text:
    Samuel Marshall v. John C. Ender.

      Filed at Ottawa June 16, 1888.

    Contract of investment—evidence as to transfer and ownership of securities. A deposited with a loan broker about $1800 for investment, who had in Ms hands a bond for $2000, then past due, belonging to another, and indorsed in blank. The broker entered upon his books a charge to A of $2000, and a credit of $1800, and also a credit of $80 interest, and extended the time of payment to the debtor, taking coupon notes for the interest, payable to himself, and an agreement to pay the bond to him, and about two months thereafter sold and transferred the bond and coupon notes to B, to whom.he afterward paid the interest: Held, on a review of all the evidence, that as between A and B, the latter was the owner of the' bond and coupon notes.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.

      Messrs. Blanks & Chytraus, and Mr. Francis Lackner, for the appellant.
    Mr. Isaac E. Adams, for the appellee.
   Mr. Justice Scott

delivered the opinion of the Court:

In the bill of complaint filed by Benjamin Lichtenstein in the circuit court of Cook county, it was alleged he was the owner of certain real estate described, subject to an indebtedness of $2000, created thereon by the former owner, Carl M. Carlson, his wife, Garin, joining in the execution of the trust deed to Lyman Baird to secure the same; that such indebtedness was due, and that he was ready and willing to pay the same so soon as it could be ascertained who was the true owner; that one Samuel Marshall claimed to be the owner, and that one John C. Ender also claimed to be the owner, and the prayer of the bill is, that these respective claimants be required to interplead and settle their rights in the premises between themselves,—complainant offering to pay the amount due and secured on the property to whichever one of claimants the court should find it belonged. A decree was accordingly entered, in conformity with the prayer of the bill, requiring the claimants to interplead, and each one to state his claim to the indebtedness in question, which they did, in the usual form in such cases. On the final hearing of the cause the court found that John C. Ender was the owner of the indebtedness, and entered a decree that complainant pay the same to him. That decree, on the appeal of Samuel Marshall, was affirmed in the Appellate Court for the First District, and he brings the case to this court on his further appeal.

The real question in the case is much more one of fact than of law. It is as to the ownership of the indebtedness secured upon the property of complainant. There is no conflict in the evidence as to some of the facts. Both parties claim to have bought the bond given by Carl M. Carlson, with the trust deed to Baird, by which it was secured, from Charles A. Schmidt, who was a loan broker. Originally the bond was made payable to Francis Bradly.. Afterwards he sold and assigned the bond to Miss Nancy Swift, without recourse, and Miss Swift indorsed it in blank without recourse. In that condition, the bond, the trust deed, and perhaps other papers connected with the loan, came to the possession of Schmidt. Ender, in his answer, claims that on or about the 6th of September, 1881, Schmidt, for value, sold, assigned and transferred to him all the right, title and interest in the bond and trust deed, and that since that date he has been the owner and holder of the same; and Marshall, by his answer, alleges that on or about the 15th day of July, 1881, he purchased the bond and trust deed from Nancy Swift, by whom they were indorsed in blank and delivered to him, by which he became the owner, and that on receiving the same he left the bond and other papers with Schmidt, for safe keeping, and for the collection of interest that might thereafter become due. It is quite clear, from the evidence, that at the time both claimants purchased the bond it was over-due by its terms, but the time for payment had been extended by Miss Swift, the former owner. Both claimants alleged they bought the bond for the purpose of investment, that they might receive interest upon the funds employed in making the purchase.

There is another fact in the case about which there is no controversy,—that is, that after the bond came to the possession of Schmidt, on the 15th day of July, 1881, he took an agreement to himself from the legal representatives of Carl M. Carlson, whose death had occurred prior to that time, in which it was recited they were indebted to Schmidt in the sum named in the bond, and secured on the property of Carlson that .had descended to them on his death; and in consideration that Schmidt would extend the time of payment until July 15, 1884, they agreed to pay him the principal and interest of the bond. Coupons for the semi-annual interest were executed by the legal representatives at the same time, bearing even date with the agreement,—July 15, 1881,—payable to Schmidt or his order. It will be noted, the agreement between Schmidt and the legal representatives of the original debtor was made on the day Marshall claims he bought the bond and trust deed from Nancy Swift, and that it was made a month and a half before Ender alleges he purchased the bond of Schmidt. There can be no question, under the evidence in the case, that Ender purchased the bond and trust deed of Schmidt after the making of the renewal agreement with the legal representatives of the original debtor, in good faith, and for a valuable consideration, and that he received the same from Schmidt at the time, and retained the same in his possession until this litigation began, except for a time it was in a bank as collateral security for his indebtedness to the bank. Afterwards that indebtedness was paid, and the bank returned the papers to him. Unless Marshall had a prior and superior right to the bond, it is evident the title of Ender is good, and should be sustained. This court is inclined to concur with the Appellate Court in its conclusion the proof of the facts relied on by Marshall to sustain his claim is “confused, contradictory and unsatisfactory.” Schmidt died about the time the original bill was filed, so that his testimony concerning the transaction, which would have been of the utmost importance, is lacking in the case.

As the case now comes before this court, the evidence in support of Marshall’s claim is from three sources: First, the testimony of the claimant himself; second, the books of Schmidt; and third, the testimony of a son of the claimant, who was a clerk in the office of Schmidt. The testimony of the claimant is to the effect he gave Schmidt, who was his brother-in-law, $2000 with which to buy the bond from Miss Swift, and that afterwards Schmidt told him that he had bought it, and had the papers in his safe for him. It is not claimed that Marshall ever had the bond and other papers in his actual possession. His explanation for leaving the papers with Schmidt is, that he was a sailor, was away from home on the lakes much of the time, and had no safe depository for them at his home. But his explanation of the details of the transaction is so contradictory as to be very unsatisfactory, and that is no doubt why the trial court did not give more weight to his testimony. It is also seen that the testimony of his son, who was at the time a clerk in the office of Schmidt, throws but little, if any, light upon the payment of the $2000 to Schmidt with which to purchase the bond. The -books of Schmidt do show that Marshall is charged with $2000 paid to Nancy Swift for this identical bond. That entry is under the date of July 14, 1881. Under date of July 11, 1881, Marshall is credited by Schmidt on his books with $400 received “for investment,’’ and under date of July 12, 1881, with $1396, as having been received from him also “for investment.” That is all the books show as to the receipt of money to be “invested.” That, of course, does not make up the sum of $2000, which he alleges he paid to Schmidt. On July 15, 1881, which is the date of the renewal agreement with the legal representatives of the maker of the bond, Marshall is credited with $80, for interest due that day on the bond as having been received from them. The books also show other credits of small sums, irregular in amount, to Marshall, as having been received from the representatives of the maker of this bond, for interest. But it is evident that during all the time these sums of money were being paid to Marshall, Ender had in his possession the original bond, the renewal agreement, and the coupons given for the semi-annual interest, and received payment of the coupons from Schmidt as they respectively became due. The most plausible view that can be taken, and the one most consistent with the good faith of all the parties to the transaction, is, that Marshall placed in Schmidt’s hands, for “investment,” certain sums of money, and it may be, and is, doubtless, true, that Schmidt told him he would invest the sums in this identical bond in controversy. But it does not appear, from any satisfactory evidence in the record, that he did in fact so invest claimant’s funds in this bond, or in any other securities. His books do not show that at the date Schmidt took the renewal agreement and the coupons payable to himself, he had in his hands a sufficient sum of money belonging to claimant with which to pay for the bond in controversy. Nor does it appear -that he did receive a sufficient amount before he sold and transferred the bond to the other claimant, Ender. His financial condition was such that Schmidt could not carry the bond long, and it may have been for that reason he sold the bond to Ender, as he did shortly after he purchased and took the renewal agreement to himself. This view of the transaction accords with the conduct of Schmidt in his last sickness. When approached by Marshall concerning the matter, he told claimant if he would wait until he got well again he would make it all right with him. The evidence affords some explanation, although not entirely satisfactory, for the payment of interest to Marshall by Schmidt. He not only had the money he got of claimant about the time he purchased the bond, but he owed him for money obtained long before that transaction. It may have been in consideration of these matters he paid him small sums of money at sundry times, and Schmidt may have thought, if he did not invest Marshall’s money for him he certainly ought to pay him some interest on it. The very fact Schmidt took the renewal agreement and coupons to himself, shows he did not intend to buy the bond for Marshall, or any other particular person. He simply bought it so that he could transfer it to any one that would pay for it. As before remarked, he may have honestly intended to invest Marshall’s money in this bond, but it seems clear he did not. But when he ascertained Marshall did not have money enough to pay for it in his hands, Schmidt very shortly thereafter sold and delivered it to the other claimant. If this conclusion is not the correct one, it is evident Schmidt deliberately attempted to commit a fraud 'upon his brother-in-law by taking the securities in his own name,—a conclusion that ought not to be adopted if one more consistent with honesty and fair dealing can be reached.

The decree of the trial court seems to be warranted by the evidence, and the judgment of the Appellate Court must be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Chief Justice Craig

license: Public Domain

text:
    Martha J. Baldwin et al. v. George W. Ratcliff.

      Filed at Mt. Vernon June 16, 1888.

