for §1100, payable three years after.date, with interest thereon at the rate of ten per cent per annum after due, and six coupon notes, of §55 each; "for the interest, on the amount secured by that note before maturity, payable, respectively, the first, one day thereafter, and the others consecutively, one every six months, — conveyed a certain tract of land owned by her, in McLean county, to Beuben L. Davis, as trustee, with usual power of sale on default of payment, and the deed was duly recorded in apt time. On the 29th of September, 1869, they sold the same tract to A. E. Biggs, subject to the deed of trust, and executed a deed accordingly. On the 29th of August, 18J3, Biggs contracted with Abraham Stiger to sell the land to him. At that time the interest had all been paid, but the principal note for §1100 was still unpaid. Stiger refused to purchase unless he could pay off the trust deed, and thereupon they applied to Davis, who said the deed was in his name, and that he could release it, and would do so on receipt of the amount due. Stiger thereupon paid him the amount due on the principal note, and Davis then entered upon the margin of the record of the deed of trust the following:

“I hereby certify that the note described in this trust deed is satisfied in full, and the land therein described is hereby released from the lien thereof.

B. L. Davis, Trustee.

And afterwards, on the same day, Stiger paid Biggs the balance of the purchase money agreed upon to be paid by him, and Biggs executed and delivered to Stiger a warranty deed for the land. The promissory note secured by the deed of trust was not surrendered to Stiger, nor was it shown to him by Davis, nor is it proved to have been in his possession at the time. Lucinda G. Bent knew nothing of the sale to Stiger, and the entry of satisfaction on the record of the deed of trust, at the time, nor until the spring of 1876, when she was informed thereof by Davis. Davis neglected to pay the money over to Mrs. Bent, and converted it to his own use. On the day she was informed of the sale to Stiger and of Davis’ conduct in connection therewith” or within a few days thereafter, Mrs. Bent placed the note in the hands of her attorney for collection, but he delayed bringing suit thereon until the present bill was filed, on the pretence that he was awaiting a decision in certain suits then pending, in which kindred questions were involved. Abraham Stiger, after making his last will and testament, died. The will "was properly proven, and admitted to probate on the 25th of May, 1878. Among other things he thereby devised this tract of land to his wife, Judith Stiger, during her natural life; and he further thereby devised, that after the death of his wife the land should be sold, and $1500 of the proceeds of such sale should be paid to his grand-son, John W. Stiger. He directed that the residue of his estate should be equally divided between his sons and daughters therein named. Executors are named in the will, who, it is shown, afterwards died, and then Jesse D. Enlow was appointed, by the proper court, administrator de bonis non, with the will annexed.

This bill was filed by Lucinda G. Bent, on the 9th of April, 1880, to foreclose the deed of trust. William B. Arbogast, Judith Stiger, John W. Stiger, Elmira M. Swope, Jane M. Kent, Celia A. Weitzel, William A. Stiger and Isaac Z. Stiger, are, by the bill as amended, made defendants. Answers were filed by Judith Stiger, Elmira M. Swope, Jane M. Kent, William A. Stiger and Isaac Z.' Stiger. John W. Stiger, being a minor, answered by his guardian ad litem,. Subsequently, by leave of court, Reuben L. Davis and A. E. Biggs were made defendants. Decree by default was rendered against William B. Arbogast, Reuben L. Davis and A. E. Biggs, and the cause was then referred to the master in chancery to take and report proofs. On final hearing, the court decreed that the trust deed should be foreclosed as to all the defendants except Judith Stiger and John W. Stiger, but as to them 'the decree was, that the complainant, by reason of delay in commencing the suit after notice of the acts of her trustee, waived her right to foreclose, and hence that the life estate of the one and the legacy of $1500 to the other are preferred by the decree to the rights of the complainant. In all other respects it was decreed the equities are in favor of the complainant. This decree, on appeal to the Appellate Court for the Third District, was affirmed, and that affirmance is now assailed by this appeal, which is prosecuted by Isaac Z. Stiger and Jane M. Kent.

A point made in argument that the decree below was, even upon appellee’s theory, for too large an amount, is put out of the case by the remittitur in the court below, and therefore demands no further notice.

