author: Mr. Justice Sheldon

text:
    Rebecca H. S. Knisely v. William L. Sampson.

      Filed at Ottawa November 10, 1881.

    1. Presumption—as to the date of a note. The law presumes that a note was executed on the day it bears date, and. such presumption prevails until overcome by proof.
    2. Evidence—burden of proof. On a bill in chancery to set aside a judgment on a note, on the ground the note was given before the law authorized the complainant, a married woman, to execute such a contract, the note being dated on the day the law authorizing her to make contracts of that character took effect, the burden of proof rests upon the complainant to establish the allegations in her bill by a preponderance of evidence.
    3. New triad—on the evidence—in chancery. Where the evidence upon a vital question of fact is conflicting and pretty evenly balanced, this court will not disturb the finding of the court below, which has superior facilities for judging of the credibility of the witnesses on an oral examination in court.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. William H. Barnum, Judge, presiding.
    Mr. Frank J. Smith, for the plaintiff in error,
    reviewed and commented on the evidence at considerable length, as showing that the note and power of attorney in which Mrs. Knisely joined were in fact executed on June 30, 1874, and not on July 1, 1874, the day of their date, and consequently they were void as to her, she being a married woman, and incapable of making a binding contract of the kind, citing Schmidt v. Postel, 63 Ill. 58; Thomas v. Lowry, 60 id. 512; Dyer v. Kelly, 75 id. 574; Taylors. Boardman, 92 id. 566; Kohn v. Russell, 91 id. 138.

      Mr. David Fades, for the defendant in error:
    It devolved upon the complainant to establish her claim to relief by a satisfactory preponderance of evidence. It was not sufficient after so great a lapse of -time to create some doubt as to whether 'the note was made on the day it bears date. She must overcome the presumption of law that the note was made and delivered on the day of its date.
    As the witnesses were all examined orally before the court below, there is the same necessity that exists on a trial by jury that the errors in finding as to fact shall be clear and palpable, to authorize a reversal. Coari v. Nelson, 91 Ill. 275.
    There is not only no clear and palpable evidence showing error, but the evidence of complainant largely corroborates the evidence of the defendant that the note was made on the day it bears date.
   Mr. Justice Sheldon

delivered the opinion of the Court:

■ This was a bill in equity, brought by Rebecca H. S. Knisely, to set aside a judgment recovered against her by William L. Sampson, October, 1874, upon a judgment note dated July 1, 1874. The bill was filed August 22, 1876, but summons was not taken out against the defendant until in February, 1879. The circuit court, upon final hearing, dismissed the bill. On appeal to the Appellate Court for the First District the decree was affirmed, and the record is brought here on writ of error to reverse this order of affirmance.

The bill sets up that the note and judgment were void as to the complainant, for the reason that the note was without any consideration beneficial to her, and was executed June 30, 1874, before she had power, as a married woman, to bind herself as a mere surety for her husband. The statute enacting that contracts may be made and liabilities incurred by a wife, and the same be enforced against her the same as if she were unmarried, did not go in force until July 1, 1874. The note was given to take up a previous judgment note, signed by the complainant and her husband, for an indebtedness of his, dated May 1, 1872.

Aside from the question of laches, there is but the one question presented in this case, of fact, whether the note in question was made on July 1, 1874, or on June 30, 1874.

The note bears date July 1, 1874. The complainant and her husband, who are the' only witnesses in support of the bill, testify positively that the note was made on June 30, and dated July 1, at the suggestion of Sampson that that would make it more convenient in the computation of interest. On the other hand, Sampson,' and an attorney, whom he consulted during the transaction of giving the note, in regard to its form, testify likewise positively that the note was given on July 1.

Counsel for plaintiff in error comments with much force upon the circumstances which appear in the case going to show that the witnesses in support of the bill could not have been mistaken in their testimony, and therefore insists that it is entitled to superior weight and is the more credible, and should be accepted as the true statement of the time of giving the note. We have, in this respect, carefully examined the testimony, and considered the comments upon it, and' without reviewing the evidence of the circumstances affecting the credibility of the witnesses, we will say that upon the whole case we do not think it is one where we should interpose to disturb the decree which has been rendered, on the ground of an erroneous determination of this question of fact. We may remark, as favoring this view, that it was incumbent on complainant to establish her bill by a preponderance of evidence. On the hearing, all the witnesses were orally examined in open court, and the circuit judge had thus superior means of judging of the credibility of the witnesses to those we possess from the inspection of their testimony as presented to ns on paper. It is an important circumstance in aid of the testimony of defendant’s witnesses that the note bears date July 1. It is the presumption of law that the note was made the day it bears date. This presumption had to be overcome.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    William W. Foss v. Mabel C. Foss.

      Filed at Ottawa November 10, 1881.

    1. AiiiMONY—allowance to wife to defend, etc., discretionary. The allowance of alimony to the wife for her support pending a suit for a divorce, to enable her to maintain or defend the suit, under the statute, as at common law, is discretionary; but this discretion is a judicial and not an arbitrary one, and is subject to review upon appeal or error.
    2. It is wholly within the discretion of the court to allow a wife temporary alimony in a suit against her for a divorce, before the filing of an answer by her, and its allowance after the expiration of the time allowed her to answer, is in effect a further extension of time to answer.
    3. Same—alimony for support of children pendente lite. The power given by the statute to the court to make such order concerning the custody of the minor children of the parties during the pendency of a suit for divorce, as may be deemed expedient and for the benefit of the children, includes power to make an order for the payment of a sum reasonably sufficient for their support pendente lite ; and the allowance of such a sum to the wife for the support of her child, is in effect an adjudication that she have the custody and care of the child during the pendency of the suit.
    4. Same—whether temporary alimony is excessive. An allowance of temporary alimony to a wife, during the pendency of a suit for divorce, will not be disturbed by this court unless clearly convinced that the amount is so excessive as to amount to an abuse of discretion. Such allowance is at all times subject to modification, to meet anynew and unforeseen circumstances.
    5. In this case the husband filed his bill for a divorce. The court made an order allowing the wife $200 for solicitor’s fee, and $19.23 per week for the support of herself and child pending the suit. The husband appeared to be worth $45,000 in property. The necessities of the wife were shown to be great. While" the allowance was considered to be full liberal, this court could not say it was excessive.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. William H. Baenum, Judge, presiding.
    Messrs. Geant, Swift & Beady, for the appellant:
    1. The court had no right to grant temporary alimony before the appellee had 'filed her answer. There is nothing to show she intends making any defence. She simply denies the ground alleged for a divorce, which amounts only to an assertion that she has a defence, and is no statement that she intends to defend. Lewis v. Lewis, 3 Johns. Ch. 519; Allen v. Allen, Hempstead, 58.
    2. The court had no power to grant alimony pendente lite for the support of the child. The statute gives the court authority to allow alimony to the wife only during the pendency of the suit. Until the suit has been determined in favor of the wife, by final decree, the presumption is that the father is entitled to the custody of the children, and. is willing to comply with the obligation to support them which the law imposes upon him. There is nothing in Ibis record to show that appellant is unwilling to provide for his child. If appellee, has voluntarily imposed upon herself the burden of supporting the child, by- carrying him away from his father, she can not use the power of the court in this manner to procure his support. There is nothing in the record to show any justification for her keeping possession of the child.
    The amount of. alimony allowed is excessive. This was, we are aware, within the discretion of the court, but we think the amount allowed is so grossly excessive as to warrant this court in reversing the decree for this cause alone.

