author: Mr. Justice Scott

text:
    Frederick Allman et al. v. Eva Taylor et al.

      Filed at Springfield March 31, 1881

      Rehearing denied June Term, 1881.

    1. Decree—conclusive collaterally, if the court has jurisdiction. 11 a court has jurisdiction of the persons of the parties and of the subject matter of the suit, its decrees will be conclusive on all parties concerned; and the title to property acquired on a sale under a decree in such a case will be valid, notwithstanding irregularities may have intervened in • the proceedings.
    2. Jurisdiction—of the persons of infants, through their guardian. Minors, having the right to sue by their next friend, or guardian, will bring themselves within the jurisdiction of the court by invoking its aid through their guardian, in a proceeding brought in their interest and to protect their rights.
    3. SAME—of the estates of infants. A court of equity, under its general powers, has jurisdiction over the estates of infants and others under disability, and may, on proper application, order the sale of an infant’s unproductive lands to raise means for discharging an incumbrance on productive property in which it has a reversionary interest in fee, though the latter be situate in another State, where the bill seeking such relief shows that such a course is for the best interests of the infant.
    4. Judicial sale—not affected by errors in the proceedings. If a court of general jurisdiction has jurisdiction of the parties, and of the subject matter of the litigation, no matter how erroneously it may thereafter proceed, within the bounds of its jurisdiction, its decrees will be conclusive until reversed or annulled in some direct proceeding, and the title to property acquired at a sale under such a decree, by a stranger to the record, will be upheld, although the decree itself may afterwards be reversed for manifest error. It is the policy of the law to maintain judicial sales.

      5. Same—purchaser not bound by improper application of proceeds of sale. A purchaser of an infant’s lands, under a decree in chancery in a case where the court has jurisdiction, is not bound to see to the application of the funds arising from the sale, nor that the guardian performs his duty under the decree, and a failure of the guardian in that respect will not vitiate the sale rightfully made at the time.
    Appeal from the Circuit Court of Champaign county.
    Messrs. Tipton & Ryan, for the appellants:
    A minor may institute any kind of a proceeding in the courts of this State, either by his guardian or next friend. Holmes v. Field, 12 Ill. 424; Gross’ Stat. 1868, p. 331, sec. 4; McGuffin v. Storrs, Cox, (N. J.) 72.
    The wards were in court by their guardian, and this conferred jurisdiction of their persons. Mason v. Waite, 4 Scam. 133; Gibson v. Roll, 27 Ill. 387; Fitzgibbon v. Lake et al. 29 id. 177.
    As to the jurisdiction of a court of chancery to order the sale of a part of the real estate of an infant, on his application by guardian or next friend, to pay off incumbrances on the residue, see Smith et al. v. Sackett et al. 5 Gilm. 634.
    Where a court obtains jurisdiction of the persons and subject matter of the litigation, its judgment and decrees must be held valid, and an innocent purchaser at a sale under such judgment and decree will not be affected by any error in the course of the proceedings. Johnson et al. v. Johnson, 30 Ill 215; Spring v. Kane, 86 id. 580; Conover v. Musgrove et al. 68 id. 58; Fitzgibbon v. Lake, 29 id. 177; Young v. Lorain, 11 id. 637.
    Every presumption runs in favor of the jurisdiction of the court of general jurisdiction. Wills v. Mason, 4 Scam. 88; Whitney case, 23 Ill. 447; Vance v. Frank, 2 Scam. 264; Beaubien v. Brinckerhoff, id. 273; 1 Sandf. 74; Kenney v. Grier, 13 Ill. 448; Horton v. Crichfield, 18 id. 136.
    The judgments of courts of general jurisdiction are always held conclusive in collateral proceedings until the same are reversed upon direct proceedings had for that purpose. McCoy v. Morrow, 18 Ill. 594; Cody v. Hough, 20 id. 46; Prescott v. Fisher, 22 id. 393; Ralston v. Wood, 15 id. 170; Williams v. Amroyd, 7 Crand. 423; Ex parte Watkins, 3 Pet. 207; Grignon’s Lessees v. Astor, 2 How. 342; Forniquet v. Perkins, 7 id. 172; West r. Smith, 8 id. 412; Sargent v. State Bank of Indiana, 12 id. 385; United States v. Arrendo, 6 Pet. 729; Perkins v. Fairfield, 11 Mass. 227; Iverson et al. v. Loberg, 26 Ill. 179; Gibson v. Roll, 27 id. 92; Field v. The People, 3 Scam. 108; Rockwell et al. v. Jones et ux. 21 Ill. 285; Vorhees v. Bank of the United States, 10 Pet. 471; Huff v. Outchison, 14 How. 588; Thompson v. Tolmie, 2 Pet. 165.
    The rule is, that where the circuit court has jurisdiction, and makes an order of sale, the fact that the guardian may proceed irregularly in the execution of the decree will not invalidate the sale. Mulford v. Beveridge et al. 78 Ill. 456.

    Nor is the purchaser responsible for a misapplication of the purchase money. Mulford v. Beveridge, 78 Ill. 456; Mumford v. Steinback et al. 46 id. 309.
    Nor is he responsible for the order of the court in appropriating the money realized from the sale. Fitzgibbon et al. v. Lake et al. 29 Ill. 165.
    Mr. J. O. Cunningham, also for the appellants.
    Mr. Francis M. Wright, for the appellees:
    1. That complainants below had the right to maintain the bill to impeach and avoid the former decree, counsel cited Kuchenbeiser v. Beckert, 41 Ill. 172; Lloyd v. Malone, 23 id. 43; Hess et al. v. Voss, 52 id. 472.
    2. In the original proceedings, the decree in which is sought to be impeached, the court had no jurisdiction, either of person or subject matter, and such decree is therefore void.
    The court must have jurisdiction, by notice, and necessary averments in the petition of the jurisdictional facts. Smith

      et al. v. Race, 27 Ill. 387, and cases there cited; Fitzgibbon v. Lake, 29 id. 165; Johnson v. Johnson, 30 id. 223.
    The statutes in force at the time the petition was filed authorize the land to be- sold for the purpose of educating or supporting such infant, or for the purpose of investing the proceeds of such real estate in such manner as the court which appointed such guardian may order and direct. Gross’ Stat. (1st ed.) 335, or Laws 1853, p. 98.
    The court could acquire no jurisdiction without notice of the application by the guardian. Spellman et al. v. Dowse, 79 Ill. 66; Mulford v. Beveridge, 78 id. 455; Nichols v. Mitchell, 70 id. 258; Knickerbocker v. Knickerbocker, 58 id. 399.
    The power of the court in this regard is purely statutory. Whitman v. Fisher, 74 Ill. 154; Donlin v. Hettinger, 57 Ill. 348; Rogers v. Dill, 6 Hill, 415; Onderdonk v. Mott, 34 Barr, 106; Becker v. Lorillard, 4 Conn. 207; In re Turner, 10 Barb. 552.
   Mr. Justice Scott

delivered the opinion of the Court:

While this bill may not be susceptible of any exact definition, it may be treated, as complainants themselves have treated it, as a bill to impeach a former decree pronounced by the circuit court, in a case wherein these complainants were petitioners or complainants.

In 1866 a proceeding was commenced in the circuit court of Champaign county, in the names of the present complainants, by Benjamin F. Brown, their guardian, to sell the lands now involved in this litigation. It was represented to the court by the allegations of the bill, complainants were all minors, resident in the State of Indiana; that Benjamin F. Brown was their guardian, duly appointed by a court having jurisdiction for that purpose; that they were the sole owners of the lands described as being situated in Champaign county, in this State; that they also had a reversionary interest in a lot, with improvements, situated in the city of Indianapolis, in which their mother had a life estate; that the property in Indiana was subject to incumbrances that would ultimately destroy the title unless removed, and that neither complainants, nor their mother, who owns the life estate, had any means other than the property described, with which to remove such incumbrances. The° prayer of the bill was, that the Illinois lands, which were then unimproved and of course unproductive, might be sold, and the proceeds used to protect the other property in which they had an interest. Allegations contained in the bill gave the court to be informed that such a course would be greatly to the advantage of the minors, invoking its aid. All persons interested in these lands were complainants, by their guardian, and to the proceeding Mary E. Taylor, their mother, was made defendant. No process was issued, as the party named as a defendant came into court and made answer, admitting and confessing the matters set up in the bill. On the hearing of the cause some evidence that had been taken by ex parte affidavits was heard, and the court decreed according to the prayer of the bill. It was under that decree the lands were sold by the master in chancery to John Reynolds, for $2000, to whom he made and delivered a deed for the same. The report of the master showing the making of the sale and deed, was afterwards approved by the court, and the proceeds of the sale, when collected, after deducting necessary expenses, were paid over to the guardian of complainants, as the decree provided. Afterwards, Reynolds conveyed a portion of the lands to defendant Burns, and the residue to defendant Allman, each of whom entered into possession of the lands respectively conveyed to him, and has since made valuable improvements thereon. It is the decree rendered in that proceeding that complainants in this bill seek to impeach, and the specific relief asked is, that the master’s deed to Reynolds, and his deeds to defendants now claiming to own the lands, be set aside, and be declared to be absolutely void. The decree of the circuit court was .in conformity with the prayer of the bill, and defendants were required to surrender possession of the lands to complainants. The writ of error on which the case is to be heard in this court was sued out by defendants in possession and claiming to own the lands.

All discussion of minor questions will be waived, and our' inquiry will be directed to ascertain whether the court that pronounced the decree sought to be impeached, had jurisdiction of the cause. It is a familiar principle, that needs the citation of no authorities in its support, that if a court has jurisdiction of the persons of the parties, and of the subject matter of the suit, its decrees will be conclusive on all parties concerned, and the title to property acquired on a sale under a decree in such a case will be valid, notwithstanding irregularities may have intervened in the conduct of the proceedings. Defendants claim title to the property involved under a sale by virtue of a decree of a court of general jurisdiction, and it only remains to ascertain whether the court has jurisdiction in this particular case to pronounce the decree it did.