    1. Limitation—as between tenants in common. Where one tenant in common undertakes to establish an adverse possession of lands as against a co-tenant, in order to constitute a disseizin there must be outward acts of exclusive ownership, of an unequivocal character, overt and notorious, and of such a nature as to impart information, and give notice to the co-tenant that an adverse possession and an actual disseizin are intended to be asserted against him.
    2. Same—under act of 1839—color of title by will. A will purporting to devise lands described, when properly probated, is color of title in the devisees, under section 8 of the Limitation law of 1839. The statute does not require that color of title shall be based upon a money consideration.
    3. Same—color of title—good faith presumed. In the absence of evidence showing bad faith on the part of the holder of color of title, good faith will be presumed.
    Writ of Error to the Circuit Court of Hardin county; the Hon. Robert W. McCartney, Judge, presiding.
    Mr. W. H. Boyer, and Messrs. W. S. Morris & Son, for the plaintiffs in error:
    At common law there were four modes of alienation or conveyance : First, by deed; second, by matter of record; third, by special custom; and fourth, by will or devise. 1 Blackstone’s Com. (Sharswood’s ed.) book 2, chap. 19, p. 293.

      When land is devised by a man to his heirs, they take by purchase, and not by descent. 1 Blackstone’s Com. book 2, chap. 15, p. 442.
    As to color of title, see 2 Starr & Curtis’ Stat. chap. 83, sec. 6. A will is color of title. McConnell v. McConnell, 64 N. C. 342.
    Color of title does not mean actual title, nor does the question of notice of outstanding title affect it. Cook v. Norton, 43 Ill. 391; Woodward v. Blanchard, 16 id. 424; McCagg v. Heacock, 34 id. 476; Rawson v. Fox, 65 id. 200; County of Piatt v. Goodell, 97 id. 84; Conner v. Goodman, 104 id. 365; Bride v. Watt, 23 id. 507; Hassett v. Ridgely, 49 id. 198; Smith v. Ferguson, 91 id. 304; Brooks v. Bruyn, 35 id. 392; Burgett v. Taliaferro, 118 id. 503.
    Good faith must be presumed until bad faith is clearly proven. McCagg v. Heacock, 34 Ill. 476; Brooks v. Bruyn, 35 id. 392; Cook v. Norton, 43 id. 391; Coleman v. Billings, 89 id. 190.
    Mr. L. T. Twitchell, for the defendant in error:
    The Statute of Limitations does not run between tenants in common, and an entry by one is presumed to be for all. Gilbert on Tenures, 28, and note by Watkins; Angell on Limitations, secs. 422, 423; Stevens v. Wait, 112 Ill. 544; Busch v. Huston, 75 id. 344; Ball v. Palmer, 81 id. 370; Todd v. Todd, 117 id. 92; Comer v. Comer, 119 id. 170; Cooter v. Dearborn, 115 id. 509; Campbell v. Campbell, 13 N. H. 488; Dowdall v. Byrne, Batt. (Irish,) 373; Whiting v. Dewey, 15 Pick. (Mass.) 428; Smales v. Dale, Hobart, 120.
    This is true, even though one tenant in common uses and occupies the premises, receives the whole of the rents and profits, and makes improvements thereon. Freeman on Cotenancy, sec. 510; Todd v. Todd, 117 Ill. 92; Cooter v. Dearborn, 115 id. 509; Gilkey v. Peeler, 22 Texas, 663.

      Also, where one tenant in common makes a deed purporting to convey the whole of the land, the grantee takes as tenant in common, especially where the parties take by. the same deed, or by descent from the same source, and where they are related. Stevens v. Wait, 112 Ill. 544.
    The possession of one tenant in common is the possession of all, and before such possession can become adverse, there must be an actual ouster of an unequivocal character, overt and notorious,* and of such a nature as by its own import to give notice to the co-tenants that an actual disseizin was intended. Busch v. Huston, 75 Ill. 343; Ball v. Palmer, 81 id. 370; Todd v. Tood, 117 id. 92.
    The fact that Richard Palmer attempted to devise the whole of this land to his heirs, does not destroy the cotenancy. Stevens v. Wait, 112 Ill. 544.
    A will passes only so much as the testator owns, though it attempt to pass more. Bradley v. Rees, 113 Ill. 327.
    The deed from Mariah Belt and husband to Richard Palmer only purports to convey their interest in the land. This is not color of title to the whole. Busch v. Huston, 75 Ill. 343; Dryden v. Newman, 116 id. 186.
    The Limitation act of 1839 requires claim and color of title made in good faith. Rev. Stat. sec. 6, chap. 83, (2 Starr & Curtis’ ed.) p. 1539.
    Color of title is a question of law, and good faith is a question of fact. Woodward v. Blanchard, 16 Ill. 424.
    The act was manifestly intended to protect those who purchase land, and pay their money therefor under the belief that they are acquiring title. Rawson v. Fox, 65 Ill. 200; Winters v. Haines, 84 id. 585.
    The will in question was a gift of the land.
    A volunteer, or one who acquires title without consideration, is not a holder in good faith. Harpham v. Haynes, 30 Ill. 404.
    The doctrine of laches is applied only when the delay makes it inequitable to grant the relief sought. Stiger v. Bent, 111 Ill. 328. Also the relation of the parties is considered. Ryder v. Emrich, 104 Ill. 470.

      Laches is not imputed against an infant, but runs only from removal of disability. Walker v. Ray, 111 Ill. 315.

      Laches is applied outside of statutory limitations, only when it is sought to enforce an equitable, as distinguished from a legal, claim. 1 Story’s Eq. Jur. sec. 529.
    Mr. John P. McCartney, also for the defendant in error.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by George W. Ratcliff, against the plaintiffs in error, to partition certain lands in Hardin county, of which Wiley R. Palmer died seized on the 1st day of January, 1853. It is alleged in the hill that Wiley R. Palmer died in Hardin county, January 5,1853, intestate, the owner of the north-east quarter of the north-east quarter; the north-west quarter of the north-east quarter; the southwest quarter of the north-east quarter; the north-east quarter of the north-west quarter; the south-east quarter of the northwest quarter; the south-west quarter of the north-west quarter; the north half of the south-east quarter; the south-east quarter of the south-east quarter, all in section 4; and the northwest quarter of the north-west quarter, in section 10; and the south-west quarter of the south-west quarter, in section 3,—all in town 12, range 9, in Hardin county, Illinois; that at his death, he left his widow, Mariah Palmer, (afterwards Mariah Belt,) and Nancy, John, Epaminondas and Richard Palmer, his children and only heirs; that the widow afterward married Hiram Belt, and by him had the following named children, born on dates as follows: Arthur H., July 7, 1854; Eliza Ann, September 6, 1856; James D., May 20, 1858; Delilah, September 24, 1860; William G., January 11, 1864; and George W. Belt, January 4, 1867. It is also alleged that Nancy Palmer died unmarried and without issue on the .... day of....... 1857; that John Palmer died April 6, 1862, unmarried and without issue; that Epaminondas died November 18, 1863, unmarried and without issue. The bill then charges, that on the .... day of....... 1867, Mariah Belt was the owner of fifty two-hundred-and-twentieths of all of said lands, and that at that time she made a general "warranty deed to Richard Palmer, and thereby conveyed to him all her interest in all the lands described in the bill, except the northwest quarter of the north-west quarter of section 10, and the south-west quarter of the south-west quarter' of section 3, and ten acres off the east side of the south-east quarter of the southeast quarter of section 4, town 12, range 9,—ninety acres. The bill also alleges that Richard Palmer then took possession of all the lands, as tenant in common, except the ninety acres, and occupied the same until he died,—July 15, 1874; that on the 3d day of June, 1883, James D. Belt conveyed his interest in the lands to complainant; that Delilah Belt married William Lyons, and they, on June 14, conveyed to complainant; that Eliza A. Belt conveyed to complainant on June 23, 1883; that William Gr. Belt conveyed his interest to complainant October 19, 1883. It is also alleged that Richard Palmer died on the 15th day of July, 1874, testate, and hy his will he devised the lands described in the bill to his widow and children, by name.

In the answer it is denied that complainant obtained any title to the lands through the conveyances set up in the bill. It is also set up in the answer that the possession of Richard Palmer was adverse, open and notorious, and continued from 1865 or 1866 until his death; that he cleared the lands and placed them in cultivation, and erected buildings thereon, amounting in value to $2000; that he paid all taxes assessed on the lands. It is also set up in the answer, that the will of Richard Palmer, under which the lands were devised to the defendants in the bill, is color of title, under which they have held the continuous adverse possession of the lands and paid all taxes thereon for a period of more than seven successive years, and that they rely upon such adverse possession and payment of taxes as a bar to the relief prayed for in the bill.

