author: Mr. Justice Mulkey Mr. Justice Walkeb :

text:
    John W. Doane v. Martha A. Walker.

      Filed at Ottawa December 12, 1881

      Rehearing denied March Term, 1882.

    1. Doweb—widow’s quarantine—how lost. The right of a widow, under sec. 27 of the Dower act of 1845, to retain possession of the dwelling house in which her husband most usually dwelt next before his death, together with the out-houses and plantation, etc., until her dower be assigned, like other rights, may be transferred, lost, or forfeited by her own acts, and when it becomes the subject of litigation in a court having jurisdiction to pass upon it, the owner of such right will be concluded by the’adjudication with respect to it, precisely in the same way, and to the same extent, as in any other case where property rights have become the subject of judicial determination.
    2. Same—in the particular case—where dower was not finally fixed as to all the lands. In this case a widow filed her bill for an assignment of dower in several distinct parcels of land, claiming the right of occupancy of the homestead premises until her dower should be assigned in all the lands. The decree in the trial court allowed dower in all the property, but was silent as to the right of the widow to occupy the homestead premises until her dower should be irrevocably fixed with respect to the other lands. On appeal, the decree, in so far as it allowed dower in the homestead premises, was affirmed, but in respect to the other parcels it was reversed. It was held, the effect, by implication, of the adjudication in the trial court as to dower in the homestead place, being silent as to the widow’s right of continued occupancy thereof, or quarantine right, until the final disposition of the question of dower in the other property, was to deny- her that right, and it was gone.
    3. Same—petition by administrator to sell land to pay debts—silence of, the widow as. to quarantine right—estoppel. Where the widow, in her answer to an administrator’s petition for leave to sell certain real estate to pay the debts of his intestate, fails to interpose any claim to retain possession after the assignment of her dower therein until it is finally settled as to other tracts, and the sale is ordered to be made subject to her dower, she will be estopped by the proceeding from setting up such claim as -against the purchaser at the administrator’s sale.
    4. Same—on severance of title to lands. Where a part of the lands of an intestate, in which his widow is entitled to dower, has been sold by the administrator of the estate to pay debts, after the assignment of the widow’s dower therein, this will amount to a severance of the title, and the purchaser will take the land bought by him subject only to the dower therein as fixed by the decree allowing it, unaffected and freed from any alleged rights of the widow depending upon claims against any of the other lands on account of dower, and he can not be kept out of possession until dower is assigned in the other lands in which he has no interest.
    5. Same—rights of purchaser when widow wrongfully withholds possession—duty of the widow while in possession. Where the widow wrongfully deprives a purchaser at an administrator’s sale, of the possession of the premises bought by him, it is her duty to pay all taxes thereon, and keep the same in a state of reasonable preservation by making ordinary repairs, and if she fails to do so, she will be bound to account to him for the taxes paid by him, and to make compensation for such damages as he may have sustained by reason of her neglect to make the necessary and ordinary repairs.
    6. Decree—denial of right by implication. All such rights, or claims of right, as are submitted by a complainant for adjudication that are not allowed, confirmed or recognized by the decree,-are by implication denied, and while such decree remains in force such rights will be barred, whether given by law or by implication.
    7. Chancery jurisdiction—bill for possession of land bought, etc. A purchaser of land at an administrator’s sale, subject to the widow’s yearly allowance for dower therein, filed his bill against the widow for possession of the premises, which she refused to give until her dower should be settled in other premises, and for an account of the rents and profits during the time the premises were wrongfully detained, in which he alleged in substance that during the time he had been wrongfully deprived of the possession he was forced to pay all taxes and special assessments on the property, amounting to $6000, and that during the same time the widow had neglected to make ordinary repairs, wher.eby the premises had become greatly injured, and were deteriorating in value; also, that during such time the rental value of the property was in excess of her claim for dower, a part of which he sought to have applied in discharge of the dower then due, and the rest to be applied on installments afterwards to become due, and showing that the widow was insolvent, and asking for an equitable set-off: Held, that a court of chancery, under the peculiar circumstances of the case, had jurisdiction of the bill. It was not to be regarded merely as a suit for the recovery of possession, and for use and occupation, so as to deprive the complainant of his remedy in equity.
    8. Set-ore—when allowed in equity. Where a widow having a claim upon the land of a purchaser for dower, which stands as an incumbrance or lien thereon, affecting its market value, is insolvent, and is liable to the purchaser in a sum in excess of the amount due from him to her for the use of the premises unjustly detained from him, so that on a fair accounting he owes her nothing, but she is largely his debtor, a court of chancery will afford the purchaser relief through the medium of an equitable set-off.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    On the 28th of May, 1874, Martin 0. Walker died intestate, leaving Martha A. Walker, his widow, and Samuel 0. and Edward S. Walker, his only heirs. At the time of Walker’s death he was the owner in fee, subject to certain incumbrances, of several pieces of land in the city of Chicago, Cook county, including what is known, respectively, as the Fort Dearborn and the Ellis avenue property, the latter being the property now in controversy. In August following, the widow, Martha A. Walker, filed a bill in the Superior Court of Cook county against the heirs and administrator of Martin 0. Walker, for the assignment of dower in all of the above mentioned lands. In January following, a decree was entered in the cause, adjudging her entitled absolutely to dower in all the property except the Fort Dearborn property, and contingently entitled to dower in that, and appointing commissioners to assign the same. On the 12th of July, 1877, the commissioners reported the premises not susceptible of division without prejudice, and at the instance of petitioner the yearly value of her dower in each separate tract was assessed by a jury, being fixed in the Ellis avenue property at $350 per annum, and in the Fort Dearborn property at $1500, subject to the contingency above referred to, and a final decree was entered accordingly, April 10, 1878. On appeal to the Appellate Court by the heirs, the above decree was reversed so far as it affected the Fort Dearborn property, but as respects the rest, including the Ellis avenue property, it was in all things affirmed, and is still in full force and effect. .
    Pending this proceeding for the assignment of dower, to-wit, on the 4th of April, 1876, Augustus L. Chetlain, as administrator of Martin 0. Walker, filed a petition in the probate court of Cook county for an order of sale of real estate for the payment of the debts of said estate, making Martha A. Walker, the widow, a party. In her answer to said petition she simply sets up her claim to dower in all the lands referred to in the petition, and the fact that the bill filed by her for the assignment of dower was then pending and undetermined in the Superior Court of Cook county.
    On the 30th of August, 1878, an order was entered by the probate court in said proceeding, directing the administrator to sell, subject tó the widow’s dower, the real estate mentioned in the petition, or so much thereof as might be necessary for the payment of debts. Under this order of sale, John Doane, the appellant, on the 15th of October, 1878, at the administrator’s sale, purchased the Ellis avenue property, the sale being duly approved by the court, and on the 22d of the same month received of the administrator a deed for the premises, and no question is made as to the regularity or validity of the proceedings.
    The decree in the proceeding for the assignment of dower relating to the Ellis avenue property, directed the sum of $87.50 to be paid to appellee on- the 21st day of May, 1878, and the like sum of $87.50 quarter-yearly thereafter, on the 21st days of August, November, February and May, during her natural life, “and these payments, by the further order of the court, were secured by ’ making them a specific lien upon the property, with power of sale in default of payment.” Upon the reversal of the decree in the Superior Court as to the Fort Dearborn property, the cause was remanded for further proceedings as to that property, and the same is still undetermined.
    Under this state of facts appellee refused to surrender to appellant the Ellis avenue property, on the sole ground that her dower had not been assigned in the Fort Dearborn property. Appellant, after waiting a considerable time for the determination of that suit, filed-the present bill, by which he seeks to obtain possession of the premises in controversy, an account of the rents and profits during the time he has been kept out of possession, and to have the same applied, so far as they shall be required for that purpose, in discharge and satisfaction of what is due and to become due appellee on account of dower in said premises, which is declared to be an incumbrance and cloud on appellant’s title, and the same is asked to be removed as such.
    In addition to the facts already stated, the bill in this case charges that the property in question is worth some $30,000; that the improvements thereon are much out of repair, and are becoming valueless by reason of waste permitted -by appellee; “that during the six years and upwards since the' death of M. 0. Walker, no improvements or repairs have been put on the buildings, and that they are rapidly deteriorating in value by appellee’s neglect, and appellant’s property rights therein are becoming greatly injured by refusal of appellee to deliver possession;” that she is insolvent, and unable to respond in damages for the unlawful detention of the premises; that during this time she has -refused to pay any portion of the taxes and special assessments on said property, which appellant has been forced to pay; that at the time of appellant’s purchase there were unpaid taxes in arrear upon the premises, amounting to $6000, which, in addition to the purchase money, he has since paid, and that the rents of the premises during the time he has been kept out of possession are double the amount due appellee on account of dower.
    The Superior Court sustained a demurrer to this bill, and entered a final decree dismissing the same, and on appeal this decree was affirmed by the Appellate Court for the First District, and appellant thereupon removed the record to this court for review.-

