author: Mr. Justice Bailey'

text:
    Michael Howard v. Drainage Commissioners.

      Filed at Springfield September 27, 1888.

      Appeals—under the Drainage law—section 76 of the act of 1885. Section 76 of the Drainage law of 1885, relating to districts by user, was intended to bring this particular class of drainage within the operation and effect of the several preceding provisions of the act, so far as the same are applicable. Hence the right of appeal, given in preceding sections, from the assessment of benefits, extends to and embraces cases arising under section 76.

      Appeal from the Circuit Court of Christian county; the Hon. Jesse J. Phillips, Judge, presiding.
    Mr. A. MgCaskill, and Mr. John Gr. Drennan, for the appellant.
    Mr. H. M. Yandeveer, and Mr. James M: Taylor, for the appellees.
   Mr. Justice Bailey'

delivered the opinion of the Court:

The appellees are drainage commissioners of a drainage district organized under the provisions of section 76 of the Drainage Act of 1885. Said commissioners having filed in the office of the town clerk of the township in which said district was situated a special assessment tax list in which the sum of $235.85 was assessed upon lands belonging to the appellant, the latter filed his appeal bond and perfected his appeal from said assessment to the county court. Subsequently, on motion of the appellees, the venue of said appeal was changed to the circuit court, and the cause coming on for trial before that court and a jury, both parties appeared, and produced their evidence upon the issue presented by the appeal, viz., whether said assessment was greater in amount than the benefits to accrue to the appellant’s land by the proposed repairs and improvements upon the drainage system of the district. At the close of the evidence the court, on motion of the appellees, dismissed the appeal on the ground that no appeal was given by law from said assessment, and the appellant brings the record to this court and assigns for error the judgment of the circuit court dismissing the appeal. The section of the Drainage Act under which the appellees were organized is as follows:

“"Where two or more parties owning adjoining lands which require. a system of combined drainage, have by voluntary action constructed ditches which form a continuous line, or line and branches, the several parties shall be liable for their just proportion for such repairs and improvements as may be needed therefor, the amount to be determined, as near as may be, on the same principle as if these ditches were in an organized district. Wherever such repairs and improvements are not made by voluntary agreement, any one or more owning parts of such ditch, shall be competent to petition for the formation of a drainage district to include the lands interested in maintaining these ditches. The form and conditions heretofore prescribed shall be observed, as near as practicable, but the ditches shall be taken as a dedication of the right of way, and their construction and joining as the consent of the several parties to be united in a drainage district. These ditches, if open, shall be made tile drains when practicable.”

The foregoing comprises all of said act having specific reference to drainage districts organized for the purpose of maintaining, improving and keeping in repair a system of ditches already constructed by the voluntary action of the proprietors of adjoining lands, and the question whether a land owner in such district may appeal from an assessment upon his lands levied by the authorities of such district for the purpose of making such repairs and improvements, must depend upon the proper construction to be placed upon said section. In seeking such construction, however, we are not confined to the language of the section itself, but should consider all the various provisions of the act of which it forms a part.

Said act is a revision and consolidation of several preceding acts, and was evidently enacted for the purpose of providing the people of the State with a comprehensive and harmonious drainage system, and adapted at the same time to the exigencies of each particular locality where a system of combined drainage is desirable. Thus, provision is made for the organization of various classes of drainage districts, viz: First, those involving a system of combined drainage in one town; second, where the lands proposed to be organized into a drainage district lie in two towns; third, where the lands lie in three or more towns in the same or different counties; fourth, where a combined system of drainage has already been constructed but where the proprietors of the several tracts of land are unable to make repairs and improvements by mutual agreement; and fifth, where the owners of lands requiring combined drainage form drainage districts by mutual agreement. Of these classes the first is doubtless much the more usual one, and it is accordingly provided for first, and most of the general provisions of the act, are to he found in those sections which relate specifically to that class of districts.

In the sections here referred to, provisions are made for the organization of the district; for procuring the right of way for the proposed ditches by agreement with the several proprietors or by condemnation; for grading the several tracts of land in the district upon the basis of the relative benefits arising thereto from the proposed drainage system; and for raising by special assessment upon said lands in proportion to the benefits as thus determined, such amount of money as may be necessary for the construction of the proposed drainage system. The assessment or tax list is then required to he filed with the town clerk, and section 27 provides that “any party against whose land a tax has been thus levied, may, within ten days after the list has been deposited with the town clerk, appeal to the county court by filing a bond in double the amount of tax appealed from in the county clerk’s office, but the appeal shall be upon the ground only that such tax is a greater amount than the benefits to accrue to the land in question by the proposed drainage.” By subsequent sections of the act, most of these provisions, including the one by which an appeal is given to the county court, are made applicable to districts where the lands lie in three or more towns, but as to the other classes of districts, the language by which these provisions are specifically referred to and made applicable is not repeated.

In section 76, under which the appellees are organized, however, it is provided, as we have seen, that “the form and conditions heretofore prescribed shall be observed as near as practicable.” While this language is not as felicitous as might have been chosen, we are of the opinion that the legislature, in employing it, intended to bring this particular class of drainage districts within the operation of the several preceding provisions of the act, so far as the same are applicable. • Among the provisions as to the applicability of which there can be no doubt is the one allowing appeals to the county court from assessments for benefits. This interpretation does no violence to the language employed, and seems to us to be in furtherance of the presumed intention of the legislature to adopt a complete and harmonious system of drainage throughout the State by means of drainage districts. No reason is apparent' why an appeal should be allowed in case of a district organized for the purpose of constructing a system of drainage, and denied where a system has already been constructed and the district is organized for the purpose of compelling contribution by the land owners to the expense of repairing and irajiroving such system. The extraordinary power of compelling contribution to the expense of the improvement by assessment and taxation is committed to the drainage commissioners in both cases alike, and the danger that such power will be abused is perhaps as great in one case as in the other. We are therefore inclined to the construction of the statute which will place the authorities of both classes of districts upon the same footing and subject to the same limitations and restraints. The language of the statute, as we have said, admits of that construction, and it should therefore be adopted.

The judgment of the circuit court dismissing the appeal is reversed, and the cause will be remanded to that court for further proceedings.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Shops

license: Public Domain

text:
    Elizabeth A. Reynolds et al. v. Abigail Sumner et al.

      Filed at Ottawa January 19, 1888.

      1. Resulting trust—when it arises. If one purchase land with his own means, taking the title in the name of a third person, a stranger, the grantee will take only the naked legal title, and the law will imply a resulting trust in favor of the party paying the consideration.
    2. And if a person, having the money or means of another in his hands to invest for the owner, uses the same in the purchase of property in his own name, the law will hold him to be the trustee of the owner of the money or other consideration used in effecting the purchase.
    3. Or if several advance the price, and the title of the land is taken in the name of one of them, a trust will result in favor of the others for an undivided share of the property, in proportion to their share of the purchase price paid.
    4. So where one enters public lands with land warrants owned by himself and another, and takes the legal title in his own name, a resulting trust will thereby be created in favor of the other, in proportion to his interest in the warrants, without regard to any contract between them as to how the title was to have been taken. The contract, if there be one, however, may be looked to as affording evidence of the relation between the parties and the character of the transaction.
    5. Statute oe Frauds—as applicable to a resulting trust. The Statute of Frauds has no application to a resulting trust. The transaction, and acts of the parties from which a trust results, may be shown by parol evidence, as well as by that which is written. Such trusts are distinguished from an express trust in the manner of their creation.
    6. Limitation—laches—as to trusts. In respect of resulting or implied trusts, laches or the Statute of Limitations may constitute a bar to an action or suit to declare and enforce them. While they may be barred by the mere lapse of time, yet within what time the bar will be held to be complete, must depend upon the circumstances of the particular case. Lapse of time is only one of many circumstances from which the conclusion of laches must be drawn, and each case must be determined in the light of the particular facts shown.
    7. Same—when the statute begins to run—as against a trust—cha/raater of possession required. The Statute of Limitations does not begin to run against a trust so long as it is acknowledged to exist by the trustee, nor until it is repudiated and disavowed by him. Possession, to create a bar under the statute, must be open, notorious and adverse or hostile to the party sought to be barred. Where it is taken by a trustee or agent, it is the possession of the cestui que trust or principal, and can not be adverse until the trust is openly disavowed or denied, and this fact is brought home to the knowledge of the cestui que trust.