As to the main facts in this case there is no substantial dispute between the parties. Wiley R. Palmer died seized of the lands described in the bill, January 1, 1853, leaving a widow, Mariah, and four children, John, Richard, Epaminondas and Raney. The children all died unmarried and without issue, as stated in the bill, except Richard. The widow, Mariah, married Hiram Belt in July, 1853, and subsequently had six children, born at the respective dates stated in the bill. Wiley R. Palmer did not reside on the lands here involved, at the time of his death, but he resided on a farm on the river, in section 21, called by the witnesses the “Walls Place,” or the "“River Farm.” The widow continued to reside on this place until 1857 or 1858, when she moved on her “dower land,” so called, which is the ninety acres in sections 3, 4 and 10, named in the bill. There was but a small quantity of the remaining portion of the lands in cultivation prior to 1865. One witness testified that he “tracked deer through the fields in 1864; very little cleared then; a thicket of briers, some old fields with bad fences, no house.” Another witness thinks there were fifteen acres cleared. Richard Palmer returned from the army in 1865, and at once went into possession of all the lands, except the ninety acres occupied by the widow. He went in as owner, and at once commenced clearing and improving the lands as fast as possible. He erected two dwelling houses, stable, corn-crib and smoke-house, and also had log houses put up by lessees to reside in while they cleared and cultivated portions of the land. The evidence is clear, that from the time Richard Palmer first took possession of the lands, down to his death, he claimed to be the owner of the absolute title to all the lands. He leased, cut and sold timber, burned lime kilns on the lands, and sold and conveyed eighty acres. The lands were assessed in his name, from year to year, by the County assessors. He paid all taxes as owner. Soon after taking possession, he entered into an arrangement with his mother, Mariah Belt, by which he conveyed to her the ninety acres, the “dower tract,” and she conveyed to him her interest in the other lands. John W. Hughes, a brother of Mariah Belt, heard the contract, and testified to its terms. He further testified : “Richard moved on his part in 1865 or 1866, and began, to build, clear and fence it, and lived on it till he died. His widow and children have controlled and lived on it since, and live on it now. I know of no claim or possession adversely to Richard during this time. I never heard of any one claiming the land adversely to him, till this suit was brought. He put a fine frame building on it, .several cabins for renters, and cleared and fenced a great deal of it, and the improvements were of a substantial character. ”

There is in the record much evidence of this character, and while it is true, where a tenant in common undertakes to establish an adverse possession of lands, in order to constitute a disseizin there must be outward acts of exclusive ownership of an unequivocal character, overt and notorious, and of such a nature as by their own import to impart information and give notice to the co-tenant that an adverse possession and an actual disseizin are intended to be asserted against him, as held in Busch v. Huston, 75 Ill. 345, and subsequent cases, yet we regard the evidence, here, ample for that purpose. If the possession of Richard Palmer was adverse, the possession of the widow and children, who derived title from him by devise upon his death, July 15, 1874, was also adverse.

The next inquiry is, whether the evidence is sufficient to establish color of title in the defendants, and possession and payment of taxes for seven successive years, so as to bring them within the terms of section 8 of the Limitation law of 1839. There is no question in regard to the sufficiency of the evidence to establish possession and payment of taxes for the requisite period, to bar a recovery. Indeed, defendants occupied the lands and paid all taxes for nine years before this action was commenced. The only question, therefore, to he determined is, whether they held under color of title.

The will under which they held was executed by Richard Palmer, properly attested, and probated in the county court of Hardin, in the summer of 1874. In it the lands were devised as follows: “I give and devise to my wife, Martha J. Palmer, the north-west quarter of the north-east quarter and the south-west quarter of the north-east quarter of section 4, town 12, range 9 east, in the county of Hardin, and State of Illinois, for her natural life, and at her death, to my son, Wiley R. Palmer, in fee. To my daughter Mary Palmer I give and devise the east half of the north-west quarter of section 4, town 12, range 9, in said county and State, to hold in fee simple. To my daughter Dora Palmer I give and devise the north-east quarter of the north-east quarter and the north-west quarter of the south-east quarter of section 4, township 12, range 9 east, in said county and State, to hold in fee simple. To my daughter Etta Palmer I give and devise the north-east quarter of the south-east quarter, and the west three-fourths of the south-east quarter of the south-east quarter of section 4, township 12, range 9, in the same county and State, in fee simple.”

Was this instrument claim and color of title made in good faith ? It will be observed that the legislature, in enacting the' law, has used no language' from which the inference may he drawn that it was intended to confine the words, “claim and color of title,” to any particular kind of paper title. The language used is: “Every person in the actual possession of lands or tenements, under claim and color of title made in. good faith, * * * shall be held and adjudged to be the legal owner, etc., to the extent and according to the purport of his or her paper title.” There is nothing here requiring a deed, to establish color of title, and under the former decisions of this court color of title may exist without a deed. In McCagg v. Heacock, 34 Ill. 479, it was held that any instrument indicating an intention to pass a title to lands, of which a description is given, from one party to another, gives color of title to the lands described. In Woodward v. Blanchard, 16 Ill. 434, it was held that an auditor’s deed, made upon a tax sale, was color of title, without regard to its intrinsic worth as a title and without regard to the constitutionality of the laws under which it was derived. In Chickering v. Failes, 26 Ill. 519, a mortgage and decree of strict foreclosure were held to be color of title. In Hassett v. Ridgely, 49 Ill. 201, a judgment in a partition proceeding was held to be color of title. A will is an instrument in writing, and when probated passes title to lands devised therein as effectually as does a deed, and no good reason occurs to us why a will may not be held to be color of title. By the terms of the will, the lands were directly devised to the persons named in the will, and all claim and title held by Richard Palmer passed, under the instrument, in as complete a manner as if he had executed his deed. And if a deed is color of title because it purports, on its face, to transfer the title to lands, from one person to another, for the same reason, and upon the same principle, a will like the one here involved must be held to be color of title. The question here involved arose in McConnell v. McConnell, 64 N. C. 342, and the court held that a, probated will was color of title. See, also, Stumpf v. Osterhage. 111 Ill. 82.

But it is said in the argument, there was no consideration for the lands devised, and for that reason the will can not be regarded as color of title. There is nothing in the statute requiring color of title to be based upon a moneyed consideration, and in the absence of a provision of the statute we are not inclined to adopt a construction of that character. Natural love and affection is a sufficient consideration to support a deed, .and if Palmer had conveyed the lands to his children, before his death, on such a consideration, his deed would have been color of title, and upon the same principle the will may he regarded as color of title.

As to the question of good faith, alluded to in the argument, the record shows no evidence of had faith, and in the absence of such evidence good faith will be presumed.

For the reasons given, we think the decree of the circuit court was erroneous, and it will be reversed, and the cause remanded with directions to the circuit court to dismiss the bill.

Decree reversed.


author: Mr. Justice Scott

text:
    Henry T. Steele v. The Grand Trunk Junction Railway Company.

      Filed at Ottawa June 16, 1888.

    1. Appeal—certificate, of importance from Appellate Court—its requisites. Where the sum in controversy does not exceed $1000, the certificate of the Appellate Court that the cause decided by it “involves questions of law of such importance, either on account of principal or collateral interests, as that it should be passed upon by the Supreme Court,” is sufficient to give this court jurisdiction of the cause by appeal. It is not necessary the certificate shall point out the questions considered of sufficient importance to be passed upon by this court.
    2. Cross-errors—whether necessary. If the appellee in this court wishes to have the judgment of the Appellate Court, in overruling his motion to, strike from the record the paper purporting to be a bill of exceptions, reviewed by this court, he must assign a cross-error in respect to such ruling. If he does not, he will be considered as acquiescing in the decision of the Appellate Court.
    3. Abatement—prior action pending—identity of cause of action. An action of forcible detainer, when the complaint shows a notice to terminate the lease for non-payment of rent when due, and a subsequent action brought after the lease has expired, for a holding over, are not the same, and the pendency of the first will not operate to abate the latter.
    4. Pleading and evidence—plea in abatement in forcible detainer— merits to be established. Where the issue on a plea in abatement, in an action of forcible detainer, is found by the court, on the trial of an appeal from a justice of the peace, in favor of the plaintiff, it is error to render judgment against the defendant on the merits, without evidence showing his right to recover.
    5. Pleading in forcible detainer—before justice of the peace. There is no necessity for written pleadings other than the plaint, in actions of forcible detainer in a justice’s court. Section 11 of the Forcible Entry and Detainer act has reference only to actions brought in a court of record. A plea in abatement, of the pendency of a prior suit need not he made in writing, but may he stated orally.
    6. Same—informality of trial before justice—whether demand must be proven, in case of defendant's default. The statute relating to justices’ courts contemplates that when the parties appear for trial the justice shall, in an informal way, hear their “respective allegations and proofs,” and give such judgment as shall, from the evidence, appear right. When the defendant fails to appear, the plaintiff must fully prove his demand, except in cases where the plaintiff files his affidavit of claim.
    6. Practice—of the order or precedence in giving testimony. Where the defendant in a suit originating before a justice of the peace, on appeal to the circuit court pleads a former action pending, in abatement, it is irregular for the defendant to introduce his proofs of the pendency of the former suit before the plaintiff has given evidence" of his demand.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. H. F. Vallette, for the appellant:
    The plea in abatement ought to have been sustained. The allegations of the plea cover the whole ground. B alleges a former suit pending and undetermined between the same parties, for the same cause of action, and is verified by the oath of defendant. The proof offered sustains the plea in every particular. Such pleas are favored in court. McConnell v. Stettinius, 2 Gilm. 712; Buckles v. Harlan, 54 Ill. 361.
    The objection is not good, that when this suit was tried there was no such former suit pending. The inquiry is, whether the plea was good when pleaded,—on May 19, 1884. 1 Chitty’s Pl. 454, 455; Commonwealth v. Churchill, 5 Mass. 174; Bancroft v. Eastman, 2 Gilm. 259; McConnell v. Stettinius, id. 712.