There is no pretence the original proceeding under which defendants claim title to the lands conforms to.the statute of this State which provides for the sale of lands of minors by guardians, and if it can be maintained at all, it must be as a chancery proceeding deriving no aid from the statute. It was commenced by, what has the form and general characteristics of a bill in chancery, was placed on the chancery docket, and was treated by the court as a bill in chancery. The decree follows the usual practice, and provides it shall' be executed by the master in chancery, as was done. It was' a proceeding friendly to the interests of the minors, invoking the aid of the court, and was brought by their guardian, appointed by a court of competent jurisdiction, on whom devolved the special duty of protecting their interests, and for that purpose was invested with ample powers. It was represented to the court it was to the advantage of the minors, complaining by their guardian, that the property situated in Indiana, in which they had the reversionary interest, was improved property, was valuable, and was bringing in quite an annual rental, besides furnishing a home for their mother, with whom they resided, and that the income from that source would aid materially in their maintenance, and that the^ Illinois lands were unimproved and unproductive; that it would be greatly to their interest that the Illinois lands should be sold, and the proceeds used to remove incumbrances from the Indiana property, that they might continue to enjoy it, as they had done, for their support. On the evidence submitted the court found the facts substantially as stated in the bill, and accordingly decreed relief.

No reason is perceived why a court of chancery would not lend its aid in a case where the facts are as they appear from this record. Minors may sue in this State, either by their next friend, or by guardian. Having a- right to sue by guardian, as they did, complainants in the original case brought themselves within the jurisdiction of the court by invoking its aid. Of this there can be no doubt. It is plain the court had jurisdiction of the subject matter of the suit. This is not an entirely new question in this court. In Smith v. Sackett, 5 Gilm. 534, it was said: “The jurisdiction of a court of chancery to order the sale of the whole or a portion of the estate of an infant, or to order it incumbered by mortgage whenever the interests of the infant demand it, will not be denied, whether that interest be of a legal or equitable estate. ” Conforming to this view of the law is the recent case of Dodge v. Cole, 97 Ill. 338, where it was held a court of chancery, under its general powers over the estates of infants, lunatics or distracted persons, had jurisdiction to order the sale of a lunatic’s land for her support and maintenance, on proper application by her conservator, or to pay the conservator for moneys expended by him in supporting such ward. On the principle declared in these cases, which may be regarded as settling the law in this State on the questions discussed, relief was granted in the original case, and which decree this court is now asked to review. As we have seen, it was represented to the court, and it so found from the evidence, it would be for the interest of these infants to sell their lands in Illinois to relieve the property in Indiana, in which they had an interest, from the incumbrances resting upon it. It may be, and is doubtless, true, the court found incorrectly on the question submitted, but that did not in any manner affect the jurisdiction of the court. No principle is better-settled than where a court once obtains jurisdiction of the persons of the parties, and of the subject matter of the litigation, no matter if it may thereafter erroneously proceed, within the bounds of its jurisdiction, its decrees will be conclusive until reversed or annulled in some direct proceeding known to the law. The title to property acquired at a sale under such a decree by a stranger to the record will be upheld, although the decree itself might afterwards be reversed for manifest error. It is and has been the policy of the law, to maintain judicial sales, and in this policy the public interest is best subserved. Whitman v. Fisher, 74 Ill. 147.

It has already been noted, the proceedings in the original case, now called in question, were not adverse to the interests of the minors. The sale decreed was adjudged to be for their best interests, although the court may have greatly misapprehended the necessity for the sale of their lands. The case is not, therefore, within the rule declared in Whitman v. Fisher, supra, cited with so much confidence- by counsel for complainants. The proposition stated in that case is, that a court of equity has no original jurisdiction to order the sale of real estate to pay debts, or for any other purpose, so as to bind the infant’s legal estate. That doctrine has for its support the best authorities, and it is not intended to question its correctness, but that was a proceeding adverse to the interests.of the infants owning the estate. Here the proceeding was in then- behalf, for the apparent purpose of protecting the infants’ estate.- Appropriating a portion of the estate of an infant for the preservation of the residue, is in no just sense depriving such infant of its estate. Equity has always assumed jurisdiction to afford protection to the property of persons who, by reason of some disability, are unable to protect their estate for themselves. That is precisely what was intended th be done in this case, and although the purpose contemplated failed, the court acted within the bounds of its jurisdiction. Had the result been different, it is hardly probable any complaint would have been made that the court exceeded its rightful jurisdiction in decreeing the sale of the petitioning infants’ lands.

The fact the guardian may not have applied the proceeds of the sale of complainants’.lands in conformity with the decree of the court, is -not a material question in this case. The evidence tends to show the proceeds of the sale were appropriated, in part at least, to the purposes mentioned in the decree, and for the maintenance of complainants during their minority. ' But be that as it may, the purchasers were not bound to see to the application of the funds arising from the sale of the lands to them, nor that the guardian performed his duties under the decree, and a failure of the guardian in that respect did not, and could not, vitiate the sale to them. Mulford v. Beveridge, 78 Ill. 455.

The decree of the circuit court will be reversed and the bill dismissed.

Decree reversed.


source: Caselaw Access Project

author: Mr. Chief Justice Craig

license: Public Domain

text:
    N. N. Winslow et al. v. T. J. Noble et al.

      Filed at Springfield Sept. 30, 1881

      Rehearing denied January Term, 1882.

    1. Homestead^-icTmií indebtedness is for purchase money.

       Where a party exchanged land on which there was an incumbrance, for another tract, agreeing to discharge the incumbrance, and taking a deed in wfiich a lien was reserved to secure the performance of such agreement, and afterwards borrowed money with which to relieve the land so given by him in the exchange, from the incumbrance, giving a mortgage on his own land to secure its repayment, it was held, that the money so borrowed was in no sense purchase money of the land mortgaged by him.
    2. Same—enforcing in equity, party must do equity. Where the owner of land which had been, sold on foreclosure of a' mortgage which failed to release the homestead, induced another to purchase the land by taking up the certificate of purchase, the time of redemption having nearly expired, and' pay him the balance of the purchase money, $400, and accepted a lease from such purchaser, but learning of the defect in respect to the release of the homestead refused to surrender possession to the purchaser, and filed his bill to enjoin the recovery of possession by forcible detainer, without paying back the $400 received by him, it was held, that under the maxim, he who seeks equity must do equity, and come with clean hands, the complainant was not entitled to the relief sought.
    3. Same—abandoned, by accepting lease of premises. Where the owner of land sold on foreclosure against him, sells his interest to another, who procures an assignment of the certificate of purchase, and pays the balance of the price to such owner, and the latter, after a deed is made on the foreclosure sale, takes a lease of the person so purchasing, the accepting of such lease will be a surrender and abandonment of the premises, within the meaning of the Homestead act, and the former owner will have lost his homestead, though not properly released in the mortgage under which the sale was made.
    4. Same —former decision. What was said in Booker v. Anderson, 35 Ill. 66, as to the effect of taking a lease under similar circumstances, can have no hearing now, as the statute under which that decision was given did not contain the clause found in the present statute, “or possession is abandoned, or given pursuant to the conveyance.”

    Appeal from the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.
    Mr. Wm. B. Hughes, and Mr. M. W. Packard, for the appellants.
    Mr. H. Gr. Beeves, for the appellees.

       Further as to claim for purchase money being protected as against the right of homestead, and what constitutes purchase money: Weider v. Clark, 27 Ill. 251; Miller v. Marckle, id. 402; Ehyster v. Hathaway, 50 id. 521; Best v. Gholson, 89 id. 465; Allen v. Hawley, 66 id. 164; Austin v. Underwood, 37 id. 438; Magee v. Magee, 51 id. 500; Bush v. Scott, 76 id. 524.
      Money borrowed of a third person and invested in the purchase of land, is not' purchase money, within the meaning of our Dower law. Jeneson v. Garden, 29 Ill. 199.
      The second section of the Homestead act of 1851 was intended to protect the vendor’s lien. Phelps v. Conover, 25 Ill. 314.

       The case of Buck v. Corilogue, 49 Ill. 391, upon the same question, seems to rest upon Booker v. Anderson.

   Mr. Chief Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by Thomas J. Noble, and Sarah J. Noble, his wife, against Nathaniel N. Winslow, and Sarah L. Winslow, his wife, to enjoin them from prosecuting an action of forcible detainer, which was then pending before a justice of the peace, to recover possession of a certain tract of land in McLean county, consisting of 45^°^ acres, which was then occupied by the complainants.