    8. It does not follow, if a person having funds belonging to himself and another, to be invested in land in their joint names, takes the title in his own name, contrary to the contract undei which he received the funds, that a resulting trust is not thereby created, or that the party so taking the title in his own name thereafter holds the title in hostility to the equitable rights of the other.
    9. Same—4n equity—and at law. Ordinarily, courts of equity adopt the time fixed by the Statute of Limitations for barring claims at law, in analogous cases, as the period to preclude a recovery in equity. But this rule is not inflexible, and its application will always depend, upon consideration of the allegation and proof, whether the presumption from which the bar arises, prevails. The presumption arising from the mere lapse of time may be repelled by proof of other facts and circumstances inconsistent with it.
    10. Evidence—entries in bank bo.oks—admissibility—to show the giving of a note—after the death of the person making the entries. To prove the giving of a promissory note by A to B, which was discounted at a bank and afterward renewed, the entries in the bank books and the notices given by the cashier to A respecting the note, after having been proved and identified as genuine, and proof of the death of the person making them, are admissible in evidence against A in a suit in which it is desired to show his relation to the transaction in respect of which the note was given. Such entries made by the bank officers at the time of discounting and renewing the note, are a part of the res gestee, and being made by persons having no interest in the matter in litigation, who are since dead, are competent evidence.
    Appeal from the Circuit Court of Iroquois comity; the Hon. Alfred Sample, Judge, presiding.
    This was a hill filed July 20, 1882, by Elizabeth A. Reynolds, widow, and Sarah R. Hitt and Mary R. Diaz-Albertini, only heirs-at-law, of William E. Reynolds, deceased, against Edward C. Sumner. The bill, after stating the death of Reynolds (July 31, 1880,) and the interest of complainants, alleged that in December, 1852, said Reynolds and Sumner made and executed the following written agreement:

      “Mem. of agreement made and entered into this the 31st day of December, 1852, between Edward 0. Sumner, of the county of Benton, State of Indiana, of the one part, and William F. Reynolds, of the county of Tippecanoe, State aforesaid, of the other part:
    “Witnesseth: Whereas, the said parties propose purchasing, say four thousand acres of land, in the State of Illinois, on joint account, it is agreed as follows: That the said Reynolds agrees to furnish the land warrants necessary to make the purchase, at whatever rates they cost him, and the said Sumner agrees to make the entries of land in the name of Edward G. Sumner and William E. Reynolds, who will be equal and joint owners of said land, the parties paying the necessary expenses in locating and selecting said lands. And for and in consideration of said Sumner’s personal service in the selecting of said land, it is agreed and understood that one-half of the expense and cost of said lands will be refunded by the said Sumner to the said Reynolds at the expiration of one year from the date of these presents, without interest, the said Sumner having executed his note or bill to the order of the said Reynolds for the sum of, say two" thousand dollars, which bill or note, if discounted or used by the said Reynolds, he is to protect for the period of one year, by renewals, and which note or bill will then be paid by said Sumner, or so much thereof as the one-half of said land may have cost, without interest, according to the within agreement.”
    The bill further alleged, that in pursuance of said agreement Reynolds purchased and delivered to Sumner twenty-five land warrants, for one hundred and sixty acres each, twenty-four of which the latter, on the first or second day of February, 1853, entered on the lands described in the bill, and that patents were issued by the government to Sumner, in his own name, for all of said land; that the other of such warrants being defective, Reynolds secured still another in lieu thereof, which Sumner also located, and received the patent therefor in his own name. The hill also charged that Sumner pastured the lands for many years, and had cultivated them for the last ten years, and had rendered no accounts of the rents and profits, but had appropriated them to his own use; that Sumner had paid all the taxes on the land, except, in 1861, Reynolds, upon the written request of Sumner, sent him $600 in gold, and again, in 1865, $500, with which to pay taxes; that upon demand Sumner refused to render any account of the rents, etc., at times pretending that Reynolds never had any interest in said land, and at other times that he had purchased of said Reynolds his interest therein in his lifetime, but alleging that complainants were owners of the undivided half of the said lands. Prayer for partition, etc., and for account of rents and profits, etc.
    On January 19,1883, complainant filed a supplemental bill, showing the death of said Sumner intestate, and making his widow and heirs parties, and showing that he had sold certain of the lands in his lifetime.
    The defendants answered, admitting the purchase of the warrants by Reynolds, and their delivery by him to Sumner, and that the latter entered them as alleged in the bill, but averring that Sumner, a short time thereafter, bought Reynolds’ undivided half interest in the land, and paid for the same. The defendants amended their answer by striking out the admission above referred to, and in lieu thereof denied that Reynolds purchased said warrants, and alleging that Sumner purchased alj of them with his own money. As amended, the answer admits the execution of the agreement set out in the bill; denies that Reynolds purchased and delivered to Sumner the land warrants; admits one of said warrants was defective, and was cancelled, but denies another was substituted in its place; admits that Sumner has pastured and farmed said lands, and rendered no account thereof, giving as a reason that he alone was interested therein. It also deni.es that Reynolds furnished any money with which to pay taxes on said land, and avers that the said sum of $600 mentioned in the bill was obtained by Sumner of Reynolds as a loan; admits the death of Sumner and the heirship of defendants, and avers that Reynolds, for- more than twenty years before his death, never claimed any interest in said lands; that he has frequently, since 1853, asserted that he had no interest in said lands, or money derived from the sale thereof, and sets up and insists upon the Statute of Limitations and the staleness of the demand as a bar. After the hearing, but before the decree, complainants amended their bill, averring that Sumner at no time prior to the year 1881 denied that Reynolds was an equal owner with him, but frequently, and through a series of years given, admitted and declared to said Reynolds and others, that he, Reynolds, was jointly with him owner of said lands. Replication was filed to the answer, and on the hearing•< a decree dismissing the bill was entered, and the cause is brought to this court upon the appeal of the complainants.-
    Messrs. Kay & Euans, Messrs. McDonald, Butler & Mason, Mr. S. P. Baird, and Mr. J. B. Sherwood, for the appellants:
    That letters, entries and memoranda, whether in a book or any other form, made in the usual course of business, and 'at or about the time the transactions they record occurred, by a person not a party to the action, who is shown to have had means of personal knowledge of the facts recited, are competent evidence of such facts, see 1 Greenleaf on Evidence, sec. 120; Humphreys v. Spear, 15 Ill. 275; Railway Co. v. Ingersoll, 65 id. 399; Vinal v. Gilman, 45 Am. Rep. 562; Moots v. State, 21 Ohio St. 653; Beaver v. Taylor, 1 Wall. 637; Fennerstein’s Champagne, 3 id. 145; Insurance Co. v. Weide, 9 id. 677; Abbott’s Trial Evidence, 322.
    ' It is not necessary that the letters, entries or memoranda should contain statements against the interest of the person who made them. 1 Greenleaf on Evidence, sec. 120; Patteshall v. Turford, 3 B. & A. 890.

      Such letters, entries and memoranda are original and independent evidence of the facts they recite. It makes no difference whether the writer could testify to the same facts. Vinal v. Gilman, 45 Am. Rep. 562; Mather v. Robinson, 41 Am. Dec. 505; 1 Greenleaf on Evidence, secs. 115, 120.
    If the person who wrote the letters, entries or memoranda be dead, and he does not appear to have had any interest to falsify, they may, upon proof of his handwriting, be read in evidence. Abbott’s Trial Evidence, p. 322; 1 Greenleaf on Evidence, see. 120; Beaver v. Taylor, 1 Wall. 637; Arms v. Middleton, 23 Barb. 571.
    If the person who wrote the letters, entries or memoranda be living, but is beyond the jurisdiction of the court, according to the great weight of authority it is sufficient to show by others that they were written in the due course of business at the time of the transaction, by one having personal knowledge of the facts recorded. Vinal v. Gilman, 45 Am. Rep. 562; Railway Co. v. Ingersoll, 65 Ill. 399; Alten v. Berghans, 8 Watts, 77.
    If the book containing the entries be in the possession of a person beyond the jurisdiction of the court, it need not be produced. Examined and sworn copies of the entries are sufficient. Vinal v. Gilman, 45 Am. Rep. 562; Burton v. Driggs, 20 Wall. 125; Deitz v. Regnier, 27 Kan. 94.
    The evidence shows that these entries were made at the time the transaction they record occurred. They constitute parts of a chain of facts that naturaHy belong to the full execution of the agreement set out in the bill. They are not hearsay, but “verbal facts” that actually took place, and hence are competent as parts of the res gestee. 1 Greenleaf on Evidence, sec. 120; 1 Wharton on Evidence, secs. 258, 259; Sill v. Reese, 47 Cal. 294; Planter v. Planter, 78 N. Y. 90; Brush v. Blanchard, 19 Ill. 34; Railway Co. v. Ingersoll, 65 id. 399 ; Beaver v. Taylor, 1 Wall. 637.
    When an entry or memorandum, made by a party since deceased, appears regular on its face, and is produced from the proper custody, and especially if it is corroborated by other evidence, it is presumed, in the absence of testimony to the contrary, to have been made in the due course of business. 1 Wharton on Evidence, sec. 688, note 3; Hoover v. Gehr, 62 Pa. St. 136; Boyer v. Sweet, 3 Scam. 120; Taliaferro v. Ives, 51 Ill. 248.
    As to express trusts, see Kingsbury v. Burnside, 58 Ill. 310; Carpenter v. Davis, 72 id. 14.
    As to resulting trusts, see 1 Perry on Trusts, secs. 26, 126; Bispham’s Eq. secs. 78, 79; Story’s Eq. Jur. sec. 1201.
    The presumption is, that it was the intention of both parties, at the time the trust was created, that Sumner should hold the undivided half of the lands in trust for Reynolds. The trust is a continuing and subsisting one until disavowed by the trustee, to the knowledge of the cestui que trust. Wood on Limitations, 439; Bacon v. Rives, 106 U. S. 99; Jones v. McDermott, 114 Mass. 403; Shorter v. Smith, 56 Ala. 208; Seaman v. Cook, 14 Ill. 504; Carpenter v. Davis, 72 id. 14; Loften v. Witboard, 92 id. 461.
    No lapse of time, however great, will constitute a bar to a trust, so long as the trust is acknowledged to exist. Story’s Eq. Jur. sec-. 1520 a; Angelí on Limitations, sec. 472; Springer v. Springer, 114 Ill. 550; Cunningham v. McKindley, 22 Ind. 149 ; Oliver v. Piatt, 3 How. 333; Dow v. Jewell, 18 N. H. 340; Butler v. Lawson, 72 Mo. 227; Harder v. Harder, 2 Sandf. Ch. 17.
    This is a suit of purely equitable cognizance. There is no analogy between the remedy here sought and any remedy that is administered by a court at law. The statute, therefore, has no application. Wood on Limitations, 118; Locke v. Caldwell, 91 Ill. 417; Kane v. Bloodgood, 7 Johns. Ch. 89.
    This being a suit by a cestui que trust, against trustees, to establish and enforce a subsisting trust which has never been denied, the statute has no application, and no length of time is a bar. Wood on Limitations, 413, 439; Kane v. Bloodgood,
      7 Johns. Ch. 89; Seymour v. Freer, 8 Wall. 202; Cholmondeley v. Clinton, 2 Meriv. 93.
    Possession, to constitute a bar to an action at law for the recovery of real estate, must be adverse in its inception, or since its commencement there must have been a denial of the true owner’s title, brought to his knowledge and followed by a continuous adverse claim for twenty years. 3 Wait’s Actions and Defenses, 99; Turney v. Chamberlain, 15 Ill. 271; Clark v. Lyon, 45 id. 388.
    If the parties are tenants in common, the acts of hostility sufficient to manifest an adverse possession must be of the most unequivocal character. The appropriation of all the rents and profits, payment of taxes, and making cheap improvements, are not sufficient. Busch v. Huston, 75 Ill. 343; Ball v. Palmer, 81 id. 370; Sydnor v. Palmer, 29 Wis. 228.
    Messrs. Doyle, Morrison & Pearson, Messrs. R. P. & J. G. Davidson, and Messrs. Coeerath & Stuart, for the appellees.
   Mr. Justice Shops

