author: Mr. Justice Craig delivered

text:
    The Centralia and Chester Railroad Company V. Henry Rixman.

      Filed at Mt. Vernon June 20, 1887.

    1. Eminent domain—elements of damage—keeping open right of way until fencing. In a proceeding by a railway company to condemn a right of way through farm land, it is proper for the court to instruct the jury that the company is hot required to fence its road for six months after the same is open for use, and that the damages attending the keeping open of the right of way for that length of time may properly be considered as an element of damages to be awarded to the owner.
    2. Same—powers to he exercised in vacation. A proceeding to condemn land for public use, whether instituted in term time or in vacation, is a-judicial one, and the judge before whom it is had has the same powers in either case, and may grant new trials. The circuit and county courts are always open for such proceedings, and their judicial powers in respect to them are the same in vacation as in term time.
    3. Instruction—copying from opinion of this court. Notwithstanding the correctness of an opinion of this court in a given case, it does not follow that an instruction copied from the language of the court should be given in the particular case on trial.
    Appeal from the Circuit Court of Washington county; the Hon. George W. Wall, Judge, presiding.
    Mr. W. S. Forman, and Mr. Daniel Hay, for the appellant.
    Mr. Charles T. Moore, for the appellee.
   Mr. Justice Craig delivered

the opinion of the Court: _

This was a proceeding instituted by the Centraba and Chester Eailroad Company, before the county judge of Washington .county, in vacation, to condemn certain lands for right of way. It appears from the record, that a jury was selected, the evidence heard, and a verdict returned into court fixing the damages for the lands taken, when, on motion of the land owners, the verdict was set aside and a new trial granted by the court. After the county judge had granted a new trial, the parties, by agreement, transferred the cause to the circuit court, where, upon a second trial of the cause, appellees recovered the present judgment.

It is first insisted, that as the proceeding was instituted, ' and a trial had, in vacation, before the county judge, he had no power to grant a new trial, and that the order vacating the verdict and granting a new trial was erroneous. Section 2 of* the Eminent Domain act provides that application to condemn property for a public use may be made to the judge of the circuit or county court, either in vacation or term time. Section 3 provides, that if the petition is presented in vacation, the judge shall note the day of presentation, and also note thereon the day when he will hear the same. Section 5 provides that causes may be heard by such judges in vacation as well as in term time. It is apparent from an examination of the statute, that the object intended to be accomplished by providing for a hearing in vacation, was to guard against delay, and secure a speedy trial, in which the rights of the parties might be settled and determined at once. But whether the proceeding may be in vacation or term time, it is a judicial proceeding, and the judge before whom the proceeding may be instituted has the same powers in vacation as he would have in term time. Should an error be committed on the trial, the judgment may be reversed on appeal or writ of error, or the judge, on motion for a new trial, may vacate the verdict and order a new trial to correct an error that may have occurred during the trial.' The circuit or county courts are always open to entertain a petition to condemn property under the Eminent Domain act, and when engaged in a trial in vacation, they have and exercise the same judicial powers in vacation that they exercise when in session. (Bowman v. Venice and Carondelet Railway Co. 102 Ill. 459.) There is nothing in the statute which in the least indicates an intention to deprive the court of any of its powers which it exercises when in regular session, when engaged in the trial of a condemnation case, in vacation.

The court refused appellant’s sixth instruction, and the decision is claimed to be erroneous. The instruction was copied from what was said in Jones v. Chicago and Iowa Railroad Co. 68 Ill. 380, in discussing an instruction which had been given by the circuit court on the trial of that cause. We fully concur in all that was said in the case cited, but it does not follow that all that was said in the case may be formulated into an instruction and given to the jury as a guide to lead them to a proper verdict in this case. The court gave, at the instance of appellant, in instruction No. 4, a verbatim copy of the instruction which was approved in the case cited, and that, in substance, embraced all that is contained in the refused instruction, and hence we see no ground upon which appellant can reasonably complain.

Objection is also made to instruction No. 4, given for the defendant, which informed the jury that railroad companies were not required to fence their right of way for six months after the road is open for use, and the damages attending the keeping open of the road for that length of time may properly be considered as an element of damages. This instruction is in harmony with St. Louis, Jerseyville and Springfield Railroad Co. v. Kirby, 104 Ill. 347, where a similar one was approved.

It is also contended that the verdict is not sustained by the evidence—that the damages allowed are too large. There' was evidence before the jury which fixed the damages at a less amount, and there was also evidence tending to prove that the damages were much more than the jury allowed. The jury heard all the evidence, and went upon and examined the lands taken, and we are not prepared to say, after reading all the evidence, that the verdict is so excessive as to authorize us to reverse on that ground alone.

The judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    Mary D. Jenkins v. Thomas W. Drane et al.

      Filed at Mt. Vernon June 20, 1887.

      Descents—in the case of illegitimates. Our statute makes an illegitimate child capable of inheriting not only from its mother or other maternal ancestor, but also from any person from whom its mother might inherit, if living. The rule in this regard, as announced in Bales et al. v. Elder el al. 118 Ill. 436, is adhered to.
    Appeal from the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.
    Messrs. Wilderman & Hamill, and Messrs. Turner & Holden, for the appellant:
    The first section of our Statute of' Descents has no reference to illegitimates, but to legitimates only. Rev. Stat. 1874, chap. 39, sec. 1; Blacklaws v. Milne, 82 Ill. 505; Stoltz v. Doering, 112 id. 234; Miller v. Williams, 66 id. 91.
    The second section of that statute applies only to illegitimates, and is a complete code in reference to the taking or transmitting, by descent, of estates by illegitimates. It has no connection with or reference to the first section. Rev. Stat. 1874, chap. 39, see. 2; Evans v. Price, 118 Ill. 593; McCool v. Smith, 1 Black, 459.
    Under the second section of our Statute of Descents, Deborah Burch, (formerly Newman,) if the illegitimate daughter of Mary Newman, who was afterwards the wife of Leonard Soper, and the mother of Milburn, could not take by descent from Milburn Soper. Bacon v. McBride, 82 Vt. 390; Jackson v. Jackson, 78 Ky. 390; Scroggins v. Allen, 2 Dana, 363; Stover v. Boswell, 3 id. 233; Remington v. Lewis, 8 B. Mon. 606; Allen v. Ramsey, 1 Metc. (Ky.) 635; Curtis v. Hewens, 11 Metc. (Mass.) 294; Stevenson v. Sullivant, 5 Wheat. 207.

      Messrs. Dill & Schaefer, for the appellees:
    The entire theory of appellant’s case is that of bastardy, in the face of the fact that there is not a single witness who swears that either Deborah or Margaret was a bastard.
   Mr. Justice Sheldon

delivered the opinion of the Court:

The bill of complaint in this case was for the partition of certain real estate, and an accounting for rents and profits. The bill alleges that on April 27, 1883, Milburn Soper died intestate, seized of the real estate described in the bill, leaving surviving him no widow, no child or descendant of such child, no parent, and no sister or brother; that his heirs-at-law were the descendants of his two sisters, Margaret Eidgway and Deborah Burch; that Mary D. Jenkins, as the daughter of Margaret Eidgway, was entitled to an undivided one-half of the premises, and was indebteded to the other heirs of said Soper for their share of the rents and profits of the premises, and that the descendants (naming them) of Deborah Burch were entitled to the other undivided one-half of the real estate, and partition and an accounting were prayed accordingly. The court below decreed in accordance with the allegations and prayer of the bill, and Mary D. Jenkins aj)pealed. The claim of appellant is, that she is the only heir of Milburn Soper, deceas'ed,—that complainants are not related to him.

It appears that Leonard Soper (Milburn Soper’s father) and Mary Newman were married November 21, 1802, she then having these two children, Margaret and Deborah, who afterwards became Margaret Eidgway and Deborah Burch. At the time of the marriage Margaret was about fourteen months old; and Deborah some five years older. Milburn Soper was born July 22, 1804, and was the only child of this marriage. Deborah, aforementioned, afterwards intermarried with Thomas Burch, and there were several children of the marriage, all of whom died before Milburn Soper, leaving children, and it is these children last named who are the complainants, being the grandchildren of Deborah Burch.

Appellant’s theory is, that Deborah Burch was the illegitimate daughter of Mary Newman, whom Leonard Soper married, not legitimated by the marriage of her parents, and so her descendants can not inherit from Milburn Soper. The ■evidence is not satisfactory as to Deborah Burch not being the legitimate daughter of Mary Newman, but we do not find it to be necessary to pass upon the evidence in this regard, inasmuch as, conceding the fact of the alleged, illegitimacy to be established, the result claimed does not follow, that the ■descendants of Deborah Burch can not inherit from Milburn Soper.