The question of usury does not properly arise upon this record, although it is discussed by counsel in argument. As has been stated, Arbogast, the original debtor, and in whose note alone is usury, if anywhere in the transactions involved, sold to Biggs, and Biggs sold to Stiger. Biggs undertook, as a part of his contract with Arbogast, to pay off the indebtedness secured by the deed of trust, and Stiger, before receiving his deed from Biggs, attempted to pay'off that indebtedness, and thought that he had done so. Both in the sale to Biggs and that' to Stiger, payment of the indebtedness secured by the deed of trust constituted a part of the consideration for executing the deed. It represented, pro tanto, so much pur-* chase money. As to each of them, then, and those standing in their places, it is impossible that there can be any question of usury. Arbogast makes no complaint of the decree on the ground of usury, and it is not admissible that other parties not affected by it can interpose that defence. Henderson v. Bellew, 45 Ill. 322; Valentine v. Fish, id. 462; Pike v. Crist, 62 id. 461; Maher v. Lanfrom, 86 id. 520.

■ Objection is taken to the decree because it does not appear that Louisa Arbogast was before the court as a party. Very clearly, she was not a necessary party. She was not a maker of the note secured by the deed of trust, and she was in nowise personally liable for its payment. When, therefore, she had sold her land, subject to the deed of trust, it is not possible that she could. have been further interested in that deed. She had then received all she could receive for her land, and the question of the payment of the indebtedness concerned only Biggs and those claiming under him, and the party entitled to receive such payment. No decree was sought, or could properly have been rendered, against her.

Objection is also urged because Jesse D. Enlow, the administrator de bonis non, with the will annexed, of Abraham Stiger, deceased, is not made a defendant. We can see no reason why he shall be considered an indispensable party. The liability of Abraham Stiger and those claiming under him, is not personal, and no individual decree is sought, or could be, under the facts, properly rendered against him or them. At no time could he or they have been sued at law on this indebtedness. The proceeding is simply to enforce the indebtedness against the land. As to him and them the indebtedness affects the land alone. If they choose to let the land go, they are no further interested. If they desire to protect the land from the lien, they may do so, but then that will be to save the land, — not to discharge any personal obligation. With them it is purely voluntary. The administrator is not authorized to pay such a debt or to incur expenses on account of it. Smith v. McConnell, 17 Ill. 135; Phelps v. Funkhouser, 39 id. 401; Cutter v. Thompson, 51 id. 390; Bennett v. Whitman, 22 id. 448; Gridley v. Watson, 53 id. 186.

The real contest here is, whether the payment by Stiger to Davis, and the entry of satisfaction by Davis on the record of the deed of trust, released the land from the operation of that deed, so far as Stiger and those claiming under him are concerned. Since this is a proceeding in equity, there can be no necessity for a formal decree setting aside the entry of satisfaction. If that entry ought to be set aside, it may, in equity, he disregarded, and treated as a nullity, although, at law, the rule would be different.

On the hearing, the complainant produced her note in evidence, and this raised a presumption that it was still unpaid and lawfully hers. (Brinkley v. Going, Breese, Beecher’s ed. 366; McConnel v. Hodson, 2 Gilm. 640; Thompson v. Hoagland, 65 Ill. 310; Curtiss v. Martin, 20 id. 557.) To overcome that presumption the respondents gave in evidence and relied upon the entry of satisfaction upon the record of the deed of trust; and in reply to this, complainant contends that the satisfaction was entered without authority, and that it is therefore of no effect. An entry of satisfaction of a trust deed by the trustee, where the indebtedness secured by it has not been paid, and the act is not authorized by the holder of the indebtedness, has no effect upon the deed of trust as between the original parties, nor as to subsequent purchasers with notice. (Insurance Co. v. Eldridge, 102 U. S. 545.) It is claimed here, however, that Stiger was not a purchaser with notice, and upon the solution of this hinges the present question.

Stiger’s negotiation for the land commenced, as has been seen, before the entry of satisfaction was made. The entry was made in consequence of that negotiation, and to aid in carrying it out. The record of the deed of trust informed him, before the entry was made, that Davis merely held the title in trust to secure the payment of the promissory note, and it also informed him that that note was not payable to Davis, but that it was payable to Lucinda G. Bent, riand that it was negotiable by indorsement. The note, he knew, was not surrendered or cancelled at the time, and the evidence fails to show that it was then presented or in the possession of Davis. It is true, Biggs, in one place in his evidence, seems to intend to create an impression that the note was, .at the time, present in the possession of Davis, but on further examination he shows that he did not himself see the note, and no one else testifies to having seen it at that time. In equity; the deed of trust is but an incident to the debt, and will pass with it for the benefit of the holder. Olds v. Cummings, 31 Ill. 188; Sargent v. Howe, 21 id. 148.