      In the last case cited, this court has held that “it is too late, after the plea has been filed, for the plaintiff to dismiss his suit, and then reply to this fact.” See, also, Beach v. Norton, 8 Conn. 70; Marston v. Lawrence, 1 Johns. Cas. 397; Downer v. Garland, 21 Vt. 362; Boswell v. Tunnell, 10 Ala. 958; Hope v. Alley, 11 Texas, 259; Rogers v. Hoskins, 15 Ga. 270.
    The purpose and object of both suits were the same,—viz., the recovery of possession of the premises, and nothing else. If the lease had been already terminated, for whatever cause, as alleged in the complaint in the former suit, by notice to that effect given February 13, 1884, then there was no subsisting lease left to be afterward terminated, whether by notice or by expiration of the time it had to run.
    When the issue is found against the defendant on a plea in abatement, the jury must assess the plaintiff’s damages, which can not be except upon proof. McCartee v. Chambers, 6 Wend. 649 ; 1 Chitty’s Pl. 498, 499.
    Mr. F. H. Culver, for the appellee:
    This court has no jurisdiction, for the reason the Appellate Court has not pointed out the questions of law which they consider of sufficient importance to be reconsidered.
    The bill of exceptions should have been stricken out, as not having been presented to the judge in the time fixed. Evans v. Fisher, 5 Gilm. 453; Burst v. Wayne, 13 Ill. 664; Wabash v. People, 106 id. 652; Warner v. Kelley, 2 Bradw. 559; People v. Blades, 10 id. 20.
    The issue on the plea in abatement was rightfully decided. It was for the defendant to show the identity of the two causes of action. Smalley v. Edey, 19 Ill. 211; Vanzant v. Allmon, 23 id. 30; Thielman v. Carr, 75 id. 385; Kessenger v. Whittaker, 82 id. 22; Merrin v. Lewis, 90 id. 505; Kelsey v. Ward, 16 Abb. Pr. 98; 38 N. Y. 83.
    Upon the issue of fact joined on a plea in abatement being found in favor of the plaintiff, the judgment is final that he do recover. No rule of law is better settled. 2 Greenleaf on Evidence, sec. 27; Stephens’ Pl. 104; Gould’s Pl. 277, 278; Green’s Pr. 284; Puterbaugh’s Pr. 149; Chitty’s Pl. 483; Chase v. Deming, 42 N. H. 274; Meyer v. Erwin, 20 Ohio, 382; Young v. Gilles, 113 Mass. 34; Dubois v. Hutchinson, 40 Mich. 262; Railroad Co. v. Keep, 22 Ill. 19.
   Mr. Justice Scott

delivered the opinion of the Court:

This was an action of forcible detainer, brought before a justice of the peace, by the Grand Trunk Junction Railway Company, against Henry T. Steele, to recover possession of premises definitely described in the written complaint. It is alleged in the complaint, the time for which the premises had been let to defendant had expired, and that plaintiff was then entitled to possession. On the trial before the justice of the peace, defendant was found guilty of withholding the premises from plaintiff, and the usual formal judgment was rendered. That judgment was affirmed in the Superior Court of Cook county, and the judgment of the Superior Court was affirmed in the Appellate Court for the First District, and defendant brings the case to this court on appeal.

After the papers in the appeal suit were sent up to the Superior Court, another paper, purporting to be a plea in abatement, was sent up by the justice of the peace, and was marked filed by the clerk of the Superior Court, by the order of that court. It appears to have been marked filed by the justice of the peace on the 19th day of May, 1884. That is the day on which the cause was called for trial in the justice’s court. It does not appear, from anything contained in the transcript filed in the Superior Court, that the justice took any notice of the paper said to be a plea in abatement, or that his attention was called to it by either party to the suit. It is recited “one witness was sworn and examined, and docket introduced in evidence,” and the cause was then continued to the day on which the final decision was rendered. On the trial in the Superior Court, that court found “the issues for plaintiff on the plea in abatement,” and without hearing any evidence whatever on the merits of the case, rendered judgment that plaintiff have restitution from defendant, of the premises described in the complaint. It is this decision of the Superior Court that was affirmed in the Appellate Court, as before stated.

Before passing to consider the real ground of objection to the present judgment, it will be necessary to dispose of some preliminary questions raised by plaintiff, who is the appellee in this court.

First—It is said this court has no jurisdiction to hear defendant’s appeal, because it is said the “sum or value in controversy” does not exceed $1000, and there is no sufficient certificate from the judges of the Appellate Court to give this court jurisdiction. The record does contain a certificate of importance, under section 8 of the Appellate Court act, made by a majority of the judges of the Appellate Court in which the cause was heard. It is said this certificate is insufficient, for the reason it does not state or certify the “grounds of granting said appeal,”—that is, it should have specifically pointed out in the certificate the questions of law which they considered of sufficient importance to be passed upon by this court. So much fullness in the making of the certificate of importance has not heretofore been required. It has always been held it is sufficient if it be stated, as is done in the certificate in this case, that the cause decided “involves questions of law of such importance, either on account of principal or collateral interests, as that it should be passed upon by the Supreme Court.” There is no reason for departing from the practice that has been so long established in this respect.

Second—It is said there is no bill of exceptions in the record. There is, in the transcript of the record in the Superior Court, what purports to be a bill of exceptions, in which the trial judge states the facts in regard to signing it, and “leaving the question it was signed in time, to the Appellate Court.” On the hearing of the cause in the Appellate Court, plaintiff, who was defendant in error in that court, “moved the court to strike from the record the paper purporting to be a bill of exceptions.” That motion the court took under advisement,' and on' a subsequent day of the same term the motion was denied by the court. As plaintiff has assigned no cross-errors on the record, as respects the decision of the Appellate Court adverse to his motion, it will be understood he acquiesced in that decision. Had he wished to have that question further considered in this court, it is indispensable he should assign it for error, according to the uniform practice in this court. Omitting to do so, the decision of the Appellate Court denying the motion to strike the bill of exceptions from the files, whether correct or not, must stand.

The errors assigned by defendant, who is the appellant in this court, will require but a brief discussion. It is said the judgment is erroneous for many reasons, but the substance of all of them is, the court erred in rendering judgment against defendant without any proofs offered by plaintiff in support of his action. The only evidence offered in the trial court was that introduced by defendant himself, to show a former suit between the same parties for the same cause of action, that was then pending and undetermined in a court of competent jurisdiction. The omission on the part of plaintiff to introduce any evidence whatever to sustain his action, is sought to be justified on the ground the trial was had on what is alleged to be a plea in abatement filed by defendant. It seems the court found the issues on that plea for plaintiff, and thereupon, without hearing any evidence on behalf of plaintiff, rendered judgment against defendant. This was clearly erroneous.

First—There was no replication to the alleged plea, and if it were appropriate in a justice’s court, and was unanswered, it would operate to abate the suit. It is recited in the bill of exceptions, “plaintiff took issue on said plea.” The record contains no replication, and it is not stated in the hill of exceptions, any written replication was filed. If any issues were formed at all, it must have been simply by oral statement.

Second—There is no necessity for written pleadings, other than the plaint, in actions of forcible detainer in a justice’s court. It is provided by statute, the complaint shall be in writing, but that is all. It might, as to subsequent pleadings, be otherwise had the suit been commenced in a court of record. Section 11 of the “Forcible Entry and Detainer” act declares that trials under that act in courts of record “shall be the same as in other cases at law.” But that section has no reference whatever to trials in actions of forcible detainer in a justice’s court. Trials in such cases, in the latter court, are governed by section 10 of the same act. The inappropriateness of filing the paper called a “plea in abatement,” in this case, appears from the fact it prays the “writ and declaration” be quashed. It is unnecessary to say there is no such thing as a “declaration,” in the sense that term is used in a plea in abatement, in any suit for any cause commenced in a justice’s court. Stating in writing what is here claimed to be a plea in abatement, did not affect the case otherwise than would the oral offer of the party to prove the same matter upon the trial, without any writing previously filed. Had defendant stated orally before the trial commenced he intended to offer evidence that a former suit was pending for the same cause of action between the same parties, it would have answered the same purpose. The written paper filed performed no other office than to notify plaintiff that such evidence would be offered on the trial, and that could have been done as appropriately, according to the uniform practice, by oral statement. By filing written pleas in a justice’s court, it is not in the power of defendant to compel plaintiff to reply, in writing or otherwise. Should that practice be allowed, the anomaly would be presented of having the pleadings in a justice’s court partly in writing and partly oral.

The statute, section 35 of the act in relation to “justices and constables,” (Rev. Stat. 1874,) contemplates when the parties appear for trial, the justice of the peace shall, in an informal way, hear their “respective allegations and proofs,” and he shall then give judgment either for plaintiff or defendant, as shall appear from all the evidence to be just and right. Even where defendant fails to appear, section 34 of the same act forbids the justice to render judgment for plaintiff, unless he “shall fully prove his demand.” The exception to this general provision is where the action is such, plaintiff may file an affidavit of claim. In all other cases the plaintiff must prove his demand as fully as if defendant was present and denied the same. That was not done in this case. Defendant was present, and demanded in open court that plaintiff should be required to sustain his action by proof, but the court refused to require him to do so, and rendered judgment for plaintiff without a particle of evidence to sustain the action. It can not be known, from anything contained in this record, which party ought to have succeeded on the merits of the case. Neither party offered any evidence touching the merits of plaintiff’s right to recover the possession of the premises. The omission of plaintiff to sustain his action by proof is fatal to the present judgment. It was no doubt irregular for defendant, in the first instance, before plaintiff had introduced his proofs, to give testimony as to the pendency of the former suit. It does not seem, however, any objection was taken to the adoption of that course. Indeed, it was acquiesced in by plaintiff. Probably it was well enough in this case, for had the proof established the pendency of a former 'suit for the same cause of action betwen the same parties, that would have put an end to the present suit, and would have obviated the necessity for a trial of the merits of the cause. It was found by the trial court, and no doubt very correctly, the records offered in evidence by defendant did not show the pendency of a former suit for the same cause of action. In the former suit it was alleged in the complaint, rent was due and unpaid, and that plaintiff had given notice of his election to terminate defendant’s lease for non-payment of rent. The allegation in the complaint in this case is, the lease had expired, and that defendant still held over without right after the expiration of the time mentioned in the lease. It is plainly seen the causes of action were not the same. The case of Merrin v. Lewis, 90 Ill. 505, is conclusive on this point in the case.

After it had been determined the proof offered by defendant on that branch of his defense was not sufficient to show the pendency of a suit for the same cause of action, the court ought to have allowed defendant’s demand that plaintiff should sustain his action by competent proof. To refuse that request, or, what is the same" thing, to render judgment against defendant, without a particle of evidence to sustain the justness of plaintiff’s demand, is manifest error, for which the judgment of the Appellate and Superior Courts will be reversed, and the cause remanded to the Superior Court.