Our Statute of Descents (Rev. Stat. chap. 39, sec. 1,) provides that estates of resident or non-resident proprietors dying intestate, shall descend, first, to liis or her children, and their descendants, in equal parts, etc.; second, when there is no ■child of the intestate, or descendant of such child, and no widow or surviving husband, then to the parents, brothers and sisters of the deceased, and their descendants, in equal parts among them, allowing to each of the parents, if living, a child’s part, or to the survivor of them, if one be dead, a double portion ; and if there is no parent living, then to the brothers and sisters of the intestate, and their descendants. Section 2 provides that “an illegitimate child 'shall be heir of its mother and any maternal ancestor, and of any person from whom its mother might have inherited, if living; and the lawdul issue of an illegitimate person shall represent such person,' and take, by descent, any estate which the parent would have taken if living. ”

If Milburn Soper’s mother had been living at the time of Lis death, she would have inherited his property. She being' dead, then her illegitimate child would take it, because her mother, if living, would have taken it. If Deborah Burch was an illegitimate daughter of Milburn Soper’s mother, she would inherit, through her mother, equally with the legitimate children of the mother; and the lawful issue of an illegitimate person shall represent such person, and take, by descent, any estate which the mother would have taken, if living. Such is the plain .reading of the statute, and such is the construction which we have recently given to it in the case of Bales v. Elder, 118 Ill. 436. We there held, that the statute confers upon illegitimates and their lawful issue, as respects the mother and any maternal ancestor, and any person from whom the mother might have inherited if living, inheritable blood, and that, as such, they have the right of inheritance as fully as legitimate children. That case we regard as decisive of the present case. We are now asked to reconsider that decision, and it is earnestly insisted the statute should be construed to mean that an illegitimate person may inherit from any person from whom the mother would have inherited, if living, in the descending and collateral line, such, as grandparents, uncles and aunts, brothers and sisters, cousins, etc., and that it should read as if the above italicized words were added to the first clause of said section 2.

We have given careful consideration to the able argument of appellant’s counsel, but it has failed to convince us that our former construction of the statute was erroneous. We said before, that it was somewhat difficult to determine, from the language used in section 2, above named, what the real intention of the legislature was. But we felt that the words of the section, that “an illegitimate child shall be the heir of its mother and any maternal ancestor, and of any person from whom its mother might have inherited, if living, ” were too explicit to allow coming to any other conclusion than we did. We think that to interpolate in section 2 the words which it is said should be added to it to exhibit what was the true intention, would be taking too much liberty with the language which the legislature has employed to express its meaning.

The decree will be affirmed.

Decree affirmedm


author: Mr. Justice Scholfield

text:
    John Walker v. Reuben M. Pritchard et al.

      Filed at Ottawa June 17, 1887.

    1. Appeal—freehold involved, but not brought in question—and of the severable elements in a decree, as controlling the right of appeal. Although a freehold may have been involved in a suit, and in the decree therein rendered, yet if no objection is taken to that part of the decree relating to the freehold, an appeal from another part of the same decree, having no relation to the question of freehold, will not lie from the circuit to the Supreme Court, but only to the Appellate Court.
    2. And when litigation in respect to the construction of a will, and the settlement of rights thereunder, involves the question of freehold, as well as other rights in respect to personal property, and the different parts of the decree may be treated as, in effect, distinct and severable, an appeal from that part of the decree in respect to the personal property lies only to the Appellate Court in the first instance, and the other party will not be allowed to assign cross-errors in that court as to that portion of the decree relating to the rights of the parties to real estate. Such other party can have such matters relating to the freehold reviewed in the Supreme Court.
    3. Cross-errors—whether allowable—to raise a question outside of the jurisdiction of the court. The jurisdiction of the Appellate and Supreme Courts, of an appeal or writ of error, must be determined by the questions affected by the decree sought to be reviewed. On an appeal to the Appellate Court, cross-errors can not be assigned involving the consideration of a freehold.
    4. Will—of the estate devised—whether a fee, or only for life with power of disposition. A testator devised certain land to his wife, giving her full power and authority to sell and convey the title thereof at any time and convert the avails to her own use and benefit, and his will then proceeded: “I further bequeath during her natural lifetime one span of horses, ” and all other items not otherwise disposed of, “during her natural life as aforesaid, ” and at her death “all the property hereby devised or bequeathed to her as aforesaid, or so much thereof as may remain unexpended, to my two sons, (naming them,) and to their heirs and-assigns forever:” Held, that the widow took only a life estate, with a power of disposition, and that the sons took the remainder, or such part as remained undisposed of at her death and could be identified. A power of sale superadded to a life estate does not enlarge it to a fee.
    5. Same—absence of limiting or qualifying words, as giving character to the estate intended to be devised. At common law a devise of land without declaring the estate therein, gave only a life estate; hut our statute has changed this rule, so that a fee simple title shall be intended if a less estate be not limited by express words, or do not appear to have been granted, conveyed or devised, by construction or operation of law.
    6. In the absence of limiting or qualifying words, a devise of land will vest the fee; but with such words the will is to be construed with reference to giving effect to the intention of the testator, as manifested by the entire instrument, which is all to be considered together. The burden, under the statute, lies on him who contends for the restricted construction of the devise.
    7. Evidence—to show that money is subject to a devise or bequest. A. testator, by his will, gave his widow a life estate in a tract of land, with power to sell and dispose of the same for her own use and benefit, and what might remain unexpended at her death, to his two sons. During her life the widow sold the land, and shortly after made certain loans of money to the two sons, and she admitted, in her lifetime, that the money she let one of the sons have, was his money: Held, that the sale of the land for cash, and the subsequent loan of the money, made a prima facie case that the money loaned was that derived from the sale.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of DeKalb county; the Hon. C. W. Upton, Judge, presiding.
    The claim made by the bill, in brief, is, that the complainants are entitled to have a conveyance, in fee, of a certain 154-acre tract of land in Ogle county, and the payment of considerable sums of money, proceeds of sales of other, property, real and personal. The claim is based on these allegations : Eeuben Pritchard bought the 154-acre tract of land and paid for it, but had the deed made to Elotia Pritchard, his then wife, and “the heirs-at-law of Eeuben Pritchard. He never had any children but Eeuben M. and Ethan A., sons by a former marriage. The family lived upon this tract, and it was treated and regarded by all as belonging to Elotia, and Eeuben M. and Ethan A., presumably, although the record does not make it clear that Elotia had a life estate, and Eeuben M. and Ethan A. the remainder. At all events, it W'as conceded and recognized that each one had some interest in the tract, ánd that, altogether, they had the entire title. Eeuben becoming in ill-health, determined to make his will. Before doing so, he required Beuben M. to convey and quitclaim his interest in this tract to Efclian A., which being done, he made his will, devising to his wife, Elotia, a certain other tract of land of 16ST20°ff acres, in the same county, and bequeathing to her certain personal property,— all for life, with power of sale, however,—and he devised to Ethan A. and Beuben M. certain other lands in the same county, and bequeathed to them certain other personal property, and also devised and bequeathed to them what might be remaining of the property devised and bequeathed to Elotia, after her death. After the death of Beuben, his wife, Elotia, elected to take under the will, and she took possession of the property so devised and bequeathed to her. 'Thereupon it was agreed between her and Ethan A., that he was to have her interest in the loé-acre tract of land, and in consideration thereof he was to farm that tract and a tract which he had, of 199 acres, adjoining it, as one entire farm, and pay her the one-half of the rents and profits of the whole during her life. No deed was made, however, and shortly after the agreement was made, Ethan A. died testate. By his will he devised the one-half of the rents and profits of the 154 acres and the 199 acres to Elotia during her life, and the .other half thereof to his wife, Sarah E. Pritchard, during her life, and the remainder in both tracts of land to his children named therein. The land was farmed, and the rents paid to Elotia during the life of Ethan A., pursuant to the agreement. After his death she took under his will, and received one-half of the rents and profits of both tracts during her life. Elotia sold the 168j-2^- tract, and conveyed it during her lifetime, and she used and sold the personal property bequeathed to her by the will of Beuben. She let Beuben M. and Ethan A. have sums of money at different times during her life, for which she took their individual promissory notes, respectively. She died intestate, and this bill is against her administrator and heirs-at-law, and prays a conveyance of her interest in the 154-acre tract to the heirs-at-law of Ethan A., and that the proceeds of the sale of the land and personal property devised to her by Reuben, be paid over to Reuben M. and the heirs-at-law of Ethan A.
    The defendants deny that Reuben M. and Ethan A. took any interest in the 15 4-acre tract. They claim that Elotia’s money paid for the land, and the title was to her, only. They deny that the will of Reuben invested Elotia with only a life estate in the 168r20°0- acre tract, and insist that it invested her with the fee simqole title. They deny that the evidence identifies any money as the proceeds of the sale of the 168T26^. of land, or of the personal property bequeathed to her by the will of Reuben.
    The circuit court decreed that Elotia, by taking under the will of Ethan A., estopped herself to say that he had no title to the 154 acres, and that conveyance should be made of that tract to the heirs-at-law of Ethan A. It also decreed that Elotia took only a life estate in the 168T20°0 tract of land, under the will of Reuben, but found the evidence identified no money in the hands of the administrators of Elotia as the proceeds of that land or of the personal jH’operty bequeathed by Reuben, and therefore decreed in favor of the defendants in that respect. Both parties prayed an appeal from the decree. An appeal was perfected by Reuben and the widow and heirs of Ethan A., to the Appellate Court for the Second District, and the record was filed in that court, and errors thereon were assigned. The appellees (defendants in the court below,) assigned cross-errors. The appellees moved that the appeal be dismissed because a freehold was involved, and the appeal should therefore have been prosecuted directly to this court. Appellants resisted that motion, and moved that the cross-errors be stricken out. The court overruled appellees’ motion and sustained that of appellants, but refused to dismiss the appeal, and 'ordered the, cross-errors assigned to be stricken out. On final hearing, the Appellate Court aErmed the decree of the circuit court as to the 154-acre tract of land, and as to -its construction of the will of Beuben Pritchard, but reversed its finding that the evidence failed to identify money as the proceeds of the sale of the 168-^0°0 acres of land and of the personal property bequeathed by the will of Beuben, and found that certain notes executed by Beuben, and by Ethan A. in his lifetime, respectively, and specified in the order of the court, were of such proceeds, and decreed that their collection he enjoined. The present appeal is by the appellees in that court, and the defendants in the circuit court.
    Mr. George 0. Christian, Mr. Luther Lowell, and Mr. Duane 0. Carnes, for the appellant:
    Elotia Pritchard took an estate in fee of the land devised to her in the second clause of the will. The absolute power of disposal of an estate in fee makes the devise of the fee, for the reason she could not convey any greater estate than she had. Fairman v. Beal, 14 Ill. 245; Welsh v. Savings Bank, 94 id. 191; Jackson v. Robbins, 16 Johns. 587; McDonald v. Walgrove, 1 Sandf. Ch. 274; Jackson v. Coleman, 2 Johns. 391; 2 Bedfield on Wills, (3d ed.) *277, 278; 4 Kent’s Com. 536; 1 Jarman on Wills, (5th Am. ed.) 363.
    The following cases are distinguishable from the present: Boyd v. Strahan, 36 Ill. 355; Bergan v. Cahill, 55 id. 160; Markillie v. Ragland, 77 id. 98; Mulberry v. Mulberry, 50 id. 67; Funk v. Eggleston, 92 id. 515; Johnson v. Johnson, 98 id. 564; Roundtree v. Talbott, 89 id. 249; Peoria v. Darst, 101 id. 609; Bland v. Bland, 103 id. 11; Brownfield v. Wilson, 78 id. 467; Hamlin v. Express Co. 107 id. 443.
    If she took only a life estate therein, the exercise of the power of sale defeated the remainder. Cruerys v. Coleman, 9 Ves. 319; Welsh v. Savings Bank, 94 Ill. 191; Saunders v. Haughton, 8 Ired. Eq. 217; Covenhoven v. Shutter, 2 Paige, 131; 2 Kent’s Com. 354, and note g.