delivered the opinion of the Court:

This is a bill to establish and enforce a trust in favor of appellants. On December 31, 1852, William F. Reynolds, under whom appellants claim, entered into a written agreement with Edward C. Sumner, under whom appellees claim, respecting the purchase of land warrants and the entry of public lands therewith. Under this agreement Reynolds was to furnish Sumner with warrants calling for four thousand acres of land, and the latter was to enter the land with such warrants in the joint names of Reynolds and Sumner, and, after the expiration of one year, Sumner was to refund to Reynolds one-half of the cost of the land, including expenses, but without interest thereon. At the time this agreement was entered into, Sumner gave Reynolds his promissory note for $2000, which was supposed to be about one-half of the cost and expenses of the land warrants and of the entry of the land, and it was also agreed that if this note was discounted or hsed by Reynolds, he was to protect the same for one year, by renewal or otherwise, when it was to be paid by Sumner, or so much thereof as would be equal to one-half of the cost of said lands, without interest.

There can be no question as to the giving of a note of $2000 by Sumner to Reynolds, which matured in less than one year .after its date, and that it was given for part of the purchase price of land warrants the latter had agreed to procure and furnish the former. This is apparent from the written agreement of the parties referred to. It appears, also, from entries in the books of the Branch Bank of Indiana, that this note was discounted in favor of Reynolds, and was afterwards renewed when due, whereby the time of payment was extended one year, as provided in the written agreement.

On February 1 and 2, 1853, Sumner located twenty-four land warrants, each of one hundred and sixty acres, and shortly afterward another for a like number of acres, making in all four thousand acres of land, in his own name, and which is the land involved in this controversy. The making of the written agreement of December 31, 1852, and the entry of the land, are not disputed, but it is denied that Reynolds furnished the twenty-five land warrants with which the entry was made.

Appellants contend, that Reynolds, on the day of the date of the written agreement, wrote to Gibson, Stockwell & Go., commission merchants of New York City, asking for twenty-five land warrants of one hundred and sixty acres each, and promising to send a draft for the cost, etc., and that on January 10, 1853, he sent a letter to that firm, enclosing a draft for $4823.38, in which he stated that the draft was for the purpose of paying for the twenty-five land warrants ordered December 31, 1852, and that this firm, on January 15, 1853, sent by letter to Reynolds twenty-five land warrants, as ordered, which he delivered to Sumner to make the entry upon, said land, and that they were so used. For the purpose of proving these facts, and as tending to show that the land warrants used by Sumner in the entry of these lands were furnished by Reynolds, and also that Sumner’s note of $2000 was given, renewed and finally paid by the latter in part performance of the written agreement, the appellants produced in evidence the letters of said commission merchants to Reynolds, and sworn copies of the entries in their books and the books of the Branch Bank of Indiana, each of which was objected to as hearsay, and incompetent.

In the view we take of the case it is not necessary to determine whether these letters were competent evidence or not. We think, however, that the entries in the bank books, and the notices given by the cashier to Reynolds respecting Sumner’s note, after having been proved and identified as genuine, and proof of the death of the person making the same, were admissible in evidence. The entries made by the bank officers at the time of the discounting and renewing of Sumner’s note were a part of the res gestee, and being made by persons having no interest in the subject in litigation, since deceased, are competent evidence. But if they are not competent, the frequent statements and declarations of Sumner as to Reynolds’ interest in the land afford sufficient evidence, when considered in connection with the written agreement and the undisputed facts, that Reynolds did furnish the land warrants with which to make the entry of the land, as he had agreed. His statements and admissions to the witnesses Slaughter, Vennum, Evans, Brown, Stephens, O’Ferrall, Hitt, and others, and his letters to Reynolds in 1861 and 1865, asking for money with which to pay taxes on the land, show clearly that Sumner then regarded Reynolds as the equitable owner of one-half of these lands,—and this could only be so on the hypothesis that Reynolds owned one-half of the consideration paid in acquiring the government title. When Sumner’s note fell due, he wrote to Reynolds, of date August 17, 1853:

“I received your letter day before yesterday—I find it was the 9th. I have sent my bill back as soon as I could. I had forgotten all about it.
E. C. Sumner.
“N. B. You need not have sent me the bill; you might have put my name on it yourself.”

This corresponds in date with the entries in the bank books and the notices issued by the bank, and would seem to strongly corroborate the position of appellant. It is not shown there was any transaction, other than the renewal of Sumner’s note, to which it could refer.

Appellees introduced no evidence tending to show how Sumner came into possession of the land warrants used by him in the entry of this land, or that he paid anything therefor, but as the warrants show an assignment on their face to Sumner, direct from the persons to whom they were issued, prior to the date of the written agreement, they contend that it will be presumed that Sumner acquired them directly from the assignors, and at the several dates of the assignments. This presumption might arise if the law did not recognize the assignment of such warrants in blank, and authorize the holder, before or at the time of making entries with them, to fill the blank with the name of the person making the entry. In addition to this, it is evident, from the written contract, that Sumner, on December 31, 1852, did not have these warrants. If he had, he would probably not have entered into an agreement with Reynolds to furnish them. The fact that on the 1st day of February, 1853, a month after the date of the written agreement, we find Sumner in possession of the precise amount in warrants agreed to be furnished by Reynolds, and used by him for the purpose indicated in such agreement, and the further fact that Sumner paid his note given for one-half of the cost of the warrants, and his often repeated admissions of Reynolds’ interest in the land, afford very strong and convincing proof that Sumner obtained the land warrants under and in pursuance of his written contract with Reynolds.

The law is well settled, that if a party purchase land and pay the purchase price, taking the title in the name of a third person a stranger to him, the grantee will take only the naked legal title, and the law will imply a resulting trust in favor of the party paying the consideration. And if a person having the money or means of another in his hands to invest for the owner, uses the same in the purchase of property in his own name, the law will hold him to be the trustee of the owner of the money or other consideration used in effecting the purchase. If two or more advance the price, and the title is taken in the name of one of them, a trust will result in favor of the other for an undivided share of the property, in proportion to his share of the purchase p?ice paid. (Smith v. Smith, 85 Ill. 189; Mason v. Showalter, id. 133; Loften v. Witboard, 92 id. 461.) Therefore, if Sumner entered these public lands with land warrants owned by Reynolds, or by Reynolds and himself, and took the legal title in his own name, a resulting trust was thereby created in the lands entered, in favor of Reynolds, in proportion to his interest in the land warrants, without regard to the express contract between them. The agreement was, that the title should be taken in the names of Reynolds and Sumner, jointly. This Sumner failed to do, but procured the same to be patented in his own name. The trust arises, not out of the contract, but because of the interest of Reynolds in the warrants with which the entry was made and the title to the lands secured. The contract, however, may be looked to as affording evidence of the relation between the parties and the character of the transaction. From it we find that Reynolds was to furnish the land warrants with which to make the entry of the land, but he was to be only half owner,—he crediting Sumner one year, without interest, with one-half of the cost of the land. When, therefore, Sumner, having joint funds in his hands to be invested for the joint benefit of himself and Reynolds, invested the same in property in his individual name, a resulting trust arose in favor of Reynolds for the undivided half of the land acquired by the investment. See authorities supra; Bush v. Stanley, 122 Ill. 406; Perry on Trusts, 139.

The Statute of Frauds has no application to a trust thus created. The transaction and acts of the parties from which a trust results, may be shown by parol evidence, as well as by that which is written. Such trusts are distinguished, from an express trust in the manner of their creation. (Perry on Trusts, 137, 138; authorities supra; Maffatt v. Shepard, 2 Pin. 66; Lewis v. Lewis, 9 Mo. 182.) It does not follow, that if the title was taken in the name of Sumner, contrary to the provisions of the contract, a resulting trust was not thereby created, or that Sumner thereafter held in hostility to the equitable rights of Reynolds. The law will not presume an intention to defraud, but the conduct of Sumner will be referred to honest motives, in the absence of evidence showing why the title was taken in Sumner’s name; nor will it be presumed, in view of the written agreement, that Reynolds intended to or did give his interest in this property to Sumner.