      Alimony pendente lite, it may be remarked, is governed by somewhat different principles from permanent alimony. The defendant should be “ content to live in decent retirement, ” and is not to ask for an allowance “to gratify her tastes for music and amusements, ” and while the suit is "pending, and she is charged with desertion and cruelty, the alimony allowed should be as small as the circumstances of the ease will justify. Bishop on Marriage and Divorce, secs. 459, 460, 461; Smith v. Smith, 2 Phillim. 152; Lawrence v. Lawrence, 3 Paige Ch. 270.
    But -the allowance in this case would, we think, be excessive even if the bill had been filed by the wife against the husband, and she had obtained a final decree of divorce and custody of the child. Foote v. Foote, 25 Ill. 425; Bergen v. Bergen, 22 id. 189; Ross v. Ross, 78 id. 402; Forrest v. Forrest, 25 N. Y. 501; Williams v. Williams, 29 Wis. 517.
    'Mr. S, K. Dow, for the appellee:
    Alimony “pendente lite” is a common law right. Courts of chancery are obliged to enforce it as much as any other provision of the common law. Petrie v. The People, 40 Ill. 334.
    The allowance of alimony is within the sound discretion of the court, and so the allowance for the support of an infant child is a matter of judicial discretion. Bergen v. Bergen, 22 Ill. 187; Joliff v. Joliff, 32 id. 327.
    Although the allowance is discretionary with the court, it is a judicial and not an arbitrary discretion which is to be exercised, and the subject of an appeal; and while it is so, it should be only upon a strong and decided difference of opinion where an appellate court would be disposed to disturb a decree. Foote v. Foote, 22 Ill. 425.
    Alimony is granted upon proof of the circumstances of the parties, and unless found excessive it will not be disturbed. Parker v. Parker, 61 Ill. 369; Daily v. Daily, 64 id. 329.

      From the appellee’s affidavit there can be no doubt of her intention to defend. She explicitly denies the charges in the bill, and had asked for and obtained time in which to answer.
   Mr. Justice Scholfield

delivered the opinion of the Court:

On the 26th of October, 1880, appellant filed his bill for divorce against appellee, in the circuit court of Cook county, charging her with desertion. On the 17th of November, next following, she entered her appearance in the cause, and upon the 7th of December, then next, the court extended her time to file an answer until the 12th of that month. No answer was filed by that time, and on the 17th of the same month appellee filed her petition, supported by her affidavit, for solicitor’s fee and for alimony pendente lite. Appellant filed his affidavit in opposition thereto; but the court thereupon decreed that appellant pay appellee $200 for solicitor’s fee, and $19.23 per week, for the support of herself and child, pending the suit, the first installment to be paid on the 18th of December, 1880, and the subsequent installments weekly thereafter. From this decree appellant took the case by appeal to the Appellate Court for the First District, which court affirmed the judgment of the circuit court, and this record brings that judgment before us for review.

Our statute provides, (Rev. Stat. 1874, chap. 40, sec. 15,) that “in all cases of divorce the court may require the husband to pay to the wife, or pay into the court for her use during the pendency of the suit, such sum or sums of money as may enable her to maintain or defend the suit; and in every suit for a divorce, the wife, when it is just and equitable, shall be entitled to alimony during the pendency of the suit, ” etc.

This allowance is discretionary; but as we have held, was the exercise of the same power, under the principles of the common law. It is a judicial, not an arbitrary, discretion that is to be exercised, and it is the subject of review upon appeal or error. Foote v. Foote, 22 Ill. 425; Blake v. Blake, 80 id. 523.

The first ground of reversal urged is, the circuit court had no right to grant temporary alimony before appellee had filed her answer. This was wholly within the discretion of that court. The petition for temporary alimony contained an explicit denial of the truth of the charges alleged in the bill, and it was sworn to by appellee. The effect of the action of the court was to again extend time in which appellee might answer; but with or without answer, the court is never authorized to decree a divorce until the cause of divorce has been fully proven by reliable witnesses. Rev. Stat. 1874, chap. 40, sec. 8.

The next point attempted to be made against the decree is, the circuit court had no right to grant alimony pendente lite, for the support of the child. This is untenable. “The court may, on the application of either party, make such order concerning the custody and care of the minor children of the parties, during the pendency of the suit, as may be deemed expedient, and for the benefit of the children. ” (Rev. Stat. 1874, chap. 40, sec. 13.) Power to make an order concerning the care of minor children, very clearly includes power to make an order for the payment of a sum reasonably necessary for their support; and the court having made an order for the payment of a sum to appellee, on account of the support of the child, did, in effect, adjudicate that she have the custody and care of the child during the pendency of the suit.

The next and last ground of reversal insisted upon is, that the allowance of the circuit court is excessive. An appellate court, we have said, is only authorized to reverse on this ground where the difference in judgment between the appellate and circuit court is strong and decided. Foote v. Foote, supra. Here, in addition to the judgment of the circuit court, we have the concurring opinion of the Appellate Court, composed of impartial and able judges, and unless quite clear in our conviction, that the allowance is so excessive as to amount to an abuse of discretion, we would not be warranted in disturbing the decree. We are not thus clear. The allowance is but temporary, and, at most, will extend but for a brief period, and will, at all times, be subject to modification to meet any new or unforeseen circumstances. Appellee’s present necessities are shown to be great, and appellant is, tacitly, at least, conceded to be worth $45,000 in property, that fairly managed must be productive of a considerable income. Although full liberal, as it appears to us, we can not say that the allowance is excessive.

The decree of the Appellate Court is affirmed.

Decree affirmed.


author: Mr. Justice Mulkey Mr. Justice Dickey :

text:
    George Dugan et al. v. Hellen M. Follett et al.

      Filed at Ottawa November 10, 1881.