There was evidence that the note was given for money borrowed by Arbogast of Lucinda G. Bent, through a firm of brokers of which Davis was a member, and that payments of interest were made to Davis; but no authority in him to collect the principal can be inferred from this circumstance. Cooley v. Willard, 34 Ill. 68.

Where the agent has the possession of the promissory note after due, it may be inferred that he has authority to receive payment of it, but the burthen is on the debtor who makes payment to the agent, relying upon such inference, to show that the promissory note was in his possession when the payment was made. (Williams v. Walker, 2 Sandf. Ch. 325; Haines v. Pahlman, 25 N. J. Eq. 179; Smith v. Kidd, 68 N. Y. 130; Jones on Mortgages, 2d ed. sec. 964.) The fact that the note was neither surrendered nor offered to be surrendered, under the circumstances, is conclusive that he did not then have it. Heuse v. Conisby, 1 Ch. Cases, 93,—and see like ruling, in principle, by this court in Lucas et al. v. Harris, 20 Ill. 169; Mayo v. Moore, 28 id. 428; Keohane v. Smith et al. 97 id. 156.

But counsel seem to seriously contend that Stiger was not entitled to the possession of this note after he had paid it off, and, upon that ground, to excuse his not demanding its production before making payment. Surely no one can, at this day, seriously question that a party who buys a piece of land incumbered by a mortgage given to secure the payment of a promissory note, may pay off the note, and thus relieve his land from the incumbrance. (See Sheldon on Subrogation, sec. 28, et seq.) When the note is paid off, it needs the citation of no authorities to prbve that the payee or assignee of the note is no longer entitled to its possession. Having received payment, the authority to make the payment, so far as he is concerned, is admitted, and there can be no conceivable purpose for which the payee or assignee of the note is then longer entitled to retain its possession. If the payment is made without any previous contract between the party whose duty it is to pay and the party paying, solely to protect the tit„le of the latter against the incumbrance of the debt, the latter is, upon well settled principles, entitled to be subrogated to the rights of the previous holder of the indebtedness, and to that end to the possession of all papers relating thereto. (See Sheldon on Subrogation, ut supra; 1 Jones on Mortgages, 2d ed. sec. 874.) If the payment is made pursuant to a previous contract between the party whose duty it is to pay and the party paying,- the latter may be regarded as the agent of the former, and hence entitled to receive and hold the evidence of indebtedness, after .payment, for his benefit, as well as a voucher for his own protection. Arbogast, by selling the land to Biggs subject to the trust deed, authorized Biggs, by necessary implication, to pay off and take up the note; and Biggs, by selling the land to Stiger, and accepting Stiger’s payment of the amount secured by the trust deed as a payment of so much purchase money, it must, on like principle, be implied, conferred the same authority upon him. s If, therefore, Stiger had paid off the note to the party entitled to receive payment, he would, as against that party, have been entitled to the possession of the note as a voucher for the payment of that much purchase money, and to have had it cancelled as evidence of the existence of a lien against his land, although, as between himself and Arbogast, the latter might have been entitled to the possession of the note after its cancellation. There can be no reasonable- pretence that the trustee is entitled to hold the note after its payment, for no duty is enjoined upon him by the deed in that respect.

In Barbour v. Mortgage Co. efal. 102 Ill. 121, we held that where a deed of trust given to secure a debt, was released by the trustee without the authority of the party secured, and he had never sanctioned or ratified the act, a subsequent incumbrancer could not obtain a prior lien: but that if the party secured by the deed of trust authorized the trustee to release the lien, or if he failed at once to repudiate the act of the trustee in making the release without authority, when informed of the fact, and lay by until third perspns had advanced large sums of money upon the faith of what his agent had done, he would be estopped from repudiating the act as authorized, — and counsel insist that ruling is applicable to the present case. The only persons that can, in any sense, be claimed to have been here affected adversely by the delay in bringing this suit, are Mrs. Judith Stiger and John W. Stiger. It may be, if the complainant had promptly given notice of her rights when informed of the payment to Davis, Stiger would, by his will, have made other and equally adequate provision for these parties, and the decree of the circuit court proceeds upon that ground, and protects their interests, feut it is impossible that, had she given such notice, Stiger could have made better or more ample provision for his residuary legatees than he did, for the recognition by him of the rights of Mrs. Bent would have reduced the residuum of his estate by whatever amount he would, in consequence, have given Judith Stiger and John W. Stiger in lieu of the specific clevises in their favor in this land, and so they now, doubtless, receive more than they would have received in that contingency, but in any event they receive as much.