There is no substantial dispute between the parties in regard to the facts. Noble, as appears, a few years ago owned 160 acres of land in Piatt county, upon which he had given a trust deed to secure a certain amount of money which he owed to one Wing. This land he traded to John B. Stewart for 45 'acres of land in'McLean county—the land in dispute. In the trade Noble agreed to remove the mortgage on the Piatt county land, and Stewurt reserved a vendor’s lien on the 45 acres, to secure the performance of Noble’s agreement. Noble moved on the land in McLean county, and thereafter he occupied it as a homestead. Noble failing to pay off the mortgage on the Piatt county land, Stewart, at the request of Noble, found a man (Daniel Grow) who was willing to loan the money to be used for that purpose, and take a mortgage on the 45 acres of land. Noble and his wife agreed to give a mortgage releasing the homestead, to secure the money loaned by Daniel Grow, and a mortgage was prepared,- executed and acknowledged; but the acknowledgment was defective in this, it failed to show that T. J. Noble acknowledged the release of the homestead. This defect was not, however, known by Grow or the Nobles. The money loaned not having been paid when due, Grow, in February, 1878, filed a bill in the McLean circuit court to foreclose the mortgage. The Nobles did not appear. A decree by default was rendered, and in May, 1878, the premises were sold, and hid off tiy Grow.for the amount of his debt, and costs. In July, 1879, Noble, finding that he could not redeem the premises from the sale, went to appellant N. N. Winslow, and induced him to buy the place at $50 per acre, which amounted to the sum of $2250. There was then due Grow $2000, hut he agreed' to throw off $150. Winslow then paid him $1850, and took an assignment of the certificate of purchase, and accounted- to Noble for the balance of the purchase price of the land—$400. Winslow had a deed made to his wife on the certificate of purchase, and as a part of the trade leased the premises to Noble from the 1st day of July, 1879, to the 1st day of March, 1880, for eight per cent on the amount he had paid for the property, and a written lease was executed by the parties. Before the expiration of the lease Noble discovered the defect in the acknowledgment of the mortgage, and refused to surrender possession of the premises, and upon being sued for possession filed this bill.

There is no controversy over the proposition that a homestead is not exempt as against a debt incurred for the purchase thereof. But the money Grow -loaned Noble, for which a mortgage was taken, was not used in the purchase of the •premises—it was in no sense purchase money. The fact that Noble may have used the money borrowed of Grow, to pay off a mortgage on the Piatt county farm, which he agreed with Stewart to pay, as a part of the trade under which he obtained the land in question, does not make the money obtained of Grow purchase money. Stewart sold the premises to Noble, but he received no part of the money Grow loaned Noble. The premises were purchased long before the Grow debt was made, and hence the Grow debt could not be incurred for the purchase of the premises.

Appellant Winslow filed a cross-bill, in which it was, in substance, alleged, that T. J. Noble acknowledged (before the notary who took the acknowledgment of the mortgage) the release and waiver of his homestead rights in and to the premises described in the mortgage, and that by a mere clerical error of the notary who drew the mortgage, the certificate of acknowledgment failed to state the truth in regard to the acknowledgment. The cross-bill prayed that the certificate of acknowledgment be reformed according to the truth. The complainants interposed a demurrer to the cross-bill, which the court sustained, and this is relied upon as error.

We shall not stop to determine whether the court erred in sustaining the demurrer to the cross-bill, or not, as a correct decision of the case must rest upon other grounds, which will dispose of the case upon its merits, without passing upon that question.

Winslow, it will be remembered, became the purchaser of the certificate of purchase from Grow at the instance and request of Noble,—not for the purpose of speculating out of the land, but for the purpose of aiding Noble to save something out of the land, which had been sold, and the redemption was about to expire, and all would then be lost to him, as he then supposed. By inducing Winslow to purchase the certificate qf purchase, and thus obtain the title to the land, Noble realized $400 by the transaction. Now, after Noble has induced Winslow to make this purchase and pay all the land is worth, and has obtained from Winslow $400 and put it in his own pocket, will equity allow him to repudiate what he has done, retain the money Winslow paid for the land, and recover, by a decree in chancery, almost one-half in value of the land which he induced Winslow to purchase ? We do not believe any precedent can be found which would sanction such gross inequity and injustice.

It is an old and well established rule in equity, that he who seeks equity must do equity. Let us apply this rule to the present ease, and see whether the decree can be sustained. Before Noble could call upon a court of equity for relief, justice and right would require him to refund Winslow the amount of money he had paid at the request of Noble, and surely equity would not allow Noble to retain the money Winslow had paid him, and at the same time give him the land. This would be no less than sanctioning a palpable fraud.

There is another well established rule in equity which ought not to be overlooked in a .case of this character, which is, that a party must come into a court of equity with clean hands, otherwise his bill will be dismissed. (Thorp v. McCullum, 1 Gilm. 614.) Can it be said that Noble’s hands are clean so long as he holds Winslow’s money ? We think not.

There is yet another feature in this case which precludes a decree in favor of the complainant in the bill. He not only induced Winslow to' purchase the land, but as a part of the purchase contract he surrendered the possession of the property to him, and became a tenant of Winslow from July 8, 1879, to March 1, 1880, at a stipulated rent. Such is the effect of the contract which was executed by ,the parties. It reads as follows:

“Bloomington, Ill., July 8th, 1879.

“I have this day-bought of T. J. Noble his farm, it being the land that Daniel Grow now holds a certificate of sale of, and occupied by said Noble, for which I agree to pay $50 per acre, as follows, to settle with and pay Mr. Grow the money due him, and pay the balance to said Noble. I further agree to let said Noble hold possession of said farm until March 1st, 1880, for which he is to pay me, as rent, 8 per cent interest on purchase money, from time I pay the money until March 1st, 1880. I further agree to give said Noble the first refusal , to rent the said farm' for one year or more, from March 1st, 1880, as may be agreed upon hereafter.

(Signed.) N. N. Winslow,

T. J. Noble.”

In Brown v. Coon, 36 Ill. 243, where the homestead had been sold by the owner thereof, by deed which did not release the homestead as required by statute, it was held, as possession was delivered under the deed, the title passed,—that the homestead right was lost by the abandonment of possession to plaintiff’s grantee, as completely as if there had been a relinquishment in the form required by the statute. Here, Noble made no deed because a deed was not necessary, as the title had passed on the foreclosure sale. He “did not move off the premises and surrender up actual possession to Win-slow, but when he became Winslow’s tenant under a written lease, the legal effect was the same as if he had moved off and Winslow had moved on the premises.

We are) therefore, of opinion that Noble abandoned his homestead rights. Indeed, under the language of sec. 4 of the Homestead act, Eev. Stat. 1874, p. 497, we do not see how Noble can claim homestead rights in the premises. It declares: “No release, waiver or conveyance of the estate so exempted shall be valid unless the same is in writing, subscribed by said householder, and his or her wife or husband, * * * and acknowledged in the same manner as conveyances of real estate are required to be acknowledged, or possession is abandoned, or given pursuant to the conveyance. ” Here, when Noble leased the property and became the tenant of Winslow, possession, within the meaning of the statute, was given pursuant to the conveyance. Eldridge v. Pierce, 90 Ill. 474.

What was said in Booker v. Anderson, 35 Ill. 66, can have no hearing here, as the statute under which that decision was rendered did not contain the clause, “or possession is ■ abandoned, or given pursuant to the conveyance, ” as the statute now does.

In any view we have been able to take of the case, we perceive no ground upon which the decree can be sustained.

The decree will be reversed, and the cause remanded, with directions to the circuit court to dismiss the bill.

Decree reversed.

Mr. Justice Scott dissenting.


author: Mr. Justice Walker

text:
    The People ex rel. Francis P. Gleeson v. George A. Meech.

      Filed at Springfield Sept. 30, 1881

      Rehearing denied January Term, 1882.

      1. Justices of the peace—uniformity of jurisdiction embraces territorial jurisdiction. The territory in which a justice of the peace may act, or send process for service, is essential, and constitutes jurisdiction, and is referred to and embraced in the constitutional provision requiring uniformity of jurisdiction, and the provision prohibiting the passage of local or special laws regulating the jurisdiction and duties of justices of the peace.
    2. Same—what is uniformity in territorial jurisdiction. The constitution does not require that the districts within the limits of which the jurisdiction of justices of the peace and police magistrates is restricted or confined shall be of uniform size, but that such districts shall be created by counties or townships, and not partly of both, so that their jurisdiction throughout the- State shall be coextensive with the counties in which they are elected; or limited to townships, if townships are adopted as the basis for districting.
    3. Constitutional law—creation of districts for justices of the peace. ■ The act of 1881, to amend certain sections of the act relating to the election of justices of the peace, creating each county in the State, except Cook county, a district, and making two districts of Cook county, and limiting the jurisdiction of such officers within such districts, is in contravention of that part of the constitution which requires that the jurisdiction of justices of the peace shall be uniform, and also of that part which prohibits the passage of any local or special laws regulating the jurisdiction of justices of the peace, such amendment operating to change the preexisting law on the subject only in Cook county.
    This is a petition for a mandamus, filed in this court by Francis P. Gleeson, against George A. Meech.
    The relator, a resident of the town of South Chicago, in Cook county, demanded of the respondent, a justice of the peace in the same town, that he issue a summons, directed to any constable of Cook county, pursuant to the act of 1872, and tendered respondent his legal fees for such act, in order that the relator might have the writ served in the town of Hyde Park, in Cook county. This the respondent refused to issue, and refused to issue any writ except to a constable of “Chicago District, ” pursuant to the'amendatory act of 1881. Hyde Park is in that part of Cook county denominated “Cook District” by the amendatory act.
    The respondent filed a demurrer to the petition, which this court in its judgment overruled.
    Mr. C. Stuabt Beatty, for the relator.
    Messrs. Lawrence, Campbell & Lawrence, for the respondent.
   Mr. Justice Walker

delivered the opinion of the Court:

The petition in this case was filed to test the constitutionality of the first section of “An act to amend certain sections of an act to provide for the election and qualification of justices of the peace, ” etc. (Laws 1881, p. Í03.) That section provides that each county in the State shall- constitute a justice’s district, except Cook county, which is divided into two,—the city of Chicago one, and the territory outside of the city and within the county, another,—and to the limits of such districts the jurisdiction of all justices of the peace is expressly limited. It is claimed that this provision of the act contravenes several provisions of the constitution.

Section 21 of article 6 provides, “that justices of the peace, police magistrates and constables shall be elected in and for such districts as are or may be provided by law, and the jurisdiction of such justices of the peace and police magistrates shall be uniform. ” The 28th section of the same article, however, makes an exception as to the city of Chicago, and requires that justices of the peace for the city shall be appointed in the manner therein prescribed. The 22d section of article 4 provides, that the General Assembly shall not pass any local or special laws in reference to a large number of subjects, amongst which is this, “regulating the jurisdiction and duties of justices of the peace, police magistrates and constables.” Other provisions of the constitution are referred to, but we deem it unimportant in this case to refer to them.