    1. Conveyance—inuring of an after acquired title

       Where a party joins in a warranty deed purporting to convey a fee simple estate in a tract of land, an after acquired interest in him will inure by way of estoppel to his grantee.
    2. Limitation—as between tenants in common. • The general rule is, that the Statute of Limitations does not run as between tenants in common, for the reason, in part, that the iiossession of one is that of all, and this is especially so when all the parties derive title from the same deed or conveyance.
    3. Same—of adverse possession as between tenants in common. While mere possession alone, except possibly in very extreme cases, will not be sufficient to establish an adverse holding by one tenant in common against another, yet in such case, other considerations even short of an ouster may be sufficient for that purpose.
    4. Where a party and his immediate grantor for more than seven years have held the undisputed possession of land under warranty deeds purporting to convey to the grantees a fee simple estate, without knowledge that any other persons had any claim to the premises, during all which time they' had the exclusive enjoyment of the rents and profits without having accounted to any one, or having been required to do so, such possession will be regarded as adverse against others having an interest in the land as tenants in common with the person so in possession.
    5. Same—does not run until the right of action accrues. The Statute' of Limitations does not commence to run until the right of action or right of entry accrues. It therefore does not commence to run against a remainder-man until the termination of the precedent estate, when the deed creating such prior estate is of record, or the party in possession has notice of its existence.
    6. Where a party has held the undisputed possession of land under a warranty deed for more than seven years, during which time he has paid all taxes legally assessed thereon, without actual or constructive notice of a prior unrecorded deed creating a life estate with a remainder over to others who would otherwise be tenants in common with the one so in possession, such possession and payment of taxes by him will be a bar to a recovery by such remainder-men, even though seven years have not elapsed since the termination of the life estate.
    7. Notice—/rom the record of a suit. Where, under a bill in chancery, the administrator of an estate is directed by a decree to invest certain moneys in his hands, in real estate, without describing the real estate in either the bill or decree, and to convfey the same to the widow of his intestate for her life, with remainder to the heirs of the intestate, which he did, and reported the making of the deed to the court, which deed was never recorded, it was held, that the report on file in the court was not constructive notice of the existence of such conveyance. Had the object of the suit been to compel the convey- • anee of the particular lands, and the decree had so directed, the rule would be otherwise.
    8. A purchaser of land is not bound to look beyond a judgment or decree, and the legal effect it may have on the title which is the subject of inquiry.
    9. Becokding law—deed void as to subsequent purchaser without notice. An unrecorded deed conveying a life estate with remainder over, is void as to a subsequent purchaser without notice of its existence, for all purposes, and can not be set up by the remainder-man so as to prevent the running of the Statute of Limitations of 1839, in favor of the purchaser and those claiming under him.
    Appeal from the Circuit Court of Stark county; the Hon. David McCulloch, Judge, presiding.
    Mr. Miles A. Fullee, and Mr. James H. Milled, for the appellants:
    Even though it were true that the parties in possession under the deed of Mrs. Jennings were entitled to the possession, and could not be dispossessed. during her life, still that would not excuse the neglect of appellees to assert their rights in the premises, in some way open to them, within the time fixed by law. They could have asserted their rights in this land by asking partition, or by selling their interest therein, or by any other lawful means asserting their rights in the premises. Scoville v. Hilliard, 48 Ill. 453; Hilliard v. Scoville, 52 id. 449.
    The appellants are within the terms of the Statute of Limitations in every respect. They have paid all taxes for many more than seven years, under color of title made in good faith, with exclusive possession. Henrichsen v. Hodgen, 67 Ill. 179.
    The deed of Mrs. Jennifigs, Alvin and Wallace, could be notice only of the fact that they claimed some interest in the land, and that interest they conveyed, and it became united with the other titles. That deed could not be notice to the appellants that- other parties not named therein had any rights in the premises. It could only be notice of such facts as appeared upon its face, or to which allusion was made in it. Manly v. Pettee, 38 Ill. 128.
    Section 30, Rev. Stat., title “Conveyances, ” provides that all deeds, mortgages, etc., shall take effect and be in force from and after the time of filing the same for record, and not before, as to all creditors and subsequent purchasers without notice, and all such deeds shall be adjudged void as to all such subsequent purchasers without notice, until filed for record. Now, unless it can be shown that the appellants had notice, actual or constructive, of the execution of a deed from Hugh Rhodes to Eunice Jennings and her children, then such a deed (even if it ever existed) was void as to the appellants.
    Although appellants may have derived their possession indirectly from Mrs. Jennings, they do not take it subject to the terms and conditions of any unrecorded deed to her, unless they had notice of such deed. Rogers v. Wiley, 14 Ill. 65.
    There is nothing in the chain of title to show that the appellees had any interest in the land, or that would put the appellants upon inquiry. Had inquiry been made, they would have found no sufficient evidence of appellees’ rights, because upon the most diligent examination it is now very doubtful, to say the least, whether such a deed ever existed. A suspicion of title is not sufficient to charge them with fraudulent intent. McConnell v. Reed, 4 Scam. 117.

    The Shivvers tract was similarly situated, with no intimation on the record of appellees’ interests. There is a total failure of evidence to show that any of appellants had any notice, actual or constructive; but, on the contrary, they deny any such knowledge. Manly v. Pettee, 38 Ill. 135; Kennedy v. Northup, 15 id. 157; Morrisey v. Kelly, 22 id. 627.
    Mr. C. C. Wilson, for the appellees:
    Nelson and his assignees having acquired the life estate of Mrs. Jennings, and holding by virtue of such life estate, were bound to pay the taxes, and could acquire no limitation by such payment that would commence to run as a bar to the interest of the heirs, until the death of Mrs. Jennings. Prettyman v. Wolston, 34 Ill. 192, and cases there cited.

      Besides' this, the proceedings in the chancery case were matters of record in the circuit court, showing fully that a deed had been made to Eunice Jennings for her life, with remainder to these heirs of Eric Rhodes for these lands. This record afforded notice as much as if the deed had been recorded.
    Mrs. Jennings died November 18, 1875, and the heirs of Eric Rhodes could assert their rights as remainder-men to the lands at any time within seven years from the death of Mrs. Jennings. They could not have asserted their title during the existence of the prior life estate.

       See Holbrook v. Debo, 99 Ill. 380, and cases there cited, showing when an after acquired title will inure to the prior grantee, and when it will not. Also, People ex rel. Weber v. Herbel, 96 Ill. 384; Jones v. King, 25 id. 383; King v. Gilson’s Admx. 32 id. 348, and authorities there cited; Rigg v. Cook, 1 Gilm. 348; Gochenour v. Mowry, 33 Ill. 333; Gill v. Grand Tower Mining, etc. Co. 92 id. 249; sheriff’s deed subsequently executed to grantor. C. B. and Q. R. R. Co. v. Chamberlain, 84 id. 333; D’Wolf v. Haydn, 21 id. 525.

   Mr. Justice Mulkey

delivered the opinion of the Court:

On the 30th of August, 1878, Hellen Follett (formerly Hellen Rhodes), Robert Rhodes, Alonzo Rhodes, Alvin Rhodes and William Rhodes, filed in the Stark county circuit court their bill in chancery, against George Dugan, John Ham and Hopkins Shiwers, for the partition of three several tracts of land in said county, respectively known as the Dugan tract, Ham tract, and Shiwers tract. Pending the suit, William Rhodes died, and his widow and children were made defendants, and the case thereupon proceeded in the name of the other complainants. Upon the hearing, a decree was rendered awarding partition, substantially as prayed for in the bill, and the case is brought here by appeal.

We have carefully examined the evidence in this case, and find the material facts, in substance, as follows: Eric Rhodes,' the father of petitioners, died in Hancock county, this State, in October, 1841, and his brother Hugh became1 his administrator. At the time of his death he left him surviving his widow, Eunice Rhodes, who subsequently married Ebenezer Jennings, and six children, his only heirs at law, namely, Orr'in, Alonzo, Alvin, William, Robert, and Hellen, now Mrs. Follett. In 1849 his widow, then Eunice Jennings, instituted a suit in chancery in the Stark county circuit court against the administrator—the same being done with his approval and under his advice—which' shortly afterwards resulted in a decree directing him to invest certain moneys then in his hands as administrator, in real estate, and to convey the same to Mrs. Jennings for life, with remainder in fee to the heirs of her late husband, Eric Rhodes. In obedience to this decree, Hugh Rhodes, on the 20th day of November, 1850, conveyed the lands now in controversy to Mrs. Jennings for life;' with remainder in fee to the above named heirs of Eric Rhodes. This deed, from some cause or other, was never put on record; but the fact of its execution" was reported to the court by the administrator, and his report still remains as a part of the files of the suit commenced against him by Mrs. Jennings, as just stated. At the time of this conveyance to Mrs. Jennings, she was in possession of the land in controversy and residing on the Dugan tract, and continued in possession until in March, 1852, when she transferred the possession to Peter Nelson. Previous to delivering possession, to Nelson, as just stated, to-wit, on the 31st of January, 1852, she and her sons William and Alvin conveyed all their interest in the Ha.m and Dugan tracts to Franklin Rhodes, a blind son of Hugh Rhodes, who subsequently, on the 6th day of March following, conveyed to the said Peter Nelson, by warranty deed, the two tracts last mentioned, his father, Hugh Rhodes, joining with him in the deed. On the 11th day of August, following, Orrin Rhodes conveyed by quitclaim his. interest in all three of the tracts to Franklin Rhodes. The interest conveyed by this deed to Franklin Rhodes in the Dugan and Ham lots, by virtue of bis warranty of them to Nelson, as above mentioned, according to a familiar rule of law, inured by way of estoppel to Nelson, thus giving him in the two lots in question the entire life estate of Mrs. Jennings, and three-sixths or one-half of the fee. Peter Nelson and wife, by warranty deed dated September 13, 1854, conveyed the two lots last mentioned to Thomas Dugan, from whom appellant Ham, by a regular chain of title, derives title to the Ham lot, and appellant George Dugan, in like manner, derives title to the Dugan, lot, each having the fee in the three-sixths of their respective lots. Eunice Jennings and Alvin Ehodes, by warranty deed dated January 31,1852, conveyed the Shivvers lot to one Wilson Rhodes, whereby the latter acquired the life estate of Mrs. Jennings and one-sixth of the fee in said lot, to which appellant Shivvers succeeded by a regular chain of title, on the 12th day of June, 1869. Mrs. Jennings died on the 18th of November, 1875.