      Messrs. Small & Moore, and Mr. Geo. L. Paddock, for the appellant:
    Whenever the dower right is determined by joinder in the husband’s deed of the homestead under the statutory formalities, the wife, ipso facto, ceases to be dowable of that land, and, as a legal result,, her quarantine rights are barred, they being incident to the dower right. Slatter v. Meek, 35 Ala. 528.
    If the widow may tiar herself by acts prior to the decease of the husband, she certainly may by acts done after that time. Acceptance of a collateral satisfaction in lieu of dower is one of the modes in which she may so bar her claim of dower. Jones v. Powell, 6 Johns. Ch. 194.
    The statutory allowance in lieu of dower, whether regarded as resulting from the voluntary act of the petitioner, or as a legal result of her relations to the property, is, in substance, a collateral satisfaction of the dower claim. Eev. Stat. 1845, “Dower,” sec. 28.
    It follows, that the dowress is in the attitude of any one else who has transferred his rights to property. She can not retain the thing transferred so long as the instrument working the transfer is in force and unimpeached in any respect.
    The decree is based on matter arising since the former decree, requiring averment and extrinsic proof, in order that it may be made to appear to the court. The present is substantially a bill to enforce the former decree.
    Speaking of bills to carry decrees into execution, Daniell, in his Chancery Pleading and Practice, page 1585, says: “A bill of this description may also be brought by or against a person claiming as assignee of a party to the decree, ”—citing Organ v. Gardiner, 1 Ch. Ca. 231; Lord Carteret v. Paschal, 3 P. Wms. 197; Binks v. Binks, 2 Bligh, 593.
    Messrs. Isham & Lincoln, for the appellee:
    Appellee defends upon the ground that ever since the death of her husband she has been and is entitled to the possession of the homestead, under section 27 of the Dower act then in force. ■ Until dower has been assigned in the whole of her husband’s estate, the statute has given her a shelter for herself and family. Her dower in the major part of the estate has not yet been assigned. See Strawn v. Strawn's Heirs, 50 Ill. 256.
    If appellant has any right to the possession of this property, his remedy is at law.
    If, as appellant contends, the widow’s dower has been assigned and her quarantine has expired, the heir or his assigns may maintain ejectment against her, and it is the proper remedy. 2 Scribner on Dower, p. 31; Jackson v. O’Donaghy, 7 Johns. 247.
    Courts of chancery, in this State, have no jurisdiction in suits to recover possession of land held adversely. Green v. Spring, 43 Ill. 280.
    Neither is there any matter of account involved in this case such as will call for interference by a court of chancery. Craig V. McKinney, 72 Ill. 312.
   Mr. Justice Mulkey

delivered the opinion of the Court:

A rehearing, having been granted in this case, it is again brought before us for further consideration. When first before us, from the consideration then given it the conclusion was reached, that under the facts presented by the record appellee, by virtue of the 27th section of the Dower act, was, notwithstanding the decree in the proceeding to assign dower, entitled to retain possession of the premises in controversy until her dower was assigned in the Fort Dearborn property also. Upon more mature consideration, however, we are . satisfied that the conclusion then reached can not be sustained, either upon principle or authority. The error into which the court then fell is attributable, probably, to giving an und.ue importance to the section of the statute just referred to, and at the same time under-estimating the legal effect of the decrees, both in the proceeding to assign dower and to sell the premises to pay debts.

At first blush it would seem plausible to conclude, that inasmuch as the statute expressly declares the widow shall retain possession of the entire homestead premises until her dower is assigned, courts are powerless to disturb her in that possession until her dower is so assigned, and such is the fact if she has done nothing to authorize the courts to interpose. But the proposition is not absolutely and unconditionally true. This right of the widow to retain possession does not differ in principle from any other right which the law casts upon her with respect to the lands of her deceased husband. Like other rights, it may be transferred, lost, or forfeited by her own acts, and when it becomes the subject of litigation in a court having jurisdiction to pass upon it, the owner of such right will be concluded by the adjudication with respect to it, precisely in the same way, and to the same extent, as in any other case where property rights have become the subject of judicial determination.

Without stopping to inquire whether the 27th section of the Dower act then in force applies to the extent claimed to a case like the present, where a part of the estate to which the dower attached has been transferred under an order of court to pay debts,—but conceding, for the purposes of the argument, it does, we are nevertheless fully satisfied, from a careful consideration of the question, that appellee, by filing her bill for the assignment of dower, conferred upon the court full power and jurisdiction to adjudicate and pass upon whatever rights she had in the premises, including the right to occupy them till her dower was assigned in the other property. And the court having entered a final decree in the cause, without having provided for her further occupancy of them, and without having postponed the operation of the decree till that event, she is concluded by its provisions, and can not be heard to insist upon any rights with respect to the premises which are not secured by the decree itself, so long as that decree remains in force. Loomis v. Riley, 24 Ill. 307; Abbott’s Trial Evidence, p. 828.

The appellee, in her bill, claimed dower in the Ellis avenue property, and also the right to occupy the premises until her dower was assigned in the other property mentioned' in the bill. The court, by its decree, found she was entitled to dower, saying nothing about the right to occupy the premises till her dower was irrevocably fixed with respect to the other property. This silence in the decree with respect to the right of occupancy is, in legal effect, a denial of it; for, like the right to dower, it was submitted to the adjudication of the court, and it is clear that all such rights as are submitted for adjudication that are not confirmed or recognized by the decree, are by implication denied. And it is no answer, as already stated, to say this right is expressly given by law, for all rights are given by law, either expressly, or by necessary implication, which amounts to the same thing; for it is a familiar rule that whatever is necessarily implied, is as much' a part of the law as that which is expressly stated to be so.

But even if the law permitted any speculations upon this question, it is clear, from the specific provisions of the decree, that it was intended to take effect immediately. The decree, by its express terms, required appellant to commence the quarterly payments of appellee’s dower on the . 21st day of May, 1818, and to continue them during her natural life. As to appellant, therefore, there is no question but that the decree became operative at once, and surely, by every principle of natural justice, if it became operative as to one of the parties, it should be regarded operative as to both. Can it be seriously contended that appellee, under this decree, was entitled to the exclusive occupation and enjoyment of the premises, and also at the same time to her allowance on account of dower during such occupancy? And was it ‘ intended that appellant should go on indefinitely making payments of this allowance, about which there can be no question, and yet at the same time he denied all participation in the use and enjoyment of the property? The simple statement of these questions shows the manifest injustice of giving the decree such a construction.

Nor will it do to say the decree must be regarded as not taking effect as to either party until after her dower is assigned in the Fort Dearborn property, for that would be not only in direct conflict with the express provision of the decree, which requires payment of the dower on specified days, but also in utter disregard of the universal and fundamental principle that all decrees and judgments take effect and become binding upon the parties from their dates, unless otherwise expressly provided.

But there are other manifest reasons why this view should not prevail; for, assuming such to be a proper construction of the decree, appellant’s right to enjoy 'the benefit of his purchase would be made wholly dependent upon the termination of litigation between strangers in which he has no interest which the law recognizes, and over which he has not the slightest control. The rendition of the decree, and acquiescence in it, as to those premises, by all the parties to the suit, followed by the administrator’s conveyance of them to appellant, was a complete severance of any supposed community of interest between appellant and the other parties to the suit, and he is now a complete stranger to the litigation going on between appellee and the heirs with respect to the Fort Dearborn property, just as much so as if a separate suit had been commenced for the assignment of dower in that property to which he was no party. This being so, there is neither reason nor justice in making his rights depend , in any degree upon that litigation, for if this could be done, he might be kept out of the property indefinitely, without any power to obtain redress. By a little collusion between the widow and one of the heirs in such a case, which might very naturally happen between mother and child, the purchaser of a part of the estate at an administrator’s sale might be kept out of his property indefinitely, for he would have no power to compel the heir to assign dower in a piece of land in which he himself had no interest.

The doctrine is well settled that where the defendants in a bill for the assignment of dower, own undivided interests in the lands sought to be partitioned, and the yearly value of the dower is assessed under the statute, it is error to render a decree against all the defendants jointly for the whole amount assessed. In such case, “it should be apportioned among the defendants according to their several interests, and a decree entered against each for his proper share.” Atkin v. Merrell, 39 Ill. 63; Peyton v. Jeffries, 50 id. 143; Scammon et al. v. Campbell, 75 id. 223. When this has once been done with respect to a particular piece of land, and that decree has been affirmed by a court, of review, so that the rights of the parties are irrevocably fixed, as was the case here, there will remain nothing to be done except to carry the decree into effect as made. If such be the rule with respect to tenants in common where there is a community of interest, it will hardly be denied the reasons for applying it are much stronger where there has been, as was the case here, a complete severance of the interests in the lands subject to the dower, by a sale under an order of court, of a distinct part of them. After such conveyance by the administrator the heirs ceased to have any interest in the premises in controversy; and as to appellant, he has not now, nor has he at any time, so far as this record shows, had, any interest in the other pieces of property mentioned in the bill. Such being the case, it is difficult to perceive how his rights in the premises can be made to depend upon the result of a controversy with respect to which he has never had the slightest interest. But it may be said that he bought subject to pending litigation, and must take subject to its results. That is not strictly accurate, for the litigation as to the property in controversy had already terminated when he bought, and he took subject to the decree which had previously been rendered in the dower proceeding, and which, as appears on the face of the decree itself, operated as a complete severance of appellee’s dower, so that each tract became wholly unaffected by and freed from all claims against either of the others on account of dower.

It is, therefore, clear that appellant purchased the premises subject to such claims and incumbrances as existed by virtue of that decree, and no others. To the decree alone, then, we must look for the measure of his liabilities. To extend it beyond that would not only be unjust to appellant, but would certainly result in the most serious consequences. Its direct tendency would be to destroy confidence in public records, unsettle titles to landed estates, and retard their improvement and free transfer from one to another, which it has ever been the settled policy of the State to encourage.