Of what does the jurisdiction of justices of the peace.and police magistrates consist? Manifestly of the persons of the parties litigant, of the subject or thing in dispute, and the territory into which the process of the officer may run and be enforced. We apprehend this is so elementary that it will not be questioned. The justice must have power or jurisdiction to send process into some territory, by the service of which process he may acquire jurisdiction of the defendant, or the other elements of his jurisdiction would be barren, unless the defendant should voluntarily submit to the jurisdiction for trial. And so of final process, which is absolutely necessary to execute the judgment. His territorial jurisdiction is as essential to the complete administration of justice as either of the others, and the General Assembly fully recognizes the power to send process into a district, and to have it enforced therein, as constituting jurisdiction. After prescribing the districts, the act provides, that “to.the limits of which the jurisdiction of all justices of the- peace is hereby limited.” It, then, incontestably follows, that the territory in which a justice of the peace may act is essential, and constitutes jurisdiction, and is referred to and embraced in both provisions of the constitution cited above.

This, then, being the sense of these provisions, the territorial districts must be uniform. Then what constitutes uniformity, in the constitutional sense ? Not literally of one and the same shape or size. That could not have been the purpose. And this is made manifest from the constitution itself. It refers to districts as then existing, or that might thereafter be provided by law. The districts then existing were not of the same form or size, and yet they were adopted by those who framed the constitution. We must, therefore, conclude that such was not the purpose, and for the further reason that if not impracticable, it would have served no useful purpose. Uniformity of territory, then, must refer to some other division of territory. At the time the constitution was adopted the territorial jurisdiction of justices of the peace was coextensive with - their counties throughout the State, and has ever, been since the organization of the government, and the constitution adopts that division until a change shall be made, which it authorizes, with the limitation that when made the jurisdictional districts shall be uniform. And to be uniform, what does that instrument require ? Manifestly, when counties are adopted as a basis of districting, that no other political division but counties can be adopted in part; or, when townships are adopted as the basis, it must all be by townships, and no other political division can be in part adopted. And so, when any other political division is adopted, to be uniform it must all be of such divisions. This is, we think, the true interpretation of the clause requiring uniformity of jurisdiction, and it follows that the formation of Cook county into two districts, whilst every other county in the State constitutes but one district, is a violation of the constitutional requirement of uniformity.

Is this a local or special law, within the meaning of the 22d section of article 4 of the constitution ? Had there Been but one section in the act, and it had referred to no other than Cook county, and had divided it, as is done by this act, could any one have entertained a doubt that it was a local or special law ? We apprehend not. Then, when it declares that all other counties shall severally constitute a district, which they then were, and then divides Cook county, upon what principle, or for what reason, can it be said that it is not a local or special law ? We are wholly unable to perceive. We must look to the substance of the act, and not to its mere form. Upon what does this section operate ? Unquestionably upon Cook county alone. Strike all else out than what relates to Cook county, and no change would be made as to the jurisdiction of justices of the peace outside of Cook county. They then had jurisdiction throughout their counties, and if all that is said in reference to them in this section were rejected, their jurisdiction would be precisely' the same. This section neither limits nor confers power or jurisdiction on them. This section is therefore local or special to Cook county, and contravenes the 22d section of the legislative article of the constitution, and is therefore void.

It may be urged, that this is a very strict construction of the fundamental law. There seems to be no doubt that those who gave us that instrument had in their minds, and fully appreciated, the great wrongs, oppression, and almost disastrous results of special legislation that had obtained under the constitution of 1848, and the fact that such legislation conferred special privileges and exemptions on the few to the injury of the many, which was totally opposed to the principles upon which our institutions are based. They determined to effectually cut off such pernicious legislation by this provision. This law is desired in Cook county, because it confers privileges or exemptions to a part of its inhabitants that are not enjoyed in common by the people at large. The first section proposes to exempt debtors from being sued out of the district in which they may live, although both districts may be in the same county. If this provision should be upheld, then a person residing in the city could not .be sued beyond its limits, nor could a person residing out of its limits be sued in the city, without reference to the convenience or residence of the witnesses. These privileges, or burthens, whichever they might prove to be, are local and special.

If this provision were sustained, it would open the way to every species of special legislation on the subject of territorial jurisdiction of justices of the peace. In a portion of the counties it would be coextensive with their boundaries; in others, it would be confined to the township in which the justice might reside; in others, justices in townships on county lines might send process into adjoining townships in other counties. In some the suits might be confined to the residence of the plaintiff, and others to the township of the debtor; and a large number of other special laws might be suggested. In some of the counties most of such special laws might be in force at the same time, thereby creating confusion, without any benefit to the public, and all apparently for the benefit or convenience of the debtor or wrongdoing class.

If this provision is constitutional, can any one imagine a local or special law on this subject that'could be distinguished from it and held unconstitutional ? The effects of this particular provision might not be serious, but others that would certainly follow might prove highly pernicious. If, by a strained or even a liberal construction, this provision might be sustained, still it would be against the intention of the framers of the constitution. This would be the opening through which all kinds of obnoxious legislation on this subject would pass. This section was intended to restrict the power of the General Assembly from passing any local or special law on the subject of the jurisdiction of justices of the peace. This is a local and special law relating to their jurisdiction, and is clearly unconstitutional.

The demurrer to the petition must therefore be overruled, and a peremptory writ of mandamus is awarded.

Mandamus awarded.


author: Mr. Justice Scholfield Per Cubiam :

text:
    John S. Stevens v. Cyrus N. Pratt et al.

      Filed at Springfield Sept. 30,1881

      Rehearing denied January Term, 1883.

    !• Corporation—right to take real estate security for debts. The latter part of sec. 26, of the general Incorporation law of 1872, was not designed to prevent corporations from taking mortgages on real estate as security for debts. It would seem that the right to take such security, by the policy of our law, may be regarded as an incident to the right to create a debtl
    2. Same—former decision as to corporations for loaning money. That part of the opinion of the court in United States Mortgage Co. v. Cross, 93 m, 483, holding that it was a part of the policy of the law of this State, as shown by sec. 1 of the general Incorporation act of 1872, that corporations should not be formed in the State for the business of loaning money, is overruled.
    3. This court also erred in that case in holding that the first sentence of sec. 26 of the general Incorporation law of 1872, manifests a policy that foreign corporations were to have no right to loan money in this State.
    4. The clause in the Incorporation law of 1872, that “corporations may be formed in the manner provided by” that act, “for any lawful purpose, except banking, insurance, real estate brokerage, the operation of railroads, and the business of loaning money, ” was not intended to, and does not by implication, prohibit the formation of corporations for the purposes so excepted, under other acts. It only prohibits their formation under that act, and therefore does not show that such corporations are prohibited by the policy of the law.