Waiving for the present the consideration of the Statute of Limitations, it clearly follows, if we have committed no error in grouping together the facts, that appellees, Hellen Follett, Alonzo and Robert Rhodes, respectively, own one-sixth of the Ham and Dugan lots, and the remaining three-sixths belong to appellants Dugan and Ham, respectively; and that Hellen Follett, Alonzo Rhodes, Robert Rhodes, Franklin Rhodes, and the heirs of William Rhodes, respectively, own one-sixth of the Shivvers lot, and that Hopkins Shivvers owns the remaining sixth.

This conclusion, with respect to the interests of the parties, is the same as that reached by the circuit court, so far as the Dugan and Ham tracts are concerned; but that court found that appellant Shivvers was the owner of two-sixths of the Shivvers lot, and took no notice of the one-sixth which still seems to be in Franklin Rhodes. It is clear that Orrin Rhodes had an equal interest with the .other heirs of Eric Rhodes, in the entire property which was conveyed by him, as already seen, to Franklin Rhodes, on the 11th of August, 1852, and the only deed we have been able to find from Franklin Rhodes, is the warranty deed of the 6th of March, 1852, to Peter Nelson, in which his father joins; but this conveyance does not include the Shivvers lot. It only purports to convey the Ham and Dugan lots, and this would clearly leave one-sixth of the Shivvers lot still in Franklin Rhodes, or his legal representatives. However, this is an error of which the present appellants can not complain.

The most of the arguments of counsel have been devoted to the question whether, as a matter of fact, Hugh Rhodes, on the 20th of November, 1850, in pursuance of the order of court, conveyed the premises in controversy to Mrs. Jennings for life, with remainder in fee to the heirs of Eric Rhodes, as charged in the bill. The circuit court found that such conveyance was made, and from the best consideration we have been able to. give the testimony, and all the facts and circumstances having a bearing upon the question, we are of opinion that the conclusion of the circuit court was right. It therefore only remains to inquire what effect, if any, have the limitation laws on the rights of the parties.

Assuming, as we do, that Hugh Rhodes was the original owner of these lands, and that they were conveyed by him to Mrs. Jennings and the heirs of Eric Rhodes, at the time and in the manner we have seen, it follows that appellants, and those under whom they claim, have, since their respective titles accrued, been, and are now, tenants in common with appelleeshence in determining whether the Statute of Limitations is a bar to the present proceeding, it is proper to keep this relation of the parties in view.

The general rule unquestionably is, that the statute does not run as between tenants in common, on the ground, in part, that the possession of one tenant, in contemplation of law, is the possession of the others, and this is especially so where all the parties derive title from the same cleed or conveyance. Angell on Limitations, secs. 422, 423.

While mere possession, alone, except possibly in very extreme cases, will not be sufficient of itself to establish an adverse holding by one tenant in common against another, yet in such case other circumstances, short of an ouster, may be sufficient for that purpose. Angell on Limitations, secs. 432, 433.

Upon consideration of the evidence relating to this aspect of the case, we think it satisfactorily establishes the fact that appellants and their immediate grantors have, for more than the statutory period, been holding the premises adversely to all the world, including appellees. They have been holding under warranty deeds purporting to convey to the grantees fee simple estates, and we discover nothing in the evidence that warrants the assumption that they even so much as knew' that appellees had any claim to the premises. During all this time they have had the exclusive enjoyment of the rents and profits, without having accounted to any one, or having been required to do so, by appellees or any other person, and this we regard as an adverse holding. Moreover, during this period appellants have, so far as anything appears to the contrary, in good faith paid all taxes legally assessed on the premises, thus making out a clear case of possession, payment of taxes under claim and color of title made in good faith, for more than the statutory period.

It is clear, therefore, unless there is something in the facts of this case which takes it out of the operation of the statute, the right to maintain the present proceeding is, barred by the Limitation act of 1839.

It is a fundamental principle in the law of limitations that the statute never commences running until the right of entry accrues, and since by the limitations of the deed from Hugh Ehodes to Mrs. Jennings, under which appellees claim, their right of entry did not accrue till her death, which occurred less than seven years before the commencement of the present proceeding, it would seem to follow that this proceeding is not barred by the Limitation act of 1839, and such undoubtedly would be the case if that deed had been properly recorded, or if appellants and those under whom they claim had purchased with notice of appellees’ rights. But that deed was never recorded, and, as already stated, there is nothing to show that appellants or their immediate grantors had any notice -of its existence.

It is insisted, however, that the report of the administrator in the case of Jennings against Rhodes, showing the conveyance of this land to her and the children in pursuance of the decree in that case, is constructive notice of appellees’ rights under that conveyance, and this we regard as the turning point in the case. Had the object of the suit of Jennings against Rhodes been to compel the administrator to convey these particular lands, then we would have ho hesitancy in holding the record of that case constructive notice of the rights of those claiming under the decree in it, whether the deed was placed upon record or not. But such was not the object of that suit. Neither the decree nor the pleadings in that case contain any description of these'lands, or even make the slightest reference to them. In the investigation of titles, purchasers look for decrees and judgments against those who appear of record to have been owners, and when it is ascertained that a particular decree or judgment does not affect the title which is the object of inquiry, it is believed not to be customary to look further; and to hold that purchasers are affected with constructive notice of every fact relating to the purchased estate that may happen to appear in some of the files of a ease, and not elsewhere, would, in our judgment, be carrying the doctrine of constructive notice to a dangerous extent. The establishment of such a rule would have a direct tendency to unsettle titles, for no one could know of a certainty when he was getting a good title, without examining the files in every case in the county where the land lay, and this would be wholly impracticable. We hold, therefore, purchasers are not bound to look beyond the judgment or decree, and the legal effect it may have on the title which is the subject of inquiry.

It is further said, the tenant for life is bound to pay all taxes, and since appellants succeeded to the life estate of Mrs. Jennings they were legally bound to pay the taxes, and hence they could not avail themselves of the Limitation act of 1839. Conceding such would have been the case if the Jennings deed had been put upon record, or if appellants and those under whom they claim' had purchased with notice of that deed, yet appellants claim, as we have already seen, adversely to appellees, and independently of any rights acquired through the Jennings deed, and insist that inasmuch as that deed was not placed upon record, and they did not otherwise have notice of it, they are not to be affected by its provisions, and in this we think they are right. The recording" and limitation laws are both a part of the law of „the State, and of equal force and validity, and the courts should so construe and apply them as to effectuate the objects and purposes of the legislature in adopting them. The 30th section of chapter 30 of the Revised Statutes, entitled “Conveyances, ” provides, “that all deeds, mortgages, etc., shall take effect and be in force from and after the time of filing the same for record, and not before, as to all creditors and subsequent purchasers without notice, and all such deeds shall be adjudged void as to all such subsequent purchasers without notice, until filed for record. ” To hold that appellants, under the facts in this case, are to be affected in any manner by the Jennings deed, would be to simply disregard this plain provision of the statute, which we are not permitted or inclined to do. In construing and giving effect to the limitation laws, courts must do so in such manner as to also give effect to this plain provision of the statute making all deeds void as against subsequent purchasers without notice, till filed for record. Kennedy et al. v. Northup et al. 15 Ill. 149; Holbrook v. Dickenson, 56 id. 497.

The decree of the circuit court not being in accord with the views here expressed, it will be reversed, and the cause remanded for further proceedings in conformity with them.

t\ j Decree reversed.

Mr. Justice Dickey :

I concur in the conclusion, but not in all that is said in this opinion.


author: Mr. Justice Craig Mr. Justice Scholfield : Mr. Justice Walker : Mr. Justice Dickey :

text:
    Solon Humphreys v. Joseph Morton et al.