Looking, then, to the decree alone to ascertain the extent of appellant’s liability, we find he is simply required to pay appellee $87.50 quarterly, during her natural life, and this is all. On the other hand, he is clearly entitled to the possession of the property. He has all the time been, and is now, ready and willing to perform this decree on his part; nevertheless he is kept out of the possession of the premises on account of a matter he has no interest in or control over, and to which there is not the most distant allusion made in the decree. Appellant not only has the right to rely on this decree, but also on the decree in the proceeding by the administrator to sell the premises for the payment of debts, for it is through the latter he derives title. As already seen, appellee was made a party defendant to the petition of the administrator, and in her answer thereto she interposed no claim to retain possession after the assignment of her.dower in the premises in controversy until it was assigned and finally settled in the other tracts. Conceding she had such a right, she was bound then to interpose it. She will not be permitted to remain silent when duty and good faith to purchasers required her to speak, and then suffer her afterwards to come in and defeat a title acquired upon the faith of that proceeding, by setting up some new and independent claim which she failed to disclose in her answer. Good faith and fair dealing estop her from enforcing such a claim. When one is made a party to a suit affecting real estate, and is brought into court upon the ground he is supposed to have or claims some interest in it, it is hip duty to fully disclose in his answer .the nature and extent of his interest in the property, if he has any; and on his failure to do so, he will be estopped from afterwards setting, up some new claim to the property not contained in the answer, as against one who has in good faith purchased under such proceeding.

To this rule an exception has been allowed in favor of married women with respect to their rights, and the homestead exemption laws. This exception, however, rests upon considerations of public policy, and should not be extended beyond the reasons which led to its adoption. Suppose A, claiming to be the equitable owner of a piece of land, files a bill for the purpose of recovering the same and • having the title confirmed in himself, making B, who is the real and true owner, a party, the bill simply alleging, as is generally the case, that B claims to have some interest in the premises unknown fo complainant, and the cause proceeds to a decree declaring the property and right of possession to be in the complainant, B, though duly summoned, having failed to disclose his title, we presume that no one, in the case supposed, would for a moment question the right of A to the premises, so long as that decree was acquiesced in by B. Until reversed, or otherwise set aside, it would be conclusive on him and all persons claiming under him. While the law gives the widow a mere temporary defeasible right to her quarantine, it at the same time gives both the right of property and of possession absolutely to the owner in fee, which he, and those claiming under him, may enjoy forever. This being so, it is difficult to perceive upon what principle it can be reasonably claimed that the rights of the owner in fee, which are superior to all other rights in real property, may be lost by his neglect to assert them when drawn into litigation, and yet at the same time insist this mere temporary right of quarantine can not be lost in the same manner. If it be said the law gives the widow the right to retain possession till her dower is assigned, the answer is, as already stated, the law also gives the owner in fee and his heirs both the right of possession and of property for all time to come, and still both may be lost by the laches of the owner. So, if there is any difference in this respect between the two cases, it would seem to be in favor of the owner in fee. But on principle there is no such difference. The rights of both, within their respective spheres, are equally protected by law, yet either may be lost by neglecting to assert it when legally drawn in question.

It is objected, however, that, conceding appellant’s right of possession, as claimed by him, he has a complete remedy at law, and for that reason the present bill can not be maintained. If the only object of the bill was to obtain possession of the premises, and to recover for their use and occupation during the time they have been wrongfully detained by appellee, the objection would undoubtedly be well taken; but such we do not regard as being the case. There is such a complication of circumstances, equitable in their character, connected with the objects of the bill, as in our judgment, to warrant the interposition of a court of equity. For instance, it is charged in the bill, and admitted by the demurrer, that during the time appellant was wrongfully deprived of the possession of the premises he was forced to pay all taxes and special assessments, which amounted to a considerable sum of money, and that during the same time appellee neglected to make ordinary repairs, by reason of which the premises had become greatly injured and out of repair. Now, it is clear that so long as appellee wrongfully deprived' appellant of the possession of the premises, it was her duty to keep them in a state of reasonable preservation by making ordinary repairs, and also to pay all taxes levied thereon, and appellant, by reason of her neglect, having been forced to incur these expenses himself, she is unquestionably bound to account to him for them, and also to make compensation to him for such damages as he may have sustained by reason of her neglect to make reasonable and ordinary repairs.Now, it is manifest that this could all be 'done, at least, more conveniently in a court of equity than in an action at law for mesne profits, if, indeed, it could be done at all in that kind of proceeding.

But in addition to this, the bill discloses the further facts, that during the time the premises were so unlawfully detained .the rental value of the property amounted to double her claim for dower, a part of which appellant, by his bill, seeks to have applied in discharge of such installments of dower as are now due, and the residue to the payment of such as shall hereafter become due, till the same shall be exhausted. It is further shown that appellee is insolvent, and that appellant’s only means of obtaining satisfaction of what is due him on account of the detention of the premises, etc., as just stated, is by having it set off against her claim for dower. This, in.our judgment, presents a clear case for the. application of the doctrine of equitable set-off. It may not be technically a case of equitable set-off, yet when considered in connection with the other circumstances of the case, we have no question as to the right of a court of equity to assume, jurisdiction of it. Mr. Bispham, in his admirable work on Equity Jurisprudence, in treating of this matter says: “Mere matters of set-off will not give the court jurisdiction, for such rights can be effectually tried at law; but where there is anything peculiar in the case, so as to render it impossible for exact justice.to be done by a court of law, under the statutes a court of chancery will afford relief through the medium of an equitable set-off.” (Page 41, 2d ed.)

That the present case falls directly within the rule here announced, there is, in our judgment, no just room for doubt. The case is simply this: While appellee is justly liable to appellant, on account of rents, etc., in a sum double the amount due from him to her on account of her dower, this claim of hers stands as a charge and incumbrance upon his estate, operating as a cloud upon his title, and injuriously affecting its marketable value. "Upon a fair accounting between them he owes her nothing, hut, on the contrary, she is largely indebted to him, and yet his estate is thus incumbered. To recover a judgment at law against her would not place him in any better position than he now is,—his estate would still be incumbered with the lien for unpaid dower. The relief which is indispensable to him is to have such an adjustment of their respective claims as will result in the removal of this incumbrance from his estate, and' this can only be enforced in a court of equity.

It is a mistake to suppose that the insolvency of appellee has nothing to do with this case. We regard it as a strong equitable feature of it. In Raleigh v. Raleigh, 35 Ill. 512, it was said: “The insolvency of a party against whom the set-off is claimed, is a ground for the exercise of equitable jurisdiction,”—citing Gay v. Gay, 10 Paige, 376. To the same effect is the case of Chicago, Danville and Vincennes R. R. Co. v. Field et al. 86 Ill. 272, where Raleigh v. Raleigh is cited with approval. Other authorities might be cited, but we deem it unnecessary.

We are of opinion that the Superior Court erred in sustaining the demurrer to complainant’s bill, and in entering a final decree dismissing the same, and hence it was error in the Appellate Court to affirm that 'decree. The judgment of the Appellate Court is therefore reversed, and the cause remanded, with directions to reverse the decree of the Superior Court and remand the cause to that court, with directions to set aside the order sustaining the demurrer, and to' overrule the same, and to permit the appellee to answer the bill, if she shall be so advised.

Judgment reversed.

Mr. Justice Walkeb :

I am unable to concur in the conclusion reached in this case by a majority of the court. By the rules announced, the homestead of appellee, if she has one, is barred and cut off by the decree fixing her dower, when that question was not raised or litigated in this case. There are other propositions in the opinion to which I do not assent.

Mr. Chief Justice Cbaig, and Mr. Justice Picket, also dissent.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    John A. Lyle v. Charles M. Jacques et al.

      Filed at Ottawa November 10, 1881

      Rehearing denied March Term, 1882.

    1. Taxation—who is liable for taxes as owner. Where commission merchants were to furnish money to country dealers with which to purchase grain, who were to pay ten per cent interest for the use of the money until it was paid, and the commission merchants were to receive one cent a bushel as commission in handling and selling the same, the country dealers to pay all expenses, and have all the net profits, and bear the losses, if any, and to turn over the grain, when bought, to the agent of the parties advancing the money: Held, that the transaction between the two firms was a loan of money by the former, with a security on the grain for its repayment, and that the grain belonged to the latter firm, and was properly assessed and taxed to them.
    2. Same-—mistake in owner’s name will not vitiate tax. An error or informality in assessing a lot of grain belonging in fact to a firm, in the name of 0. M. Jacques & Co. instead of Jacques Bros. & Co., the proper name, the two firm names representing really the same persons, will not invalidate the tax, or furnish any ground for enjoining.its collection from the firm. Equity will not interfere because of mere errors in the assessment, where the tax is authorized by law, and is upon property subject to taxation.
    3. Same—enjoining sale of individual property for taxes due from firm. A partnership firm can not enjoin the collector from selling the individual property of one of its members for the taxes due from the firm. That is a matter for the individual partner himself to complain of, and does not injuriously affect the firm.