It is argued, if complainant had promptly notified Stiger of her rights he might have taken steps that his representatives could not, after this suit was commenced, take, to protect his estate against loss. There is no evidence that Davis was less able to respond for the amount paid to him by Stiger when this suit was brought than he was in the spring of 1876, when Mrs. Bent was first informed of the payment to. him, and no statute of limitations barred' a suit against him. The only evidence in regard to his insolvent condition is, that he had failed in January, 1876, — the January preceding the communication of the information to her in the spring. And since the fact is unquestioned that Davis did not surrender the note to Stiger, and that Mrs. Bent was not present, and was ignorant of the transaction, it is not apparent that any matter of evidence important to the interests of the legatees is lost by the death of Stiger.

The objection that Mrs. Bent was not called and examined as a witness in her own behalf, is answered by the fact that she was incompetent under the statute, the respondents appealing being legatees, and defending as such. The respondents might have introduced her as a witness, but they did not offer to do so. Rev. Stat. 1874, chap. 51, sec. 2.

There is no evidence in the record proving that by reason of the peculiar location or condition of this land, or the character and situation of the improvements thereon, or of any circumstances affecting it, mere delay in prosecuting complainant’s suit may probably have produced an inequitable loss or injury to the residuary legatees therein, and this court is unable to perceive, of its own knowledge, how or why such a result should likely follow. A court of equity applies the doctrine of laches in denial of relief prayed, where the statutory period of limitations has not expired, only where, from all the circumstances in evidence, to grant the relief to which the complainant would otherwise be entitled, will, presumptively, be inequitable and unjust, because of the delay, to the defendants.

The decree is affirmed.

7 Decree affirmed.

Mr. Justice Scott : I do not concur in this opinion.


author: Mr. Justice Dickey

text:
    William M. Kilgour v. Drainage Commissioners.

      Filed at Ottawa September 27, 1884.