      Appellees have not traced or identified any of the personal property on hand inventoried by the administrator.
    The decree is a whole, and a part of it can not be appealed from without giving us the right to question the balance. To assign cross-errors is our right. Rev. Stat. chap. 110, sec. 79; Smith v. Wright, 71 Ill. 167; Cable v. Ellis, 86 id. 543.
    If this record involves a fee, the Appellate Court had no jurisdiction. Rev. Stat. chap. 110, sec. 89; Patterson v. McKinney, 6 Bradw. 394; Lequatte v. Drury, id. 389.
    Mr. H. A. Jones, and Mr. A. B. Coon, for the appellees:
    The will, in express terms, gives only a life estate, and a power of sale will not enlarge that estate to a fee. Hamlin v. Express Co. 107 Ill. 449; Welsh v. Savings Bank, 94 id. 203; Boyd v. Strahan, 36 id. 355; Bergan v. Cahill, 55 id. 160; Markillie v. Ragland, 77 id. 98; Bradley v. Westcote, 13 Ves. 445; Mulberry v. Mulberry, 50 Ill. 67; Roundtree v. Talbott, 89 id. 249; Peoria v. Darst, 101 id. 101; Bland v. Bland, 103 id. 17; Friedman v. Steiner, 107 id. 125; Smith v. Bell, 6 Pet. 68; 2 Bedfield on Wills, 679, 680.
    It is a general principle, that when any interest, short of absolute ownership, is givfen in the general residue of personal estate, terms for years, and other perishable funds or property which may be consumed in the use, are to be converted or invested, so as to produce a permanent capital, and the income thereof, only, is to go to the legatee for life. Burnett v. Lester, 53 Ill. 325; Hetfield v. Fowler, 60 id. 47; Waldo v. Cummings, 45 id. 421; Boyd v. Strahan, 36 id. 355.
    The general rule is, that when a life estate, only, is given in the personal estate, property which is of a perishable nature is to be converted and invested in such a way as to produce a permanent capital, the interest, only, of which goes to the owner of the life estate. Cairns v. Chaubert, 9 Paige, 160; 7 Ves. 137; 2 Paige, 122; Spear v. Tinkham, 2 Barb. Ch. 211.
    A legatee in remainder, after an estate for life, may call on the legatee for life for an inventory of the property devised.
      Westcott v. Cady, 5 Johns. Ch. 334; DePewster v. Clendening, 8 Paige Ch. 295.
    In equity, therefore, under a gift of personal property of any kind, to A, for his life, and after his decease to B, A is merely entitled to a life interest, and B has, during the life of A, a vested interest in remainder, of which he may dispose at his pleasure. Williams on Personal Prop. (2d Am. ed.) 201.
    As we have appealed only from that part of the decree relating to the personalty, the other party had no right to assign a cross-error questioning the decree as to the realty. Cheney v. Teese, 113 Ill. 444.
   Mr. Justice Scholfield

delivered the opinion of the Court:

First—We held in Cheney et al. v. Teese et al. 113 Ill. 444, that although a freehold may have been involved in the litigation, and the decree thereon rendered, yet where no objection is made to that part of the decree, an appeal from another part of the same decree, having no relation to the question of the freehold, but merely settling a matter of account, will not lie from the circuit court to this court, but must be taken to the Appellate Court. And so, if this appeal had been brought directly to this court, appellant would have been entitled to have had it dismissed, and therefore if the motion in the Appellate Court to dismiss had been allowed, it would have been within the power of appellant to have prevented an appeal to any court. The theory of the decision in Cheney et al. v. Teese et al. supra, is, that where different parts of a decree relate to matters wholly independent of each other, so that the decision as to one part has no influence or bearing upon the decision as to the other part, they are sever-able, and, in effect, distinct decrees, and an appeal may, consequently, be made from either part without affecting the record as to the other part. When such an appeal is taken, manifestly the question of jurisdiction must be determined hy the question affected by the decree, as was there held, and it would inevitably follow that cross-errors could not be assigned as to the part of the decree not brought before the ■court by the appeal.

Second—The second clause of the will of Reuben Pritchard is as follows:

“Second. I give,.devise and bequeath to my beloved wife, Elotia Pritchard, in lieu of her dower, certain lots of land being in the county of DeKalb and State of Illinois, and described as lots two, the north-east quarter and east half lots one and two, the north-west quarter of section four in township (38) north of range (4) east, containing 168 and 20-100 of acres of land according to government survey. I appoint and fully authorize my wife, Elotia Pritchard, with full power and authority to sell and convey the title to the above described lands at any time and convert the avails to her' own use and benefit, and also I further bequeath during her natu- , ral lifetime one span of horses—one an iron gray and one a bright bay, and two colts, one black and one bay, coming three years old, three cows, and all the household furniture now by me owned, and all the farming tools that are used and by me owned on the premises that I now occupy, and other items not particularly named and disposed of in this will, during her natural life as aforesaid, and at the death of my said wife, all the property hereby devised or bequeathed to her as aforesaid, or so much thereof as may remain unexpended, to my two sons, Reuben M. Pritchard and Ethan A. Pritchard, and to their heirs and assigns forever. ”

The Appellate Court, per Baker, J., speaking of this clause, said:

“It is plain that by the terms of this bequest Elotia Pritchard was made legatee for life of the specific live stock and chattel property mentioned therein, with remainder over to her step-sons. It was provided, however, that the sons should take, as such remainder-men, not the whole of the property absolutely, but it, or such of it as should be unexpended at the death of the life tenant. None of the chattels left by Elotia Pritchard at her decease, and inventoried by her administrator, are identified as being the precise or specific articles of property that she took under the will as legatee for life. A life estate in personal property gives the donee a right to consume such articles as can not be enjoyed without consuming them, and to wear out by use such as can not be used wdthout wearing out. The fifty bushels of wheat and one hundred bushels of oats, were evidently intended by the testator for consumption on the farm, and the horses, cows, wagons, harness, farming utensils and lumber, intended for use on the farm, and presumably, during the fifteen years that elapsed between the death of the testator and that of the legatee for life, the articles mentioned either died or were worn out, or used and consumed for legitimate farm purposes. It makes no difference that cows, heifers, steers and calves appear in the inventory made by the administrator, for they are not shown to be the domestic animals that were given for life, or the increase from them. In the inventory of the estate of Eeuben Pritchard, promissory notes and money on hand, amounting in the aggregate to $850, are mentioned; but the first clause of his will directed that his funeral expenses and just debts should be paid, and we are unable to say, in the absence of proof, that there is any presumption that these notes and moneys, which were not specifically given by the will, were not used by the executors in payment of funeral expenses, debts, and cost of administration, but went to the legatee for life, under the words, ‘and other items not particularly named and disposed of in this will,’ as a residuary bequest. But even if such were the case, we think it is manifest, from a consideration of the various provisions of the will and in the light of the surrounding circumstances, that it was the intention of the testator that his widow should convert to her own use, and consume, if she deemed she had occasion so to do, the residue of moneys in her possession, whether on hand at his death or realized from the notes, and that the remainder-men should only have such portion thereof, if any, as remained unexpended at the time of her death. ' In our opinion, the decree of the court upon this part of the case should likewise be affirmed.
“The more important question in the case is with reference to the devise of the 16S acres of land. The doctrine is, that a will may create a life estate, with power to sell and convey the fee, and limit a remainder after the termination of the life estate. (Kaufman v. Breckinridge, 117 Ill. 305, and cases there cited.) In Hamlin v. United, States Express Co. 107 Ill. 443, the Supreme Court laid down certain principal rules of construction as applicable to such cases as this, "and cited a number of prior decisions of the court as authority therefor. These principal rules are: ‘The intention of the testator, if not inconsistent with the rules of law, shall govern; and this intention is to be ascertained from the whole will and all its parts, taken together. Every clause and provision, if possible, should have effect given to it according to the intention of the maker. A later clause of a will, when repugnant to a former provision, is to be considered as intending to modify or abrogate the former.’ In the Hamlin case the first clause of the will, by its express terms, gave the real estate with full power to hold, use, enjoy or dispose of it, and convey it, by absolute conveyance, in fee simple; and this language, considered by itself, would vest an estate in fee in the donee. The only words found in the will to qualify the language so used, and indicate the intention of the testator was to limit and restrict such language so that the effect would be to vest in the donee, not the title in fee, but an estate for life with power to dispose of and convey the fee, and with remainder for the benefit of specific legatees, are those that occur in the "sübsequent clause of the will; and create the remainder by directing the limitation over in respect to all real estate not conveyed by the first donee. The decision in the Hamlin case is cited with approval, in Kaufman v. Breckinridge, above. So, also, in. Berg an v. Cahill, 55 Ill. 160, and Friedman v. Steiner, 107 id. 125, the qualification to reduce the fee that is apparently 1 donated, to an estate for life, is found only in the limitation clause of the will. The primary consideration is an ascertainment of the intention of the testator, and it is wholly immaterial in what part of the will the words are found which indicate such- intention. Nor do we deem it essential to the creation of a life, estate, that the intention so to do should be expressed in any set form of words, and all that is required in order to show such an estate, and not the fee simple title, is given the donee, is that it shall clearly appear from a consideration of all the various clauses and provisions of the will, when taken and compared together, that it was the testamentary intention the donee should have a life estate.
“We are of opinion the will in question gave to Blotia Pritchard a life estate in the 168 acres of land, with power to sell and convey the same in fee, and convert the proceeds and avails thereof to her own use and benefit, with remainder in the land, if unsold under the power, and if sold, then the remainder in such portions of the proceeds and avails as remained unexpended at time of the death of the donee, to the two sons of the testator. Both the land and personal property are given by one and the same general clause of the will, and at its close the testator says: ‘During her natural life, as aforesaid, and at the death of my said wife, all the property hereby devised or bequeathed to her, as aforesaid, or so-.much thereof as may remain unexpended, to my two sons.’ It would seem the words, ‘all the property hereby devised or bequeathed,’ included both the real estate and the chattels mentioned in that clause of the will. If the testator intended, by the first sentence of the clause, to invest his wife with the •title in fee, then the donation of the power to sell and convey .was wholly inoperative and useless. So, also, was the power to convert the avails of the land, as she would be invested with that right as the owner of the fee simple title. One of ¡the rules of construction in the interpretation of wills is, to give, effect, vitality and force, if possible, to each and all of its provisions. So, also, the limitation upon the use to which the avails of the land were to be applied,—that her power should not extend to any disposition she might think fit to make of the proceeds derived from the sale, but that she should have authority only to ‘ convert the avails to her own use and benefit,’—is inconsistent with the idea he regarded her in the light of an owner in fee simple absolute, and is an indication it was his intention that the proceeds not consumed for her own use and benefitj but remaining ‘unexpended’' at her death, should vest in his two sons, as provided in the latter part of the clause. ”

The argument of counsel for appellant assumes that the language employed in this will clearly vests a fee in Elótia, for there can be no question that a power of sale, superadded to a life estate, does not enlarge it to a fee. 2 Bed field on Wills, (2d ed.) p. 344, see. 52. This assumption of counsel, in our opinion, results from a misapprehension. The language of the will is: “I give, devise and bequeath to my beloved wife, Elotia Pritchard, in lieu of dower, certain lots of land,” — and the lands are then described. No words follow the description of the lands, declaring w'hat estate is devised. This; at common law, only gave a life estate in the land. 2 Bedfield on Wills, (2d ed.) p. 321, sec. 20; 2 Jarman on Wills, (5th ed.) 267; 4 Kent’s Com. 267. But our statute provides, that “every estate in lands which shall be granted, conveyed or devised, although other words heretofore necessary to transfer an estate of inheritance be not added, shall be deemed* a fee simple estate of inheritance, if a less estate be not limited by express words, or do not appear to have been granted, conveyed or devised by construction or operation of law.” (Bev. Stat. 1874, p. 275, see. 13.) So it is a question of construction, from the entire instrument, what estate is given. In the absence of limiting or qualifying words, it is a fee, but with such words, the instrument is' to be construed so as to give effect to the intention of the testator, as manifested by the phraseology of the entire instrument, and hence arbitrary rules of common law, applicable to cases where, before the enactment of the statute, a fee was clearly technically given, are not pertinent, for in those cases, there is no question, in the first instance, what estate is given, but it is,—a fee being given,—what effect have subsequent words of limitation, etc. Here, there being words of qualification and restriction, they are, under the statute, to be considered in determining, in the first instance, whether a life estate or a fee was intended.

The 28th section of chapter 26, 1 Victoria,— adopted in 1837,—is somewhat analogous to this section, but we think less full and clear in expressing the idea than is our statute, that where there is a general gift, and in the same instrument qualifying or limiting words, the whole instrument is to be read and considered together in determining what estate was granted.

Jarman, in his work on Wills, (5th ed.) vol. 2, p. 288, says, speaking of that section: “Now an estate in fee will pass by such a devise, (L e., a general one,) unless a contrary intention shall appear by the will. The onus probancli (so to speak,) will, under the 'new law, lie on those who contend for the restricted construction, and will not be discharged by showing that another devise in the will contains formal words of limitation, or that a special power of appointment is, in terms, given to the devisee, though if the same land be given, in one part of the will, to A, and in another, to B, the presence of words of limitation in the latter gift, and their absence from the former, are material to correct the apparent contradiction, and to show that the testator meant a gift to A for life, with remainder to B in fee. ”

Theobold, in his treatise on Wills, (published in 1876,) page 484, says: “But, as a rule, when there is a gift to A, indefinitely, followed by a gift at his decease, A will take only a life interest. ”

In Constable v. Ball, 3 DeG. & S. 411, which was decided in 1849, the language was: “I give, devise and bequeath unto my dear wife, Mary Ann Constable, all and every piy estate and effects, goods, chattels, houses, lands, moneys, etc., and wheresoever the same may be at the time of my decease, for her sole, separate use and benefit. I further give, will and direct that at the decease of my said wife, whatever remains of my said estate and effects shall go to and be equally divided, share and share alike, between the following persons hereinafter named, ” etc. It was held that this gave only a life estate to the widow.

In the case of Bibbens v. Potter, 10 Law Rep. (Ch. Div.) 733, decided in 1879, Emily Bibbens, by her will, gave her sister, Ann Maria Bibbens, “all her estates and effects, both real and personal, ” for her own use and benefit, absolutely. By a codicil, made afterwards, and directed to be taken as a part of her will, she added: “After the death of my sister, Ann Maria Bibbens, I give, devise and bequeath all property of mine which may then be remaining, to, ” etc. The Vice-Chancellor held, that, construing the will and codicil together, the gift to Ann Maria was cut down to a life estate.