      5. Same—foreign corporations, powers, etc., no greater than those of domestic. The general Incorporation law of 1872 neither grants nor prohibits the right of foreign corporations to do business in this State. It is simply a law imposing regulations and restrictions, and its meaning is, that where the general laws of this State provide for the organization of corporations, foreign ones of like character doing business in this State shall exercise no greater or different powers, and shall be subject to the same liabilities, restrictions and duties.
    6. Same—foreign, when no provision is made for like domestic. The failure to provide for the organization of other domestic corporations than those named in the general law on the subject, is not an exclusion of foreign corporations of like character. The excepted corporations, and foreign corporations of like character, are simply unaffected by the general law of 1872; and as the formation of such corporations in the State is not prohibited, there is no prohibition of foreign corporations of the same character from doing business in this State.
    7. Same—policy of State—how made to appear. The policy of a State not to permit the transaction of business in its limits by foreign corporations, or to allow such corporations to acquire and h.old real estate, must be expressed in some affirmative way. It can not be affirmed from the fact that the legislature has made no provision for the formation of similar corporations.
    8. Same—policy of State to give power to make loans, etc. The policy of the legislature of this State for many years has been to invest corporations with the power to loan money, and take mortgage on real estate as security therefor.
    9. A loan made by a foreign corporation, in 1873, to a citizen of this State, secured by a mortgage given at the time, is not void as being prohibited by any legislation of the State, or contrary to public policy, and such mortgage may be foreclosed, and pass the title to real estate.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge,presiding.
    This was an action of ejectment, by appellant against appellees, for certain real estate in the city of Chicago, tried in the Superior Court of Cook county. The plea was, hot guilty.
    Preliminary affidavit was filed showing that the parties O claimed from a common source of title—one Richard B. Appleby. Appellees claimed under a mortgage executed by said Appleby to the United States Mortgage Company, to secure a note, for money loaned, of $5000, on the 25th of April, 1873, and duly recorded in the proper office on the next day. Appellant claimed under a mortgage executed by said Appleby to Elizabeth D. Smith, on the 17th of September, 1873, and duly recorded in the proper office on the 23d of said month, to secure a loan of $2000.
    Appellant claimed that he was entitled to hold title entirely disregarding the mortgage to the United States Mortgage Company, on the ground that the note and mortgage to that company were absolutely void.
    The court rendered judgment on the trial in favor of appellees, and the record comes here by appeal.
    Mr. W. C. Goudy, and Mr. James E. Monroe, for the appellant :
    1. The United States .Mortgage Company, at the time it .made the loan to and received the pretended mortgage from Appleby, was expressly prohibited by the statutes of Illinois from- exercising its powers in this State. General Incorp. Law of 1872, secs. 1 and 20; United States Mortgage Co. v. Gross, 93 Ill. 492.
    2. A contract prohibited by statute, or against the manifest policy of the law, is a nullity. Cincinnati Ins. .Co. v. Rosenthal, 55 Ill. 91; Carroll v. East St. Louis, 67 id. 577; Starkiveather v. American Bible Society, 72 id. 50; United States Trust Co. v. Lee, 72 id. 143.
    3. .A mortgage made to a National bank to secure a contemporaneous loan is void. It passes no title and creates no lien, because the bank has not the power to take the mortgage, and the taking of it is prohibited. Fridley v. Bowen, 87 Ill. 155; Fowler v. Scully, 72 Pa. St. 456; Crocker v. Whitney, 71 N. Y. 161; National Bank v. Powell, 2 Dillon, 371; Ripley v. Harris, 3 Biss. 199.
    4. All conveyances and contracts made in violation of law are void. Such conveyances- pass no title. No one can pass a title or right on the violation of law. Mitchell v. Smith, 1 Binn. 110;' New York Ins. Co. v. Ely, 2 Cow. 678; Fowler v. Scully, 72 Pa. St. 468.
    5. When there is no right to acquire a title as mortgagee, the mortgage is a nullity. Fowler v. Scully, 72 Pa. St. 468; Metropolitan Bank v. Godfrey, 23 Ill. 610.
    6. A deed which is insufficient to pass the title can not be made valid by subsequent legislation. Lane v. Soulard, 15 Ill. 125; Illinois R. R. Co. v. Cook, 29 id. 241; Rogers v. Higgins, 48 id. 211; Same case, 57 id. 244; Russell v. Ramsay, 35 id. 262, 374; Deininger v. McConnel, 41 id. 227; Conway v. Cable, 37 id. 82; Gebhart v. Reeves, 75 id. 301; Helm v. Webster, 85 id. 116; McDaniel v. Cornell, 19 id. 226.
    7. Courts will not so construe general words in a statute ' as to give them a retrospective operation to take away rights of property previously vested, unless the intent is very clear. Gilmore v. Shuter, 2 Md. 310; Couch v. Jeffries, 4 Burr. 2461 ; Dash v. Van Kleek, 7 Johns. 477; Wood v. Oakley, 11 Paige, 403; Matter of Protestant Episcopal School, 58 Barb. 161 ; Williams v. Johnson, 30 Md. 500; Hooker v. Hooker, 10 S. & M. 599.
    8. The following cases are believed to he in point on the exact question raised in this case,—that is, the question of the power of the legislature to validate the mortgage of the mortgage company, to the prejudice of Smith’s mortgage interest. Meighen v. Strong, 6 Minn. 177; Thompson v. Morgan, id. 292; Wright v. Hawkins, 28 Texas, 452; Sherwood v. Fleming, 25 id, (Supp.) 408; Williamson v. New Jersey R. R. Co. 29 N. J. Eq. 311; Smith v. Morse, 2 Cal. 524; Garnett v. Stockton, 7 Humph. 84; Bolton v. Johns, 8 Barr, 145; Ballard v. Ward, 89 Pa. St. 358.
    9. The following cases are on the point that the law of the State, in force when the contract is made, is a part of the contract, and a statute changing the law to the prejudice of either party to the contract is violative of the obligation of the contract, and void: Bronson v. Kinzie, 1 How. 311; Brine v. Insurance Co. 96 U. S. 627; Edwards v. Kearzey, 96 id. 601; Van Hoffman v. Quincy, 4 Wall. 535; McCracken v. Hayward, 2 How. 508; Smoot v. Lafferty, 2 Gilm. 383.

    Messrs. Dexter, Herrick & Allen, Mr. M. W. Fuller, and Mr. Frank J. Crawford, for the appellees:
    The loaning of money by corporations created for that business was not, at the time of this transaction, prohibited by any statute of the State of Illinois, expressly, or by just implication, and was not opposed to any general policy indicated in any particular statute of the State.
    The policy of a State not to allow foreign corporations to transact business within its limits, or acquire and hold real estate, must be expressed in some affirmative way. Cowell v. Springs Co. 10 Otto, 59; Christian Union v. Yount, 11 id. 352.
    A party having the benefit of the contract, it having been fully performed by the corporation, will be estopped from setting up a want of power in the corporation to make and perform the contract. Whitney Arms Co. v. Barlow, 63 N. Y. 63; Darst v. Gale, 83 Ill. 140; Ward v. Johnson, 95 id. 215; Railway Co. v. McCarthy, 96 U. S. 267; Daniels v. Tearney, 12 Otto, 421; Ferguson v. Landrom, 5 Bush, 230; United States v. Hodsen, 10 Wall. 395; Mott v. United States Trust Co. 19 Barb. 569; Steam Navigation Co. v. Weed, 17 id. 378; Chester Glass Co. v. Dewey, 16 Mass. 102.
    An estoppel in pais may be shown as a defence in an action of ejectment. Dickerson v. Colgrove, 10 Otto, 579; Kirk v. Hamilton, 12 id. 68; Lee v. Getty, 26 Ill. 76; Noble v. Chrisman, 88 id. 187; Fisher v. Milmine, 94 id. 328; Brown v. Wheeler, 17 Conn. 352; Shaw v. Bebee, 35 Vt. 209; Rangley v. Spring, 28 Me. 127; Bwrkholter v. Edwards, 16 Ga. 597.
    The legality of the corporation in making the loan can not be drawn in question in this suit. If a corporation can take land for some purposes, the question whether the particular title was taken for an unauthorized purpose can not he tried collaterally. Hough v. Cook County Land Co. 73 Ill. 23; National Bank v. Matthews, 98 U. S. 628; Union Water Co. v. Murphy’s Flat Flaming Co. 22 Cal. 621; Grant v. Henry Clay Coal Co. 80 Pa. St. 218.
    When a corporation is incompetent by its charter to take a title to real estate, a conveyance to it is not void, but only voidable, and the sovereign alone can object. National Bank v. Matthews, 98 U. S. 628.
    The legislature may, when it interferes with no vested rights, enact retrospective statutes to validate invalid contracts, or to ratify and confirm any act it might lawfully have authorized in the first instance. United States Mortgage Co. v. Gross, 95 Ill. 494; Goshen v. Stonington, 4 Conn. 210; Beach v. Walker, 6 id. 197; State v. Newark, 7 N. J. L. 197; Foster v. Essex Bank, 16 Mass. 245; Cowan v. Mutual Benefit Life Ins. Co. 52 Pa. St. 287; Lane v. Nelson, 79 id. 407; Butler v. Toledo, 5 Ohio St. 225; Cooley on Const. Lim. 374.
   Mr. Justice Scholfield

delivered the opinion of the Court:

In the view we take of the questions presented by this record, it will be sufficient to inquire whether the United States Mortgage Company’s acts, in loaning its money to Appleby, and taking from him his note and mortgage therefor, were void. The contention of the counsel for appellant is, they were void, and therefore incapable of imparting rights to anybody, and if this be not correct, the judgment below must be affirmed, without regard to the merits of the other questions discussed. These acts involve no moral turpitude, and they are, in no sensible degree, detrimental to the public welfare, and the only ground upon which their invalidity is claimed is, that company, as a foreign corporation, created solely for the business of loaning money, can have no legal existence, and hence do no act forming the basis of a legal right, within this State,

In United States Mortgage Co. v. Gross, 93 Ill. 483, it was assumed, from the name of this corporation, the character of its transactions there involved, and the facts appearing in the case, that its principal or sole business was to loan money, taking to itself- mortgages on real estate to secure the same, and it was thereupon there said: “The general Incorporation law of 1872, which was in force when the mortgage was executed, provided for the formation in the State of companies for any lawful purpose, expressly excepting, however, corporations for banking, insurance, real estate brokerage, operation of railroads, and the business of loaning money. ” Section 26 of the act provided that “foreign corporations, and the officers and agents thereof, doing business in this State, shall be subjected to all the liabilities, restrictions and duties that are, or may be, imposed upon corporations of like character organized under. the general laws of this State, and shall have no other. or greater powers. And no foreign or domestic corporation, established or maintained in any way for the pecuniary profits of its stockholders or members, shall purchase or hold real estate in this State, except as provided for in this act.

“From these statutory enactments we deduce these conclusions : the latter sentence of section 26 was aimed at the purchasing and holding of real estate by corporations, for the reason such acts would tend to create perpetuities, and by this and other provisions of the same act the evil feared was effectually guarded against. We think, however, it was not designed thereby to prevent corporations from taking mortgages on real estate as security for debts. In fact, the act contemplates corporations will acquire real estate in satisfaction of indebtedness due them, and makes such provision in the fifth section for the sale of real estate so taken, as secures the State against the evil had in legislative view, and which had been discussed by this court in Carroll v. City of East St. Louis, 67 Ill. 568. Indeed, it is difficult to see how mortgages, which are conveyances subject to conditions of defeasance, can be considered as tending to create perpetuities. Payments made of the debts thus, secured defeat the titles of the mortgagees, and even if they take possession, the incomes gradually undermine and destroy their titles. If the premises are sold under powers, the mortgagees can not, themselves, become purchasers, and if the mortgages are foreclosed by suit, the decrees of the court thereafter become the bases of title.

“But we see, from the first sentence of this section 26, it was the policy of the State that foreign corporations should have no other or greater powers in the State than corporations of like character organized under the general laws of the State; and further see, from the first section of the act, it was a part of that same policy that corporations should not be formed in the State for the business of loaning money. It follows, that corporations organized in a foreign State" for such business of loaning money, could not claim to pursue such business in this State. The comity between the States does not demand we should hold this mortgage company, incorporated under an act of the State of New York, could lawfully, within this State, exercise powers denied to corporations formed within our own borders. All the acts of this company here done in furtherance of such business of loaning money, were invalid, as being obnoxious tó our policy and institutions. ” But it was also held that the act of April 9', 1875, validated contracts of loans previously made by the company, and made them enforceable the same as if they had not been prohibited when made.