    1. Appeal — in suit on appeal bond in special assessment proceedings— directly from trial court. An appeal bond given on an appeal to three supervisors from a confirmation of a special assessment for drainage, being but incidental to the assessment it is given to secure, an appeal from a judgment in an action on such bond lies directly from the trial court to this court, the same as if the suit had been on the assessment itself.
    2. Measure of damages — in suit on appeal bond — in the matter of a special assessment. In an action upon an appeal bond given on appeal from the confirmation of a special assessment, the measure of recovery is the amount of the assessment, and nothing more, except the costs. ■
    3. Former recovery — as to recovery upon an appeal bond given in special assessment proceedings — and judgment upon the assessment itself. A recovery of the amount of a special assessment in an action upon an appeal bond given on an appeal from the assessment, is a bar to any other proceeding to collect the assessment. So a recovery of the amount of the assessment by judgment against the land assessed, and its collection, might be pleaded in bar of a suit on the appeal bond.
    4. Pleading — nil debet to suit on appeal bond. Nil debet is not a good plea in an action on an appeal bond.
    5. Same — plea to action on appeal bond in special assessment proceedings. In an action on an appeal bond conditioned for the payment of a special assessment in case the same is affirmed by the three supervisors to whom the appeal was taken, the defendant pleaded that the assessment was afterwards set aside by the county court, and so remains set aside: Held, that the plea was bad, in not showing any appeal from the affirmance by the supervisors, to the county court, or any other fact showing jurisdiction in that court to set aside the assessment.
    6. And in such an action a plea that the county court, on application for judgment against the land assessed, refused judgment, fails to answer the breach of a failure to pay the assessment on affirmance. The failure of the county court to enforce the lien of the assessment against the land, is no answer to the breach.
    7. Notice — as to time and place of confirming special assessment— waiver by appeal. And in such action a plea showing a want of notice of the time and place of the meeting of the commissioners at which they confirmed the assessment, presents no defence. The appeal cured any want of notice of the proceedings, and gave the party an opportunity of being heard on the merits.
    8. Cumulative bemedy — in respect to collection of special assessment. The remedy given by law to drainage commissioners of a town, by action on the bond of a party appealing from the confirmation of a special assessment against his land, where the same is affirmed, does not depend upon their first enforcing the lien of the assessment against his land. The remedy against the land is merely cumulative, and a failure to pursue it will not avoid the personal obligation to pay, created by the bond.
    9. Dbainage law — extent of legislative power under the constitutional amendment of 1878. Under the amendment of the constitution (sec. 31, art. 4,) adopted in November, 1878, the legislature is expressly empowered to “provide for the organization of drainage districts, and vest the corporate authorities thereof with power to construct and maintain levees, drains and ditches,” etc. This grant of power being unrestricted in terms, carries with it, by implication, all other powers necessary to make the general grant effective to accomplish the result intended. As to the mode in which the power is to be exercised, the legislature is left the sole judge.
    10. Same — act of 1879 — its constitutionality, as assuming power to appoint officers. Section 71 of the Drainage law of 1879, which provides that the commissioners of highways of a town shall also be drainage commissioners of the township, is not invalid, as an assumption of an appointing power which the legislature does not possess, but is a valid enactment.
    11. Imposing by law hew duties upon officers merely statutory, already chosen, is by no means the appointment-or selection of such officers by the legislative department.
    12. Same — drainage assessment as distinguished from a tax. The provisions of the constitution in relation to taxes have no application to the imposition of the burdens imposed by this Drainage act. These assessments are not taxes.

      Appeal from the County Court of Whiteside county; the Hon. William Lane, Judge, presiding.
    This is an action of debt, brought by the drainage commissioners of Montmorency township, Whiteside county, against William M. Kilgour, upon an appeal bond given by him on an appeal to three supervisors from an assessment of benefits upon his land for a drain, under the township drainage statute of this State, in force July 1, 1879.
    The declaration alleges the execution and delivery of the bond in perfecting an appeal from an assessment of the commissioners, to three supervisors, and sets out in one of the counts the bond in hcec verba. This bond recites that the commissioners had made an .assessment on appellant’s lands (describing them) for the sum of $440; that such assessment had been confirmed by the commissioners, and that appellant had taken an appeal from their decision, to three supervisors of the county, and was conditioned as follows:
    “Now, therefore, if the said W. M. Kilgour shall pay or cause to be paid to the said drainage commissioners the amount of said assessment, and all costs of this appeal in case said assessment shall be affirmed by said supervisors, then this obligation to be void, otherwise to remain in full force and virtue.”
    The declaration alleges the affirmance of such assessment by the supervisors; that such affirmance was not appealed from, but remained in full force, and that the appellant had not paid the amount of the assessment recited in the bond. Appellant filed various pleas, to all of which, except that of non est faction, the court sustained demurrers, and appellant electing to stand by his pleas, the cause was brought to trial on the issue upon the plea of non est faetum, and judgment rendered in favor of < appellees, from which this appeal is prosecuted.