      Filed at Ottawa May 14, 1881

      Supplemental opinion November 10, 1881.

      1. Mortgage—priority of debts first maturing. Where several notes, payable at different dates, are secured by a mortgage, the notes, in the absence of any special provision in the mortgage to the contrary, are entitled to payment from the proceeds of the mortgaged property in the order of their maturity.
    2. But when a deed of trust is given to secure bonds all maturing at the same time, with semi-annual interest coupons thereto attached, and authorizes no sale for the interest alone, but provides that for a default in the payment of interest for the space of six months all the bonds shall become due, and thereupon the trustees shall take possession and sell, and from the proceeds, etc., pay all such bonds, or so many as may be outstanding, showing an intention that no sale shall be made except for the whole debt, this rule of priority does not apply, and the holders of bonds upon which the interest has not been paid will have no priority as to the payment of such interest ovjr others upon whose bonds the interest has been paid.
    3. Where the holders of bonds secured by deed of trust upon a railroad and its property, in placing a portion of such bonds upon the market, and their agent in selling the same, have not made any representations, or by their conduct done anything which would be likely to deceive or defraud the persons purchasing bonds of them, they will not be postponed in the payment of the interest on their remaining bonds'until the payment in full of the bonds sold by them; nor will they be so postponed from a neglect to inform such purchasers of the fact that the mortgagor had failed to keep the interest paid on they; bonds.
    4. Interest—when allowed on interest coupons. Interest is properly allowed upon an interest coupon attached to a bond, from and after its maturity, although no such interest is promised in the same.

      Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Peoria county; the Hon. David McCulloch, Judge, presiding.
    On the 21st day of May, 1864, the Peoria, Pekin and Jacksonville Railroad Company executed and 'delivered a mortgage or deed of trust to Francis B. Cooley and James Bird, on the entire line of its road, as trustees, to secure the payment of certain first mortgage bonds which had been issued by the company. A large amount of these first mortgage bonds were subsequently sold and delivered by the company to Arnold, Allen, Trowbridge and Hopkins, who, on or about the 1st day of January, 1871, surrendered all the unpaid interest warrants attached to the bonds to the company for all interest due to that date, and received in exchange therefor second mortgage bonds. After this exchange, Arnold, Allen, Trowbridge and Hopkins offered for sale, through W. T. Hatch & Co., bankers in New York, a portion of these first mortgage bonds. Joseph L. Morton, of New York, on or about the 16th day of August, 1871, purchased $30,000 of the bonds, and John McCracken, who resided at the same place, purchased, through Hatch & Co., $10,000 of the bonds. The interest warrants attached to these bonds were regularly paid each year at the Importers’ and Traders’ National Bank, New York. On the 1st day of January, 1878, however, default in the payment of interest was made, and no interest has been paid on any of the bonds since that time.
    On the 1st day of April, 1878, John Allen and John H. Allen filed their bill in the Peoria circuit court, alleging that they owned a large amount of the first and second mortgage bonds, in which the execution of the mortgages was set out, and their terms and conditions. The bill also alleged, that by the terms and conditions of the mortgages the default in payment of interest had caused the principal of all the bonds to become due and payable.

      On the 14th day of July, 1879, Solon Humphreys, Morris K. Jessup, John T. Terry and Cyrus W. Field, were, on their own motion, admitted as co-complainants in the bill. On the next day they filed a bill as co-complainants, in which they set up that they were owners and holders of a large amount of the first and second mortgage bonds.
    On the 14th day of June, 1879, Francis B. Cooley and James Bird filed their cross-bill, in which it was set up that they were trusteds under the first mortgage. , They also set up that the default of the railroad company to pay interest according to the terms of the deed of trust, had rendered the whole of the bonds, both principal and interest, due. They therefore asked for a foreclosure of the first mortgage.
    On the 7th day of August, 1879, a decree of foreclosure was rendered on the first mortgage, and a decree of sale entered for the amount found due. At the sale under the decree Humphreys became the purchaser, for himself and the others who purchased and owned the bonds with him. After the sale, Humphreys and others filed an intervening petition in the case to obtain payment of the .interest warrants on their bonds, which were due and unpaid, from the 1st day of January, 1871, to January 1, 1878, before anything whatever should be paid on the other bonds and interest warrants. Morton and McCracken filed a cross-petition, in which they prayed that the payment of all interest warrants which matured on and before January 1, 1878, should be postponed until the bonds and interest warrants held by them should be paid. The court denied both petitions, and both parties appealed, entered into a stipulation in regard to the facts, and agreed to submit two questions for consideration.
    In this case it is stipulated and agreed by and between all parties hereto that there were but two questions considered by the court, and to be reviewed by this court, viz:
    First—That Morris K. Jessup, Cyrus W. Field, John T. Terry, Solon Humphreys and John Allen were and are the owners of a large amount of the first mortgage bonds of the Peoria, Pekin and Jacksonville Railroad Company, upon which none of the coupons were paid for several years prior to the time of general default by said company in the payment of any interest on any of its bonds, on January 1, 1878; that Joseph L. Morton and John McCracken were also the owners of certain of said bonds, and that the coupons upon their bonds were paid, while they owned them, up to the time of general default, January 1, 1878, and that the coupons upon all 'bonds of said company, not represented by the parties first herein named, were paid by said company in full up to January 1, 1878; now the first named parties claim that all the coupons upon their bonds maturing prior to January 1, 1878, should be paid in full before there is a general pro rata, distribution of the fund. This position is denied and opposed by Morton and McCracken, who claim that them coupons should be paid in full because of the fraud practiced upon them by the parties first named, and those from whom they purchased with notice, before any general distribution of the fund.
    These were the only questions considered by the court, and brought here for review upon the facts embraced in the stipulation.
    Mr. Wager Swayne, and Messrs. Chatty Bros. & Ulrich, for the appellant:
    ■ 1. The court will not presume fraud, but will require it to be proven; and if the acts and things done, and which are not otherwise explained or accounted for, can consistently be understood or referred to an honest intent and innocent motive, the court will so understand and refer them. It may be true that appellant purchased pendente lite, but we can not see what right that gives these contestants to prefer such a claim as this.

      2. Of as little application is the point, that in a foreclosure case all defences may he made against an innocent holder of paper secured by the mortgage. Such is the law of this State. But the cases cited refer to defences to Be made by the mortgagor. The rule is adopted or established for his benefit, and has no reference to lateral equities which may arise between the parties to the record. Bayatrd v. Mix, 83 IH. 13.
    3. The managers of the railroad severally made large advances for the development of the property, and its protection," taking therefor second mortgage bonds, which have proved worthless. The earnings were put into the-repairs and operating account, and they withheld such portions of their matured interest warrants from presentation, as the company had not funds to pay. The evidence shows that the value of the road was greatly enhanced thereby. It was not fraud or unfaithfulness to attempt to keep the road from going into immediate bankruptcy. Ketchum v. Duncan, 96 U. S. 659; Wright v. Grover, 27 Ill. 426.
    4. Whether or not there was an implied understanding that they should first be repaid such advances made by them, there is a superior equity in our favor, and we are brought within the rule of Walker v. Dement, 42 Ill. 272.
    5. The unpaid .coupons are entitled to priority as being promissory notes, passing the legal title by delivery, and drawing interest after maturity. N. Y. and O. M. R. R. Co. 13 Blatch. 412; Sargeant v. Howe, 21 Ill. 148; Vansant v. Allmon, 23 id. 30; Gardner v. Diederichs, 41 id. 158; Kester v. Burke, 81 id. 436; Hurk v. Erskine, 45 Mo. 484; Johnson v. County of Stark, 24 Ill. 92; Harper v. Ely, 70 id. 582.
    Messrs. Williams, Bubb& Capen, and Mr. Julien T. Davies, for the appellees:'
    1. A purchaser pendente lite takes subject to all equities. Alwood v. Mansfield, 59 Ill. 96, 503; Jackson v. Warren, 32 id. 331; Dickson v. Todd, 43 id. 504.