Counsel for appellant assail the latter, and counsel for . appellees the former, position, as being unsound in law, and wholly incapable of being sustained upon any correct legal' principles.

The' question of the validity of such contracts may be far-reaching in its consequences, and affect large property rights. If they are valid upon any ground, the decision should be placed on that ground, while if they are invalid they should be so declared, and the question put at rest, so that in the future they may be avoided. In Bowers v. Green, 1 Scam. 42, it was said by this court: “The maxim stare decisis is one of great importance in the administration of justice, and ought not to be departed from for slight or trivial causes; yet this rule has never been carried so far as to preclude courts from investigating former decisions, when the question has not undergone repeated examination, and become well settled.” To the same effect' is Mallett v. Butcher, 41 Ill. 383; Leavitt v. Blatchford, 17 N. Y. 533; Pratt v. Brown, 3 Wis. 609.

No reason exists, therefore, which should preclude our reexamining the grounds of our decision in United States Mortgage Co. v. Gross, supra, so far, at least, as may be necessary to' what we shall deem a correct decision in the present case; but, on the contrary, in view of the importance of the questions involved, it is a duty we owe to the court and to the public to do so, with such care as we can exercise. We still think, as there said, it was not designed by section 26 of the Incorporation law of 1872, to prevent corporations from taking mortgages on real estate as security for debts. Indeed, sections 5 and 17, in express language, contemplate that this shall be done, and provide regulations whereby, when title shall be acquired to real estate, the corporation shall be compelled to sell it, and thereby avoid the evils anticipated from the accumulation of titles to real estate in the hands of corporations, in Carroll v. East St. Louis, 67 Ill. 568. Moreover, the policy of taking mortgages upon real estate to secure the payment of debts, by corporations as well as by individuals, in almost innumerable instances, has been recognized by legislation in this State; and we are unable to recall an instance where a corporation has been allowed to create a debt, and has been, at the same time, denied the right to take mortgage on real-estate to secure it. It would seem, the right to take such security, by the policy of our "law, might be regarded as an incident to the right to create a debt. Under restrictions and regulations of like character with those of the general law, no injurious consequences can possibly result to the public from so holding.

Subsequent examination and reflection, however, have convinced us that we were clearly in error in holding that it is shown by the first section of this law that it was a part of the policy of the State that corporations should not be formed in the State for the business of loaning money. That section simply defines the classes or kinds of corporations for the organization of which the act is intended to provide. It says : “Corporations may be formed, in the manner provided by this act, for any lawful purpose, except banking, insurance, real estate brokerage, the operation of railroads, and the business of loaning money. ” It is not said, nor is it the reasonable implication, that the corporations excepted may not be formed under other acts. Indeed, the implication is directly the reverse, for the business of the excepted corporations, by the proper construction of the language employed, is called “lawful, ” and there can, in the absence of unmistakable language, be no presumption of exclusion of that which is “lawful, ”— that is to say, which has the sanction or permission, and is consequently entitled to the protection, of the law. It is well answered by counsel for appellees : “If this reasoning is correct, it would follow that the first section was also a declaration of the policy of the State that corporations should not be formed for any of the other excepted purposes, including insurance and the operation of railroads. ” Yet there was, at that time, in force, and unaffected by that statute, a general law providing for' the formation of insurance companies, and at the same session of the legislature at which that law was enacted, another law was also enacted for the formation of corporations for the operation of railroads. It is true that act provides for only certain corporations, and gives no right to incorporate for other purposes, and from this there may be an implication that the legislature would not grant the right to be incorporated for the excepted purposes, in the same manner, and subject to the same regulations and restrictions, but it is not therefore to he assumed that the legislature was unwilling to grant the right to be incorporated for the excepted purposes in another manner, and subject to other regulations and restrictions. From the different natures and purposes of the excepted corporations, reason exists why different and more stringent restrictions should be thrown around them; but in such a country as ours, the public welfare demands that they be allowed to be created, under proper and wise safeguards for the protection of the public, and not that they be absolutely prohibited.

On further consideration and reflection, we are convinced we also erred in holding that the first sentence of section 26 of that law manifests a policy that foreign corporations were to have no right to loan money in this State. That sentence does not say that no foreign corporation except those of like character as are provided to be formed under that act, shall be allowed to do business in this State. It does not assume to define what foreign corporations shall be allowed to do business in this State, but simply to impose regulations and restrictions upon certain named classes or kinds of foreign corporations doing business in this State,—that is, those of like character as it is provided may he formed under that general law. Its exact words are, “foreign corporations, and the officers and agents thereof, doing business in this State, ” (that is, that me doing business, not that shall hereafter be allowed to do business in this State,) “shall be subject to all the liabilities, restrictions and duties that are or may be imposed upon corporations of like character organized under the general laws of this State, and have no other or greater powers.” The language is entirely that of regulation and' restriction, and not that of grant or prohibition. No corporation is granted the right to do business in the State. No corporation is excluded from doing business in this State. Simply “foreign corporations, and the officers and agents thereof, doing business in this State,” are placed on an equality, to the extent that they shall exercise no greater or different powers, and shall be subject to the same regulations and restrictions, and governed by the same rules of law in these respects, with corporations of like character organized or to be organized under the general laws of this State. The meaning will, obviously, not be changed, but may be placed in a stronger light, by a little transposition of language, thus: “Where the general laws of this State provide for the organization of corporations, foreign corporations of like character doing business in this State shall exercise no greater or different powers, and shall be subject to the same liabilities, restrictions and duties.” The manifest and only purpose was to produce uniformity in the powers, liabilities, duties and restrictions of foreign and domestic corporations of like character, and bring them all under the influence of the same law. It can not be said that the failure to provide for the organization of other corporations, by general laws, is' an exclusion of foreign corporations of like character, unless it shall be held that the failure to enact such general laws is an evidence that they are opposed to our policy.

But we have already said that from this failure there may be an implication that the legislature would not grant the right to be incorporated for the excepted purposes, in the same manner and subject to the same restrictions; but it is not therefore to be assumed that the legislature was unwilling to grant the right to be incorporated for the excepted purposes in another manner, and subject to other regulations and restrictions. The excepted purposes, banking, insurance, real estate brokerage, the operation of railroads, and the business of loaning money, we have also heretofore said are recognized by the general law as being “lawful.” We know, from their character, they are not malum in se, and we know they hhve never become malum prohibitum, unqualifiedly, by any constitution or statute of this State, and our observation and experience teach us that under wise and wholesome restrictions and regulations they are important and beneficial, if not indispensable, factors in the general business welfare of the State. Whether they shall be allowed to be carried on "by one individual or by many, by partnerships or corporations, is evidently purely a question of policy, and not a question of power or right in the government; and it may be asserted, without the fear of contradiction, that the policy of the State has been to allow banking, insurance, real estate brokerage, the operation of railroads, and the business of loaning money, either independently or in connection with or as incidental to other branches of business, by corporations—and this will hereafter be fully shown by reference to specific acts of the legislature. But corporations for these purposes, under our constitution, are private: The public does not become a stockholder in or owner of them, and so it is not the business of the legislature, of its own volition and unsolicited, in order to indicate its policy, merely, to incorporate or provide for the incorporation of such companies. The power to provide for the corporation exists, but it is useless to exercise it unless-there is a demand for it,—in other words, if no persons desire to become incorporated for these purposes, no unfavorable inference can be drawn from the failure of the legislature to enact laws upon the subject. It is true, the reason a legislature fails to enact a general law providing for a particular class of incorporations may be because to do so would be opposed to its policy; but it may also fail to do so because there is no demand for such a law—either because the demand has heretofore been answered by special acts of incorporation, adopted prior to but continued in force by the present constitution, or because money in the State is scarce, and can be borrowed abroad, as is often the case, much cheaper than at home, or from both causes. It can hardly admit of debate, that, ordinarily, a demand for private charters, either through general or local and special laws, will not exist unless it is understood profitable returns can be made on money invested in business thereunder; and whether such returns can be made, will, usually, depend on questions entirely disconnected from the disposition of the legislature to grant or withhold legislation for such charters. And so, it follows, mere absence of legislation authorizing the formation, in the future, of a particular class or kind of corporations, can not be accepted as conclusive evidence that it is against public policy to create such corporations.

But again, what was in the legislative mind when this general law was enacted? Manifestly, only the classes of corporations anticipated to be created under its provisions, as defined in section' 1. The necessity for, and the powers, limitations and restrictions proper to other corporations (those excepted), can, under no rational rule of construction, be presumed to have been in mind. Stated differently, the legislators’ minds are presumed to have been directed to what they were doing, and not to what they were not doing. They were providing for certain corporations, leaving others unprovided for, and so what they did not provide for is not affected by the legislation they enacted, whether we regard domestic or foreign corporations. The excepted corporations, and foreign corporations of like character, are simply unaffected bjf this law. And this was the purport of our ruling in Wincock et al. v. Turpin, 96 Ill. 135, where we held that the remedies provided for creditors against stockholders, although in broad and comprehensive language, applied only to the corporations organized under this act.

We concede all foreign corporations might have been prohibited from doing business in this State except those of like character as contemplated to be organized under the provisions of this act; but then it would have been very easy to have said so in unmistakable terms, and we do not feel warranted in assuming, from the absence of language, or from, even (if it were to be found) ambiguous language, that a policy has been adopted so repugnant to the business welfare of our citizens, and so wanting in that spirit of comity which should characterize the conduct of the sister States towards each other.