      i. Same—notice of sale—os to the place. A collector’s notice of the sale of property for taxes described the property, which was bulky and not movable readily, as standing on a certain fractional quarter section, and that the sale would be at B., in W. county, and the evidence showed that the quarter section was within the limits of the town of B., which was east and west one mile in length, and north and south one-half mile in extent, and containing 1000 inhabitants: Held, that from the character of the property the reasonable understanding from the notice was, that the sale was to be at the place in B. where the property was described as standing.
    Writ of Error to the Circuit Court of Whiteside county; the Hon. John Y. Eustace, Judge, presiding.
    Mr. Walter Stager, for the plaintiff in error:
    The property was assessed to the complainants by their proper name. The proof shows they transacted business under several firm names, including that used by the assessor.
    Equity will not enjoin a tax for errors in its assessment or levy, or proceedings to collect. C., B. and Q. R. R. Co. v. Frary, 22 Ill. 36; Merritt v. Farris, 22 id. 312; Metz v. Anderson, 23 id. 469; Cook Co. v. C., B. etc. R. R. Co. 35 id. 465; Vieley v. Thompson, 44 id. 13; DuPage Co. v. Jenks, 65 id. 286; Swinney v. Beard, 71 id. 30; Andrews v. Rumsey, 75 id. 600; Huck v. C. and A. R. R. Co. 86 id. 360; Town of Ottawa v. Walker, 21 id. 610; Munson v. Minor, 22 id. 602; Drake v. Phillips, 40 id. 393; Munson v. Miller, 66 id. 383;
      Village of Nunda v. Chrystal Lake, 79 id. 314; Evans v. Gage, 1 Bradw. 206.
    Since 1873 the statute has provided that no error in the tax list, in any of the proceedings connected with the assessment, levy or collection of taxes, not affecting the substantial justice of the tax itself, shall vitiate or affect the tax, etc. Rev. Stat. 1874, 889, sec. 191. See Buck v. People, 78 Ill. 566; Chiniquy v. People, 78 id. 575; Thatcher v. People, 79 id. 606; Fisher v. People, 84 id. 496; Moore v. Fessenbeck, 88 id. 423; Purrington v. People, 79 id. 13; Andrews v. People, 84 id. 35; Union Trust Co. v. Weber, 96 id. 351; Beers v. People, 83 id. 493.
    Part of the property assessed—the cribs—it is admitted, belonged to the complainants. The cribs and corn were assessed together. They should, before suing, have tendered the taxes due on the cribs. O’Kane v. Treat, 25 Ill. 562; Taylor v. Thompson, 42 id. 17; Briscoe v. Allison, 43 id. 296; Allen v. Peoria, etc. R. R. Co. 44 id. 90; Huck v. C. and A. R. R. Co. 86 id. 360; Wilson v. Weber, 3 Bradw. 133; State Rairoad Cases, 92 U. S. 575.
    If part of the property levied on is the separate property of some person other than the complainants, such fact furnishes no ground for enjoining the sale of such property at the suit of complainants. DuPage Co. v. Jenks, 65 Ill. 275.
    Even conceding that such property belongs to a merqber of the firm of Jacques Bros. & Co., that does not help their case. Complainants have sued only as a firm, and can not litigate matters concerning only an individual member of the firm. Lawson v. Kolbenson, 61 Ill. 417.
    We submit that the notice of the sale is sufficient. As to the time, it is in the language of the statute, and this is all that is required. Burr v. Borden, 61 Ill. 392.
    Considering the size of the village of Rock Falls, the notice is not so indefinite as to place, that any harm would be likely to result therefrom. Conceding the notice to be defective as to time and place of sale, .that would give the complainants no standing in equity. Finnegan v. City of Fernandina, 15 Fla. 379.
    Messrs. Bennett & Green, and Mr. C. L. Sheldon, for the defendants in error:
    The corn was improperly assessed to 0. M. Jacques & Co., as'the same was not then owned and never had been owned by any such firm; neither had the' assessor any reason for mistaking this firm’s name for that of Jacques Bros. & Co., if the com was properly assessable to them, because, as shown by the testimony, the use of the name C. M. Jacques & Co., as a mode of signing grain checks, was not adopted until the September after the assessment. Cooley on Taxation, 279, note; People v. Whipple, 47 Cal. 591.
    . The corn was turned over to Stevens, Deane & Co. before May 1, 1879, and on that day was in the charge of their agent, whose duty it was to list it. Bev. Stat. 859, p. 10.
    . The assessor had, no right, even on the supposition the cribs were personal property, to assess them against C. M. Jacques after he had made out his list and delivered it to the assessor, and it had been received by him without objection, unless after notice to Jacques that he proposed so to increase his assessment. Cooley on Taxation, 268; Cleghorn v. Postlewaite, 43 Ill. 428; Darling v. Green, 50 id. 424; McConky v. Smith, 73 id. 313.
    The collector levied his warrant upon the corn-cribs, which were„fixtures, and could not be sold by distress separate from' the land or the leasehold estate in the same. Ewell on Fixtures, 362; Reynolds v. Shuler, 5 Cow. 323; Conklin v. Foster, 57 Ill. 104.
    The machinery of the elevator, connected as the horse power was, can not, as between the owner of the freehold and a creditor or tax collector, be taken on execution or distress. Ewell on Fixtures, 360, 353. . .

      In tax sales all the statutory requirements in relation to notice should be strictly observed. Cooley on Taxation, 304, 563.
    And having disregarded the statutory provisions on that subject, the collector became a trespasser ab initio. Cooley on Taxation, 304. 563.
   Mr. Justice Sheldon

delivered the opinion of the Court:

In 1879 the assessor in the town of Coloma, in Whiteside county, assessed certain corn-cribs and corn contained therein, upon which assessment the county clerk extended the tax, and on the non-payment thereof John A. Lyle, the collector of said town, levied his warrant for the collection of the tax on certain property as the property of C. M. Jacques & Co., and advertised the same for sale. The complainants, Charles M. Jacques, John M. Jacques, Rufus H. Sheldon, and Rufus H. Sheldon, Jr., under the firm name and style of Jacques Bros. & Co., filed their bill to enjoin the sale of the property levied upon, and the collection of the tax. The circuit court decreed in favor of the complainants, and the defendant brings the case here on writ of error.

The main ground upon which relief is asked is, that the property assessed belonged to Stevens, Deane & Co., and should not have been assessed to complainants.

It appears that Stevens, Deane & Co. were grain and commission merchants, doing business in Chicago, and Jacques Bros. & Co. were a firm in the grain and stock business at Rock Falls, Whiteside county; that the corn in question was .purchased by Jacques Bros. & Co. with money furnished to them by Stevens, Deane & Co., in pursuance of an arrangement previously made, whereby the latter were to furnish money to purchase corn, and Jacques Bros. & Co. were to pay ten per cent interest for the use of the money until it was repaid. Besides this interest, Stevens, Deane & Co. were to receive one cent a bushel as commission in handling and selling the grain. Jacques Bros. & Co. were to pay all expenses, and have all the net profits, and bear the losses, if any, on the sale of the corn. The corn was to be turned over to Mr. Nance, a banker at Bock Falls, and Stevens, Deane & Co. were to have possession of it. Mr. Nance testifies that oh May 1, 1879, he held the corn in question, as custodian of Stevens, Deane & Co. The name of Stevens, Deane & Co. was placed on the cribs.

The transaction between these two firms, as it is thus presented, was a loan of the money with which the corn was bought, to Jacques Bros. & Co., and a security upon the corn for the repayment of the money, with interest. It was the corn of the complainants, subject to the lien on it of Stevens, Deane & Co. for the repayment of the money they advanced. Under this arrangement, too, between the two firms, this tax. would be an item of expense, with regard to the corn, which it would be for the complainants to pay,—it would go in reduction of the net profits which they were to receive, and they come unfavorably into a court of equity asking to have the tax shifted from themselves to Stevens, Deane & Co. There is no equitable ground of complaint that the assessment was made to the complainants.

It is said that the firm name of complainants is Jacques Bros. & Co., and that the assessor erred in assessing the property to them by the name of C. M. Jacques & Co. It appears that in doing their business complainants have used the three several names of Jacques Bros. & Co., C. M. Jacques & Co., and J. M. Jacques & Co., the explanation being that they kept separate accounts with their banker in doing their grain and stock business, and that in drawing checks different names were used to distinguish the accounts. Complainants claim that after September, 1879, they drew their grain checks in the name of C. M. Jacques & Co., and before that time in the name of J. M. Jacques & Co. or Jacques Bros. & Co. only. ° The assessor testifies that about the 1st of June, 1879, he informed C. M. J acques that he had assessed the corn' to C. M. Jacques' & Co.

It was early declared as the rule in this State, that equity will not interfere, by injunction, to restrain the collection of taxes because of errors in their assessment, where the tax is authorized by law, and it is assessed upon property subject to the tax, (Chicago, Burlington and Quincy R. R. Co v. Frary, 22 Ill. 34,) and this general rule has ever since been followed: Besides, it is a provision of the statute that “no error or informality in the proceedings of any of the officers connected with the assessment, levying or collecting of the taxes, not affecting the substantial justice of the tax itself, shall vitiate or in any manner affect the tax or the assessment thereof. Bev. Stat. 1874, p. 890, see. 191.

The three different names here, Jacques-Bros. & Co., J. M. Jacques & Co., and C. M. Jacques & Co., all mean the same— these complainants. There is no pretence that the tax or the assessment respects or concerns any other person than these, complainants, and Stevens, Deane & Co. The tax is a just one against the complainants, and making the assessment to them by the name of C. M. Jacques & Co., instead of Jacques' Bros. & Co., creates no. doubt that complainants were the persons intended, and is not a thing that affects the substantial justice of the tax itself, and at most is but an error in the assessment of such kind that, under the provision of the statute above cited, does not vitiate or affect the tax or assessment, and is no ground for equitable interference with the collection of the tax.