      Messrs. Manaban & Ward, and Mr. W. M. Kilgour, for the appellant:
    Section 71 of the Drainage law attempts to make drainage commissioners out of highway commissioners already elected, and is an assumption of an appointing power the legislature does not possess under our system of government. If an action for misfeasance or nonfeasance in office, for a wrongful or fraudulent assessment, were brought against these parties, would not the plea that they were never elected as assessors, and never appointed as such by any competent authority, and never qualified as such assessors, be a good plea ? We insist it would.
    The third and fourth pleas specially set forth that the assessment, which is the condition mentioned in the bond, was afterwards by the county court set aside and for nothing held, and we insist that the assessment, whether legal or not, having been set aside by competent authority, there is no reason to urge for the payment of the penalty in the bond.
    The amendment to the constitution of 1870 is as follows:
    “Sec, 31. The General Assembly may pass laws permitting the owners of lands to construct drains, ditches and levees, for agricultural, sanitary or mining purposes, across the lands of others, and provide for the organization of drainage districts, and vest the corporate authorities thereof with power to construct and maintain levees, drains and ditches, and to keep in repair all drains, ditches and levees heretofore constructed under the laws of this State, by special assessments upon the property benefited thereby. ”
    This section considered as standing alone, might be urged as giving the authority claimed; but with it must b» considered and construed section 9, of article 9, entitled “Revenue, ” which is still in force as part of the constitution, and which provides that “for all other corporate purposes all municipal corporations may be vested with authority to assess and collect taxes, but such taxes shall be uniform in respect to persons and property within the jurisdiction of the body imposing the same.” This section is still in force as part of the constitution, and as such qualifies section 31, under the head “Miscellaneous, ” which is the amendment, and requires that the taxes in the jurisdiction shall be uniform. To comply with this provision of section 9, article 9, the assessment of these drainage commissioners would have to be reviewed by the State Board of Equalization, and no provision is made in the Drainage act for that purpose.
    Messrs. Bennett & Green, for the appellees:
    This suit not relating to the revenue, but being simply an action upon a contract, no appeal lies directly to this court. The plea of nil debet is clearly bad when the suit is on an appeal bond, as has been held by this court. King v. Ramsey, 13 Ill. 619; Mix v. The People, 86 id. 329; Caldwell v. Richmond, 64 id. 30.
    The third plea is plainly insufficient. The pleader does not set forth with precision how the court obtained jurisdiction to act upon the assessment, or in what suit or proceeding such assessment was set aside, — whether the same was at law, in chancery or probate, or who were the parties to it, or whether there were any parties at all. And besides, the plea is not a full answer to the undertaking of appellant, as set forth in the bond. Quincy Coal Co. v. Hood, 77 Ill. 68; Mix v. The People, 86 id. 330.
    The fifth plea states with more precision the defence attempted to be set up in the fourth. It sets up substantially a refusal of the county court, when application was made to enforce the lien of this assessment upon the lands by the usual tax sale, to render judgment against these lands, and order them6 sold. There are no facts averred in the plea showing that the court had any jurisdiction to act upon the assessment, or the action of the supervisors, in any other way than refusing judgment to enforce the lien upon the lands. This, plea does not answer the breach assigned upon the bond. “The condition of the bond is to pay the amount of the assessment in case it shall be affirmed by the supervisors ; ” and it is no answer to such breach to aver that the county court refused to render judgment against the lands to enforce the lien of the assessment upon them. The commissioners had a right to rely upon the bond as a security for the payment of the assessment. " The remedy by a sale of the land at tax sale was, after the giving of the bond, merely cumulative, and in no way interfered with the personal obligation on the bond. The People v. Stahl, 101 Ill. 346.

    The fifth plea is plainly bad, for the reason that the bond recites the assessment and its confirmation. The demurrer admits this, and appellant is estopped thereby. Arnott v. Friel, 50 Ill. 174; Courson v. Browning, 78 id. 210; Smith v. Whittaker, 11 id. 417; Herrick v. Swartwout, 72 id. 340; Albee v. The People, 22 id, 533; Crisman v. Mathias, 1 Scam. 148.
    The sixth plea avers want of notice of meeting of the commissioners. This plea is bad, because it is no answer to the breach assigned in the declaration; is defective in form, the same being double, and wanting in precision; and furthermore, the want of notice is waived by the appearance of appellant, and his appeal. (Hohmann v. Eiterman, 83 Ill. 92; Gilkerson v. Scott, 76 id. 509.) It has also been adjudicated, and can not be raised collaterally. The People ex rel. v. Brislin, 80 Ill. 423; Andrews v. The People ex rel. 83 id. 529.
    The seventh plea is intended to present a constitutional question as to the power of the legislature to enact that the highway commissioners of a township should also be drainage commissioners. There is no prohibition in the constitution against conferring other powers and duties upon officers already chosen. Such instances are numerous. But by making the bond to these commissioners by their corporate name, appellant is estopped to dispute their corporate capacity.
   Mr. Justice Dickey

delivered the opinion of the Court:

A preliminary question is presented by the motion of appellees — whether an appeal lies in this case directly to this court. It is insisted that the matters involved in this action do not relate to the revenue, but that the enforcement of a contract is all that is embraced in the suit. We can not accede to this view. While it is true that the action is brought upon appellant’s appeal bond given on his appeal from a special assessment upon his land, yet the sum actually recoverable in this form of action is the amount of the assessment, and nothing more, except the costs. The appeal bond is but incidental or collateral to the assessment it was given to secure. It matters not whether the money is collected on the assessmeút or on the bond. The character of the fund will be the same in either case, and becomes a part of the funds of the corporation devoted to certain public purposes, as much so as a school or road tax. There can be no doubt that a recovery of the assessment in this case by the sale of the lands assessed would be a bar to a suit on the appeal bond, the same as a discharge of the bond by payment would bar an application for judgment on the assessment.