The Statute of Limitations, and the laches of Reynolds in his lifetime, are relied upon as a bar to the relief sought. Possession, to be a bar under the Statute of Limitations, must be open, notorious and adverse to the party sought to be barred. The rule seems to be well settled, in cases of express trust, that mere delay will not defeat a recovery, unless the trustee has repudiated or disavowed the trust, and the disavowal is known to the cestui que trust. If thereby the'claim of the trustee, in respect of the trust estate, is held adversely to the cestui que trust, the law of laches may become applicable. Speidel. v. Henrici, 15 Fed. Rep. 753; Brown v. County of Buena Vista, 95 U. S. 160.

In respect of resulting or implied trusts, laches or the Statute of Limitations may constitute a bar to the action. Such trusts may be barred by the mere lapse of time. While the better doctrine is, that the defense of laches may be availing in eases of resulting and implied trusts, yet within what time the bar will be held to be complete, must depend upon the circumstances of the particular case. Lapse of time is only one of many circumstances from which the conclusion of laches must be drawn, and each case must be determined in the light of the particular facts shown. (Boone v. Childs, 10 Pet. 177; Michoud v. Girod et al. 4 How. 261; Baker v. Reed, 18 Beav. 398; Carpenter v. Canal Co. 35 Ohio St. 307; Provost v. Gratz, 6 Wheat. 481.) Ordinarily, courts of equity adopt the time fixed by statute for barring claims at law, in analogous cases, as the period at the end of which they will conclude recovery in equity. This rule is by no means inflexible, and its application will always depend, upon consideration of the1 allegations and proof, whether the presumption from which the bar arises prevails. The presumption arising from the mere lapse of time may be repelled by proof of other facts and circumstances inconsistent with it. When possession of trust property is taken by the trustee, under the trust, it is the possession of the cestui que trust, whether the trust be express or implied, and can not be adverse until the trust is openly disavowed or denied, and this fact is brought home to the knowledge of the cestui que trust. Thompson v. Finch, 22 Beav. 325; Shroter v. Smith, 56 Ala. 208; Chicago and Eastern Illinois Railroad Co. v. Hay, 119 Ill. 493 ; Oliver v. Piatt, 3 How. 411.

We have already shown that the equitable right of Reynolds in these lands was repeatedly recognized by Sumner. The existence of the trust in this case was, so far as shown, never disputed or denied by Sumner in his lifetime. The relations between Sumner and Reynolds were apparently most friendly from the inception of the trust, whichfas we have seen, was a continuing trust, until disavowed by Sumner, and the disavowal known to the cestui que trust. We think the facts shown establish, that for many years the holding of Sumner, and his occupation and possession of these lands, were regarded by both Sumner and Reynolds as for himself and Reynolds. That the trust continued for the benefit of Reynolds is, we think, fairly inferable from the record. Wood on Limitations, 439; Jones v. McDermott, 114 Mass. 400; Merriam v. Hassam, 14 Allen, 516; Bacon v. Rives, 106 U. S. 99; Springer v. Springer, 114 Ill. 550. So long as the equitable rights of Reynolds were acknowledged by Sumner, no laches could be imputed to him. So long as his trust and confidence were not abused, he might safely continue the same without forfeiting his rights. Until the trust was repudiated, he had a right to rely upon the integrity and faithfulness of his trustee. It was not until after the death of the trustee that the equities of Reynolds were denied, so far as shown in the proofs in this case, and the original bill herein was filed during his lifetime, and the supplemental bill shortly after his decease.

We think the circuit court erred in dismissing the bill. The decree of the circuit court is therefore reversed, and the cause remanded to that court for further proceedings not inconsistent with this opinion.

Decree reversed.


author: Mr. Justice Shope

text:
    William A. Paulsen v. Charles Manske et al.

      Filed at Ottawa October 2, 1888.

    1. Mechanic’s lien—of the character of estate in land, to which the lien may attach. In order that a mechanic’s lien may attach, it is indispensable that the party with whom the contract is made shall have some estate or interest in the premises upon which the building is erected or improvement made; but such estate may be the fee, or an estate for life, or for years, or any interest, legal or equitable, in the land. The lien may attach to a mere pre-emption right.
    2. Under the present statute, one in the possession of land under a mere contract of purchase is to be considered the owner, in the sense of the statute, only to the extent of the interest he has, and that interest is what the mechanic’s lien affects.

      3. The owner of a lot entered into an agreement with P., whereby the latter was to erect certain buildings on the lot, those on a certain designated part of the lot to cost $5846, in consideration of which the lot owner was to convey the remaining portion, being ninety-five feet, to P. The owner was to execute mortgages on the whole lot to raise money to enable P. to make the proposed improvement: Held, that P. had such an interest 'in the portion of the lot which was to be conveyed to him under this agreement, as would sustain a mechanic’s lien, and that the lot owner, having authorized P. to contract for the buildings and received the benefits of the improvements, could not escape liability to the mechanics and material-men.

      4. Same—contract through an agent. If the owner of land authorize a third person to enter into a contract for the erection of buildings thereon, the owner will thereby make his land liable to the lien of the mechanics for labor, etc., thereon.
    5. Release op lien—in whose favor it will operate. Where payment is not made of a demand for which the holder has a lien, and a release of such lien is made for a certain purpose, as, to give a mortgage priority over it, the court will confine the operation of the release to the purpose intended by the parties thereto. A stranger to the release can take no benefit from the same.
    6. Where a Tel ease of a mechanic’s lien is made, but no one is named therein to whom the release is given and no consideration is named, the court may look to the extrinsic facts to determine both the consideration and in whose favor the release is intended.
    7. Arbitration and award—revocation. The bringing of a suit to establish and enforce a mechanic’s lien is, by implication, a revocation of a prior agreement to arbitrate the matters involved in such suit. A mere agreement to arbitrate will not affect the rights of the parties.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Cyrus Epler, Judge, presiding.
    Mr. Edward J. Judd, and Mr. Eugene Clifford, for the appellant:
    The contracts in this case were made with one not the owner of the land, and so no lien can exist in favor of the contractors. Woodburn v. Gifford, 66 Ill. 285 ; Wetherill v. Ohlendorf, 61 id. 283.
    The owners of the land in this case (the Browns) contracted with Paulsen to erect certain buildings, and he, in turn, entered into personal contracts with the lien claimants in this cause. Their position is that of sub-contractors, and they are entitled to no lien, as they have given no notice to the owners, as required by the statute.
    The lien in this case, if any exists at all, was specifically released.
    It was the duty of the contractors to inform themselves as to the title to the land, and as to whom they were dealing with. McCarty v. Carter, 49 Ill. 53.
    Mr. William Vooke, and Mr. Harvey Storck, for the appellees :
    As a general rule, an equitable as well as a legal owner of property may create a mechanic’s lien. Phillips on Mechanic’s Liens, sec. 66.
    The word “owner” includes owner in equity as well as at law. Atkins v. Little, 17 Minn. 353; Rollins v. Cross, 45 N. Y. 768.
    ' Parties having contracted for the purchase of property, and entered in possession, will, so far as their equitable interests are concerned, be regarded as owners. Phillips on Mechanic’s Liens, sec. 69; Stockwell v. Carpenter, 27 Iowa, 119.
    The interest of the owner may be a fee simple, or it may be any estate less than a fee. Tracy v. Rogers, 69 Ill. 662.
    It has been held that the fact that a person acted as agent, may be shown, although he signed the contract with his own name. Whitlock v. Hicks, 75 Ill. 460.
    The liens were not affected by the agreement to arbitrate, as no award was ever made. The bringing of the suit was a revocation of the agreement. Morse on Arbitration, 230; Peters v. Craig, 6 Dana, 307.
    Whatever diversity of authority may exist as to the effect of giving a note, or independent security of a third person, or by mortgage, or extension of credit beyond the period in which the lien may be filed, all the cases agree that there will be no waiver when the agreement to give the note or other security has not been performed by the promisor. It would be going too far to say that the builder must have intended to waive the lien in the event of the refusal to comply with the agreement. The contrary proposition comes down to that. The Highlander, 4 Blatchf. 55; Phillips on Mechanic’s Liens, sec. 285.
    An agreement to extend the time of payment beyond a year, provided a mortgage should be given, will not defeat a mechanic’s lien, if the mortgage should not be executed. The giving of the mortgage would be a condition precedent. Gardner v. Hall, 29 Ill. 277; Lutz v. Ey, 3 E. D. Smith, 621.
   Mr. Justice Shope

delivered the opinion of the Court:

It is insisted that the contract under which the labor was performed and material furnished for which the lien is sought to be established in this ease, was not made with the owner of the land, “and so no lien can exist in favor of the contractors.” The first section of the act gives a lien to any person who shall, “by contract with the owner of any lot or piece of land, furnish labor or material,” etc. The second section provides that such lien “shall extend to an estate in fee, for life, for years, or any other estate, or any right of redemption or other interest which the owner may have in the lot or land at the time of making the contract.” Construing these two sections together, it becomes evident that by the words, “the owner of any lot or piece of land, ” as used in the first section, is meant the owner of any interest or estate-in such lot or land. It is indispensable that the party with whom the contract is made shall have some estate or interest in the premises upon which the building is erected or improvement made; but such estate may be the fee, or an estate for life, or for years, or any interest, legal or equitable, in the land. This has been the uniform construction placed on the statute by this court. Under a similar statute, (Bev. Stat. 1845, chap. 65, secs. 1-17,) it was held that a pre-emption right was an interest in land which could be subject to mechanic’s lien. (Turney v. Saunders, 4 Scam. 527.) So, also, the possessory right and interest of the builder. (Steigleman et al. v. McBride et al. 17 Ill. 300; Garrett v. Stevenson, 3 Gilm. 261.) Under the present statute, the party in possession under a contract of purchase “is to be com sidered owner, only, in the sense of this statute, to the extent of the interest he owns, and that interest is what the mechanic’s lien affects, and as to these proceedings that interest is to be considered as ‘the land’ on which the first and second sections give the mechanic’s lien.” Tracy v. Rogers, 69 Ill. 652; Hickox v. Greenwood, 94 id. 266 ; McCarty v. Carter, 49 id. 53 ; Judson v. Stephens, 75 id. 255; Henderson et al. v. Connelly, 123 id. 98.