      2. In this State there is no innocent purchaser of a debt secured by mortgage, when he goes into equity to enforce his mortgage security. Olds v. Cummings, 31 Ill. 188.
    3. The owners of bonds and interest warrants, being directors of the corporation, by causing the advertisement that warrants would be paid at maturity, and not presenting their own, misled the outside owners, and enabled themselves to continue in control of the property and earnings, prevented a foreclosure, and are estopped from now claiming payment of these warrants until all bonds and other warrants are paid in full. Union Trust Co. v. Monticello and P. J. R. R. Co. 63 N. Y. 311; Haven v. G. J. R. R. and D. Co. 109 Mass. 88; Ketchum v. Duncan, 96 U. S. 659.
    4. Equality is equity. Therefore, in no event can the interest warrants be preferred, as all creditors share in common in the assets of a bankrupt debtor. Unless by some stern rule of law, no one has a preference. Sewall v. Brainard, 38 Vt. 364; Clemens on Corporations, sec. 145; Jones on Railroads, sec. 327; Digbee v. Craig, 2 Eden, 200; S. C. Ambler, 612; Miller v. R. and W. Ry. Co. 40 Vt. 399; Haven v. G. J. Ry. Co. 109 Mass. 97; South Carolina v. S. and N. R. R. Co. 8 S. C. 129; Dunham v. Ry. Co. 1 Wall. 254; Ketchum v. Duncan, 96 U. S. 70; Duncan v. M. and O. R. R. Co. 3 Woods, 567.
    5. Where a debt secured by mortgage is payable in installments, the right of priority of payment in accordance with .priority of maturity “rests upon the fact that the holder of the note first maturing may foreclose upon non-payment, without waiting for the succeeding notes to mature. ” Gardner v. Diederichs, 41 Ill. 158; Sargent v. Howe, 21 id. 148.
    6. If by the terms of the mortgage, on foreclosure, the proceeds of sale are to be applied on the whole debt, there can be no priority. Gardner v. Diederichs, 41 Ill. 158; Sargent v. Howe, 21 id. 148.

      7. The trust deed in this case provides that in case of sale the entire debt becomes due. Therefore, there can be no priority. Even if these interest warrants were entitled to priority, which we deny, interest on them could have no priority.
    8. Interest is only payable after demand and refusal, of a note payable at a particular place. No payment of these warrants was demanded, therefore they can not bear interest. Corcoran v. C. and O. Canal Co. 1 McArthur, 358.
    9. These warrants are not promises to pay, but are mere evidences of a debt for interest, and interest upon interest is not allowable by the laws of this State. Leonard v. Admr. of Villars, 23 Ill. 377; Virginia v. C. and O. C. Co. 35 Md. 1; Thompson v. Hoagland, 65 id. 310; McFadden v. Fortier, 20 Ill. 509.
    10. There can be no priority for interest on interest. Virginia v. C. and O. C. Co. 35 Md. 1.
   Mr. Justice Craig

delivered the opinion of the Court:

The claim for priority, interposed by Humphreys and others, is predicated upon the decisions of this court to the effect that where several notes, payable at different dates, are secured by a mortgage, the notes, in the absence of any special provision in the mortgage to the contrary, are entitled to payment from the proceeds of the mortgaged property, in the order of their maturity. This is the doctrine of Sargent v. Howe, 21 Ill. 148, Vansant v. Allmon, 23 id. 35, Gardner v. Diederichs, 41 id. 170, and subsequent eases. But does the case under consideration fall within the principle of these eases ? Here, the bonds all bore date May 21, 1864, and were all payable on the 1st day of July, 1894, with interest from and after January 1, 1865, at the rate of seven per cent per annum, payable semi-annually. So far as the bonds are concerned and the interest thereon, they are all due and payable at one and the same time. The deed of trust provides, that if there shall be a default in the payment of semi-annual interest on any or either of said bonds, for the space of six months after the same becomes due, then the whole principal sum mentioned in all the bonds, shall become due and payable, and the trustees named in the deed of trust shall take possession of the road, and sell the same at public auction. The deed then provides: “That out of the moneys or proceeds arising either from said tolls, earnings or receipts of said railroad and premises, or out or from said sale so to be made as aforesaid, after first deducting the expenses so incurred in the sale or the running the road, parties of the second part shall pay said twelve hundred bonds, or so many as shall be outstanding, together with all arrears of interest then due or owing upon the same, paying over the surplus money, if any, to party of the first part. ” It seems plain, from this provision, that it was intended by the parties to the deed of trust that no sale should be made except for the whole debt, and hence the provision that in default of payment of the semi-annual interest all of the bonds should become due. Indeed, the deed of trust does not authorize a sale of the railroad for the interest which fell due semiannually ; but if the interest was not paid, then the whole debt matured, and a sale was authorized to satisfy the whole debt, both principal and interest.

Again, the language of the deed of trust, in regard to payment, precludes the idea that there should be a priority. The language that the trustees “shall pay said twelve hundred bonds, or so many as shall be outstanding and unpaid, together with all arrears of interest then due and owing upon the same, ” 'clearly implies that if there is not money enough realized from the sale to pay all the bonds and interest, then the same shall be paid pro rata, regardless of the time when interest may have become due and payable on any of the bonds.

This case is entirely different from the cases where this court has held that the holder of one of a series of notes maturing at different times, and secured by one mortgage, is entitled to priority, and the decision in those cases can have no application here. The fact that Morton and McCracken obtained the interest on the bonds they held, while the holders of the other bonds did not, is entitled to no special consideration. If the holders of these bonds were not willing that the railroad company should pay Morton and McCracken the interest on their bonds, and receive no interest themselves, they had the remedy, at any moment they might use it, to compel a sale of the road, and a payment pro rata of both principal and interest; and the fact that'such holders remained silent, knowing, as they did, that Morlón and McCracken were receiving the interest regularly on their bonds, may be regarded as an assent on their part to the payment that was made, and having assented to such payment, they are in no position now to claim a priority over Morton and McCracken in the distribution of the proceeds of the sale of the road.

We now come to the cross-errors of Morton and McCracken. They claim that the interest on the bonds held by Humphreys and others, which accrued from 1871 to 1878, should he postponed until the bonds they held should be paid and satisfied. When the bonds were placed in the hands of Hatch & Son, of New York, for sale, this latter firm published a circular, which contained a description of the road, its connections with other roads, and the opportunity afforded for investment in its bonds. John Allen, the president of the road, published a notice in New York papers, that interest on the bonds would be paid at a certain bank in New York City. We perceive nothing in the notices or the conduct of Allen and others, who held the bonds, which could properly deceive or defraud Morton or McCracken, nor did they do anything which would estop them or their assignee from now sharing ratably with any other holder of the bonds in the proceeds of the sale of the road. They were under no legal obligation to present the bonds they held for payment of interest, nor did the law require them to notify or inform Morton and McCracken that no interest was being paid on their bonds. We perceive nothing in the record that would prevent them from sharing with other holders of bonds in the proceeds of sale.

But it is urged that the court erred in allowing interest on the interest warrants after their maturity. The interest war-' rants are not set out in the record, and we have no means of determining whether they could properly draw interest after maturity or not. If a decision on this question was deemed important, the interest warrants should have been incorporated in the record and abstract. We have examined both, but are not able to find them.

We are of opinion that the decision of the circuit court on the applications for priority in the disposition of the proceeds of the sale of the road was correct, and it will be affirmed.

Decree affirmed.