The bill states that some of the property levied on is the: separate property of Charles M. Jacques. This we conceive-furnishes no ground for enjoining the sale of such property at the suit of complainants. . It is a matter for the individual partner himself to complain of, and not these complainants, who sue only as a firm. The mere statement of the bill, that the horse-power—the property of Charles M. Jacques-^was in the possession of, and under the control of, complainants, we do not regard as showing that they had any substantial right in the property.

Some point is made in the argument that the corn-cribs were buildings situated on leased ground, and which were, for the purposes of taxation, real estate, and were not taxable in the town of Coloma as personalty, neither as realty, separate from the land,—that the corn-cribs were fixtures, and could not be sold by distress separate from the land or the leasehold estate in the same, and that the horse-power levied on by the collector was fastened to a large elevator building with iron bolts, and was a fixture, and could not be removed and sold in this proceeding,—which point we do not notice further, as the bill makes no case of such kind. The allegation of the bill in such regard is simply that the said corn-cribs and separator are the property of, and in possession of, Jacques Bros. & Co., and that the said horse-power, rod and levers are the property of Charles M. Jacques, but in the possession and under the control of complainants, and are a portion of the machinery used by complainants in running an elevator at Bock Falls, and that the separator is run in connection with the elevator, and that the removal of the horse-power and separator would irremediably injure complainants, by the stoppage of the elevator. These allegations, we consider, make no case for the consideration of such question of fixtures as is presented in the argument of appellee’s counsel.

It is objected that the collector’s notice of sale is defective, in that it does not name the place where the sale of the property would take place. The notice describes the property as standing on the north-east fractional quarter of section 28, describing it, and that the sale would be at Bock Falls, in Whiteside county. The evidence shows the north-east fractional quarter of said section 28 to be within the corporate limits of Bock Falls, and Bock Falls to be in extent one mile east and west, and one-half mile north and south, containing 1000 inhabitants. From the character of the property, the bulk of it not being movable, the reasonable understanding from the notice would be that it was to be sold at the place in Bock Falls where the property was described in the notice as “standing. ” ' We regard the potice as sufficient.

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

Decree reversed.


author: Craig, Ch. J.:

text:
    The People ex rel. Hughes v. Samuel Appleton.

      At Ottawa, March Term, 1882.

    Practice in the Supreme Court—oral argument on demurrer. This court will not hear oral argument upon a demurrer to a pleading in an original proceeding here, except the cause is to be finally submitted for consideration on the demurrer.
    This is an information presented to this court, in the name of the People, against Samuel Appleton, an attorney of this court, for the purpose of having the defendant’s name stricken from the roll of attorneys. The defendant filed his answer, and also took exception to the sufficiency of the information, by way of demurrer thereto, and thereupon moved the court to set the cause down for hearing on oral argument upon the demurrer.
    Mr. Edward Boby, for the motion.
   Craig, Ch. J.:

It is not the practice in this court to hear oral argument upon a demurrer except upon a final submission of the cause on the demurrer. If the defendant choose to withdraw his answer and submit the cause for final hearing on the demurrer, we will hear oral argument.

Motion denied.


author: Walker, J.:

text:
    The Kankakee and Seneca Railroad Company v. George Straut.

      At Ottawa, March Term, 1882.
    Appeal—/rom county court to Supreme Court—in condemnation proceeding. An appeal will lie directly from the county court to the Supreme Court in a proceeding to condemn land for a right of way for a railroad, under the Eminent Domain act.
    Appeal from the County Court of Grundy county.
    This was a proceeding in the court below .to condemn land for a right of way for a railroad over the premises of appellee. The railroad company appealed. A motion is now made on behalf of the appellee to dismiss the appeal for the want of jurisdiction in this court, it being insisted the appeal should have been taken to the Appellate Court.
    Messrs. Doud & Wing, for the motion, contended that the 12th section of the Eminent Domain act, giving an appeal directly from the county court to this court, was repealed by section 67 of the Practice act, (acts 1877, p. 149,) and that this appeal should have been taken to the Appellate Court.
    Mr. M. N. Armstrong, contra.

   Walker, J.:

The 12th section of the Eminent Domain act, in express terms, gives the right of appeal in cases of this character, directly from the trial court to this court. We do not think anything contained in the Practice act should be held to operate as a repeal of that section. The appeal was properly taken from the county court to this court.

Motion denied.


author: Scott, J.: Dickey, J.

text:
    Paul G. Hawley v. John R. Simmons et al.

      At Ottawa, March Term, 1882.

      Reheabing—additional suggestions in support of petition. Additional suggestions in respect to the grounds of an application for rehearing in this court, proposed to be made after the time prescribed ljy the rules for the filing of the petition, will not be received as of course, but only upon proper cause shown.
    A petition for a rehearing of this cause was filed in behalf of the defendants in error, in vacation preceding the March term, 1882. At that term counsel for the petitioners asked leave to file additional suggestions in support of the application for rehearing.
    Messrs. A. G. McDole, and Mr. E. F. Bull,-for the motion.
   Scott, J.:

The motion for leave to file additional suggestions in support of the petition for a rehearing can not be allowed. The practice in regard to the time of filing the petition is regulated by rule forty-one, and that rule should in all cases be strictly observed, unless, upon special cause shown, we should deem it proper to grant the indulgence of making further suggestions as to the grounds of the application, after the original petition has been filed. Such indulgence will not be granted as of course. Special cause must be shown, and that has not been done on this motion.

Motion denied.

Dickey, J.

-. I think the motion ought to be allowed. The rule prescribing the time within which petitions for rehearings shall be filed, was adopted mainly for the purpose of facilitating the publication of the decisions of the court, and should not be regarded as an iron rule to control in all cases. "Where a petition has been filed within the rule, and the party afterwards asks leave to file additional suggestions in support of his petition, and the action of the court will not be improperly delayed thereby, I see no good reason why it should not be allowed, even without special cause shown.


author: Mulkey, J.:

text:
    Lizzie W. R. Allen v. John V. LeMoyne et al.

      At Ottawa, March Term, 1882.

    Practice in the Supreme Court—supplying deficiencies in the record—at what time. It is too late, after the decision of this court has been rendered in a cause, and pending an application for a rehearing, to ask for leave to supply alleged deficiencies in the record, unless there be shown very special circumstances calling for an exception to be made to the usual and proper mode of proceeding.
    Pending an application for a re hearing of this cause, counsel for the plaintiff in error entered the following motions:
    First—To receive and file the additional transcript herewith presented, as part of the record in the above entitled cause, and to consider the same in connection with the transcript already filed, upon the assignment of errors alleged thereon.
    Second—Said counsel also moves for leave to assign as an additional error upon the record in this cause the denial of the motion in said additional transcript shown.
    Third—Said counsel also moves for an order commanding-the circuit court to allow said motion in said transcript shown, or for such order in the premises as the circumstances of the case may require.

      Fowi'th—Said counsel also moves the court to consider the motion to file affidavits, and require amendment of record according to offer made.
    In support of these motions, counsel suggested that this was a suit in chancery, iff which oral testimony was heard, but that such testimony was not preserved in the record, alleging that the absence of the oral evidence was attributable to obstructions interposed by the counsel for the defendants in error.
    Mr. Edward Roby, for the motions.
    Mr. John P. Wilson, contra.

   Mulkey, J.:

Ordinarily, the purpose of a rehearing of a cause which has been decided by this court, is to bring in review the decision already made, in the light of the facts as they appeared of record at the time of the original hearing,, and the law as applicable to those facts. If it happen that the record is so far incomplete as not to present the real merits of the case as developed on the trial in the court below, steps should be taken in apt time to supply the deficiency. It is too late at this stage of the case,—after the decision of the court has been rendered, and pending an application for a rehearing,—to ask that the alleged omitted matter be now supplied, and thus perhaps present an entirely different case for our consideration from that submitted for determination on the original hearing. ■ Such a practice would be exceedingly objectionable, as enabling parties to bring their cases to this court by piecemeal, and should not obtain in any case except there be shown very special circumstances, which we do not discover here, requiring a deviation from the usual course. The motions will have to be denied.

Motions denied.


author: Scott, J.: Dickey, J.:

text:
    Albert Paul Smith et al. Admrs. v. Franklin Dennison, Receiver.

      At Ottawa, March Term, 1882.

      1. Rehearing—second application by the same party. A second petition for the rehearing of a cause in this court by the same party will not be entertained.
    2. Nor is the application of this rule affected by the fact that the court, upon denying the original petition for a rehearing, may have modified the language of its opinion, or even changed the grounds of its decision. It is the decision, of the court, not so much the reasons given for that decision, that is the subject for reconsideration upon an application for a rehearing, and when the decision originally made is adhered to upon such reconsideration, although the reasons given for it may have been modified, it will not be open to further review at the instance of the same party.
    The original opinion in this case was filed in vacation preceding the September term, 1881. The defendant in error filed his petition for a rehearing of the cause, under the 0 rules of this court, which was considered at that term, and denied, the court, however, taking occasion to modify, in some respects, the language of the opinion previously filed, but adhering to its decision already made. Subsequently, the defendant in error filed his second petition for a rehearing to the present term.
    Mr. J. L. High, for the defendant in error, insisted that the right to present this second petition was given by the 41st rule of this court, this being the first application for a rehearing in respect to the modified opinion.
   Scott, J.:

This second petition for a rehearing can not he entertained. It has never been the practice in this court to permit the filing of a second petition of this character by the same party. Garrick et al. v. Chamberlain, 100 Ill. 476. It matters not that upon the denial of the first petition the court saw proper to modify the language of its opinion previously filed. It is the decision of the court, not so much the reasons which may have been assigned for that decision, that is the subject for reconsideration upon an application for the rehearing of a cause. If the decision originally made is adhered to on such reconsideration, although the reasons given for it may be modified, or the grounds of the decision changed, it will not be open to further review at the instance of the same party. -

Petition dismissed.