• By reference to the agreements entered into by and between Paulsen and Lewis A. and Flora A. Brown, it will be seen that by the first the Browns covenanted to convey to Paulsen, by warranty deed, the west ninety-five feet of the lot in question,—being all of said lot except thirty-five feet off the east end,—and Paulsen, on his part, covenanted to pay for said ninety-five feet, $5846, by building a row of buildings on said lots according to the second agreement. Both agreements were executed at the same time, and are to be considered together. The second agreement provides, that in consideration “of a contract for a deed,” etc., in the first writing mentioned, Paul-sen shall build a row of houses on said lot, making the house on the east thirty-five feet thereof reserved by the Browns, a double house, with a barn, and costing $5846. It is then provided, that the Browns shall execute notes, mortgages, and all such documents as may be necessary to borrow money on. the lots with which to erect said buildings, all money, however, to be controlled by them, and all work and payment of contractors to be controlled by Paulsen. If the house'and improvements put on the east thirty-five feet,—the part reserved by the Browns,—cost more than $5846, they were to assume of the mortgage debt an amount equal to such excess, only. If the cost was less than that sum, Paulsen was to pay the difference to them. Paulsen was to derive all profits arising from the contract, except what might inure, if any, from the improvement of the east thirty-five feet. If we adopt the construction of this contract contended for by Paulsen, he would hold as purchaser, and his interest would, as we have seen, be subject to the mechanic’s lien, and the purchaser at a sale thereof, under such proceedings, would take whatever interest, legal or equitable, he might have in the premises. That the decree was properly entered, as against the interest of Paulsen, can not be questioned, unless the lien had been waived, as we shall see was not done as to him. The fact that Paulsen alone appeals to this court would therefore necessarily lead to an affirmance of the judgment of the Appellate Court, even if it were conceded that there was error in extending the lien to the interest of the Browns in said premises. If the lien existed as to Paulsen’s interest, there would be no error of which he could be heard to complain.

■ But it is not necessary to put this case upon the grounds indicated. Upon examination, it will be found that the scheme contemplated the erection of- a house for Mrs. Brown on the east thirty-five feet of the lot, for which, if built according to the plans agreed upon by the parties, she was willing to pay by conveying the residue of the lot to Paulsen. It may be difficult to define the exact legal relation existing between these parties, but it is evident that Paulsen was authorized and empowered by the Browns to erect the row of buildings upon the lot, and they were practically to furnish the money, by raising it on mortgage of the whole property, with which to build the same,—not only on the thirty-five feet reserved by them, but upon the ninety-five feet to be conveyed to Paulsen as well. It was understood that finally the Browns were to assume only so much of the mortgage as the house built for them should cost in excess of $5846. By the terms of the contract they retained control of the money, while the work and payment of contractors was to be under the control of Paulsen. The evidence shows that the money borrowed,— $22,000,—was paid by checks payable to Flora A. Brown. The Browns amply protected themselves from loss by retaining title to all of the lot, and the control of the money used and to be used in the construction of said building. As we have seen, the profits arising from the value of the west ninety-five feet of the lot, after its improvement and the extinguishment of the mortgage, measured Paulsen’s interest in the transaction. The Browns having authorized the work to be done by Paulsen on their lot, can not now compel the mechanics and material-men who have furnished labor and material in carrying out the plan agreed to and authorized by them, to look alone to Paulsen’s interest in the land. It can make no difference that the contracts for labor and material were signed by Paulsen alone. He was, in fact, acting for and on behalf of the Browns, and they can not be permitted to receive the benefit and escape the liability of the mechanic’s lien attaching to their interest. Story on Agency, 476; Whitlock v. Hicks, 75 Ill. 460; Lewis v. Rose, 82 id. 574; Henderson et al. v. Connelly, 123 id. 98.

In the case last cited, it was understood in the contract of purchase of the land, that the purchaser should erect a house thereon, the vendors agreeing to advance the purchaser $875 to assist him therein as the work progressed. Before the completion of the building the purchaser forfeited his contract of purchase, and the vendors re-entered, as they might lawfully do under their contract, and it was held that the vendors, having authorized and empowered the purchaser to enter into contracts for the erection of the buildings, had subjected their title in the property to the lien of the mechanics. The case at bar is much stronger than the case cited, and the principle there announced is decisive of the liability of the interest of the Browns in the property in controversy.

If any doubt could exist as to the capacity in which Paulsen was acting in contracting, in respect of these buildings, it is removed by the agreement between Paulsen and Mrs. Brown, on the one part, and the builders on the other, in which the matters in difference between them were submitted to arbitration. In that agreement, Mrs. Brown admits, in the most ample manner, that in making said contracts with the builders Paulsen acted for and on her behalf, as well as for himself. This evidence was introduced by the defendants below, and it does not lie in their mouth to complain of its consideration for all legitimate purposes.

It is next claimed that appellees waived and released their respective liens, and that the decree is therefore erroneous. It appears that prior to the 17th day of August, 1885,. there had been drawn from the mortgage company $15,000 of the $22,000 loan, secured by the mortgage before mentioned, leaving a balance of $7,000 unexpended in the hands of the mortgage company. Differences having arisen between the lot owners and appellees as to the amount due appellees under their contract, the mortgage company declined to pay the remaining $7000 unless they Were assured of the priority of the mortgage over the mechanic’s lien. On the last day named, the parties entered into an agreement in writing, in which other lien holders joined, to submit the difference to arbitration, in which the lien of appellees is expressly recognized, but appellees therein expressly “consented, * * * that so far as their claims for mechanic’s liens against said premises are concerned, the United States Mortgage Company * * * has a lien prior and superior to theirs, by virtue of-a mortgage,” the date and amount whereof are given. Paulsen and Brown, on their part, covenanted, that pending the arbitration they would not sell or further incumber said premises, or in any manner change the condition of the title. These articles of submission were presented to the agent of the mortgage company, and payment of the remaining $7000 requested, but the agent was not satisfied, and refused to pay over the same unless a release was executed by the lien holders. Accordingly, on the 26th day of August, the instrument relied upon as a release was drawn, signed by appellees and others, and the remaining $7000 of the loan paid by the mortgage company. The instrument of the 26th of August names no one to whom the release is made, and expresses no consideration, and we are justified in looking to the extrinsic facts to determine both the consideration and the party, in whose, favor the waiver or release was intended. Thus looking, it is apparent that the only reason or consideration for the execution of this paper was to obtain the consent of the mortgage company to pay over to Paulsen and Mrs. Brown the sum of money remaining in their hands. Nothing is shown to change the relation of the parties after the execution of the submission to arbitration, and it is manifest that there was no intention to do more than give priority to the mortgage. As said by the Appellate Court: “The legal conclusion from these circumstances is, that the mortgage company, and that company alone, was the 'party in whose favor the release was intended to be executed. That seems to us to be as clearly shown as though the name of the mortgage company had been inserted in the instrument as releasee. The release given to the mortgage company is available for that company alone. It is not executed to Mrs. Brown or to Paulsen, or upon any consideration moving from them. So far as appears, they are mere strangers to the instrument, and we know of no principle upon which they can be permitted to avail themselves of its benefits.”

Nor is the lien of appellees affected by the submission to arbitration, as contended by appellant. While it might be shown, perhaps, that the making of an award was defeated by appellant’s refusal to select an arbitrator to take the place of one chosen but unable to serve, it is sufficient to say that no award was made, and until an award was made the authority of the arbitrators was subject to revocation by either party to the submission. (Morse on Arbitration, 230, and cases cited.) It was not known that Mr. Dryer, one of the arbitrators named, would ever be able to act, and appellees were not bound to allow the Statute of Limitations to run against their lien because of his inability to perform the duty, or because appellant refused to agree to the substitution of another arbitrator. The institution of the mechanic’s lien proceedings was, by implication, a revocation of the agreement to arbitrate. Morse on Arbitration, 236.

' No question is made as to the amount found by the court to be due the several lienors, and we are unable to perceive any such error in this record as will authorize a reversal, and the judgment of the Appellate Court will be affirmed.

Judgment affirmed.

Mr. Justice Bailey, having heard this case in the Appellate Court, took no part in this decision.


author: Mr. Justice Wilkin

text:
    William E. Westbrook v. The People of the State of Illinois.

      Filed at Springfield September 27, 1888.