Subsequently a rehearing was granted in this cause, whereupon the following additional opinion was filed:

Mr. Justice Scholfield :

In the opinion heretofore filed in this case, the question of whether the court below erred in allowing interest on the interest warrants after their maturity, was not passed upon, because the interest warrants were not incorporated in the record. A petition for rehearing was presented, praying that a rehearing be ordered, and leave given to amend the record so as to incorporate therein these warrants. The petition was supported by a stipulation of the parties agreeing that the record should be amended by embodying the interest warrants therein, and the prayer of the petition was thereupon granted, and a rehearing was ordered for the sole purpose of enabling the court to pass upon the question of whether the court below erred in allowing interest upon the interest warrants. The record having been amended in accordance with the stipulation, the question sought to be raised is now fairly before us.

The following is one of the interest warrants:

“$35.00. Peoria, Pekin and Jacksonville Railroad Co. c, “Interest warrant for thirty-five dollars, payable at the Importers’ and Traders’ Bank of the City of New York, on the first day of July, 1894, for six months interest on bond No. 753

L. Chapman, Jr., Secretary.”

That interest was properly allowed and computed on this instrument, is settled by Harper et al. v. Ely et al. 70 Ill. 581, and the cases there referred to; and reference may also be made to Clark v. Iowa City, 20 Wall. 583, Town of Genoa v. Woodruff et al. 92 U. S. (2 Otto,) 502, and Amy v. Dubuque, 98 U. S. (8 Otto,) 473, holding the same doctrine.

The objection that, to fix.the liability to pay interest, a demand at the place of payment and a refusal to pay must have been shown, is answered by Butterfield v. Kinzie, 1 Scam. 445, President of New Hope, etc. Bridge Co. v. Perry et al. 11 Ill. 467, and Wood & Co. v. M. S. L. and T. Co. 41 id. 267, which hold directly the reverse; and that is matter of defence to be pleaded and proved by the maker, that he was ready, at the time and place, to pay. The interest, as an incident to the debt, must go with the debt, and in giving priority to the warrants, priority to the interest must follow as a matter of course.

We perceive no cause to change our former ruling.

Mr. Justice Walker :

I dissent to the previous and present opinions.

Mr. Justice Dickey :

I think the coupons over-due when the principal became due, should be paid in full before distribution upon the principal. »


author: Mr. Justice Sheldon Mr. Justice Dickey:

text:
    The Pennsylvania Company v. Thomas Rudel.

      Filed at Ottawa November 10, 1881.

    1. Continuance—for new counsel to prepane for trial. Where the defendant’s counsel, on the 16th day of the month, withdrew from the case, and on the same day other counsel were retained, who moved for a continuance to enable them to prepare for trial, which was refused, and the trial did not take place until the 23d of the same month, it was held, there was no abuse of discretion in denying the motion, calling for a reversal.
    2. Jubob—inquiry as to competency. A question to jurors asking them to state briefly their idea of the duties of a juror; with a view of ascertaining whether they were men of sound judgment and well informed, is not proper for that or any other purpose.
    3. Ebbob will not always bevebse—as to admission of evidence. A mere technical error in the admission of evidence of an unimportant character is no ground for reversal.
    4. Pleading and evidence. Evidence of what a flagman of a railroad company said and did at the time and just before a person about to take passage on a train was struck by another train passing on another track at a rapid speed, is pertinent in an action to recover for the injury, under an allegation that the company failed to keep a flagman at the spot to signal and warn of the approach of impending danger. Such allegation means more than that there was no flagman employed there.
    5. Instbuctions—one given by the court of its own motion may supersede others ashed. Where the court gives an instruction of its own in place of others refused, which fairly states the law of the case, the party asking those refused will have no cause of complaint.
    6. Negligence—instruction as to negligence of the plaintiff. Under peculiar circumstances going to excuse the plaintiff from taking the usually necessary precautions to avoid danger, an instruction in a suit to recover for a personal injury from a passing train at the intersection of the track with a street crossing, that if the plaintiff knew of the existence of the track at the place of the injury, and that trains frequently passed along the same, and could havedooked for and seen, or have listened and heard, the approaching train before going upon the track, and did not thus look and listen for the train, and that by reason of such neglect he failed to avoid the injury, may be properly refused, although ordinarily such an instruction should be given.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gaby, Judge, presiding.
    Messrs. Willard & Driggs, for the appellant:
    1. The court having allowed appellant’s counsel to withdraw their appearance, reasonable time should have been given in which other counsel could, in the usual course of business, prepare for trial. Jarvis v. Shacklock, 60 Ill. 378; Gruff v. Brown, 85 id. 89.
    2. The questions put to the jurors were proper, as a test of the soundness of their judgment and the extent of their information. Rev. Stat. 1874, chap. 78, sec. 2.
    3. The court erred in permitting Dibbs to state whether the defendant’s flagman had a flag, and generally what he was doing, and in allowing other witnesses to testify to the same facts. Such testimony was immaterial under the declaration which alleges negligence in not keeping and maintaining a flagman at Forty-third street, but makes no complaint of any misconduct of the flagman. The plaintiff can not aver negligence in one particular, and prove on the trial negligence in another. Toledo, Wabash and Western Ry. Co. v. Jones, 76 Ill. 311; Toledo, Wabash and Western Ry. Co. v. Foss, 88 id. 551; Chicago and Alton R. R. Co. v. Michie, 83 id. 427; Chicago, Rock Island and Pacific R. R. Co. v. Todd, 91 id. 70; Illinois Central R. R. Co. v. McKee, 43 id. 119; Illinois Central R. R. Co. v. Godfrey, 71 id. 500.
    4. The court erred in refusing defendant’s instruction directing the attention of the jury to the fact of the. plaintiff’s want of care in not looking and listening for the approaching train which struck him. It was his duty to ascertain, if he could,, whether any train was coming, before going upon the track. Chicago and Alton R. R. Co. v. Jacobs, 63 Ill. 178; Chicago, Burlington and Quincy R. R. Co. v. Lee, 68 id. 576; Hammer v. Railroad Co. 72 id. 347; Heth

      erington v. Railroad, Co. 83 id. 510; Pennsylvania Co. v. Hankey, 93 id. 580; Chicago, Burlington and Quincy R. R. Co. v. Dewey, Admx. 26 id. 255; Chicago, Burlington and Quincy R. R. Co. v. Hazard, id. 373; Rockford, Rock Island and St. Louis R. R. Co. v. Coaltas, 67 id. 398; Chicago and Northwestern Ry. Co. v. Cass, 73 id. 391; Chicago and Alton R. R. Co. v. Pondrom, 51 id. 333; Chicago and Northwestern Ry. Co. v. Sweeney, 52 id. 325; Western Union Telegraph Co. v. Quinn et al. 56 id. 319; Chicago, Rock Island and Pacific R. R. Co. v. Bell, Admr. 70 id. 102; Buckingham v. Fisher, 70 id. 120; Dimick, Admr. v. Chicago and Northwestern Ry. Co. 80 id. 338; Rockford, Rock Island and St. Louis Ry. Co. v. Byam, Admr. 80 id. 528; Chicago, Burlington and Quincy R. R. Co. v. Harwood, 80 id. 88; Illinois Central R. R. Co. v. Goddard, Admx. 72 id. 567; Illinois Central R. R. Co. v. Houck, Admr. id. 285; Toledo, Wabash and Western Ry. Co. v. McGinnis, 71 id. 346.
    5. A plaintiff guilty of slight negligence contributing to the injury, may recover, if the defendant’s negligence contributing to the injury was gross in comparison. Illinois Central R. R. Co. v. Hammer, 72 Ill. 317.
    6. Where the negligence of the plaintiff and defendant is equal, or where the defendant’s negligence merely preponderates, no recovery can be had. Aurora Branch R. R. Co. v. Grimes, 13 Ill. 585; Chicago, Burlington and Quincy R. R. Co. v. Lee, Admx. 68 id. 576; Rockford, Rock Island and St. Louis R. R. Co. v. Irish, 72 id. 101; Illinois Central R. R. Co. v. Goddard, Admx. 72 id. 567.
    7. This court has uniformly held, that a person who knowingly goes upon a railroad track, regardless of the approach of trains thereon, is, as a matter of law, guilty of gross negligence. Chicago and Northwestern Ry. Co. v. Sweeney, 52 Ill. 325; Chicago, Burlington and Quincy R. R. Co. v. VanPatten, 61 id. 510; Chicago, Burlington and Quincy R. R. Co. v. Lee, Admr. 68 id. 576; Chicago, Rock Island