Judgment reversed.


author: Mr. Justice Shope

text:
    The Centralia and Chester Railroad Company v. Maria J. Brake et al.

      Filed at Mt. Vernon June 16, 1888.

      1. Fencing railroads—duty and liability in respect thereto. By the statute every railroad corporation is required, within six months after any part of its line of railway is open for use, to erect and thereafter maintain fences on both sides of its right of way, so far as the railroad has been opened for use, except at certain designated places, suitable and sufficient to prevent stock from getting thereon.
    2. The failure of a railway company to perform the statutory duty to fence its roadway after the expiration of six months, renders the corporation liable, prima facie, for stock killed or injured by its agents, engines or cars. The company may, however, avail itself of the whole six months in which to perform the duty, and if, prior to the expiration of that time, stock gets upon the railroad and is killed or injured, the owner can not recover without proving negligence on the part of the company.
    3. Before the time has elapsed in which a railway company is required to fence its road, it will be liable only for injuries to stock resulting from its failure to properly construct its road, or to manage and operate its locomotives and cars in a reasonable and prudent manner.
    4. Eminent domain—elements of damages—inconvenience or injury from throwing open farm lands, leaving them unfenced. The inconvenience of having a man’s farm or pasture land thrown open during the construction of a railway through the same, and for six months after the road is open for use, may be a material element of damage, and may be considered by the jury in the assessment of damages to the land not taken.
    5. While it would be clearly incompetent and improper for the jury to enter upon conjecture as to the probable injury to stock, or the damages that may result therefrom, during the time the company is not required to fence its road, yet if, in consequence of the appropriation of the land by the company as a right of way, the present market value of the land through which the road is located, either for sale upon the market, or the value of the use of the land for the purposes to which it is appropriated or to which it is adapted, is depreciated, such depreciation in value, or loss to the land owner, is an element of damages proper to be considered by the jury in determining the compensation to be paid for the land damaged but not taken.
    6. Same—of an instruction on that subject. On an assessment of damages in a proceeding to condemn land for a right of way by a railway company, the court instructed the jury that “railroad corporations are not required to fence their roads for six mouths after said roads are open for use, and the damages attending the keeping open of the farm for that length of time may properly be considered by you as an element of damages:” Held, that the instruction was faulty, in assuming there would be damage attending the keeping open of the farm. That question, and whether the farm would be left open, should have been submitted to the jury; but in the absence of any stipulation to erect fences so as to prevent injury to the land owner, and there being no conflict in the evidence as to the location of the road and its injurious effect on the uses of the land, it was held that the error was harmless.
    7. Same—danger from fire, as an element of damage. If by reason of the proximity of buildings, fences, and the like, to the track of the railroad, the market value of the farm it crosses, as a whole, is depreciated, or if, from the ordinary and usual manner of the operation of the road, the danger from fire has a tendency to lessen the value of the premises for sale, or for the use to which they are appropriated by the owner, or to which they are adapted, that fact becomes an important element in fixing the damages to the owner.

      Appeal from the County Court of Washington county; the Hon. George Vernor, Judge, presiding.
    Mr. W. S. Forman, and Mr. Daniel Hay, for the appellant.
    Mr. W. H. Moore, and Mr. James A. Watts, for the appellees.
   Mr. Justice Shope

delivered the opinion of the Court:

This was a petition, in the usual form, by appellant railroad company, for condemnation of right of way over lands of appellees. The trial by jury resulted in awarding appellee Maria J. Brake $400, and appellee Meinnert $575, as compensation for land taken and damages to land not taken. The petitioner prosecutes this appeal.

Errors are assigned upon the rulings of the court in giving the fourth instruction of appellees’ series, and refusing the third, fifth and sixth instructions offered by the railroad company, and in the admission of testimony. The fourth instruction asked and given at the instance of appellees, is as follows:

“The court instructs you, that by law railroad corporations are not required to fence their roads for six months after said roads are open for use, and the .damages attending the keeping open of the farm for that length of time may properly be considered by you as an element of damages.”

By the statute, every railroad corporation is required, within six months after any part of its line of railway is open for use, to erect and thereafter maintain fences on both sides of its right of way, so far as the railroad has been opened for use, except at certain designated places, suitable and sufficient to prevent stock from getting thereon. The failure to perform the statutory duty to fence its roadway after the expiration of six months, renders the corporation liable, prima facie, for stock killed or injured by its agents, engines or cars. (Rockford, Rock Island and St. Louis Railroad Co. v. Lynch, 67 Ill. 149.) The company may avail itself of the whole six months in which to perform the duty, and if prior to the expiration of that time stock gets upon the railroad and is killed or injured, the owner can not recover without proving negligence on the part of the company. (Chicago and Northwestern Railway Co. v. Barrie, 65 Ill. 226.) The company would be liable only for injuries to stock resulting from its failure to properly construct its road, or to manage and operate its locomotives and cars in a reasonable and prudent manner. If stock from the pasture land through which the road was operated, goes upon the railroad track, and is injured by the company’s agents, engines or cars, while such engines and cars are being operated with ordinary and reasonable care, the land owner is without remedy. If, therefore, the land owner desires to use his pasture, he must fence the road, or submit to the hazard of injury to his stock by the ordinary operation of the road. It can readily be seen that pasture lands, or those susceptible of pasturage, would, as a matter of fact, be depreciated for that use by the exposure of stock placed therein, to such injury. It will be clearly incompetent and improper for the jury to enter upon conjecture as to the probable injury to stock, or the damages that might result therefrom. But if, in consequence of the appropriation of the land by the company as right of way, the present market value of the land through which the road is located, either for sale upon the market or the value of the use of the land for the purposes to which it is appropriated by the land owner or to which it is adapted, is depreciated, such depreciation in value, or loss to the land owner, is an element of damage proper to be considered by the jury in determining the compensation to be paid for land damaged but not taken. St. Louis and Southeastern Railway Co. v. Teters, 68 Ill. 144; McReynolds v. Burlington and Ohio River Railway Co. 106 id. 152; Rockford, Rock Island and St. Louis Railroad Co. v. McKinley, 64 id. 338; Chicago, Burlington and Northern Railroad Co. v. Bowman, 122 id. 595; Calumet River Railway Co. v. Moore et al. 124 id. 329. This instruction, in all essential particulars, was before us in St. Louis, Jerseyville and Springfield Railroad Co. v. Kirby, 104 Ill. 345, and it was there said: “The inconvenience of having a man’s land temporarily thrown open in the progress of the construction of the road, may be a material element, and justly require compensation.”

It is said, however, that this instruction is erroneous, because it assumes there would be “damage attending the keeping open of the farm,” etc. The instruction is clearly faulty in the respect indicated. The question of whether there would be damages attending the keeping open of the farm, and whether it would be kept open, should have been submitted to the jurgas questions of fact. But it can not be seen that appellant was injured by this assumption of the court. The appellant, alone, could determine when, within the six months, its road should be fenced, and if it desired to eliminate from the case this element of damage, no reason is perceived why it might not have done so by appropriate stipulation to erect its fences so as to prevent injury to the land owner. But one recovery could be had by appellees for the land taken or damaged, and they must, in this action, recover, for all time, the injury to their land resulting from the appropriation, by the railroad company, of the right of way, and it is not unreasonable to require appellant, in the absence of any offer or stipulation showing a contrary intention, to pay all such damages as will result from its availing itself of the delay allowed it by law. The evidence introduced by appellant, alone related to the value per acre of the land taken. The witnesses introduced by appellees vary somewhat in their estimate of the damages, ranging, in respect to the land of appellee Meinnert, from $800 to $1000, and as to the land of appellee Brake, from $500 to $900. If we exclude the evidence derived by the jury from their personal inspection of the premises, it is apparent the verdict is, in each case, much below the estimate of damages of any of the witnesses. There is no conflict in the evidence in respect to the location of the road or how it would divide the farms of appellees, or what effect it would have upon the uses to which the land was appropriated, and no different effect could have been produced upon the minds of the jury by the instruction under consideration, than would have resulted if the instruction had been properly guarded by requiring them to find the fact. We have so repeatedly held that an error which has produced no injury will not be ground for reversal, that citation of authority is unnecessary.

The witnesses for appellees, upon cross-examination, among other reasons given for them estimate of damages, stated they included the damages from fire, etc., by reason of the operation of the railroad through these farms. Appellant objected to the evidence, which objection was overruled, and appellant excepted. No motion was made to exclude the evidence in chief of the witnesses, but instructions were asked, and refused by the court, to the effect that the increased danger and hazard to buildings, etc., from fire, by reason of the operation of the road, should not be considered by the jury as an element of damage. There was no error in this ruling. If, by reason of the proximity of buildings, fences, and the like, to the track of the railroad, the market value of the farms, as a whole, was depreciated, or if, from the ordinary and usual manner of the operation of the road, the danger from fire had a tendency to lessen the value of the premises for sale, or for the use to which they were appropriated by the owner, or to which they are adapted, that fact would become an important element in fixing the just compensation to be awarded the owner for the appropriation of his land to the uses of appellant company. Authorities supra.

Finding no error in this record, the judgment is affirmed.

Judgment affirmed.


text:
    Ruth C. Hale et al. v. Ezekiel J. M. Hale et al.

      Filed at Ottawa June 16, 1888.