    1. Dying leclabations—preliminary question for the court—and herein,'what will constitute dying declarations. It is for the court to determine upon the admissibility of the declarations of a party before his death, upon proof of the condition of his mind at the time they were made; and if the proof does not satisfy the court, beyond a reasonable doubt, that such declarations were made in extremity, and that they were dying declarations, they should not be permitted to go to" the jury.
    2. The question as to the belief of a person whose statements or declarations are sought to be introduced as dying declarations, that his death was then impending, must be determined from facts proved, and not by the mere opinions of witnesses. No weight can be given to the testimony of a witness giving it as his opinion that a wounded person, at the time of making a statement of the facts of the case, believed he was about to die, without giving any facts upon which such opinion is based.
    3. Dying declarations are such as are made by the party relating to the facts of the injury of which he afterward dies, under the fixed belief and moral conviction that his death is impending and certain to follow almost immediately, without opportunity for repentance, and in the absence of all hope of avoidance,—when he has despaired of life, and looks to death as at hand.
    4. That one making a statement of this kind was in extremity, may be proved either by language used or acts performed, and it may be inferred from the evident danger of the party, or from statements made to.him by medical or other attendants; but by some mode of proof it must affirmatively appear that all hope of recovery was gone.
    5. Evidence— threatening letter, by one who afterwards hilled the person for whom the letter was intended. A party tried for a homicide, a few days before the killing wrote a letter, directed to the brother of the deceased, (the two latter being partners in the business of selling liquors under a license,) threatening to prosecute them for selling liquor to minors unless $25 was paid him. The proof showed that the letter was intended for both the deceased and Ms brother, and the accused admitted that he had sent the letter; Held, that such letter was properly admitted in evidence on the trial.
    Wbit of Ebbob to the Circuit Court of Macon county; the Hon. C. B. Smith, Judge, presiding.
    Messrs. Mills Bbos., and Mr. I. D. Walkeb, for the plaintiff in error:
    The court erred in admitting the letter written by the defendant to Charles Gross to be read in evidence.
    The court erred in admitting the statements of the deceased as dying declarations. Starkey v. People, 17 Ill. 17; Tracy v. People, 97 id. 101; Digby v. People, 113 id. 123; Warner v. State, 35 Am. Rep. 745 ; Dunn v. State, id. 60; Lewis v. State, 9 S. & M. 120; Bull v. Commonwealth, 14 Gratt. 620; Jackson v. Commonwealth, 19 id. 668; Commonwealth v. Roberts, 108 Mass. 296; Morgan v. State, 31 Ind. 193; State v. Simion, 50 Mo. 370; Greenleaf on Evidence, secs. 156, 158.

      Mr. George Hunt, Attorney General, for the People:
    It is the belief of a declarant that his wound is mortal, and that his account with time is to be speedily closed, that renders the declaration admissible. It matters not how this belief is manifested,—whether by word or conduct, or by an accurate perception of his true situation,—yet its existence must be shown in some way. Lewis v. State, 9 S. & M. 115; Nelm v. State, 13 id. 500; State v. Nash, 7 Iowa, 347; Commonwealth v. Roberts, 108 Mass. 296; Starkey v. People, 17 Ill. 21; Murphy v. People, 37 id. 447.
    It is essential that the dying declaration be made under a sense of impending death; but it is not necessary that they should be stated, at the time, to be so made. It is enough if it satisfactorily appears, in any mode, that they were made under that sanction,—whether it be distinctly proved by the express language of the declarant, or be inferred from his evident danger, or the opinions of medical or other attendants stated to him, or from his conduct, or other circumstances of the case—all of which are resorted to, in order to ascertain the state of the declarant’s mind. 1 Greenleaf on Evidence, sec. 158; Wharton on" Crim. Ev. secs. 281, 282.
    The length of time between the declaration and the death furnishes no rule for the admission or rejection of the evidence. It may serve as one of the exponents of the belief of the deceased that his dissolution was or was not pending.
    Where the party said, “I am afraid, Doctor, I shall never recover,” and the surgeon said, “You are in great danger,” and the party replied, “I fear I am, ” his declarations were admitted. Wharton on Crim. Ev. sec. 285; Rex v. Craven, 1 Lew. C. C. 77; Rex v. Simpson, id. 78.
    That the deceased did not die immediately is not material. If the deceased believed he was dying, the admissibility of his declaration is not affected by the fact that his medical attendant had hope. So declarations made while the declarant believed he would die, were held admissible, thongh he lived eleven days afterward, and his medical attendant did not think the case hopeless, and continued to tell him so. Wharton on Crim. Ev. sec. 283; Rex v. Mosly, 1 Mood. C. C. 97; Rex v. Peel, 2 F. & F. 21; State v. Tilghmam, 11 Ired. 513; Johnson v. State, 17 Ala. 618; State v. Nash, 7 Iowa, 381.
    Mr. I. A. Buckingham, and Mr. Edward P. Vail, also for the People.
   Mr. Justice Wilkin

delivered the opinion of the Court:

At the September term, 1887, of the Macon circuit court, plaintiff in error was indicted for the murder of one William Gross. On a trial at the next term he was found guilty, the jury fixing his punishment at death. Motion for a new trial and in arrest of judgment being overruled, he was sentenced to be executed on the 30th day of March last. At the Ottawa term of this court, begun in the last named month, a writ of error was ordered, and the same made a supersedeas, and the record now comes before us for final review.

Deceased resided in the village of Blue Mound, where he and Charles Gross, his brother, kept a dram-shop. There had been no intimate acquaintance'between'the prisoner and either of the brothers, nor was there any unfriendly feeling between them. On the 27th of June, 1887, the prisoner wrote a letter to Charles, in which he stated that .he had seen him sell liquor to a minor, and threatening him with prosecution unless he was paid $25. This letter, was received by Charles on the 29th of June, and handed to deceased the same day. On the first day of July the defendant went to Blue Mound, and while there that afternoon, inquired of the post-master if “Gross Bros.” had sent him a letter at Stonington. He at the same time stated that he had seen the Grosses sell liquor to a minor, and said: “If they don’t give me $25, I’ll fix them.” To another witness: “If they don’t give me $25, I’ll give it away, or do them up.” To a third party: “He was going to have $25, and if he did not get it he would cut their hearts out;” and to still another witness: “I want $25, and if the. Grosses don’t pay me I will cut the guts out of them.” Unnatural and unreasonable as these threats of personal violence seem, the witnesses who testify to them are uncontradicted, and for the purposes of our opinion they must be accepted as proved. Charles Gross met him that evening, and asked him if he wrote the letter above mentioned, and he answered he did. No angry words passed between them at that time. The prisoner remaining in the village that night, stated to one or more parties early the next morning, “that he had caught the Gross Bros, selling liquor to a minor, and unless they made it right, he was going to give them up.” The people of the village were, at this time, in a state of excitement, growing out of prosecutions, pending and previously tried, against saloon keepers for illegal sales of intoxicating liquors.

On the morning of the 2d of July, between nine and ten o’clock, defendant was standing by the side of a locomotive which -had just stopped at a street crossing in the village. No one was near him, and he seemed to be looking at or examining the engine. Deceased, passing along the sidewalk, approached the locomotive from the opposite side, and as he crossed the railroad track in front of the engine, seemed to discover the defendant, and immediately turned and went to where he was standing. Almost immediately they were Seen striking at each other, and were very soon both down, struggling with and striking each other. Just before they separated, Gross was on top of and striking the defendant about the head. None of the witnesses heard anything said between them. They were seen by different persons,—some from the beginning of the fight, by others after the first blow was struck, and still others not until they were down. These persons were in different directions from them, and all more or less distant. Some of them could see plainly, while the view of others was more or less obstructed. That their testimony should be conflicting, is not to be wondered at. No definite conclusion can be reached, from their statements, as to who struck first, or at what time in the struggle the stabbing was done. Deceased got up, leaving the defendant lying on the ground, and walked about one hundred feet to the porch of a building occupied by one Schwab as a saloon, and there showed a wound in his left side, saying, Westbrook, the defendant, had stabbed him. On the trial, the prosecution' proved that immediately after the affray the prisoner stated to one party that if he cut Gross he did not know it. To.another he said, “The son of a bitch hit me, and then I cut him.” On the preliminary trial he said Gross cursed him and knocked him down, and that he must have fallen on the knife.

The conduct of defendant in writing the threatening letter to Charles Gross, and in making threats against him and deceased, was reprehensible in the extreme, and his contradictory statements as to how the- cutting was done, though doubtless made under ‘ excitement, can not be reconciled with honesty of purpose; and yet, from the evidence of all the witnesses, it is clearly shown that the encounter in which the mortal blow was struck was not of his seeking, but brought on by the deceased. The evidence all shows that he left the sidewalk and approached the defendant, who was unconscious of his presence, and we think the weight of the proof is, that the deceased struck the first blow. At least, it must be conceded that, most strongly construed against the defendant, the testimony of all the witnesses who saw the affray would leave in the mind a reasonable doubt as to whether or not the fatal stroke was made with malice aforethought, or in a sudden heat of passion, caused by an assault made upon him by the deceased, thus reducing the crime to manslaughter. Or, if it could be maintained, on the testimony of these witnesses, together with the previous threats and subsequent contradictory statements proved, that the killing was murder, still it could scarcely be contended that the crime is so clearly proved, and so manifestly wanting in mitigation, as to justify the infliction of the death penalty.

The prosecution, however, proved, over defendant’s objection, a statement made by deceased on the afternoon of the day of the stabbing, which the court below held competent as a dying declaration. That statement, as sworn to by Dr. Harvey, one of the attending physicians, is as follows: “He said he did not know Westbrook. He was very slightly acquainted with him. He saw this man standing down by the railroad; thought it was Westbrook; walked down to him; asked if he was the man that wrote this letter to him; that Westbrook turned around and struck him with a knife—had the knife in his hand; he struck Westbrook with his hand; found he was wounded; got up and started for the saloon.” The effect of this statement was to prove a most cruel and unprovoked assault, and no doubt went far to secure defendant’s conviction and the infliction of the extreme penalty of the law, hence its competency becomes a question of the first importance.