In re Stringer’s Estate, and Shaw v. Jones & Ford, 6 Law, (Ch. Div.) 1, (decided in 1874,) the will of Thomas Stringer used this language: -“First, I give and bequeath unto my brother, John Stringer, all my real and personal estate and effects whatsoever and wheresoever, with full power and authority for him to give, sell and dispose thereof, or any part thereof, to such person or persons, and for such purposes, as he shall think fit, by any deed or deeds, writing or writings, or by his last will, and testament, in writing, already executed or hereafter to be executed by him, or otherwise > and I do hereby name and appoint him the sole executor of this my will; but provided he shall not dispose of my said real and personal estate, or any part thereof, as aforesaid, I do hereby give, devise and bequeath my said real and personal estate, or such part or parts thereof as he shall not dispose of, in the manner following: ” The testator then devises all his real estate to certain named parties, and gives certain specific legacies of his personal estate. This, it will be noted, gives every right of disposition and control of the property that an owner in fee has, and goes much beyond the power in the present case, which does not include the right to give or will the property. John Stringer died before the testator. The Master of the Bolls held that the devise over was void, because repugnant to the devise to John Stringer. This was reversed by the Court" of Appeals, that court holding that the will gave John Stringer a life estate, only. In the first part of the opinion of James, L. J., he seems to think that the death of John Stringer, before the testator, makes the case different from what it would have been had he survived him. But the decision is not put on that ground, but upon the construction of the entire will. He says: “But it appears to me, that upon the true meaning of this will, taking, as we are bound to take, not only this particular clause, but every part of the will, into consideration, the testator has, in the plainest manner possible, short of express words, provided for the event of his brother’s death. In the first place, I should say that I think that the better construction of this will is, that the testator only made his brother tenant for life, because you have not only got those words,—that is to say, the gift and power superadded, and a gift over, in terms, if he does not execute that power,—but you have subsequent gifts, which would seem to be wholly inconsistent with there being an absolute gift, in the first place, to his brother. First of all, there is an appointment of executors. .It seems to me to be wholly irreconcilable, upon any ordinary principle, with the notion that he was only dealing with that which the brother should not have spent or given away in his lifetime. The words are, ‘I give and bequeath - unto the said Robert Hasketh, the elder, and Michael Damtry, my executors,’ etc. * * * Then, when we look at the rest of the will,—and I think on this demurrer we are at liberty to look at the whole of the will,—we find that it is full of gifts to take effect after the survivor of the testator and his brother. * * * I am of opinion that all these things show, and lead to the necessary implication, that the testator was not, in the subsequent part of his will, merely dealing with the part of his estate which should be left undisposed of by his" brother,—that he meant to make provision for that which might occur in the case of .the brother’s death in his lifetime. I think the natural and proper meaning of it would be, taking the .whole context of the will, to say, notwithstanding there is a gift, in the first instance, of the real and personal estate, in terms purporting to be an absolute gift, out and out, of the whole, that the gift is cut down to an estate for life, with that which is practically exactly the same thing,—an absolute power of appointment and disposal in any way in which the legatee might think fit. * * * Whichever way you take it, it seems to me the real meaning of the gift over is, that it was to be in case the brother did not live to dispose of, or, if living, did not dispose of, the real estate. That being so, it appears to me the gift over is not made void by those words, by its being, as it is said to be, a violation of the rule that a man can not create a new course of devolution in a gift once given, for that is what I hold to be the meaning of the word ‘repugnant.’” Bagally, L. J., said: “I am of the same opinion. It appears to me, that when you consider it, the primary gift in favor of the brother, John Stringer, is divided into three portions : the gift itself, the power conferred, and the gift over in the event of the power not being exercised.” And after arguing on the different clauses in the will, considered together, he says : “On the whole, I think that the only way to give effect to all the provisions in the will is, to hold that the testator gave to his brother a life estate, with a power of appointment and disposition over the real and personal estate, and with regard to that real and personal as to which there was no exercise of the power of. disposition, the various provisions of the after-part of the will were to take effect. ”

Third—We think the evidence sufficiently sustains the views of the Appellate Court, that the notes, ■ collection of which is enjoined by its judgment, were given for money derived from the sale of real estate. While it is true, as contended by counsel, that there is not entire concurrence as to dates and amounts, nor such a division between Eeuben M. and Ethan A. as should have been if the loaning of the money had been intended as the final settlement of the balance in her hands, yet it is to be borne in mind this loaning was not intended as a final settlement, but evidently only as advancements, from time to time, subject to recall, if necessity should require it. Exact proof, excluding all doubt, in such cases, is often impossible, and certainly in no case is indispensable. It was here shown that the land was sold for cash; that Elotia subsequently loaned this money to the remainder-man; that', speaking of Eeuben, she said the money was his, etc. The sale for money, and the subsequent loan of money, ma.de a prima facie case that the money loaned was that derived from the sale. The burden then changed to the defendants to show, if this was not the same money, what money it was. We do not think they have overcome that prima facie case.

The judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Shops

text:
    The St. Louis Bridge Company v. The City of East St. Louis et al.

      Filed at Mt. Vernon June 20, 1887.

    1. Taxation—municipal taxation—of the proper subjects of it—bridge structures. Such portion of a bridge structure which is owned by a private corporation, as in the case of the bridge over the' Mississippi river at St. Louis, owned by the St. Louis Bridge Company, as is situate within the corporate limits of a city, will be subject to taxation for corporate purposes, equally with all other property within its limits. The fact that such structure is upon land covered with water, not susceptible of improvement in the way of streets, etc., furnishes no ground of exemption from city taxes.
    2. Same—the rule of uniformity. Under the constitution, all municipal taxes are required to be uniform. To let property within the corporate limits escape taxation because situated upon ground covered by a navigable stream, and so not susceptible of being laid out into lots capable of ordinary use, would be in violation of this constitutional provision.
    3. Same—benefits to property taxed, as a basis for taxation. A city tax upon a bridge and approaches, will not be enjoined for the reason that such property has received no benefit or protection from the city for the taxes paid on the same. It is no valid objection to a tax levied for corporate purposes, that the owner can not see that his property is benefited or protected by the expenditure of the taxes, or that it does not, in fact, derive any appreciable benefit therefrom.
    Writ of Error to the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.
    Messrs. G. & G. A. Koerner, for the plaintiff in error:
    Municipalities can only impose taxes upon their citizens, for corporate purposes, Const, of 1870, art. 9, secs. 9, 10.
    It stands admitted by the demurrer, that the bridge company has never derived any benefits or protection from the city for any part of said bridge, since its completion .in 1874,
    Power to tax is granted for the benefit of the whole people, and none have a right to complain if the power is fairly exercised, and the proceeds properly applied, to discharge the obligations for which the taxes were imposed. Cooley on Taxation, (4th ed.) p. 4, note 1. The same author, on page 1, note 1, quotes the definition of Montesquieu’s Spirit of the Law, (book 13, chap. 1,)—“What are taxes but the revenue collected from the people for things useful and conducive to their welfare, universally. ”
    It is a rule laid down by the courts, and is, indeed, self-evident, without any legal precedent, that “taxation and protection are reciprocal. ” Cooley on Taxation, (4th ed.) 14.
    In those cases, the courts admit that the extension of the limits of a city or town, so as to include, in its actual enlargement, as manifested by houses and population, adjoining lands, is to be deemed a legitimate exercise of the taxing power; but they declare that an indefinite or unreasonable extension, so as to embrace lands or farms at a distance from the local government, does not rest upon the same authority. City of Covington v. Southgate, 15 B. Mon. 491; Arbegast v. Louisville, 3 Bush, 271; Swift v. Newport, 7 id. 37; Courtney v. Louisville, 12 id. 419; Morford v. Unger, 8 Iowa, 8; Fulton v. Davenport, 17 id. 404; Longworth v. Dubuque, 13 id. 86; Buell v. Bell, 20 id. 282; Bradshaw v. Omaha, 1 Neb. 282.
    The identical question now before this court has been passed upon by the Court of Appeals of Kentucky, in the case of Louisville Bridge Co. v. City of Louisville, 81 Ky. 189.
    Mr. Charles W. Thomas, for the defendants in error:
    The case of Louisville Bridge Co. v. City of Louisville, 81 Ky. 189, has no application here. The constitution of Kentucky contains no provision concerning taxation. The courts of that State held the clause of their State constitution prohibiting the taking of private property for public use, may be invoked against unjust taxation. Cheaney v. Hooser, 9 B. Mon. 330.

      Our State constitution, like that of 1848, requires all taxation to be uniform within the- taxing district. Chicago v. Larned, 34 Ill. 275; Madison County v. People, 58 id. 456.
    The charter of the city of East St. Louis makes the western boundary of the city the western boundary of the State. Again, the bound-ary of the State is the boundary of the township and the school district, and no complaint is made as to any State, township or school taxes. The doctrine that land under waters of a navigable stream ought not to be taxed for city purposes," because it can not be laid off into lots, ought certainly to extend to road and bridge taxes, for it can not be benefited by any roads or bridges that can be built with the road tax. But there is no complaint as to these taxes.
    It is claimed, however, that because the plaintiff in error gets no benefit from the city taxes it pays, or substantially none, therefore it should be exempted from paying them. The contention is, that a court, whenever a municipal tax is levied, will investigate the expenditures of the municipality made in the past, and if, in its judgment, the money raised by taxation has not been spent in procuring such things as the court or complaining tax-payer thinks ought to have been procured, the court will suspend the statute permitting an annual tax to be levied for municipal purposes, and abrogate the constitutional provision requiring that tax to be equal and uniform, and obliterate the offending corporation by shutting off its revenues. This position can not be sustained for a moment. Glass Co. v. McCaleb, 81 Ill. 562; Cary v. Pekin, 88 id. 154.
   Mr. Justice Shops

delivered the opinion of the Court:

This was a bill for injunction, to restrain the collection of the city taxes levied and assessed by the corporate authorities of the city of East St. Louis, for the year 1885, upon all that part of the bridge across the Mississippi, and connecting the cities of East St. Louis and St. Louis, between the west line of Front street, in the city of East St. Louis, and the middle of the Mississippi river. Plaintiff in error, a corporation existing under the laws of the State of Missouri, bepame the owner of the bridge and its approaches in 1879, and as such owner exhibited this bill in the circuit court of St. Clair ■county, where, on demurrer being interposed, the bill was dismissed, and the record is brought to this court by writ of -error.