The demurrer was properly sustained to the plea of nil clebet. Such a plea is bad in an action on an appeal bond. King et al. v. Ramsey, 13 Ill. 619; Caldwell v. Richmond, 64 id. 30; Mix v. The People, 86 id. 329.

The third plea is, “that he (defendant) ought not to be charged with the said debt by virtue of the supposed writing obligatory, because he says that the said assessment in said declaration was afterwards, to-wit, etc., set aside by the county court of said Whiteside county, and that said assessment since has remained, and now is set aside, annulled, and for nothing held, ” etc. This plea is no answer to the declaration. The condition of the bond is the payment of the assessment in case of its affirmance by the three supervisors to whom the appeal was taken, and the plea fails to show any appeal from the supervisors to the county court, so as to authorize that court to set aside the assessment, nor does the plea in any way show jurisdiction in the county court to act in this regard.

The fourth plea fails to answer the breach alleged,— a failure to pay the assessment on its affirmance by the supervisors. The refusal of the county court to render judgment against the land to enforce the lien of the assessment, is no answer to the breach. A suit may he maintained upon an appeal bond given on appeal from a judgment against land for taxes, for a breach of the condition to prosecute the appeal with effect, notwithstanding the remedy against the land remains unexhausted. In such case the obligee may pursue either remedy he chooses. (Mix et al. v. The People, use, etc. 86 Ill. 329.) The remedy against the land is merely cumulative, and a failure to pursue it does not avoid the personal obligation to pay, created by the bond. The People v. Stahl, 101 Ill. 346.

The fifth plea is, that the defendant had no notice of the time and place of the meeting of the commissioners when and where they confirmed such assessment, and did not appear. The sixth plea avers want of notice of the meeting of the commissioners. The appeal cured any want of notice of the proceedings, and gave appellant a chance of being heard, and a right to a trial on the merits. Hohmann v. Eiterman, 83 Ill. 92; Gilkerson v. Scott, 76 id. 509.

The seventh plea sets up that plaintiffs were elected commissioners of highways in and for the town of Montmorency, before the said statute constituting them drainage commissioners became a law, and that said plaintiffs have not been elected or appointed such commissioners of highways since the passage of said law; that said plaintiffs were never elected or appointed as such drainage commissioners, nor did they, or any of them, ever take any other or further oath, or file any other bond. This plea is intended to present the constitutional question as to the power of the legislature to enact that the highway commissioners of a township should also be drainage commissioners of the township. It is contended that section 71 of the Drainage law is invalid, as an assumption of an appointing power which the legislature does not possess. We do not think the constitutional objection to the section is well taken, but, on the contrary, think it is a valid enactment. Under the amendment of the constitution, (section 31, article 4,) adopted in November, 1878, the legislature is expressly empowered to “provide for the organization of drainage districts, and vest the corporate authorities thereof with power to construct and maintain levees., drains and ditches, ” etc. This general grant of power being unrestricted in terms, carries with it, by necessary implication, all other powers necessary to make the general grant effective, and to accomplish the results intended. As to the mode in which this power is to be exercised, the legislature is left the sole judge. Numerous instances might be referred to in which the legislature has imposed new duties upon officers already elected, where the duties of such officers are not fixed by the constitution, and the constitutionality of such enactments would seem to be unquestionable. Imposing by law new duties upon officers merely statutory, already chosen, is by no means the appointment or selection of such officers by the legislative department. The provisions of the constitution in relation to taxes have no application to the imposition of the burdens imposed by this act. These assessments are not taxes. It is a special regulation, whereby an owner is required to pay for benefits specially conferred upon his land.

The judgment of the court below is therefore affirmed.

Judgment affirmed.