Dickey, J.:

I think that sometimes-a second- petition for a rehearing, by the same party, may well be entertained. I do not object so much to the application of the rule in this particular case, as the modification of the opinion does not seem to be very material, though I think the petition ought to have been simply denied, not dismissed. Cases may arise where, upon an application for a rehearing,' although the original decision of the court be adhered to, the grounds of that decision may be-so essentially changed, that it"would be highly proper, even at the instance of the same party, to entertain a second petition for rehearing.


author: Mr. Justice Scott Mr. Justice Dickey,

text:
    Portia Gage v. William M. Bailey et al.

      Filed at Ottawa November 10, 1881

      Rehearing denied March Term, 1882.

    1. Fobmeb adjudication&emdash;judgment against land for taxes. A judgment in the county court for taxes is not conclusive upon the owner, of the liability of the land for the taxes assessed on it, where he does not appear and contest the application for judgment, but he may still question the legality of the tax in another proceeding, as, on bill to set aside the tax deed as a cloud upon his title. But if he appears and contests the application, he will be concluded by the judgment, the same as in any other case.
    2. Pleading and evidence&emdash;evidence must have its foundation in pleadings. On a bill to set aside a tax sale and deed, on the ground of illegality in the proceedings, no objection can be considered which is not alleged in the bill.
    3. Taxes&emdash;certificate of town taxes. Under sec. 7, art. 10, chap. 103, Gross’ Statutes of 1808, any certificate by the town clerk, no matter in what form of words, which gives the board of supervisors to understand definitely what amount of taxes is required to be levied for town expenses, is sufficient. Such information may be given by stating the rate per cent on the taxable property of the town, as well as by giving the aggregate amount of town tax to be levied.
    4. Same&emdash;board of supervisors not required to levy town tax, or keep a record thereof. The board of supervisors are not required to levy the taxes required to defray town expenses, but only to cause the same to be levied, and where the proper rate has been levied and extended, it will be presumed it was done by the proper authority, although the record may fail to show that the board ordered the same to be levied. The board is not required to make a record of its action in such matters.
    5. Same—illegality of tax must be clearly shown, to avoid sale. As three per cent is authorized by statute to be levied by school directors for “building purposes, ■” a sale of lots, on a judgment for school taxes of that rate, will not be held illegal, on bill in chancery to set aside a tax deed, without any allegation or proof as to the school district in which the lots are situated, or the rate required to be levied in each of the districts in the township.
    6. Tax sale—evidence as to sale era masse. The fact that several lots are included in one certificate of purchase affords no evidence that they were nqt sold “separate^ and in consecutive order,” as required by law. It seems that the sale and redemption book used by the collector in making tax sales affords the only evidence as to the manner in which lots have been sold.
    7. Same—sufficiency of notice before, deed. The service of notice of a tax purchase of land on the only party in -the possession of the premises, more than three months before the expiration of the time of redemption, where the property has not been assessed in the name of any person, is sufficient to entitle the purchaser or his assignee to a deed. It is not necessary that the service of the notice should be had on the premises, hut may as well be made elsewhere.
    Appeal from the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.
    This was a bill in equity, filed by William M. Bailey, Geo. B. Buggies, and Amasa M. Eaton, trustees, under the will of Sarah B. Eaton, deceased, to set aside a sale and conveyance of certain lots for the taxes of 1872.
    The following is a copy of the affidavit of the service of notice of the purchase, and of the expiration of the time to redeem:
    “State of Illinois, ")

      Cook County. ss'
    “Edward L. Couch being duly sworn, says that he resides in said county, and is the agent of Asahel Gage; that as such agent, deponent, on the 3d day of September, 1874, served a notice, of which the annexed notice is a true copy, on P. N. Duval, by handing the same and leaving the same with him, said P. N. Duval, in said county. Deponent is acquainted with the premises mentioned in said notice, and the person so served was the only person in possession thereof three months before the time of redemption from the sale mentioned in said notice expired, to-wit, on the 3d day of September, 1874, and for more than thirty days previous and subsequent thereto, and said premises were not taxed in the name of any person. Edward L. Couch.
    “Subscribed and sworn to this 3d day of January, A. D. 1876, before me. Augustus N. Gage,
    Notary Public.”
    Mr. Augustus N. Gage, and Mr. Henry D. Beam, for the appellant.
    Mr. J. P. Altgeld, and Messrs. Peckham & Brown, for the appellees.
   Mr. Justice Scott

delivered the opinion of the Court:

A freehold is involved in this litigation, and hence the case is brought directly from the circuit court to this court ion appeal. Both parties claim title to the land described in the hill, complainants” having the patent title, and defendant having a tax deed, which she insists is now the paramount title. It appears the property was assessed for the year 1872, for State, county, town and school taxes, and West Park boulevard assessments. The taxes not having been paid, this property, with other lands and lots, was returned delinquent. On application by the proper officer, judgment was rendered in the county court of the county where the property is situated, for such unpaid taxes, and on the precept issued, the property was sold to Henry H. Gage for the taxes and costs due thereon, to whom the usual certificate of purchase was issued. Afterwards the purchaser assigned his certificates, by writing thereon, to Asahel Gage, who claims to have given the notices required by law, and the lots not having been redeemed from the sale, he received a tax deed therefor in the usual form. The title he thus acquired he conveyed to defendant, Portia Gage, and it is under that title she defends.

. This bill was filed by the trustees under the will of Sarah B. Eaton, deceased, against Portia Gage, to have the tax deed under which she claims title to the property declared void, on account of certain irregularities set forth specifically in the bill, and to have it removed as a cloud upon the title they represent. An amendment to the-original bill sets forth with more definiteness the irregularities in levying and assessing taxes, relied on as being fatal to the tax deed, as well as irregularities said to have occurred at the sale and since the judgment in the county court, and makes a tender of the moneys paid on the premises at such tax sale, and subsequently, with interest, as the court on the hearing shall find to be just. An answer to the bill was filed by defendant, in which she insists on the validity of the tax deed to her grantor, under which she deraigns title, denying all allegations of noncompliance with the provisions of the statute' in levying and assessing taxes, and avers strict compliance with the law in all proceedings necessary to vest the title to the property in the assignee of the purchaser at the tax sale, to which a replication was filed, and on the evidence submitted the court decreed substantially according to the prayer of the bill. The cause comes "to this court on defendant’s appeal.

This court has decided in The Belleville Nail Co. v. The People, 98 Ill. 399, that a judgment in the county court for taxes is not conclusive upon the owner, of the liability of the land for the taxes assessed on it. It is otherwise where the owner appears and contests the application for judgment. In such case he will be concluded by the judgment of the court, as in any other case in which the matters in contention have been once litigated. The owner, in this case, did not appear to contest the application for judgment for the tax assessed against the lands in controversy, and hence the objections taken to the regularity of the proceedings, both before and after the judgment, are open for consideration.

A number of alleged departures from the requirements of the statute in levying and assessing certain taxes are set forth in the bill, but it will only be necessary to remark upon such as are insisted in argument as being fatal to the validity of the tax-deed. As respects the town tax included in the judgment, for which, with other taxes therein included, the lots were sold, and which is the basis of the deed, it is said they were illegal and void for two reasons assigned:

First—The certificate' of the town clerk of the amount required to be raised to defray town indebtedness, is not in conformity with the provisions of the statute then in force. Section 7, art. 10, chap. 103, Gross’ Statutes 1868, declares it to be the duty of the board of auditors to make a certificate, to be signed by a majority of such board, specifying the nature of the claim or demand against the town, and to whom allowed, and then to cause such certificate to be delivered to the toivn clerk of such town, to be by him kept on file in his office for the inspection of any of the inhabitants of the town. So far as this record discloses, the auditors may have complied literally with this provision of the statute—at least no complaint is made they did not. The statute further provided, the “aggregate amount” of claims audited shall be “delivered to. the supervisor, to be by him laid before the board of supervisors at their annual meeting, ” and then it is declared to be the duty of the board of supervisors to cause “the amount of said charges to be levied upon the property of said town, and collected as other taxes are levied and collected.” The objection insisted upon is, the town clerk certified “the amount of town tax” to be raised was a certain rate per cent to be levied upon each dollar’s worth of real and personal property in the town, according to the assessed value, to defray town charges, instead of the “aggregate amount” of such claims or demands. It is not perceived the bill contains any allegation the town tax was illegal for any such cause, and that would seem to be a sufficient answer to the position taken. But it will be noted the statute then in force on this subject is silent as to whose duty it was to deliver a statement of the “aggregate amount” of the claims audited, to the supervisor, or as to what the certificate should ■ contain. Any certificate by the town clerk, no matter in what form of words it was expressed, that would give the board of supervisors to understand definitely what amount of taxes was required to be levied for town expenses, would undoubtedly be sufficient. That the town clerk did by certifying the “amount of taxes,” which is an equivalent expression with “aggregate amount,” required to be levied to defray claims and demands audited against the town, was a certain rate per cent on the taxable property of the town. The needed information could as well be given by stating the rate per cent on the taxable property of the town according to its assessed value, as by stating the “aggregate amount” of such claims or demands. The rate per cent stated, if extended on each dollar’s worth of real and personal property in the town, according to its assessed value, would produce the “aggregate amount” needed, and the “aggregate amount,” if apportioned, would give the rate per cent stated. Either mode adopted would lead to the same result, and would be as definitely understood, and adopting one or the other mode would not in the slightest degree affect the justness of the taxes imposed.