It appears from the bill, that the “bridge and approaches are within the city limits of the city of East St. Louis, which •extend westward to the boundary line of the State, to-wit, the middle of the Mississippi river, but that a great part, and the most valuable part, of said bridge structure is west of the ■east bank of the Mississippi river, and west of the western line of Front street, in the city of East St. Lonis, and is in and over the Mississippi river, and upon territory not in any way improved or even improvable on the part of the said city -of East St. Louis; ” that in 1874 the assessor of St.Clair •county made a survey of the bridge and approaches, and duly recorded the same, by which it appeared that the bridge .structure, for tax purposes, extended to a point taken to be the middle of the Mississippi river, and that since that time the bridge structure had been regularly assessed as real estate by the St. Clair county assessor, and, since that county adopted township organization, by the township assessor, for State, •county, township, school, road and bridge and city purposes, and such taxes paid by plaintiff in error; that the assessed valuation of the bridge and approaches within the State of Illinois, for 1885, as equalized, was $946,000, and the taxes assessed thereon for that year aggregated $27,500, of which $15,136 was the city taxes of the city of East St. Louis. From an exhibit to the bill, it appears that the timber and iron .trestle-approaches to the bridge extend 3348 feet, passing in its course across and over a number of streets and avenues within the city of East St.Louis; that.this approach joins, the main bridge at a point about the western line of Front street, in that city,—a street parallel with the water line of the Mississippi river; that the bridge proper begins at a point 252j- feet east of the ordinary water line of the river, and that from such water line to the centre of the second span of the-bridge, the distance is 7621 feet,—that is to say, the length of the approach is 3348, and of the bridge proper, and within the limits of the city, is 1015 feet. It is averred in the bill, that the Mississippi river is a navigable stream; that that part of the bridge eastward of the western boundary of the-State and city, in and over the Mississippi river, and on land covered by that river, which for that reason could never housed by the city for any purposes of improvement, is three-times more valuable than that part of the bridge structure within the improved and improvable part of the city,—that is to say, the 3600¿- feet of bridge and approaches to the eastward of the water line of the river is only one-fourth as-valuable as the 7621 feet of the bridge proper, from the waterline of the river to the State boundary, (the centre of the-second span of the bridge.) The further averment is, that in the preceding ten years plaintiff in error has paid city taxes, upon such bridge structure to the amount of $125,000; that it has not, during that time, derived any protection for any part of the bridge structure from the municipal corporation, nor has a dollar of the heavy taxes it has paid to the city been by the city spent for .the use or protection of the bridge; that plaintiff in error has, at heavy expense, lighted the bridge and approaches; policed it with its own police force; built and maintained its own water works, laying pipes, erecting water and fire-plugs, not only on its own structure, but under and along the streets of the city; maintained its own-apparatus for extinguishing fires, the city having no fire -department ; sprinkled the bridge and approaches; cleaned its roadway and the city’s streets and dykes leading to the bridge, to accommodate the team bridge-traffic; employed physicians and provided hospital accommodations for its injured employes, the city having no public hospital, dispensary or physician. And finally averring the insolvency of the city, and that as to all that part of the bridge beyond the western line of Front street, and which is situated in and over the Mississippi river, the city tax was illegally and unconstitutionally levied, and that such illegal tax was equal to three-fourths of the whole city tax levied upon the bridge structure, viz., three-fourths of $15,136, equaling $11,352.

While the legality of the city tax levied by the corporate authorities of East St. Louis for the year 1885, upon all that part of the bridge of plaintiff in error east of the middle of the Mississippi river and west of the west line of Front street in that city, is challenged, it is conceded by the bill, and by counsel for plaintiff in error, in printed argument, that the western boundary of the State of Illinois is the middle of the Mississippi river, and, also, that the corporate limits of East St. Louis extend westward to the boundary line of the State. And such is the fact. 1 Charters and Constitutions, 436 j Constitutions of Illinois, 1818, 1848, 1870 ; Charter of East St. Louis, March 26, 1869; 1 Private Laws of 1869, p. 886, art. 1, sec. 2.

The bill proceeds upon the theory and assumption that the middle of the Mississippi river, and consequently the State boundary and western limit of the city, is the point established by the assessor of St. Clair county in his survey of the bridge structure for taxation, in 1874, namely, a point indicated by the middle of the second span of the bridge proper, and distant to the westward from the water line on the east shore of the river, at the ordinary stage of water, 762^ feet, or, from the west line of Front street, about 1015 feet. It does clearly appear from the bill, that from the time the bridge was surveyed by the assessor of St. Clair county, in 1874, (wkibh was the same year the bridge was completed ;and opened to traffic,) the municipal authorities of St. Clair •county and of the city of East St. Louis have asserted the ■correctness of that survey by levying the taxes for State, •county, township, school, road and bridge and city purposes, ■upon all that part of the bridge and approaches lying eastward of the middle of the second span of the bridge, and that ithe plaintiff in error, and those from and through whom it derives title to the bridge, have acquiesced therein by paying such taxes to and including the levies for the year 1884. The State boundary at this point, as also the western limit of the city, is not, therefore, in dispute. ■'

But the contention of plaintiff in error is, first, that because the territory within the corporate limits of the city of East St. Louis, to the westward of the west line of Front street, is so situated, by being covered by the waters of this navigable river, that it is “not in any way improved or even improvable on the part of said city, ” therefore, a superstructure, resting on abutments and piers imbedded in such territory, however valuable, can not be taxed for municipal corporate purposes; and second, that in the ten years preceding the filing of this bill, plaintiff in error had paid to this municipal corporation, taxes to the amount of $125,000, no part of which had been expended by the city in affording protection to the property thus taxed, and therefore it could not tax this property for municipal corporate purposes.

The charter of the city of East St. Louis vests the municipal corporation with power to levy taxes upon property within its corporate limits, for corporate purposes. This is neither denied nor questioned. The tax levied by the city for 1885, upon the property of plaintiff in error, is, so far as the bill discloses, a corporate tax levied for corporate purposes, and the legal character of this tax is not questioned. The power to tax existing, and the character of the tax imposed .being legal, the only question calling for our determination is, is the particular property upon which such tax has been imposed, subject to such taxation.

It seems to us clear, that the particular property taxed, namely, all that part of the bridge and approaches to the eastward of the middle of the second span of the bridge, is within the territorial corporate limits of the city of East St. Louis,—and this is so, regardless of the fact that such structure, in part, rests upon and extends over a part of such territory covered by the waters of this navigable stream. The fact that some part of the territory within the corporate limits of a city is covered by navigable waters, and that it may be impracticable for such territory to be laid off into lots capable of ordinary use and occupation, and into streets and alleys for ordinary public use, in no way affects the jurisdiction of the municipal corporation, for all corporate purposes, in and over such territory. Not only is such territory, so far as if may be occupied, acquired or reclaimed, and all forms of property having a situs thereon, subject to the civil jurisdiction for purposes of taxation, but the corporate powers and jurisdiction, as defined in the city charter and expressed in its ordinances, civil and criminal, or exercised through its various departments or agencies,- extend over and embrace submerged territory equally with other portions of the corporate limits. The Mississippi is a navigable stream in fact, though not so at common law, and the jurisdiction of the State of Illinois, for all purposes not delegated to the general government, extends over the territory and waters of such river, to the middle thereof; and when property is found situate within such limits, or crimes and offences are committed within the legal boundaries of the State, whether such territory is covered with water or is dry land, the general law's of the State must be given effect. At the point in question, the city limits coincide with the State boundary, and there can be no question as to the corporate power and jurisdiction of the city within every part of its corporate limits.

This bridge structure, from the point indicated, has its legal situs within the corporate limits and jurisdiction of East St. Louis, and is subject to taxation, for corporate purposes, equally with all other property within the corporate limits; and when the city seeks to exercise the power of taxation for corporate purposes,- it is essential'that “such’ taxes shall be uniform in respect to persons and property within the jurisdiction of the body imposing the same. ” (Const. 1870, -art. 9, see. 9.) The uniformity required by the Constitution would be flagrantly violated if the property of plaintiff in error, within- the jurisdiction of East St. Louis, was not required to bear the same burden imposed upon other property within the same jurisdiction. < So far as we can see or know, the property of plaintiff in error is asked to bear no greater share of the common corporate burden than other property within the same jurisdiction, of equal value. The purpose of the tax is common, the valuation not excessive or discriminating, the rate uniform, and apparently most perfect uniformity prevails.