The preliminary proof submitted to the judge, as a basis for its introduction, consisted of the testimony of witnesses who described the wound, and its immediate effect, and the statements of Dr. Harvey as to what he told the deceased about the wound, and its probable effect. Several medical witnesses describe the injury, and they agree, substantially, in their statements. They say the wound was a vertical cut, two inches long and about three inches deep, penetrating the lower lobe of the left lung, three-quarters of an inch below the apex of the heart. A rib was severed, and a small artery cut. The most satisfactory evidence as to the immediate effect of the injury, is that of Dr. Harvey, who says he saw him shortly after he reached the porch at Schwab’s; that he found him bleeding profusely, and the blood, being mixed with air from the wounded lung, was of a frothy appearance; that his breathing was labored arid painful; that as he breathed, the air passing through the wound “made a whistling noise.” This witness further testified, that he caused deceased to be removed to a back room in Schwab’s house, and there dressed the wound; that he succeeded in staunching the bleeding and closing the wound. While there, he told deceased that he had a very serious and dangerous wound,—that the chances were against his recovery, and he might not live an hour. He advised him to make a statement and put it in writing, and told him he had better send for his wife. To all these statements and advice Gross made no reply whatever. He told other parties present that he would like to have his wife sent for. Soon after the wound w'as dressed, which was about ten o’clock A. M., he was taken to his own house. An attorney and notary public were brought in, and near twelve o’clock M. the attorney prepared and propounded to him certain interrogatories in writing, to which he also wrote down the answers. This paper was signed and sworn to by him before the notary. It was lost or destroyed, and the court below refused to allow proof of its contents. It was based on the same preliminary proof as the oral statement, -which was admitted. We think the court below ruled properly in excluding it as proof on behalf of the People, and in the view we take of the competency of the oral declaration, it is unnecessary to consider the question of its -competency as rebuttal on behalf of defendant.

It is impossible to tell, from the evidence of Dr. Harvey, just when the statement sworn to by him was made, except that he says it was in the afternoon of the day of the stabbing. In fact, as we understand his testimony, it was made at different times,—“in broken conversations,” as he says. He also testifies that after the wound was dressed, at Schwab’s, and before either the oral or written statement was made, he had administered brandy, and deceased had slightly revived from the shock, though his condition was not materially changed. He further testified, that while he regarded the wound as very dangerous, it was not necessarily mortal, and in this he is corroborated by all the medical witnesses who saw the deceased before death, and who attended the post mortem. The question being whether or not the deceased believed he was about to die, at the time he made the statement in question, Dr. Harvey gave it as his opinion that he did so believe, but he gives no facts upon which he predicated his conclusion, and no weight could properly be given to that evidence. The question of Gross’ belief as to impending death was for the court, to be determined from facts proved, and not by the mere opinions of witnesses. In Starkey v. The People, 17 Ill. 21, Skinner, Judge, says: “It is for the court in the first instance to determine upon the admissibility of the declarations, upon proof of the condition of the mind of the deceased at the time they were made; and if the proof does not satisfy the court, beyond reasonable doubt, that they were made in extremity, and that they are dying declarations within the law, they should not be permitted to go to the jury.”

First, then, what are dying declarations, within the rules of law; and secondly, do the facts proved bring the declaration under consideration within those rules.

In Starkey v. The People, supra, it is said: “Dying declarations are such as are made by the party, relating to the facts of the injury of which he afterwards dies, under the fixed belief and moral conviction that his death is impending and certain to follow almost immediately, without opportunity for repentance, and in the absence of all hope of avoidance,—when he has despaired of life, and looks to death as inevitable and at hand.” (See, also, Tracy v. The People, 97 Ill. 101; Digby v. The People, 113 id. 123.) “They are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone,—when every motive to falsehood is silenced, and the mind is induced, by the most powerful considerations, to speak the truth.” 1 Greenleaf on Evidence, sec. 156; 1 Wharton on Crim. Law, sec. 668.

Does the evidence produced in this case satisfy the mind that when William Gross made the statement admitted in evidence, he entertained a fixed belief and moral conviction that his death was impending, and certain to follow almost immediately ? Had he then no hope of recovery ? Had he, at that time, despaired of life, and did he look to death as inevitable and at hand ? Unless these questions can be answered affirmatively, the declaration was not a dying declaration, and should not ' have been allowed to go to the jury.

That one making a statement of this kind was in extremity, may be proved either by language used or acts performed, and it may be inferred from the evident danger of the party, or from statements made to him by medical or other attendants ; but by some mode of proof it must affirmatively appear that all hope of recovery was gone. Here, we have neither, words nor acts of the deceased indicative of his state of mind " when he made the statement. He said nothing,—he did nothing. He expressed no desire to have provision made for his family. He exhibited no anxiety as to his spiritual condition, or preparation for death. The brother with whom he was in partnership was present, and it is passing strange, if he in fact believed he was about to die, that he said nothing to him of their business affairs. The only plausible theory upon which it can be claimed that deceased believed his death was impending when he made the statement, is, that the character of his wound was so appalling,-—his danger so evident,— that when considered in connection with what he was told by Dr. Harvey, he must inevitably have reached that conclusion. This view was ably and ingeniously urged by counsel, in the oral argument;. but, in our opinion, it is not tenable. The wound was not necessarily fatal. It had been dressed, arid was not,-at that time, particularly alarming in its appearance or effect. The statements of Dr. Harvey were, no doubt, calculated to alarm him, but they also contained expressions upon which to base a hope. “The chances were against' him, ”—but that left him to hope in the chance or chances in his favor. “His wound was very dangerous,”—but that statement implied (which was true,) that his physician did not regard his case hopeless. He had been told, in the forenoon, that he might not live an hour; but he had survived several hours, and was at least apparently in no worse condition than when that statement was made to him. The disposition of the human mind is to cling to life, and hope, even in the presence of death, that it may be averted. The evidence in this ease, considered in all its phases, fails to convince us that the deceased had abandoned that hope when he made the declaration in question. We must therefore hold that it was improperly admitted in evidence, and for that error reverse the judgment of the circuit court.

To the introduction of the letter written by the defendant to Charles Gross, a general objection was made and overruled, and it is insisted that this was error. We think differently. While it was not addressed to the deceased, it is clear, from the uncontradicted statements of defendant, that it was intended for him as well as Charles. In view of these same statements it was relevant and competent. As to the objection that it was not shown that defendant wrote it, it is sufficient to say that it was clearly shown that he admitted it, to Charles Gross. There is no pretense that there was more than one letter of that kind. Besides, a general objection was not sufficient to raise this question.

Other questions are raised on the record, but as there is no reason to suppose they will arise on a second trial, no good purpose would be served by extending this opinion in deciding them.

For the error indicated, the judgment is reversed, and the cause remanded.

Judgment reversed.


author: Mr. Justice Magruder

text:
    The Illinois Central Railroad Company v. The City of Decatur.

      Filed at Springfield September 27, 1888.

    Exemption from taxation—Illinois Central Railroad Company — whether exempt from s-peeial assessments or special taxation for local improvements. The provision in the charter of the Illinois Central Railroad Company exempting it from all taxation of every kind except as therein provided, has no application to special assessments or special taxation of contiguous property for local improvements. As affecting this question, there is no difference between a special assessment and special taxation of contiguous property, neither being included within the meaning of the general word “taxation.”
    Appeal from the County Court of Macon county; the Hon. William E. Nelson, Judge, presiding.
    Messrs. Outen & Vail, for the appellant:
    The exemption in appellant’s charter is a contract which can not be annulled except by consent of both contracting parties. Railroad Co. v. McLean County, 17 Ill. 291; Neustadt v. Railroad Co. 31 id. 484.
    The statute has defined the words “tax” and “taxes,” as used in the Revenue law, as “any tax, special assessments or costs, interest or penalty” imposed upon property. Revenue act, 1.4th clause of- sec. 292.
    All special assessments or special taxation is based upon the taxing power, and can only be sustained under the power to tax. Cooley on Taxation, 430; White v. People, 94 Ill. 611.
    Special taxation is a different form of assessment from a special assessment. McLean County v. Bloomington, 106 Ill. 213; Chicago v. Larned, 34 id. 203; Ottawa v. Spencer, 40 id. 211; People v. Trustees of Schools, 118 id. 52; Galesburg v. Searles, 114 id. 217; City of Sterling v. Galt, 117 id. 18.

      Mr. I. B. Mills,, for the appellee:
    The law upon the question of local improvements, and the authority to provide for their payment, by the city, by special taxation of abutting property, according to frontage, is now so well established that we only need to refer to a few of the recent decisions of this court: White v. People, 94 Ill. 607; Enos v. City of Springfield, 113 id. 65; Galesburg v. Searles, 114 id. 217; Watson v. Chicago, 115 id. 78; Springfield v. Green, 120 id. 269.
    The only question that is seriously urged by counsel for the appellant is, that the charter of the Illinois Central Bailroad Company relieves it from the burden of contributing to the expense or cost of these local improvements, and that this charter relieves it from the operation of this provision of our constitution and statute.
    By this provision of our constitution and statute two methods are provided for,—one by special assessment, and the other by special taxation; and while it is half way admitted that if the former method had been resorted to in this ease, this objection would not hold good, yet as the latter method was adopted, it falls within the provisions of their charter.
    It is substantially conceded that the company is not relieved from special assessments, which are based on a benefit received. The same reason applies to special taxation.
    First—The power to pay for local improvements by special taxation is derived from the same provisions of the constitution and statute. Const., art. 9, sec. 9; Bev. Stat. sec. 1, art. 9, chap. 24.
    Second—The object and purpose of both are the same, to-wit, the payment for a local improvement.
    Third—They are both based upon the theory of a supposed or presumed benefit to the property equal to the assessment or tax, the only difference being in the method resorted to in order to fix or determine the amount of the benefit. In the one case it is fixed by commissioners, subject to be reviewed by a jury, while in the other it is fixed by the city council. In support of this proposition, we refer the court to the authorities cited above, including the case of City of Sterling v. Galt, 117 Ill. 11.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is an appeal from a judgment of the County Court of Macon County, confirming a special tax assessed by three commissioners for the purpose of paving East Wood street in the City of Decatur, and charged against a portion of the right of way of the Illinois Central Railroad abutting upon said street and contiguous thereto. Upon the return of the assessment roll, appellant appeared in the County Court and filed objections, which were overruled.