Counsel say, “the prohibition is not against doing business in this State, but it is against having any other or greater powers, and as a domestic corporation could not have any, so the foreign could have none whatever. ” This would be true if the statute prohibited other corporations than such as are of like character with those contemplated to be incorporated under its provisions, from doing business in the State. But we have seen that this is not its language, nor, in our opinion, its meaning. It does not apply, either in terms or by implication, to other foreign corporations than such as are of like character with those contemplated to be organized under its provisions. What powers they may exercise, and what regulations or restrictions they shall be subject to, is defined. What powers other foreign corporations may exercise, and under what regulations and restrictions they shall be allowed to act, is not defined.

Counsel ask the question, “Can it be seriously pretended that a foreign corporation excluded from the State can make a contract in this State without authority, and enforce it in the courts of this State?” We answer, certainly not. But this assumes this corporation has been excluded from this State. How has it been excluded ? We have shown it is not excluded by the positive letter of the law, and we think we have furnished satisfactory reasons why it can not be held to have been excluded by a fair construction of the meaning of the law. It remains only, then, to inquire whether, aside from the general law, it is contrary to public policy, or injurious to our welfare, to tolerate this corporation, and enforce its contracts in this State. The only cases referred to by counsel, on this question, are United States Trust Co. v. Lee, 73 Ill. 142; Cin. M. H. A. Co. v. Rosenthal, 55 id. 85; Starkweather v. American Bible Society, 72 id. 50; Carroll v. City of East St. Louis, 67 id. 570.

In Cin. M. H. A. Co. v. Rosenthal, assumpsit was brought on a promissory note given for stock in an insurance company, and for premium on a policy issued by such company, payable upon the call of the directors. The defence interposed was, the insurance company was a foreign corporation, and it had not at any time, previous to the making of the note, furnished the Auditor of this State with a statement of the condition and affairs of the company, as required by the law then in force, and the Auditor had not issued to the company, or any agent, any authority to transact business in this State, which, it was. averred, rendered the note void, and of no binding effect. The defence was sustained, and the note held void, upon the ground that the transaction was expressly prohibited by law. Among other things, the court there said: “The note was made and delivered, and the policy given, and the contract consummated, in this State, in defiance of a law which is so plain in its terms that it can bear no construction, and which no one can misunderstand, declaring all such contracts unlawful. It says, it shall not be lawful for any such agent, directly or indirectly, to take risks, or transact any business of insurance in this State, until they comply with the terms prescribed in the act. To permit the company, when they admit they have disregarded all these requirements, to recover, would be for the courts to disregard the clearly expressed will of the General Assembly, and to say what it has said shall be unlawful, is and shall be lawful and binding. ”

In Carroll v. The City of East St. Louis, the action was ejectment, and' the question was, whether the Connecticut Land Company could, in this State, take, hold and convey titles to real estate. It was held that it could not, because to allow it to do so would tend to create perpetuities, and it was contrary to the general public policy of this State to allow corporations to be created for the sole purpose of buying, holding and selling, or conveying real estate, and this was shown by reference to the practice of the State in refusing to grant charters, etc., for this purpose, and in the general legislation on kindred questions.

So far as Starkweather v. American Bible Society has any bearing upon this question, it rests upon the same principle as Carroll v. City of East St. Louis.

In United States Trust Co. v. Lee, it was held, upon the principle of Carroll v. East St. Louis, a foreign corporation can not be a trustee of real estate.

■ In neither of these cases was the mere absence of legislation creating or authorizing the creation of a corporation for a particular purpose, held to be sufficient evidence showing that it was against public policy to allow foreign corporations of like character to transact business in this State; but, upon the contrary, the decisions are expressly predicated upon the direct affirmative acts of the State in refusing to create such corporations, or in denying their power to transact business in the State.

In Bank of Augusta v. Earle, 13 Pet. 277, in answer to the position of counsel that the rules of comity between foreign nations do not apply to the States of this Union, that they extend to one another no other rights than those which are given by the constitution of the United States, and that the courts of the general government are not at liberty to presume, in the absence of all legislation on the subject, that a State has adopted the comity of nations towards the other States as a part of its jurisprudence, or that it acknowledges any rights but those which are secured by the constitution of the United States, the court, per Taney, Ch. J. said: “The court think otherwise. The intimate union of these States as members of the same great political family, the deep and vital interests which bind them so closely together, should lead us, ip the absence of proof to the contrary, to presume a greater degree of comity, and friendship, and kindness towards one another than we should be authorized to presume between foreign nations. And when (as without doubt must occasionally happen) the interest or policy of any State requires it to restrict the rule, it has but to declare its will, and the legal presumption is at once at an end. But until this is done, upon what grounds could this court refuse to administer the law of international comity between the States ? They are sovereign States, and the history of the past, and the events which are daily occurring, furnish the strongest evidence that they have adopted towards each other the laws of comity in their fullest extent. Money is frequently loaned in one State by a corporation created in another. The numerous banks established by different States are in the constant habit of contracting and dealing with one another. Agencies for corporations engaged in the business of insurance and of banking have been established in other States, and suffered to make contracts without any objection on the part of the State authorities. These usages of commerce and trade have been so general and public, and have been practiced for so long a period of time, and so generally acquiesced in by the States, that the court can not overlook them when a question like the one before us is under consideration. The silence of the State authorities while these events are passing before them, show their assent to the ordinary laws of comity which permit a corporation to make contracts in another State.” And again, he says: “So far as any of them (the States) have acted on this subject, it is evident that they have regarded the comity of contracts, as well as the comity of suit, to be a part of the law of the State, unless restricted by statute. ”

The doctrine of this case is approved, and its ruling followed, in Bank of Washtenaw v. Montgomery, 2 Scam. 422. The court there, among other things, said: “It can not well be imagined that the courts of any State would refuse to execute a contract by which a corporation had borrowed money in another State than that by which it was created. * * * Unless there should be a prohibition by statute, we can see no possible ground on which to rest the objection to the right of a foreign corporation to maintain an action in our courts.”

In Farmers’ Loan and Trust Co. of N. Y. v. McKinney, 6 McLean, 7, the court said: “In Michigan, no law or policy of the State is shown which prohibits corporations from purchasing lands in the State, and it is presumed that no such law as in the State of Pennsylvania exists in Michigan. It would seem, therefore, that the corporation of another State, as the Farmers’ Loan and Trust Company, which is authorized by its charter to loan money on mortgages, may take a mortgage on lands in Michigan, there being no prohibitory law or policy of that State on the subject.” Again it is said: “And that such a legal organization, having the right to loan mpney on mortgages without restriction of territory, should have a right to take mortgages wherever its loans are made, would seem to be a matter of course. And this may be safely assumed, where there is no prohibition. ”

In Cowell v. Springs Co. 100 U. S. (10 Otto,) 55, the National Land Improvement Company, of El Paso county, Colorado, was a corporation created under the laws of Pennsylvania, with power to “receive, hold, and grant real and personal property, explore, locate and improve lands, etc., * * provided such lands be located in Utah, Arizona, or adjoining States and Territories lying west of the Mississippi.” By the law of Congress of March 2, 1867, then in force, the legislatures of the several Territories of the country were prohibited from granting private charters, and were only authorized to create by general law corporations for mining, manufacturing, and other industrial pursuits. The defendant contended that this corporation had no capacity to act in the Territory of Colorado, and to hold and convey real property there,—that Congress intended to prevent the creation of corporations like this, and if a domestic corporation could not be created with such powers for reasons of public policy, a foreign corporation could not, for like reasons, be permitted to exercise them in the Territory. But the court said: “The answer to this position is found in the general comity, which, in the absence of positive direction to the contrary, obtains through the States and Territories of the United States, by which corporations created in one State or Territory are permitted to carry on any lawful business in another State and Territory, and to acquire, hold and transfer property there equally as individuals. If the policy of the State or Territory does not permit the business of the foreign corporation in its limits, or allow the corporation to acquire or hold real property, it must be expressed in some affirmative way,—it can not be affirmed from the fact that its legislature has made no provision for the formation of similar corporations, or allows corporations to he formed only by general law. Telegraph companies did business in several States before their legislatures had created or authorized the creation of similar corporations, and numerous corporations existing by special charter in one State, are now engaged, without question, in business in States where the creation of corporations by special enactment is forbidden. ” The same doctrine was subsequently repeated by the same court in Christian Union v. Yount, 101 U. S. (11 Otto,) 356.

No one pretends that the business of loaning money, or - taking mortgage security therefor, was ever prohibited by law in this State, and we shall show the policy of this State has been to invest corporations with these powers.

On the 19th of February, 1857, an act was passed by the General Assembly, and approved by the Governor, incorporating the Farmers’ Savings, Loan and Trust Company, and it was authorized to “have, enjoy and exercise all the powers necessary to carry out and execute the purposes. and intent of a savings, loan and trust company, ” and it was specially empowered to “take and hold any real estate, in trust or otherwise, as security for, or in payment of, loans and debts due or to become due, to purchase real estate at any sale made in virtue of any loan, debt or mortgage made to or held by the said company.”' (Private Laws of 1857, p. 1386.) The Chicago Loan and Trust Company was incorporated under' an act of the legislature approved February 19, 1859, and it was empowered to borrow money, and receive money on deposit, and pay interest thereon, and to loan the said money, ” etc., and also to “take and hold any real estate, in trust or otherwise, as security for, or in payment of, loans and debts due and to become due to said company, to purchase real estate at any sale made in virtue or on account of any loan, debt, or mortgage, or trust, made to or held by the said company, ” etc. (Private Laws of 1859, p. 401, sees. 3, 4.) The Central City Trust Company was incorporated under an act of the legislature February 21, 1861. (Private Laws of 1861, p. 453.) The Princeton Loan and Trust Company was incorporated under an act approved February 16, 1865. (Private Laws • of 1865, vol. 1, p. 24.) The Marion County Trust and Loan Company was incorporated under an act approved March 8, 1867. (Private Laws' of 1867, vol. 2, p. 277.) The Avon Exchange and Loan Company was incorporated under an act approved March 31, 1869. (Private Laws of 1869, vol. 2, p. 700.) And the Montgomery County Loan and Trust Company was incorporated under an act also approved March 31, 1869. (Laws of 1869, vol. 2> p. 714.) And all of these last named - corporations were vested with substantially the same powers, in respect to loaning money and taking mortgage therefor, as was the Chicago Loan and Trust Company, supra. In 1867, the General Assembly also incorporated the “International Mutual Trust Company, ” and invested it with power to hold and loan money, and to take and hold real estate in trust, as security for the payment of loans and debts due the corporation. (Private Laws of 1867, vol. 1, p. -95,). And it was shown, upon the trial of The People ex rel. v. Loewenthal, 93 Ill. 191, which was a proceeding by quo warranto to test the validity of that charter, that about 175 charters or statutes had been passed since the adoption of the constitution of 1848, establishing corporations with like powers as those conferred upon the International Mutual Trust Company. Many of these corporations, thus created by special charter before the adoption of the present constitution, are still doing business in the State, and have been ever since they were created, that instrument only providing for the formation of private corporations, under general laws, in the future, but leaving those organized and doing business before its adoption in full force, and unaffected by its requirements.