' But it is said, the property of plaintiff in error thus taxed, has, in years past, received no benefit or protection from the city for' the large taxes it has paid, and that, along with the power of taxation, goes the corresponding obligation on the part of the taxing power, to afford protection; that in the last ten years, plaintiff in error paid taxes to the city aggregating $125,000, no part of which was expended ■ in protecting - the property of plaintiff in error taxed.. Is that a sufficient reason why this tax should be enjoined ? Can relief against corporate taxation be predicated upon so illogical a position? Manifestly not. The law has with jealous care placed limitations and checks about the levy and collection of corporate taxes, and the courts may and do, when their power is properly invoked, supervise the exercise of corporate power to the extent of protecting the property owner against an unauthorized exercise of the taxing power; but in respect of the application or use of moneys raised-by corporate

authority, discretion is necessarily vested in the corporate authorities, and so long as" the fund is not diverted from the purposes for which it was obtained, courts are powerless to interfere. It is no valid objection to a tax levied for corporate purposes upon property subject to such taxation, that the property owner can not see that his property is benefited or protected by the expenditure of-the fund, or that it does not, in fact, derive any appreciable benefit therefrom. In Gary v. City of Pekin, 88 Ill. 154, farm lands within the limits of the ■city, though used and only available for .farming purposes, and deriving no benefit by the improvements for which a municipal tax had been levied, were, it was held, liable for taxes levied for corporate ■ purposes. And it was said, while the lands remain within .the corporate limits they are subject to municipal taxation, and however burdensome such taxes may be, the land owner can have no relief against them. So, here, while the bridge remains within the corporate limits of East St. Louis it will be subject to taxation for corporate purposes, uniformly with other property within the. same jurisdiction, and this will be so, although it may not be appreciably ■ benefited by the particular municipal purpose or improvement for which the tax may be expended.

The decree of the circuit court dismissing the bill must be affirmed.

Decree affirmed.


text:
    John A. Delano et al. v. Gardner Case.

      Filed at Springfield June 17, 1887.

    1. Bank directors—duty to, depositors—liability for deposits made after insolvency. The directors of a bank are trustees for depositors as well as stockholders, and, as such, are bound to the observance of ordinary care and diligence to save depositors from loss, etc.

      2. If bank directors are guilty of negligence in permitting their bank to be held out to the public as solvent, when in fact it is insolvent, and thereby induce one to deposit his money with the bank, which he loses by reason of the insolvency of the bank, he may recover of such directors, in an action on the case, the damages he may thereby have sustained.
    Appeal from the Appellate Court for the Third District:— heard in that court on appeal from the Circuit Court of Macoupin county; the Hon. W. R. Welch, Judge, presiding.
    Messrs. Palmers, Robinson & Shutt, for the appellants:
    Aside from statutory provision, the directors or officers of an incorporated bank are not responsible, in an action at law, for injury resulting to a creditor or depositor, unless the injury was occasioned by the malicious or fraudulent act of the party complained of. Mere nonfeasance will not answer. Fusz v. Spannhaust, 67 Mo. 257; Harman v. Trappenden, 1 East, 555; Hodges v. Screw Co. 53 Am. Dec. 637; 30 Conn. 360; 20 Eng. L. and Eq. 129; 15 Mass. 505.
    The directors of a bank are its agents and servants, and are liable, alone, to their principals, for the performance of their duties. But if liable at all to third persons, it is only for their positive acts of misfeasance. Shearman & Redfield on Negligence, sec. 111.
    Messrs. Greene, Burnett & Humphrey, for the appellee:
    It is true, the directors’ contract being with the corporation, appellee could not maintain a suit on it. But the action is not founded on this contract, but on their neglect of duty. Salmon v. Richardson, 30 Conn. 373.
    The directors were trustees for creditors and depositors, as well as others, and will be liable to depositors for any neglect of duty resulting in loss to the latter. Morse on Banking, 116 ; Shea v. Mobry, 1 Lea, 319; United Society of Shakers v. Underwood, 9 Bush, 609.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This was case, in the circuit court of Macoupin county, by a general depositor in a bank, against directors of the bank, for negligence in permitting it to be held out to the public as solvent, when in fact it was, at the time, insolvent. Judgment was rendered for the plaintiff in that court, and that judgment was affirmed, on appeal to the Appellate Court for the Third District, and this appeal is from that judgment.

The Appellate Court, in its opinion filed on rendering that judgment, holds, first, that the directors of a bank are trustees for depositors as well as for stockholders; second, that they are bound to the observance of ordinary care and diligence, and are hence liable for injuries resulting from their nonobservance ; and third, that the present appellants did not observe that degree of care and diligence, and, in consequence thereof, appellee sustained the damages for which the judgment was rendered. Delano et al. v. Case, 17 Bradw. 531.

The last proposition we are relieved from inquiring into, since there was evidence tending (though, it may be, but slightly,) to sustain it.

The propositions of law, as above stated, are, in our opinion, free of objection and sustained by authority. Percy et al. v. Millandon, 3 La. 568 ; United Society of Shakers v. Underwood, 9 Bush, 609; Morse on Banks and Banking, (2d ed.) 133; Thompson on Liability of Officers and Agents, 395; Shea v. Mobry, 1 Lea, (Tenn.) 319; Hodges v. New England Screw Co. 1 R. I. 312; Wharton on Negligence, sec. 510.

The judgment is affirmed.

Judgment affirmed.

Sheldon, C. J., and Craig, J., dissenting.


author: Mr. Justice Ceaig

text:
    Abraham Frank et al. v. Dora J. King et al.

      Filed at Mt. Vernon June 20, 1887.

    1. Bbatjdtjlent conveyances —preferring creditors—preference of debtor’s wife. A debtor in failing circumstances may prefer one creditor to the exclusion of others, if he does so in good faith, for a valuable consideration; and a wife may be preferred by a husband, if she is a bona fide creditor, and_ the conveyance is made in good faith, and based upon a valuable consideration.
    3. But when a husband undertakes to prefer his wife to the exclusion of other creditors, the proof should be clear and satisfactory that she has a valid, subsisting debt, which is to be enforced, and payment exacted, regardless of the husband’s fortune or misfortune.
    3. In this case, a person exchanged a tract of land belonging to his wife, of the value of $1000, for other land, taking the title to the latter in his own name, by her consent, and giving no obligation to pay her anything, and he afterward.sold the land thus acquired, for $1600, and used the money, and $200 more of his own, in the purchase of another tract, and some twelve years after exchanging his wife’s land, and while largely indebted and insolvent, conveyed the tract last acquired, to his wife, through a trustee. It was held, that the conveyance to the wife could not be held good as against the husband’s creditors.
    4. Appeal—whether freehold involved. Where a third person inter-pleads in an action by attachment, claiming the title to the land attached, in fee simple, on the trial of the issue a freehold is involved, and either party may bring the case to this court for review, in the first instance.
    Wbit of Eeboe to the Circuit Court of Saline county; the Hon. David J. Babee, Judge, presiding.
    Messrs. Boyeb & Choissee, for the plaintiffs in error.
    Mr. G-eobge C. Boss, and Mr. Chables H. Layman, for the defendants in error.
   Mr. Justice Ceaig

delivered the opinion of the Court:

This was an action by attachment, brought by Abraham Frank, and others, (a firm doing business under the name and ¡style of A. Frank & Sons,) against T. N. Humphrey, L. B. King, and A. B. King, partners, doing business under - the name and style of T. N. Humphrey & Go. The writ of attachment was issued on the 20th day of November, 1885, and on the same day the sheriff of Perry county levied on the land in ■controversy, as the property of L. B. King. The action was •dismissed as to T. N. Humphrey and A. B. King, and the defendant L. B. King filed a plea in abatement, denying the .allegations in the affidavit, upon which the attachment was issued, upon which issue was joined. Dora J. King appeared, -and obtained leave to file a plea of interpleader. In her plea, filed under leave of court, she claimed to be the owner in fee ■simple of the lands levied upon under the writ. Upon this plea, issue was joined. On the 19th day of March, 1886, an agreement was made by the parties, as follows: “That the issues upon the said interpleader of Dora J. King be tried by the court without a jury, and that if the said issues on said interpleader of said Dora J. King be found for her, then the attachment against said-L. B. King shall be quashed, but if the said issues upon- said interpleader be found against the ¡said Dora J. King, then and in that ease the court shall find the issues on the plea in abatement (to the attachment writ) filed by said L. B. King, for the plaintiffs, A. Frank & Sons, ¡and against said L. B. King. ” Under the stipulation, the evi•dence of the respective parties was introduced, and the court found the issue, as to the title of the property, in favor of Dora •J. King, and quashed the attachment, and entered judgment ■against the plaintiffs for costs, to reverse which the plaintiffs :in the action sued out this writ of error.