The city council of Decatur, on June 8, 1887, passed an ordinance for the paving of said street, which was declared to be a local improvement, and therein provided, that the cost of paving the street and alley intersections and crossings should be paid out of the general taxes, and that the remainder of the cost of said improvement should be paid for by special taxation upon the lots, parts of lots and parcels of land abutting upon said street on both sides thereof along the line of the improvement in proportion to the frontage thereof upon the street. A committee of three persons was appointed by the ordinance to make an estimate of the cost of the improvement and report the same to the council. On June 20, 1887, the committee made a report of the estimate of the cost of the improvement, exclusive of the cost of street and alley intersections and crossings, and also showing the cost of such street and alley intersections and crossings, which report was approved by the council on the same day. A petition was then filed in the county court, containing copies of the ordinance and of the report, and praying that commissioners be appointed, and that the cost of the improvement be levied and assessed, as provided in the ordinance and as required by the law in such cases. The court, upon an examination of the petition, ordinance and report, appointed three commissioners to make the levy and assessment for the improvement in the manner prescribed by the ordinance and by the law in such cases, and to make report as required by law. The commissioners so appointed to make the special tax levy, reported to the court a special tax roll, certifying to its correctness and giving therein the names of the owners, the description of the lots or parcels of land abutting on the line of the improvement, the number of feet frontage thereof and the amount of special tax levied against each of such lots or parcels of land. Due notice was given that the city council had applied to the County Court for the levy and assessment of the cost of said improvement, except street and alley intersections and crossings, upon the abutting property according to frontage, and that there would be a hearing of the assessment made and returned to Court at the February Term 1888. Upon the hearing, the objections to the assessment roll returned to the Court were overruled, and the assessment as made and returned was confirmed.

The main objection made by the appellant company is, that, by the terms of its charter, its property is exempt from the special tax thus imposed. By section 22 of the act incorporating the Illinois Central Bailroad Company, approved February 10, 1851, it is provided that “the said corporation is hereby exempted from all taxation of every kind except as herein provided for,” etc., (Session Laws 1851, page 71; Hurd’s Rev. Stat. 1885, page 1043, or secs. 305 and 306 of Eevenue Act.)

It has many times been held by this court “that exemption from taxation does not exempt from special assessments.” (County of McLean v. City of Bloomington, 106 Ill. 209, and cases there cited.) Therefore, if the improvement in the present ease had been made by special assessment, appellant’s property would not be relieved, by the exemption of its charter, from its just proportion of the burden of such assessment. Is there any such difference between special assessment and special taxation of contiguous property, as those terms are used in section 9 of article 9 of our constitution, that the general word taxation should be held to include the latter and not the former? It is the settled doctrine of this Court, that special assessments are not included within the.meaning of the word taxation. The question presented for our consideration is whether the same doctrine should also be applied to special taxation of contiguous property. ‘

The 13th section of the act, by which the canal lands were granted to the trustees of the Illinois and Michigan Canal, contains the following provision: “the said lands and lots shall be exempt from taxation of every description, by and under the laws of this state, until after the same shall have been sold and conveyed by the said trustees as aforesaid.” In Canal Trustees et al. v. The City of Chicago, 12 Ill. 403, the question was whether land belonging to the Canal trustees was exempt; under this 13th section, from an assessment for opening a street in the city of Chicago, and we there said: “In our opinion, the exemption must be held to apply only to taxes levied for state, county and municipal purposes. A tax is imposed for some general or public object. It is an exaction made for the purpose of carrying on the government. * * * It is a charge on the estate that lessens its value. In the proportion, in which the owner is required to pay, is his pecuniary ability diminished. This is the sense, in which the term “taxation” is used and understood. * * * The assessment in question has none of the distinctive features of a tax. It is imposed for a special purpose and not for a general or public object. It is not a charge on the estate which reduces it in value. It subtracts nothing from the means or resources of the canal. The improvement is made for the convenience of a particular district, and the property there situated is required to bear the expense in the proportion in which it is benefited.”

So, in Mix v. Ross et al. 57 Ill. 121, it is said: “There is a plain distinction between taxes, which are burdens or charges imposed upon persons or property to raise money for public purposes, and assessments for city or village improvements, which are not regarded as burdens, but as an equivalent or compensation for the enhanced value which the property of the person assessed has derived from the improvement.”

An application of these definitions to the case in hand will show that “special taxation of contiguous property,” as provided for in the constitution, is not embraced within the meaning of an ordinary tax. “Special assessment” and “special taxation of contiguous property” are both designated in the constitution as modes or methods by which “local improvements” are to be made. An improvement, that is local, is for the benefit of a particular locality, or “for the convenience of a particular district.” Hence a special tax on contiguous property for the purpose of making a local improvement is not “imposed for a general or public object.” As the amount of such special tax is equal to the cost of the improvement to be made, the money raised thereby is spent in paying for the improvement, and, consequently, it can not- be said, that it is exacted “for the purpose of carrying on the government.” It is raised for a special purpose. Such a special tax of contiguous property can not be regarded as a “burden or charge' imposed upon * * * property to raise money for public purposes,” except that the public may indirectly be benefited by the use of a local improvement.

Moreover, a local improvement necessarily and from its very nature makes better and benefits the locality where it is made. Consequently the contiguous property, which is specially taxed for the purpose of making such improvement, receives an increase in its value, and its owner finds in such enhanced value an equivalent or compensation for the money paid in discharge of the special tax. Nothing is subtracted from his means or resources.

It is true, that there are recognized differences between a special assessment and special taxation of contiguous property, but these differences consist chiefly in the modes of procedure in the two cases, and in the extent and amount of benefits received, from the improvement, by the property assessed or specially taxed. Both are based upon a supposed benefit to the property charged.

In White v. People, 94 Ill. 607, it was said: “Whether or not the special tax exceeds the actual benefit to the lot is not material. It may be supposed to be based on a presumed equivalent. The city council have determined the frontage to be the proper measure of probable benefits. That is generally considered as a very reasonable measure of benefits in the case of such an improvement, etc.”

In Craw et al. v. Village of Tolono et al. 96 Ill. 255, it is said: “Special taxation, as spoken of in our constitution, is based upon the supposed benefit to the contiguous property, and differs from special assessments only in the mode of ascertaining the benefits. In the case of special taxation, the imposition of the tax by the corporate authorities is of itself a determination that the benefits to the contiguous property will be as great as the burden of the expense of the improvement,” etc.

The two cases last referred to are quoted and approved of in Enos v. City of Springfeld, 113 Ill. 65.

In City of Sterling v. Galt, 117 Ill. 11, it is said, that special assessment differs from special taxation mainly in this, that the assessment can not exceed the benefits the*property will derive from the improvement, and the owner of the property assessed has the right to have this question passed upon by a jury, etc., whereas, in cases of special taxation, the jury have nothing to do with the amount, which is by ordinance assessed upon contiguous property; but it is also there held, that, in case of special taxation, the whole of the burden is permitted to be imposed upon the contiguous property, upon the hypothesis that the benefits will he equal to the burden cast upon the property.

From this review, it appears that a more certain and exact equality between the benefits received and the burden imposed must be found to exist in the case of special assessment than in the ease of special taxation, and that the mode of procedure in the former is better adapted for accurately ascertaining the benefits than the method pursued in the latter. Nevertheless, in special taxation, as well as in special assessment, the property charged is supposed to receive such benefits from the improvement as will be an equivalent for the amount of the special tax.

As has already been shown, a special assessment is not embraced within the meaning of the word taxation, because the owner of the property assessed gets back the amount of his assessment in the benefits received by his property, and, therefore, does not bear the burden of a tax. For the same reason, special taxation of contiguous property can not be included within the meaning of the general word taxation, because the owner is compensated for the amount of the tax by the enhanced value of his property, and is not subjected to the burden implied in ordinary taxation. There certainly would be no justice in compelling the other property owners to bear the whole expense of an improvement, which confers as great an increase of value proportionally upon appellant’s property as upon theirs.

We are, therefore, of the opinion that appellant’s right of way was not exempt, by reason of the provision in its charter, from the special tax assessed against it.

We see no force in the objections made to the descriptions of the right of way abutting upon the north side of East Wood street and of that abutting upon the south side thereof. The descriptions designate the whole of the triangular piece south of the street, and describe a piece north thereof that has never been divided. The frontage on the street of the one is 17 J feet and of the other 55 J feet. The appellant can not complain that the description is not broad enough to take in all of the north piece, as this error, if it is an error, enures to appellant’s benefit.

The judgment of the County Court is affirmed.

Judgment affirmed.