      and Pacific R. R. Co. v. Bell, Admx. 70 id. 102; Chicago, Rock Island and Pacific R. R. Co. v. Godfrey, 71 id. 500; Illinois Central R. R. Co. v. Goddard, Admx. 72 id. 567; Chicago and Northwestern Ry. Co. v. Donahue, 75 id. 106; Chicago, Burlington and Quincy R. R. Co. v. Harwood, 80 id. 88.
    8. There are no degrees of gross negligence, therefore a-plaintiff who is guilty of gross negligence contributing to the injury, can not recover, unless the defendant has wantonly or willfully inflicted such injury. Chicago, Burlington and Quincy R. R. Co. v. Van Patten, 64 Ill. 510; Same v. Lee, 68 id. 576; Illinois Central R. R. Co. v. Godfrey, 71 id. 500; Litchfield Coal Co. v. Taylor, 81 id. 590; Shearman & Redfield on Negligence, sec. 36.
    9. The approach of the train being visible, and proper warning signals having been given, the engineer had the right to suppose that those persons whom he saw standing alongside of the track would not go on the track, so as to get hurt. Chicago, Rock Island and Pacific R. R. Co. v. Austin, 69 Ill. 426.
    Messrs. Monboe & Leddy, for the appellee
    1. It was not error to refuse the motion for a continuance. The trial was not until seven days after the withdrawal of counsel and the retainer of others, which afforded ample time to prepare for trial.
    2. Appellee’s duty required him to look for a safe footing, and the train he was about to get aboard. He had the right, under the law, to expect both that he would be warned, of the approach of the train, and that it would be run at the rate of speed required by law. St. Louis, Vandalia and Terre Haute R. R. Co. v. Dunn, 78 Ill. 197.
    3. The language used in the second instruction is too potential,—requires too much, and more than the law requires of the plaintiff. The words used are, if the plaintiff “could have looked for and seen the approach of the locomotive, ” etc. It should have stated, if, by observing due and reasonable care, he could have looked for the locomotive, etc. Even if the plaintiff “could have looked,” and even though his failure to look might be called slight negligence, but which, under the evidence, we insist could not he called negligence, there could still he a recovery if the appellant was reckless, or its negligence gross as compared with that of appellee; but the jury are told to find for the defendant if plaintiff “could have looked.”
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an action by Rudel, against the Pennsylvania Company, to recover for a personal injury sustained from the alleged negligent running of a passenger train on defendant’s railroad. There was a recovery by the plaintiff, which, on appeal, was affirmed by the Appellate Court for the First District, and defendant has appealed further to this court.

The evidence goes to show that at the intersection of Forty-third street and defendant’s railroad, in the town of Lake, Cook county, Illinois, the defendant had a small depot or waiting room for passengers desiring to take passage on its trains at that point. To the west of, and within three feet of, the entrance door of such waiting room, is a main sidetrack, and within less than eight feet west from said main side-track is a main track known as the east main track, upon which defendant moves its trains going in a north direction, and within less than eight feet west of such east main track is a main track known as the west main track, upon which defendant moves its trains going in a south direction. Forty-third street runs east and west. On a cold and dark night in February, 1880, plaintiff and five or six other persons were inside the depot waiting for the arrival from the north of what is called the dummy train of cars, upon which they were intending to take passage south for Englewood. After waiting a few minutes, the dummy train came up to the station, stopping there across Forty-third street. About that instant of time the agent of defendant in charge of the depot, and being also the flagman there, called out that the dummy had come, or was coming, and hurried the passengers out to take the train. They immediately started on Forty-third street to get aboard the train, and the plaintiff being the first, going ahead of the others, was almost immediately struck by the express passenger train, going north at a speed of from thirty to forty miles an hour, causing the injuries complained of.

On September 16 defendant’s former attorneys withdrew from the cause, and on the same day other counsel was 'retained, and a motion, for that reason, was made for the continuance of the cause to the next term, to allow time for preparation for trial. The overruling by the court of this motion is assigned for error. The cause did not come on for trial until September 23. We see no abuse in the exercise of the discretion of the court in denying the motion, which calls for our interference.

To three of the jurors there was put by defendant’s counsel this question: “State briefly your idea of the duties of a juror." The court sustained an objection to the question, and this is assigned for error. As the statute names that persons selected by the county board to serve as jurors shall he “of sound judgment and well informed,” it is urged that the question was proper to test the soundness of judgment and extent of information of the jurors. The unnecessary protraction of jury trials has come to be a great e,vil, and one thing which contributes thereto is the needlessly long drawn out examination of jurors. The question was not proper with the view stated, nor for any purpose, and a court would fail of its duty, in the proper dispatch of business, to sit by and permit the consumption of its time by the putting of any such questions to jurors.

It is complained that the court erred in the admission and rejection of testimony. Space would not allow the notice in detail of the very many objections under this head. While in two or three instances there might, in strictness, be error in the ruling, it is of so unimportant a character that we may say, that in this respect of the admission and rejection of evidence we find no material error which should cause a reversal of the judgment. The admitted testimony, excepted to, seems to have been hardly more than a description of the location and place, and what happened on the occasion and at the time of the accident. The testimony in respect to the flagman is claimed to have been inadmissible under the declaration, as it only alleged in regard to him that defendant “failed to station, keep and maintain a flagman at said Forty-third street crossing, for the purpose of signaling persons traveling in the direction of said crossing, and warn them of the approach of any locomotive engine or other impending danger, contrary to the ordinance of the said town of Lake. ” It is claimed that this allegation did not admit of proof of what the flagman did and said on the occasion, as it would be showing misconduct of the flagman, which the' declaration does not allege. We think the testimony as to the conduct of the flagman was pertinent, as proof of the allegation of the declaration that the company failed to keep a flagman at the spot, to signal and warn of the approach of impending danger,—that the allegation means more.than merely that there was no flagman employed there.

It is complained that the court erred in instructing the jury, and in refusing to give instructions asked by the defendant. The court gave some of the instructions asked by the' defendant, and in place of others asked by defendant, and of all asked by plaintiff, gave, of its own motion, an instruction to the jury. We think this instruction very fully and fairly gave the law of the case to the jury, leaving to the defendant no cause of complaint in that respect.

One of the refused instructions asked by defendant was, that if plaintiff knew of the existence of defendant’s east main track at the place of the injury, and that locomotives and trains frequently passed along the same going north, and that plaintiff, before he went upon said track, could have looked for and seen, or have listened for and heard, the approaching train by which he was injured, and that plaintiff did not thus look or listen, and that by reason thereof he failed to avoid the injury, then the jury should find for the defendant. It is insisted this instruction should have been given, in accordance with former decisions of this court upon the subject. Ordinarily such an instruction should be given, according to what this court has often laid down to be the rule in this respect; but under the special facts and circumstances of this case, we" can not say that it was error to refuse the instruction. There was much in the peculiar circumstances of the case to go in excuse of the taking of such usually necessary precautions as are named in the instruction, before going upon a railroad track.

It is further insisted the damages are excessive. We do not see sufficient cause for the disturbance of the verdict of the jury for this reason.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

Mr. Justice Dickey:

I concur in the decisions herein cqntained, but do not concur in all the reasons assigned in their support. As to the question of excessive damages, I regard that a question of fact which we can not lawfully determine, nor do I understand that it is intended here to pass upon that question, and so I object to the comment on that subject as liable to be taken as an intimation that we may have the lawful power to review the ruling on this question.