      "1. Will—power in executors to sell and convey property given in trust— by implication. Authority in executors to sell and convey property devised to them in trust, may arise by implication, as, where duties are imposed upon the trustee by the will or instrument creating the trust, which he can not perform without making a sale, the law will imply the necessary power to prevent a failure of the purpose of the trust. The law will not permit a trust to fail because it may be inartificially declared or expressed.
    2. Same—direction for investment—whether power of sale to be implied—a devise construed. A testator, after making certain specific devises and legacies, directed that the residue and remainder of his estate, both real and personal, be and remain in the care and control of his executors and trustees, “well and safely invested, until the decease of the last survivor of the life annuitants” named in his will, when the residue, with the accumulated interest thereon, should be divided, etc.: Held, that the direction to keep the property “well and safely invested,” gave no power, by implication, to the executors, to sell the same, but meant that the property was to remain invested as it was at the time the will took effect.
    3. To sustain the doctrine of equitable conversion by executors, the provisions of the will must be so clearly written as to leave no doubt of the intention of the testator to have his real estate converted into personalty.
    4. SAME—residuary clause—what will pass thereby. A testator domiciled in Massachusetts, owning a large estate in that State, and lands in Hew York and in this State, after making various life bequests and legacies, by his will provided that the residue and remainder of his estate, not therein otherwise disposed of, should be and remain in the care and control of his executors and trustees, and their successors, well and safely invested, until the decease of the last survivor of the life annuitants named, when such residue should be equally divided between his grandchildren, per stirpes, etc.: Held, that the residuary clause of the will was broad enough to include all the property of the testator, no matter where situated, and was a valid disposition under the laws of this State.

      5. Same—perpetuity defined—whether a devise is within the rule. A perpetuity in this State is defined to be a limitation, taking the subject thereof out of commerce for a longer period of time than a life or lives in being, and twenty-one years beyond. A will postponing the final disposition of a part of an estate until after the death of certain life annuitants, which may not occur for forty or even sixty years, is not invalid, as contravening any rule of public policy existing in this State.

      Appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    Mr. Rufus C. Hall, for the appellants:
    The courts are averse to adopting any construction of wills which will result in partial intestacy. Redfield on Wills,— quoted in Fox v. Rumery, 68 Me. 124.
    The will does not contravene the law of this State against perpetuities. Waldo v. Cummings, 45 Ill. 426; Lunt v. Lunt, 108 id. 307; Rhoads v. Rhoads, 43 id. 252.
    The time for which the executors are to hold the residue, in which the real estate in question is involved, is carefully limited to the decease of the last survivor of the life annuitants, and was doubtless drawn with reference to the law governing perpetuities, which is the same in Massachusetts as in Illinois. Nightingale v. Warrell, 15 Pick. 111; Brattle Square Church v. Grant, 5 Gray, 142.
    Any words which show an intention to create a power of sale, or any form of instrument which imposes duties upon a trustee which he can not perform without a sale, will necessarily create a power of sale. Cherry v. Greene, 115 Ill. 596; Going v. Emery, 16 Pick. 112; Fox v. Rumery, 68 Me. 125; Wood v. White, 4 M. & C. 481; Hill on Trustees, 471.
    The direction to keep the property “well and safely invested, ” carries a power of sale and conversion. Redfield on Wills, 435 ; Dawes v. Swan, 4 Mass. 215; Byrnes v. Baer, 86 N. Y. 211; Belcher v. Belcher, 38 N. J. Eq. 127; Mower v. Orr, 7 Hare, 473.
    The testator clearly intended to mingle the real and personal property, and make a common fund for distribution. Winston v. Jones, 6 Ala. 556; Snell v. Snell, 38 N. J. Eq. 123; Burill v. Boskerfield, 11 Beav. 535; Vaughn v. Freeman, 90 N. C. 610; Perry on Trusts, (3d ed.) sec. 511.

      Mr. John Woodbridge, for the appellees:
    The will contains inherent evidence that it was intended to apply to the Massachusetts estate only. Ennis v. Smith, 14 How. 421.
    In case of doubtful construction, the court should favor the heir. 1 Redfield on Wills, 434, 435; White v. Page, 10 Wheat. 213.
    If there be two possible constructions of the twenty-second ■clause, one of which will make the provision valid and the -other will make it void, it is the duty of the court to adopt the first. Coke on Littleton, 42, 183; Church Warden case, 10 Coke, 67b; Archibald v. Thomas, 3 Cow. 284; Many v. Iron Co. 9 Paige, 188; Robert v. Corning, 89 N. Y. 287; Downing v. Marshall, 23 id. 366; Post v. Hover, 33 id. 593.
    The clause is void for remoteness. Sears v. Russell, 8 Gray, 99; Hobson v. Hale, 95 N. Y. 589; 2 Jarman on Wills, 301-703.
    A construction that will postpone the alienation of this property for more than fifty years is opposed to public policy.
   Mr. Justice Scott

delivered the opinion of the Court;

The bill in this case is for partition of the real estate of which Ezekiel J. M. Hale died seized, and which is situated in the county of Cook, in this State, and was brought by one of the heirs, in the Superior Court, against the widow, the executors, and the other heirs of decedent.

Concerning the facts out of which the litigation arises, no controversy exists. Prior to his death, the common ancestor of the heirs claiming his estate in Cook county as intestate property, resided at Haverhill, in the State of Massachusetts. At the time of his death he owned a large estate in Massachusetts, consisting of both real and personal property, all of which it is conceded was disposed of by his will, which was, after his death, admitted to probate in that State, and which is conceded by all parties interested to be valid under the laws of Massachusetts. The testator also left a large amount of property situated in the State of New York, and the property involved in this litigation, in Illinois. The larger portion of the estate seems to have been in Massachusetts, where the testator, had resided, and where his will was admitted to probate. It seems the testator gave various legacies and devises, and provided in different clauses of his will for life annuities to a number of persons,—perhaps twelve in all,—and for other-annuities, payable at "stated periods, until the final division of the residue of his property under the provisions of his will. It is understood, and perhaps admitted, that there is sufficient estate in Massachusetts out of which to pay all legacies, devises and annuities provided for or declared in the will. It is not claimed that any of the property belonging to the estate situated either in New York or this State will be wanted for the payment of either legacies, devises or annuities under the will.

The bill in this case alleges the will of Ezekiel J. M. Hale, deceased, was admitted to probate in Massachusetts, where he died, no one objecting, which is an admission it was valid, and disposed of all the property belonging to the estate in that State. But the bill is framed on the theory it was not the intention of the testator to devise the real estate now sought to be partitioned,—that the scheme of his will was not adapted to the condition of his estate in New York and in Illinois, and was not intended to convey the same; that by the laws of Illinois and New York the devise was void, and had been so declared by the courts of the latter State; that such testator well knew that the provisions of his will, if applied to his real estate in New York and Illinois, made the same illegal and void on account of the statutes of such States prohibiting perpetuities ; that if the provisions of the will should be applied to the lands in Illinois or New York, the same could not be alienated for many years, and not until after the death of twelve life annuitants; that the property in Illinois is unproductive, and can not be made productive; that the taxation upon it is large, and that the interest and taxation will entirely absorb the value of said real estate, so as to render it a total loss to the heirs if it should be held to be included within the terms of the will, and hence not subject to division except in accordance with the will. It is alleged the property situated in New York belonging to the estate exceeds in value $1,000,000, and that in Illinois is now estimated to be of the value of $200,000. The executors answered the bill, as they were required to do, in which they admitted most, if not all, of the formal charges in the bill, but insisted the lands sought to be partitioned passed to them under the residuary clause of the will of the testator, and on filing their answer they filed a cross-bill, in which they claimed to have the power, under the will, to sell such real estate, and ask the court to so decree. The respondents, in their cross-bill, make the same allegation as is contained in the original bill,—that unless the property described in the bill can be sold, it will be absorbed by taxes and assessments, and other expenses, before the time for distribution would arrive under the provisions of the will. The Superior Court, at the hearing of the cause, dismissed the cross-bill of respondents, and found that the property described in the original bill was intestate property, and decreed a partition of the same, as it was asked to do. That decision is assigned for error.

The residuary clause of the will out of which all the questions made on this record arise, is as follows:

“ Twenty-second—As to the residue and remainder of all my estate, both real and personal, not herein otherwise disposed of, it is my will that the same be and remain in the care and control of my said executrix and executors and trustees, and their successors, well and safely invested, until the decease of the last survivor of the life annuitants named in my foregoing will, and that then the said residue and remainder, with all the accumulated interest thereof, shall be divided equally among my grandchildren, per stirpes, to hold to such grandchildren so distributed, and to their heirs, executors, administrators and assigns forever.”

Most of the other clauses of the will contain provisions for legacies, bequests, devises and annuities to certain persons, and others contain specific directions as to what disposition shall be made of certain property, and beyond giving an outline of the general scope of the will, and the intention of the testator as to the management of his estate by his executors and trustees, they contain nothing that is important in connection with the present discussion, and their contents need not be stated other than in a general way.

Two principal questions are made by the original and cross-bills : First, whether the lands involved were devised by this clause of the will, or whether the same can be treated as intestate property, as not being embraced in the will; and second, if it shall be held the lands were devised, is any power given the executors and trustees, either expressly or by implication, by this or any other clause of the will, to sell these lands at any time within their discretion. It will be found most convenient to consider these questions in the inverse order in which they are stated, which will be done briefly.