Second—As to the objection the county board did not levy the taxes in question, it may be answered it was no more the business of the county board to levy the town taxes than it was its duty to collect such taxes. It was only the duty of the board to cause the amount of the charges so certified to be levied on the property of the town, and collected “as other taxes are levied and collected. ” It stands admitted the town taxes were in fact levied, and no complaint is made any greater sum was levied than ought to have been extended for collection. It will be presumed such taxes were levied by the proper authority under the statute, until the contrary is made to appear. Any other rule would make it exceedingly difficult to collect the public revenues. All the statute made it the duty of the county board to do, was to cause the amount of the charges against the town to be levied upon the property of the town, and collected as other taxes are levied and collected. That, as we have seen, was done, and there can be no just ground for complaint on that score, as the very thing the law required to be done was in fact done by some authority. Because a party may have searched and found no order of the county board on record directing the amount of the charges against the town to be levied and collected, by no means proves the board did not cause such taxes to be levied as other taxes. No provision of the statute then in force has been cited that made it the duty of the county board to make a record of their action in such matters. The manner of causing the town taxes to be levied, even if the board omitted or neglected to make any record of its action, did not, and could not, affect injuriously the tax-payer. This court has had frequent occasion to say it would not entertain an objection to taxes levied by municipalities where the irregularities insisted upon do not affect unjustly the rights of the citizen. Chiniquy v. The People, 78 Ill. 570; Purrington v. The People, 79 id. 11.

A school tax was included in the judgment for taxes against the property of complainants, for which it was sold, and which it is said was void because a rate per cent in excess of that authorized by law was levied, and therefore it vitiated the sale.

The evidence concerning the school tax included in the judgment, of which complaint is made, is very meagre and unsatisfactory. No allegation is discovered, either in the original or amended bill, as to the school district in which these lots are situated, nor can it be ascertained from the evidence in what district they are situated. It does appear from a quotation from the judgment record introduced in evidence, a tax of three per cent was extended on the equalized value of each lot, but three per cent is authorized by the statute to be levied for “building purposes.” Certificates from the directors of a number of school districts, stating the rate per cent required to be levied in their respective districts, were given in evidence, but no ■ proof was made they comprised all the districts in the township. Non constat, there may have been other districts in which a tax for “building purposes” may have been authorized, and the papers lost from the files, or mislaid, so that they could not be or were not found. Enough has not been proven to warrant a court in declaring the school tax included in the judgment to be illegal and void.

It remains to consider alleged error, said to have occurred at and subsequent to the sale under the judgment of the county court. The first objection noted is, the lots against which judgment was rendered were not sold “separately and in consecutive order, ” as the law requires such sales to be made. There is no evidence in this record the lots were sold en masse, or in any other manner than the law directs. All the evidence offered was the certificates issued to the purchaser, but they afford no evidence the lots were not sold “separately and in consecutive order,” as the statute requires. When a party buys one or more lots or tracts of land at a tax sale, the statute authorizes the county clerk to issue to him a certificate for the whole number, or for one or more of the lots by him purchased, as he shall elect, and the fact. he may elect to have several lots or tracts -of land included in the same certificate, is no evidence such lots or tracts of land were sold en masse. It is apprehended what is known as the “sale and redemption hook, ” used by the collector in making the sale, would afford the only evidence as to the manner in which the sales of the lots in this case were made, and that does not seem to have been introduced in evidence.

Elaborate arguments have been made upon the point no sufficient notice was given, either by the purchaser of the lots at the tax sale, or his assignee, as required by law, before a deed could be rightly made to the assignee. The precise question raised and discussed in this case was considered by this court in Garrick v. Chamberlain, 97 Ill. 620, and there is, therefore, now no necessity for discussing it again as a new question. It was proven in this case, as it was in Garrick v. Chamberlain, the assignee of the purchaser caused a notice to be served on the party in possession of the premises, more than three months before the time of redemption expired, that the lots were not assessed in the name of any person, and that the party so served with notice was the only person in the actual occupancy of the premises. That was regarded as a compliance with the. statute, and that it was sufficient to comply with the statute to entitle the purchaser to take a deed. Some criticism is made on the affidavit of service of notice, that it does not set forth with sufficient certainty the party served with notice was in possession of the property at the date of the service. The fact might perhaps have been more clearly stated, but it is apparent from the reading of the affidavit the notice was served on the party in the actual occupancy of the premises on the 3d day of September, 1874, which was more than three months before the expiration of the time of redemption. The reading of the affidavit makes no other impression on the mind. It is wholly immaterial whether the party went upon the premises to make service of the notice. It was sufficient if he did in fact serve the notice on the only person in the actual possession of the premises in apt time, and that the property taxed had been assessed in no name. That brings the case precisely within the rule in Garrick v. Chamberlain, and that case is conclusive on this point in the case in hand.

The decree of the circuit court will be reversed, and the cause remanded for further proceedings not .inconsistent with this opinion.

Decree reversed.

Mr. Justice Dickey,

dissenting:

Before and at the time of the tax sale, and subsequent to that time for more than two years, the owner of the property in question was Levi H. Thomas, and one Blanchard had an interest in the property as a trustee, under a deed of trust made by Thomas to secure to certain creditors of Thomas money due to them. The title of Thomas and the interest of Blanchard were shown by the contents of the books in the recorder’s office. Thomas and Blanchard each was, during all that time, a resident of Cook county, with a place of business in the city of .Chicago, and the name of each appeared in the directory for that city.

The only notice of the kind, as to time for redemption, was a written notice, served personally on the 3d day of September, 1874, on one P. N. Duval, being at that time (as it is claimed) the occupant, and the only occupant, of the land. No notice whatever was given, either personally, by publication, or otherwise, either to the owner, or to Blanchard, or to the creditors named in the deed of trust.

Section 5, of art. 9, of the constitution of 1870, says: “The right of redemption from all sales of real estate for the non-payment of taxes or special assessments, of any character whatever, shall exist in favor of owners and persons interested in such real estate for a period of not less than two years from such sales thereof. And the General Assembly shall provide by law for reasonable notice to be given to the owners or parties interested, by publication or otherwise, of the fact of the sale, * * * and when the time of redemption shall expire: Provided, that occupants shall in all cases be served with personal notice before the time of redemption expires.” The General Assembly, in an attempt to do the thing thus commanded by the constitution, provided, in sec. 216 of the Revenue law of 1872, that “hereafter no purchaser, or assignee of such purchaser, of any land, town or city lot at any sale of lands or lots for taxes or special assessments, * * * shall be entitled to a deed * * * until the following conditions have been complied with, to-wit: Such purchaser or assignee shall serve, or cause to be served, a written or printed (or partly written and partly printed) notice of such purchase on every person in the actual possession or occupancy of such land or lot, and also the person in whose name the same was taxed or specially assessed, if upon diligent inquiry he can be found in the county, at least three months before the expiration of the time of redemption on such sale. * * * If no person is in the actual possession or occupancy of such land or lot, and the person in whose name the same is taxed or specially assessed can not, on diligent inquiry, be found in the county, then such person or his assignee shall publish such notice in some newspaper printed in such county, * * which notice shall be inserted three times—the first time not more than five months, and the last time not less than three months, before the time of redemption shall expire.”

■ It is insisted by appellant, that under this constitutional provision no notice to the owner was essential to the validity of a tax deed until the requisites and mode of such notice were prescribed by statute, and that hence a compliance with the express provisions of the statute, when enacted, is all that can be necessary to the right to a tax deed. I do not concur in this view. As I understand the constitution, it meant to provide, and in fact did provide, that in all cases of sale of lands for taxes the owner should have a right of redemption for at least two years from the date of the sale, and should have an opportunity to make such redemption within the period limited, after having notice, by publication or otherwise, of the fact of the sale, and of the time when the time for redemption should expire; and it was left for the General Assembly to specify what mode of notice, other than by publication, should be deemed reasonable, and to fix upon some reasonable length of time in which such owner should have such notice before the expiration of the time for redemjotion. It was never meant that the constitutional right of the owner to reasonable notice (that he was liable to lose his land in that way) should be left to depend upon the action of the legislature. Under the constitution of 1848, the right to notice in this regard was granted and secured to occupants and persons in whose names the land was assessed. That constitution specified in detail the time and mode of giving such notice. By the constitution of 1870, this right to have such notice was granted to the. owner, and the legislative details as to time and mode (found in the constitution of 1848) are referred to the discretion of the General Assembly.

Keeping this in view, we find the act of 1872 to declare that where land is assessed or taxed in the name of any one as the owner, the purchaser at the tax sale may lawfully assume, for this purpose, that such person is in fact the owner, and that in such case personal notice on such person, if to be found in the county, (and if not, then notice by publication,) shall be deemed, for this purpose, notice to the owner, if the land be unoccupied, and in case the land be occupied, then, in addition to notice to the person in whose name the land is listed, a personal service upon the occupant shall be given-. There is no provision, however, that personal service of notice on the occupant shall be sufficient, in case no name is given as that of the owner in the tax list, or that in such case no notice need be given the owner. In that case the requirement of the constitution that the owner shall have reasonable notice, by publication or otherwise, remains, and the statute being silent upon the subject, the utmost that can be reasonably claimed in behalf of the holder of the certificate is, that he may give such notice to the owner as is, in fact, reasonable under the circumstances,—this to be judged of by the courts, whenever the same may come in question.