Since the adoption of the present constitution, and on the 4th of April, 1872, a general law was enacted to enable associations to become incorporated to raise funds to be loaned only among their members, and power was given to loan their capital, under certain restrictions, to their own members, and to take mortgage on real estate as- security therefor, (2 Gross’ Stat. p. 67,) and on the 9th of April, 1875, an act was approved “to enable corporations in other States and countries to loan money in Illinois, to enforce their securities, and acquire title to real estate as security.” (Pub. Laws of 1875, p. 65.)

We doubt if a more uniform and consistent policy can be shown to have been pursued by the State upon any other subject, for the last twenty years, than is thus shown to have been pursued with regard to investing corporations with power to loan money and take mortgage upon real estate as security therefor.

But it seems to be thought that the corporations referred to materially differ from the corporation here, in that they all had power to borrow money and receive money on deposit, etc., as well as to loan money, while here, the power is simply to loan money. If it be conceded that difference exists, can it affect materially the question under consideration ? If a" corporation be empowered to loan money and take mortgage therefor, is not this sufficient ? In these special charters the power to loan is a separate and distinct power, and not incidental, merely. It is not compulsory on the corporations that they shall exercise all their granted powers, and. inasmuch as the exercise of one power is not dependent upon the others, it is, it would seem, totally unimportant, on principle, whether one corporation b¿ created, with power to loan its capital, and another corporation be created with power to discount bills or notes, or one corporation be authorized to do all. If all are legal, when vested in one, what makes them illegal when vested in two ? Can it possibly make any difference to the sovereign State of Illinois, or to any of its citizens, whether a foreign corporation, which comes here to loan its money, has power by its charter to effect insurance, as well as to loan money, or whether it has power merely to loan money ? Is there anything in the exercise of this power by a corporation which is affected by the additional powers- possessed by the corporation, or by the fact whether or not it has additional powers ? Until it can be demonstrated that the possession of the additional powers can, in some substantial way, affect the loan, we must hold that it can make no difference whether the corporation be authorized to bank, or effect insurance, or build railroads, as well as to loan money, or whether it is authorized to effect loans, solely. We think it is only material to know, for the present purpose, that loaning money and taking mortgage on real estate as security are recognized, under our law, as a lawful business, and that it is a business which it' has been the policy of our State' to Vest' in corporations, and this, too, usually, without regard to whether other independent powers in regard to business have also been vested in the corporations.

But this corporation, in addition to the power to loan money, is expressly invested with power, by its charter, to issue bonds of the company, and sell and dispose of them, (which is, in effect, power to borrow money,) to receive moneys on deposit, and to purchase, hold and convey such real estate, etc., as the company may acquire in the collection or settlement of its demands, etc., thus making it, substantially, a corporation of the same character as those incorporated under the special charters to which we have referred.

In the first section of the act of April 9, 1875, supra, it is enacted that any foreign corporation that may have invested or lent money in this State, “may have the same rights and powers for the recovery thereof, subject to the same penalties for usury, as private persons, citizens of this State, ” etc. Waiving- all question of the competency and effect of this as a validating statute, we think, in connection with the practice of the State, as evinced in the enactment of the laws before referred to, that it should be regarded as conclusive on the question of the general public policy of the State. It emanates from the legislature,—the tribunal in which is lodged the power to determine the question of public policy,— and is an assertion, in effect, that the transactions of such corporations have not been contrary to the general public policy of the State.

In Railway Investments and Securities, 2 Bedfield’s Am. By. Cases, 226, in speaking of an analogous statute, Judge Cubtis, of the Supreme Court of the United States, then presiding at circuit, said: “After the legislature had thus granted to the corporation new powers, to enable it the better to accomplish its duties to the public by paying off this mortgage, and had interposed to facilitate the exercise of the powers of the trustees under the mortgage' by regulating and restricting the personal liabilities to be incurred by them, in the exercise of these powers, it seems to be impossible to maintain that the mortgage itself is void because contrary to the public policy of the State. The will of the legislature, while acting within the powers conferred by the people of the State, constitutes the public policy of the State, and so far from manifesting its will to have this mortgage void and inoperative, it has interfered to help out its operation, and make it more easily available as a security. I do not think a court of justice can undertake to declare that mortgage was contrary to the public policy of the State, after the legislature has directly interposed to aid the mortgagees to act under it. ”

For the reasons expressed, we are of opinion the note and mortgage were not void when given, but were valid and binding, and being so, the junior mortgage by Appleby to Smith is not entitled to priority.

The decree of the Superior Court is affirmed.

Decree affirmed.

Mr. Justice Walkeb : I am unable to concur in the conclusion reached.

Subsequently, on an application for a rehearing, the following additional opinion was filed:

Per Cubiam :

A rehearing is prayed for in this case, mainly on the ground that the appellant and his grantor purchased and ■ paid for the land in ■ controversy after the decision in United States Mortgage Co. v. Gross, 93 Ill. 483, and upon the faith of that decision. Counsel say: “After the last opinion in the Gross case had been filed, and after the decision therein had become, so far as this court could make it, the established law of this State, the appellant and his grantor (Corbine) purchased and paid for the land in controversy here, relying upon that decision-, and believing, as they had a right to believe, that the law was as this court had therein deliberately declared it to be.” But the decision in United States Mortgage Co. v. Gross was precisely as is the decision here, namely, that the mortgage to the United States Mortgage Company wíjs valid, and hence entitled to priority over subsequent claims to the same property. In that case the court, in assigning reasons for the decision made, expressed the opinion that the mortgage, when first executed, was void, because contrary to public policy, but that it had been validated, and made binding and obligatory, by the "act of April 9, 1815. This, however, was mere argument to justify the decision. The decision was, simply, as before said, that the mortgage was valid, and hence entitled to priority over subsequent claims to the same property.

On the theory of reasoning adopted by the counsel for appellant, when the appellant and his grantor bought, they bought with the knowledge and on the faith that this court held the mortgage by Appleby to the United States Mortgage Company valid and binding, and entitled to priority over the claim they were then purchasing. They have not been disappointed, therefore, by the present decision, and cut out of any right which, by United States Mortgage Co. v. Gross, we held they might acquire. The title or claim we held good in United States Mortgage Co. v. Gross, we still hold good, though for a different, and, we think, more satisfactory reason. Indeed, we have not here ruled that it is impossible to sustain the claim of the Mortgage Company on the ground assigned in the Gross case. We have simply placed our ruling on different, and, as we think, stronger ground. Had we, in all respects, not only ruled, but also reasoned, as in the Gross case, appellant’s position would not have been, in the slightest, different from that which is now assigned to him.

It is nowhere decided that parties have vested rights in the reasons assigned for decisions. Where was it ever 'held that a line of decisions was to be set aside, and the judgments opened up, merely because it was subsequently discovered stronger and more satisfactory reasons existed for the ruling than those expressed when the decisions were made ? Had the decision here been different from what it wa^in the Gross case, the authorities cited by counsel would be applicable; but since the decision here is the same, and the reasoning in support of the decision only is different, they have no application.

It is also said by counsel, “instances mentioned of domestic corporations having power to loan money, are not applicable. All such corporations were banks.” In this view, also, counsel are in error. We have expressly decided, in People ex rel. v. Loewenthal et al. supra, such corporations are not banks.

In connection with this petition we have also carefully considered the petition for rehearing in Commercial Union Assurance Co. v. Scammon, 102 Ill. 46. The most forcible argument there, as we think, against our position as expressed in the opinion here, is thus stated: “When the State, by a constitutional requirement, prohibited its own citizens from acquiring any more special privileges of any kind, and passed laws for the formation of corporations for the transaction of almost every other kind of business but that of loaning money, it thereby declared that it would not, until it saw fit, permit the transaction of that kind of business through the instrumentality of any new corporation. ” This, as we conceive, is sufficiently answered in the opinion by the quotation there given from the opinion of Mr. Justice Field, in Cowell v. Springs Co. 100 U. S. (10 Otto,) 55. The act of Congress there imposed the same restriction upon the territorial legislature that our constitution imposes upon our legislature, and as has been seen, it was there held, and the court in express terms declared, “it can not be affirmed, from the fact that .its legislature has made no provision for the formation of similar corporations, or allows corporations only to be formed by general law, ” that the policy of the territory was against the formation of such corporations, but that such policy must be expressed in some affirmative way.

We have patiently, and with such care as we can bestow consistently with other duties, gone over and reconsidered every portion of the opinion, and we perceive no reason to take back or modify anything therein said.

The prayer of the petition is denied.

Rehearing denied.