There is and can be no pretense, any express power is given to the executors and trustees to sell any real estate situated in New York or in Illinois, that had belonged to the testator, by the twenty-second clause, or any other clause of his will; and if any such power exists in them, it must arise by implication, from powers conferred or duties expressly imposed by the will in regard to such real estate. Power is expressly conferred upon the executors and trustees to sell certain real property, as in the second clause of the will, but nothing is said anywhere in the will concerning the sale of real property in New York or Illinois. It is not even mentioned by any description, by location, or otherwise. It will be seen hereafter, if the Illinois property is devised at all, it is by the twenty-second or residuary clause of the will, and not otherwise. But does the twenty-second paragraph of the will confer any power upon the executors and trustees to, sell real estate situated in New York or Illinois, even by implication ? It is thought it does not. There can be no doubt of the correctness of the rule stated by counsel, that authority to sell and convey trust property may be conferred by implication, as, for instance, where duties are imposed by the instrument-creating the trust, upon the trustee, which he can not perform without making a sale, the law will imply the necessary power, otherwise there would he a failure of the objects of the trust. A most common example is where there has been an assignment for the payment of debts. If no express power is given to sell the trust property, the duties to be performed by the trustees will necessarily create the power of sale, for it is obvious, in no other way could the trustee perform the duties required of him by the instrument creating the trust. The law will not permit a trust to fail because it may be inartificially declared or expressed. This is undoubtedly as liberal a statement of the implied powers of trustees as the law will sanction.

Applying this rule, neither the twenty-second clause, nor, indeed, any other provision, contains anything that indicates, by implication or otherwise, it was the intention of the testator that his executors and trustees should have power to sell and convey any of his real property, either in New York or Illinois, for the purpose of converting it into personalty. The words supposed to manifest the intention of the testator in this regard are, “that the same be and remain in the care and control of my said executrix and executors and trustees, and their successors, well and safely invested, until the decease of the last-survivor of the life annuitants named in the foregoing will.” It is said the words “well and safely” mean that the testator gives the executors and trustees the usual authority to make prudent investments, and that they mean they must keep the property invested. The vice of the argument on this branch of the case lies in detaching these words from their place' in the will, and giving to them a meaning inconsistent with the context. What is the direction given by the testator concerning this property in New York and Illinois ? It is, that it “remain in the care and control” of the executors and trustees, “well and safely invested,”—that is, it is to “remain,” as now, “well . and safely invested.” Any other would be a strained and unnatural construction of the words of the will. So far from . indicating any intention on the part of the testator that his executors and trustees should sell his lands, either in New York or Illinois, the words used indicate unmistakably it was his intention and purpose they should “remain” in the care and control of his executors and trustees, “well and safely invested,” as they then were, until the time appointed for the distribution of the residue of his estate, both real and personal, should arrive. The principle running through all the eases on this subject, so far as the writer has been able to examine the same, is, the provisions of the will must be so clearly written as to leave no doubt of the intention of the testator to have his real estate converted into personal estate, to sustain the doctrine of what is called equitable conversion. That -intent does not appear from any language used by the testator in this case, and it is not perceived his trustees have any implied power to change the real property devised, into personal estate, for reinvestment or otherwise.

This precise question was presented to the Court of Appeals of the State of New York by the same parties to this litigation, and in an action brought by these executors and trustees to obtain a construction of certain provisions of the last will and testament of Ezekiel J. M. Hale, deceased, that court held, after most elaborate argument, the will, while valid under the laws of Massachusetts, where the testator died, and where his will was admitted to probate, contained no express direction for the conversion of the real estate into personalty, or for the sale of the real estate. (Hobson et al. v. Hale et al. 95 N. Y. 588.) This court is entirely satisfied with the conclusion reached by the Court of Appeals in that case, and the elaborate discussion there given to the exact question involved in the case now being considered, would seem to relieve this court from the necessity of any extended consideration of the question. Under this view of the meaning of the will, the relief demanded by the cross-bill,—that the right of complainants in that bill to sell and convey the lands involved, and to convert the same into money, may be established and declared,— was properly denied.

The remaining question arises on the original bill, and is, whether the lands situated in Illinois, and which belonged to the estate of the testator, were devised by the residuary clause of the will, or whether the same can be treated as intestate property, as not being embraced in the will. There is evidence tending to show what the court found by its decree,—that the testator bought these lands in Cook county for speculation, and that, had he lived, it is probable he would have sold the same on receiving the first favorable offer. That he gave expression to such views is proved past all doubt, but whether he changed his mind in that regard before his death, of course can not be known. Construing the will in the light of the surrounding circumstances, as the law requires shall be done, ■does it show the testator intended to omit these lands from the operation of his will ? It is seen, the residuary clause of the will is as broad and comprehensive as it can well be expressed. It is: “As to the residue of all my estate, both real and personal, not herein otherwise disposed of.” Primarily, the words, •“all of my estate,” mean all the estate of the testator, wherever situated; and that meaning will always be given to them, unless something in the context will show a more restricted construction will better comport with the clear intention of the testator. It will be noticed, the real estate of the testator •situated in New York, if devised at all, was devised by this ■same clause of the will. There is no other clause of the will that can have the slightest application to it. If the lands in Illinois shall be held not to have been devised by the twenty-second clause of the will, the conclusion would necessarily be, the New York lands were not within its operation. No one has ventured to suggest the testator did not intend by this clause of his will to devise his property in New York. When the case was before the Court of Appeals of New York, that court seems to have held, without much discussion, the property in that State was devised by the will, for it was said: “While it should not be overlooked that the testator was domiciled in the State of Massachusetts, and his will was executed there, it should also be borne in mind that by his will he devised his real estate, as real estate, situated in the State of New York.” The same words in the will that are held to constitute a devise of lands in New York, include also the lands in Illinois. Either the lands in both States are devised, or they must be treated as intestate property in both States. It is incredible that a testator making a will that by its terms, when understood in their primary sense, disposes of all “his estate, both real and personal,” omitted therefrom .property conceded to be of the value of over f 1,200,000. Such a proposition is too improbable to be adopted, unless the testator was incapable of comprehending what he was doing. Plainly, the residuary clause of the will is broad enough to include all the property of the testator, no matter where situated, and there is nothing in either of the attendant circumstances, or in any other'clause of the will, that shows any intention on the part of the testator to omit any property in Illinois, or elsewhere, from its operation.

When this case was before the Court of Appeals of New York, it was held that clause of the twenty-second paragraph of the will that postponed the final division of the estate until the death of the last survivor of the life annuitants, so far as it applied to real estate in that State, worked an unlawful suppression of the powers of alienation, and was, for that reason, void. And it was also held, such clause was repugnant to the provisions of the statute of that State prohibiting accumulations, except for the times and purposes therein permitted. No such objection lies to that provision of the will in this State. A perpetuity in this State is defined to be a limitation taking the subject thereof out of commerce for a longer period of time than a life or lives in being, and twenty-one years beyond. Here the right of alienation is not suspended for any period beyond the lives of certain persons in being, and hence this provision of the will is not repugnant to any rule of law in this State inhibiting perpetuities.

But it is said a construction that would postpone the alienation of this property for more than fifty years is opposed to public policy. The limitation fixed is to terminate at the death of certain life annuitants, and, of course, when that contingency will happen is a matter of the merest conjecture. It might occur within five, ten, twenty, forty or sixty years. Of course the time is indefinite, and all that can be known concerning it, with any degree of certitude, is, that it is sure to happen, sooner or later. The time for which the executors and trustees are to hold the residue of the estate, for which there might be a suspension of" the right of alienation of the property in controversy, is limited to the death of the last survivor of the life annuitants, and it is not perceived in that respect it contravenes any public policy existing in this State.

The decree of the Superior Court dismissing the cross-bill will be affirmed, and the decree granting the relief demanded on the original bill will be reversed, and the cause will be remanded, with direction to that court to dismiss the original bill also.

Decree reversed in part and in part affirmed.

Mr. Justice Magruder: I do not concur.


text:
    The Fairbank Canning Company v. Elizabeth C. Innes, Admx.

      Filed at Ottawa June 16, 1888.

    1. Appeal—reviewing the facts. Where there is evidence tending to prove the averments of the declaration in an action at law, this will preclude this court from investigating the controverted questions of fact.
    2. Same—negligence as a question of fact. In an action to recover damages for the death of plaintiff’s intestate, on the ground of negligence in the construction of an elevator, whereby the death was caused, the question whether the defendant was guilty of the negligence charged, is a question of fact, as to which the finding of the Appellate Court is conclusive.
    3. Instructions—refusal to repeat. A judgment will not be reversed for the refusal of the court to give an instruction, when the law is stated with sufficient fullness, and the substance of the refused instruction, in a large measure, is embodied in those 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. R. S. Williamson, Judge, presiding.
    Mr. John Richberg, for the appellant.
    Mr. John B. Skinner, for the appellee.
   Mr. Justice Scott

delivered the opinion of the Court:

The questions raised on the record in this case consist mostly of controverted questions of fact, which admit of no discussion in this court. The suit was brought by the administratrix to recover damages resulting to the next of kin of George Innes, whose death, it is alleged, was caused by the negligent conduct of the Fairbank Canning Company. Decedent, at the time he received the injuries that caused his death, was in the employ of defendant, and was in charge of the freight elevator used in its packing house. The ground of recovery, as alleged, is, that the elevator upon which decedent was engaged was so improperly, negligently and carelessly constructed, it became displaced and broken, and by reason thereof, while decedent was operating it with due care, it fell to the basement with such force and violence as to cause his death. The evidence bearing on the question of negligence on the part of defendant, in respect to the defective construction of the elevator, has been subjected to examination, and it is seen there is evidence tending to sustain the averments of the declaration in that regard, and that precludes all discussion in this court. Whether defendant had been guilty of negligence in the manner of the construction of the elevator, was a controverted question of fact, and in all such eases the findings of the Appellate Court as to such questions are conclusive upon this court.

Some evidence was permitted to go to the jury over the objections of defendant, but on examination it is seen the errors in this respect, if any exist, are so slight as to be of no serious consequence. Certainly there was nothing in the rulings of the court as to the admission of evidence that would warrant a reversal of the judgment.