I think that where the title of the owner is shown by the recorded title papers in the public office of the recorder, reasonable diligence must be used to find and serve notice personally upon such owner, if a resident of the county, and in case of failure to find the owner, by reason of non-residence or otherwise, notice by publication, or some other reasonable mode, must be made before any tax deed can lawfully issue.

Attention has been called to certain remarks of the judge who delivered the opinion filed in the case of Garrick v. Chamberlain, 97 Ill. 620. In that case it seems notice was given only to the person in the actual possession of the lot, and not also to the owner of the lot, and it was objected that the notice was not sufficient, and this constitutional provision was cited. On that question it is said, in that opinion: “Proof was made of the service of notice upon the person who was in actual occupancy of the premises, and that he was the only one in such occupancy, and that the lot was not assessed in the name of any person. This we regard' as a compliance with the statute, and that it is sufficient to comply with the statute. ” This remark, in that opinion, can not be regarded as binding authority. It never had the sanction of a majority of the court. Three of the judges dissented entirely to the conclusion reached in that case, and the fourth, concurring in the conclusion reached, declared that he did not concur in all the reasoning found in the opinion.

There were two other reasons assigned in that opinion why the objection of want of proof of sufficient notice of the fact of the tax sale should not prevail in that case. First, that it was a bill to set aside the tax deed, and the bill stated several specific objections to its validity, but it did not charge that the tax deed had been issued without sufficient notice of the fact of the tax sale, or without notice to the proper parties, hence it was said the question was not in issue, and could not be raised, for the first time, in a court exercising appellate jurisdiction only. Again, it was said, as a reason why the invalidity of the tax deed could not be relied upon in that case, that before that suit a former bill by the same complainant, for the same purpose, had been brought against the same parties, and by order of the court had been dismissed without any qualification, such as without prejudice, and therefore the deed had been adjudged valid, and its validity could not again be questioned between the same parties. If the question now raised here was not' in issue in Garrick v. Chamberlain, supra, and if the question could not be considered in that case because it had become res judicata in another case previously decided, the passing remark as to what the court thought on that subject, had it been before the court, could in no event be of much importance; and when a majority of the court expressly refuse to indorse the remark, it ought not to have the effect of controlling the ruling on a question directly presented for our determination.

• I think the decree in this case ought to be affirmed.

Scholfield and Mulkey, JJ, also dissent.


author: Mr. Chief Justice Craig

text:
    Lizzie W. R. Allen v. John V. LeMoyne et al.

      Filed at Ottawa November 10, 1881

      Rehearing denied March Term, 1882.

      Chancery—preserving the evidence—finding the facts in the decree. In order to sustain a decree it is not necessary that the evidence of the fabts shall be preserved in the decree, although not otherwise preserved, but it is sufficient if the facts established by the evidence are recited in the decree. A finding that a party has no interest in lands the right to which is involved in the suit, is not open to the objection that it is not a finding of facts but is a mere inference from a variety of facts.
    Writ of Error to the Circuit Court of Cook county; the Hon. E. S. Williams, Judge, presiding.
    Mr. Edward Roby, for the plaintiff in error.
    Mr. John P. Wilson, for the defendant in error John V. LeMoyne.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by Lizzie W. R. Allen, in the circuit court of Cook county, against John Y. LeMoyne, George Shiras, Jr., and others. The bill contains numerous allegations, but the main purpose of the bill seems to be to obtain a decree - vesting -the title to a large tract of land in Cook county, .claimed by LeMoyne, in the complainant. The bill prays that certain deeds executed - by complainant and Polly H. Ricketson be set aside; that a certain contract, known as the Tiernan contract, be declared void; that a certain decree of the United States court, in favor of one Quimby, be declared void and no lien on the land; that LeMoyne, Shiras, and Wilkins, be required to convey the premises; that a conveyance made by Wilkins to LeMoyne be declared void; that a deed made by Merrick be declared void; that the Canal Commissioners he decreed to convey the legal title of the land to complainant. Answers were put in to the bill, and the defendant LeMoyne filed a cross-bill, in which he made the complainant in the bill and the Canal Commissioners parties defendant, and in which he prayed that the deeds made by the complainant may be established, and declared by the court a sufficient bar to any claim by said complainant on, or interest in, said lands, and that the Canal Commissioners may be decreed to convey an undivided half of the lands named in the bill to orator, etc. An answer was filed to the cross-bill, a hearing had on the testimony, and upon the hearing the court rendered a decree dismissing the bill, and requiring the Canal Commissioners to convey, as prayed for in the cross-bill. To reverse the decree, the complainant in the original bill has sued out this writ of error.

We have been favored with an elaborate oral and printed argument on behalf of plaintiff in error, in which it is argued that the decree of the circuit court is not warranted by the evidence; but upon an examination of the record we find that the decree was rendered upon testimony which had been taken in the cause, and oral .evidence taken in open court, and that the oral evidence has not been preserved by certificate of evidence, and incorporated into the record. The transcript of the record contains the depositions which had been taken in the ease, but no part of the oral evidence heard in open court. The court, in its decree, however, from the evidence heard on the trial, found certain facts, a portion' of which are as follows: “That in making said purchase of said Smith and McCaffrey, said Bicketson bought two-thirds of said lands for himself, and one-third as trustee or agent of the defendant H. Brady Wilkins, who furnished to said Bicketson the money therefor; that after said purchase, about the 13th day of September, A. D. 1864, said Bicketson sold to the defendant Silas Merrick the one undivided sixth of all of said land; that said Bicketson died about the 27th day of September, A. D. 1866, at Pittsburg, Pa., seized of an undivided one-half of said lands, which were then subject to one payment to said, canal trustees; that said complainant in the original bill, and her mother, Polly H. Bicketson, were, by the will of said Charles W. Bicketson, his sole devisees; that said Polly H. Bicketson and complainant, afterwards, for a valuable consideration, conveyed all their interest in said premises to said John V. LeMoyne, by deed dated January 22, A. D. 1870; that said H. Brady Wilkins and Silas Merrick, each, for a valuable consideration, sold and conveyed all his interest in said lands to said John Y. LeMoyne, and the court finds that all the payments due to said canal trustees have been paid, and the defendants Joseph 0. Glover, Benjamin F. Shaw and Martin Kingsman, as the successors of said canal trustees, hold the naked legal title to said premises; that said John Y. LeMoyne, as the grantee of said H. Brady Wilkins and Silas Merrick, is the owner of, and entitled to, the equitable title to the one undivided half of all of said lands; that the other half he holds subject to the debts of said Charles W. Bicketson; and the court finds that the said complainant in said original bill, Lizzie W. B. Allen, has no interest in any of said lands. ”

Can the court disregard the finding of facts recited in the decree, when all the evidence had on the trial has not been preserved and incorporated into the record ? If we can not, the decree must be affirmed, as the recited facts found by the court show clearly that complainant can not recover. Since the adoption of the act allowing oral testimony to be heard on the trial of a cause in equity, it has been the constant practice to preserve the evidence by recitals in the decree, and in Cooley v. Scarlett, 38 Ill. 316, it was held that the statements of the evidence in the decree can no more be questioned by the appellate court, than can those of a bill of exceptions in a common law case. Where the facts are found by the court, and recited in the decree, the finding can not be reversed unless all the evidence heard on the trial is preserved in the record, and thus brought before the court. Where the evidence is not all preserved, it will be presumed that the evidence heard and not preserved was sufficient to authorize the finding. Rhoades v. Rhoades, 88 Ill. 139; Corbus v. Teed, 69 id. 208; Morgan v. Corlies, 81 id. 75.

In the decree the court found that the complainant, in 1870, conveyed by deed, for a valuable consideration, to LeMoyne, all her interest in the premises; that Wilkins and Merrick, for a like consideration, sold and conveyed all their interest in the lands to LeMoyne. The court also found that the complainant had no interest in any of the lands. If complainant has no interest in the lands, upon what theory can she maintain a bill in equity? If she has parted with all the title she had, for a valuable consideration, that ends the controversy, so far as she is concerned, and she has no right to interfere.

It is, however, said, the finding that the complainant- had no interest in any of the lands, is not a finding of fact, but an inference from a great variety of facts. It is not necessary that the evidence should be set out in the decree,—the facts established by the evidence is all that can be required. A similar question arose in Walker v. Carey, 53 Ill. 470, where it was held that where a decree recites that upon the hearing certain facts were proven by the evidence introduced, and the court so finds,—that no facts were stated in the decree, but simply a conclusion from the other facts,—it was held that such a recital was sufficient. We do not, however, base the decision on this finding in the decree,—it is not necessary to place it upon that ground. The court, after hearing all the evidence in the case, found that complainant in the original bill, and Polly H. Eicketson, for a valuable consideration, conveyed all their interest in said premises to said John V. LeMoyne, by deed dated January 22, A. D. 1870. This finding, incorporated in the decree, must be presumed to be correct, and sustained by the proof, and can not be inquired into here in the absence of any of the evidence heard on the trial, which plaintiff in error has failed to bring before us. If the complainant on a certain day sold and conveyed by deed, for a valuable consideration, all her interest in the premises, she could have no standing in a court of equity. She had no interest to protect after the conveyance. She was á stranger to the lands, and had no more right to file a bill than a person who never had any interest in the premises.

The decree will be affirmed.

Decree affirmed.