It is said it was error in the trial court to refuse certain instructions asked by defendant. No instructions were given for plaintiff. Quite a number, however, were given on behalf of defendant, and this court fully concurs with the Appellate Court in its conclusion the law applicable to the facts was stated with sufficient fullness in the instructions given. No others were needed to an understanding of the true issues .involved. It is also seen the substance of the refused instructions was, in a large measure, at least, embodied in the charges given, and the court was under no duty to give the same thing a second time.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    Charles W. White et al. v. Quincy J. Cannon et al.

      Filed at Ottawa June 16, 1888.

    1. Gift—of an executed gift, as distinguished from a mere promise to make a gift. Where a husband and wife conveyed lands of the former to a third person, at the request of the latter, under a promise of the grantee to pay off certain liens on the premises, and then to convey the same to the wife, and the grantee paid off the liens, such payment will constitute an executed gift to the wife, and not a mere promise to make a gift.
    2. Trust—by implication—Statute of Frauds. Where husband and wife, on the request of another, convey land to the latter, to be by him conveyed to the wife, although without any express agreement that a trust shall be created, the law, by construction, will raise a trust in the grantee in favor of the wife, which a court of equity may enforce. In such case, the Statute of Frauds will not apply.
    3. Subrogation—discharging incumbrances—whether the right of subrogation will exist. It is only when the payment of incumbrances is necessary to protect the rights of the payer, or when they are paid pursuant to an agreement with the debtor that the payer shall hold them as security for the money advanced, that the payer will be subrogated to the rights of the holders of such liens, and the liens will be kept alive for his benefit.
    4. Where the demand of a creditor is paid with the money of a person not himself a creditor, without any agreement that the security shall be assigned or kept on foot for the benefit of such third person, the demand will be absolutely extinguished, and more especially so when the payment is made as a gift to the debtor.
    5. Landlord and tenant—lease by a trustee—in what relation the cestui que trust stands. Where a mere naked trustee, with the consent of the cestui que trust having the beneficial title and right to the possession, leases the trust property, the leasing will be regarded as the act of the cestui que trust, and he will be entitled to whatever rights belong to the landlord.
    Writ of Error to the Circuit Court of Whiteside county; the Hon. Charles J. Scofield, Judge, presiding.
    This was a bill in equity, by Quincy J. Cannon, and Ann Cannon, his wife, against the heirs-at-law of James G. White, deceased, to compel them to execute a trust by conveying to Ann Cannon certain lands therein described. The substantial allegations are, that Quincy J. Cannon was the original owner •of these lands, but he had become indebted, and liens had been put upon them to secure such indebtedness, to the amount of •$6000. James G. White, a bachelor uncle of Ann Cannon, and much attached to her, desiring to secure a home for her, proposed to Quincy J. Cannon to pay off the indebtedness secured by liens on these lands, if he (Quincy J.) would convey his equity therein to his wife, the said Ann Cannon. Quincy J. accepted this proposal, and pursuant thereto conveyed to White, so that he might convey to Ann. White then paid off all the liens on the lands except a mortgage of $1200, and then returned to Maysville, Kentucky, where he resided, promising to convey to Ann soon after his arrival there; but without having made such conveyance, and soon after his return to Maysville, White was shot, and instantly killed. It is alleged, further, that the Cannons remained in possession of the lands after as before this agreement, and that White never claimed to own them. Answer was filed, denying the agreement as alleged, but admitting the advancing of money and the execution of the deed to White, and alleging that the transaction was a loan, secured by mortgage on the lands. The Statute of Frauds is also set up and relied upon. The administrators of White filed a cross-bill, alleging that the deed of Quincy J. Cannon was a mortgage to secure some $6000 loaned by White, and used by Cannon in paying off indebtedness, and praying for a decree of foreclosure. The Cannons reiterated the allegations of their ■original bill in answer to this cross-bill, alleging that the money advanced by White was a gift to Ann Cannon, and that White held the title in trust for her.
    The court referred the cause to the master in chancery, to take proofs and report findings. The master reported his findings as follows:
    “First—Complainants claim that J. G. White held said land in trust for Ann Cannon, and defendants, heirs of J. G. White, in their answer, deny that such is the case, and a cross-bill is filed, stating that said $6000 was a loan, and that said deed he treated as a mortgage.
    “Second—Quincy J. Cannon acquired title to this farm of one hundred and sixty-five acres many years ago, and he and his wife and son resided there and still reside there. The farm was mortgaged, and Ann Cannon negotiated with her uncle, Mr. White, to loan them $2000. White went to Morrison, Illinois, and on February 24, 1886, paid off $6000 of incumbrances on the farm. Quincy J. and his wife made White a deed of that date for the farm. White returned to Kentucky, and then made a lease of the premises. White was killed, the legal title to the farm being in him. Mr. White made up his mind, when he went to Morrison, to pay off the debts and give the farm to Ann Cannon for a home. He intended to have his lawyer make out a deed to Ann Cannon on his return to Kentucky.
    “Third—When James G. White paid off the debts, he did it with the intention of giving same to Ann Cannon. He received the title in trust for the benefit of Ann Cannon, and not as a. mortgage.
    “Fourth—I find .James G. White held title in trust for Ann Cannon, and she is entitled to a decree in conformity with prayer of bill, and that the cross-bill be dismissed.”
    Numerous exceptions were filed to this report, but disallowed by the master. On final hearing these were again renewed in the circuit court, and they were there also disallowed, and the court thereupon found the allegations of the bill to .be true, and that complainants are entitled to the relief prayed for,— that the allegations of the cross-bill are not sustained, and he .is not entitled to the relief prayed for. The $6000 was furnished to Ann Cannon as a gift to her. The deed to White was not to secure a loan, but White held said land in trust for Ann Cannon, and the real title was in Ann Cannon. It is decreed that the master in chancery shall, in forty days from the date of this decree, make and deliver to Ann Cannon a deed of the premises described in the bill of complaint, (describes the one hundred and sixty-five acres first described herein,) and that the cross-bill of J. F, Barbour, administrator, be dismissed. A writ of error has been sued out of this court upon that decree, and numerous errors are assigned.
    Mr. William Garnett, Jr., for the plaintiffs in error.
    Mr. J. D. Andrews, and Mr. O. F. Woodruff, for the defendants in error.
   Mr. Justice Scholfield

delivered the opinion of the Court:

It can subserve no useful purpose to discuss the evidence in this record at length. It is sufficient to say that it has all been carefully read and considered, and that we concur in the conclusion reached, as to its effect, by the master in chancery and the circuit court. The facts, as found, do not establish a mere promise to make a gift of the money paid by White to extinguish the liens on the land, but an executed gift. The title having been conveyed by Quincy J. Cannon and Ann Cannon to James G. White at his instance and upon his solicitation, for him to convey to her, any payments of the liens thereon thereafter made by him must be regarded as pursuant to his previous promise to make a gift to her, and therefore they extinguished such liens, and were then an executed gift to her. His retention of the notes and mortgages thus paid off is of no consequence, for, having been paid, they were extinguished and valueless, save as proofs that they had been paid. It is only where the payment of incumbrances is necessary to protect rights of the payer, or where they are paid pursuant to an agreement with the debtor that the payer shall hold them as security for the money advanced, that the payer will be subrogated to. the rights of the holders of such liens, and the liens will he kept alive for his benefit. Where the demand of a creditor is paid with the money of a third person not himself a creditor, without any agreement that the security shall be assigned or kept on foot for the benefit of such third person, the demand is absolutely extinguished. (Hough v. Etna Life Ins. Co. 57 Ill. 318; Small et al. v. Stagg, 95 id. 39; Pearce v. Bryant Coal Co. 121 id. 597.) And, a fortiori, must the debt be extinguished and the lien discharged when the payment is made, as here, as a gift to the owner of the land upon which the debt is a lien. The retention of the possession of the evidences of indebtedness by White after their payment, is entirely consistent with the idea that their payment was a gift, for, furnishing, as they do, evidence of the fact of payment, they were very properly retained with the evidence of title which was still in him.

The evidence, it may be admitted, shows that the Cannons, when conferring with White in regard to them indebtedness and their desire for relief, did not expect a gift from him; but it also shows that he determined to make a gift to Ann Cannon, and that when the title was conveyed by Quincy J. Cannon and Ann Cannon to James G. White, it was at his request, and for the sole purpose, and pursuant to an agreement with him, that he should convey it to Ann Cannon. There was no express agreement that a trust should be created. It was not agreed that White should take and hold title for Ann Cannon for some definite time or purpose. It was simply, at his request, agreed that title should be conveyed, and it was thereupon conveyed, to him, that he might convey it to her,—and so the ease is not affected by the statute. His duty to -reconvey attached co instanti the delivery of the deed to him. Having thus received the title upon his express request and pursuant to such contract, and died without having made the conveyance which he agreed he would make, the law, by construction, raises a trust in his heirs, to whom the legal title descended, in behalf of Ann Cannon. Henschel v. Mamero, 120 Ill. 660; Allen et al. v. Jackson, 122 id. 567; Wright v. Gay, 101 id. 241; Fischbeck v. Gross, 112 id. 209.

The fact that White delayed conveying to Ann Cannon with her consent, can he of no consequence so long as no contract was made between them changing her rights. With her consent he executed a lease of a part of the land to her son; but since he had but the naked legal title, while the possession and right of possession were in her, his act, in leasing, is to be regarded as her act, and she was and is entitled therein to whatever rights belong to the landlord.

We find no cause to disturb the decree, and it is therefore affirmed.

Decree affirmed.