The defendant in-error has entered a motion to dismiss the ¡action, on the ground that -a freehold is not involved, and this motion will first be considered.

The plaintiffs in the action claimed that the land upon which they levied, belonged to L. B. King. Dora J. King, who- was not a party to the-suit, appeared, as she had a right to do under section 29, Revised Statutes of 1874, page 157,. and interpleaded. In the plea it was averred that she was-the owner in fee simple of the property attached. Under this-plea the question to be determined from the evidence was,, whether the title to the property attached was in Dora J. King, or in L. B. King, the defendant in attachment. The issue presented was one of title, and nothing else. No other question was presented by the pleadings, and the evidence introduced was all directed to the question of title. The plaintiffs-claimed, on the one hand, that the title to the lands attached, was in L. B. King, while, on the other hand, the defendant-Dora J. King insisted that she was the absolute owner of tImproper ty, and that the title was in her name. We think it a-plain proposition, that as the title was directly in issue, under the pleadings and evidence a freehold was involved.

But the question is not a new one in this court. The same-question arose in Monroe v. Van Meter, 100 Ill. 847, and we-held that a freehold was involved. Several cases have beert cited where we held a freehold was not involved on a bill filed! to foreclose a, mortgage, and also where a creditor’s bill was filed to set aside a fraudulent conveyance, but they have no-bearing on this case. The motion to dismiss will be overruled.

The next and only remaining question presented by the-record is, whether the finding of the court,, that Dora J. King; owned the property in controversy, is sustained by the evidence. There is no dispute in regard to the fact that L. B.. King owned the land up to November 17, 1885. On this date-he and his wife, Dora J. King, executed a deed purporting to-convey to J. W. Ross, and on the 18th day of November, J. W. Ross conveyed back to Dora J. King. At the date of this transaction, as the execution of both deeds may be treated as pne transaction, the firm of T. N. Humphrey & Go. was-indebted $10,000 or $11,000, and the only assets of the firm consisted of a stock of goods, worth from $4000 to $4500.. The firm was in failing circumstances. No real estate was owned by any member of the firm except the land King conveyed to his wife. King testified that he knew that he was embarrassed, and it was partly on this account that he made the deed to his wife. Several judgments were entered against the firm on the day the deed was executed. Dora J. King knew that the firm was in trouble before she received a conveyance of the land, as she admits in her evidence. No consideration passed from Boss to King for the first conveyance, nor was there anything paid, or agreed to be paid, by Dora J. King to Boss for the second conveyance. The deeds were made in the night-time,—the first one between nine and twelve •o’clock, and the second one between twelve and three o’clock,— hoth in the same night. Under the facts, as established by "the evidence, it is claimed by plaintiffs in error that the conveyance to Dora J. King was made with the intent to defraud •creditors, and that the title to the land did not pass to her, while on the other hand it is claimed that Dora J. King was a creditor of her husband, and although he was in failing circumstances, he had a right to prefer her.

The law is well settled that a debtor in failing circumstances may prefer one creditor to the exclusion of others, when he does so in good faith, for a valuable consideration; and the wife may be preferred by the husband, if she is a bona fide creditor, and the conveyance is made in good faith, and based upon a valuable consideration. (Tomlinson v. Mathews, 98 Ill. 178.) Does the evidence introduced on the "trial bring Dora J. King within the rule indicated ? On this branch of the case L. B. King testified, that when he married his wife, in 1869, she owned a tract of land, which, in 1873, he traded for another tract, and “idaid $200 to boot.” The deed was taken in his name, his wife saying, “You can have "the deed made to you and you can owe me $1000.” The witness also testified that he afterwards sold the land for $1600, and used the money in payment for the land attached, which he purchased for $1900, and held the title until it was-conveyed to his wife, November 17, 1885. The evidence of King was corroborated by his wife.

We do not, however, regard the evidence sufficient to establish the fact that Dora J. King was a bona fide creditor, and. that the conveyance was made in good faith. The claim is, that the husband became indebted to the wife in the sum of $1000, in 1873. No note was ever given for the alleged indebtedness, nor was any interest ever paid on the debt, nor was it treated as a valid indebtedness, until King was in the-act of failing. Had King been prosperous in business, it is-not probable that this alleged debt would ever have been, thought .of or heard of. But however that may be, where-the husband undertakes to prefer the wife to the exclusion of other creditors, the proof should be clear and satisfactory that the wife has a valid, subsisting debt,—one which is to-be enforced, and payment exacted, regardless of the fortune or misfortune of the husband. Such was not the character of' this debt. A party who has a valid claim against another,, does not, as a general rule, suffer the claim to stand for a. period of twelve years without even taking a note, without, calling for interest, and without security, doing nothing whatever to collect or secure the claim. Such is not the manner in which business is done where a valid, bona fide debt is in-, existence. We think it is plain, from the evidence, that the-deed was made for the purpose of placing the property beyond the reach of creditors, and as such it was fraudulent.

The judgment of the circuit court will be reversed, and the-* cause remanded.

Judgment reversed.


author: Mr. Justice Scholeield

text:
    George Gebbie v. Peter L. Mooney.

      Filed at Ottawa June 17, 1887.

    1. Pleading—one good count in support of a general verdict. A judgment will not be arrested for defects in the declaration, if any one of the counts shows a good cause of action, and the verdict is upon the whole declaration.
    2. Same—plea not answering all it professes to answer. A plea which professes to. answer the whole cause of action or the whole declaration, but which, in fact, answers only the special count, leaving the common counts unanswered, is bad on- demurrer.
    3. Amendment of record—at a subsequent term—presumption in support of the action of the court. The circuit court can not make an original order in a case at a term subsequent to that at which final judgment is rendered, but it may, at any subsequent term, cause the clerk to enter upon the records of the court an order made at a previous term, provided, only, there shall be some minute or memorial paper from which it can be determined what such order was.
    4. Where the record in a cause is amended, by order of the court, at a term subsequent to that at which final judgment was rendered, in the absence of a bill of exceptions showing to the contrary, it will be presumed in favor of the judgment of the circuit court, that there was evidence before it by which'to make such amendment.
    5. Same—bill of exceptions to show ground of objection. A party wishing to assign for error the order of the circuit court amending its record of a cause at a subsequent term, by the entry of orders nunc pro tunc, claimed to have been made at a former term, on the ground there was nothing by which to amend, should tender a bill of exceptions reciting all the evidence on the question before the court.
    6. Notice—as shown by the record. Where the record of a circuit court allowing a motion to amend the record of a previous term in a cause, shows that the parties had notice of the motion, such notice can not be denied.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Lorin C. Collins, Judge, presiding. |

      Mr. Lewis Umlaue, for the appellant:
    An amendment of a bill of exceptions, or of a record, at a term subsequent to the trial term, when there is nothing in the record to amend by, is error. Dougherty v. People, 118 Ill. 160; Blake v. Miller, id. 500.
    Mr. Joseph Weight, for the appellee:
    The question of the sufficiency of the declaration is not presented. There was no demurrer to the declaration, and no exception was taken to the overruling of the motion in arrest of judgment. Martin v. Foulke, 114 Ill. 206; McClurkin v. Ewing, 42 id. 283 ; Brooks v. People, 11 Bradw. 422 ; Railroad Co. v. Dorsey, 68 Ill. 326; Reichwald v. Gaylord, 73 id. 503; Deitrich v. Waldron, 90 id. 115; Stern v. People, 96 id. 475.
    One good count will sustain a general verdict and judgment. Bev. Stat. chap. 110, see. 58; Bradshaw v. Hubbard, 1 Gilm. 390; Snyder v. Gaither, 3 Scam. 91; Payne v. Donegan, 9 Bradw. 566; Waugh v. Suter, 3 id. 271.
    A general demurrer to a declaration will be overruled if any one count is good. Reece v. Smith, 94 Ill. 362; Telegraph Co. v. Bank, 74 id. 217; Bills v. Stanton, 69 id. 51; Barry v. Mackey, 66 id. 164; Rowell v. Chandler, 83 id. 288.
    As to the right to amend the record at a subsequent term, see Howell v. Morlan, 78 Ill. 162; Church v. English, 81 id. 442; Dunham v. South Park Commissioners, 87 id. 185; Ives v. Hulse, 17 Bradw. 30.
   Mr. Justice Scholeield

delivered the opinion of the Court:

This was assumpsit, by appellee, against appellant. The declaration contains a special count upon an agreement in ■writing, and the common counts.

First—Appellant contends that the judgment below is erroneous, because the special count does not disclose a cause of action; but there are no objections to the common counts, and the verdict is an entire one, not limited to the special •count. It is provided by section 58 of chapter 110, of the Ttevised Statutes of 1874: “Whenever an entire verdict shall be given on several counts, the samé shall not be set aside or .reversed on the ground of any defective count, if one or more •of the counts in the declaration be sufficient to sustain the verdict. ” And to this -effect is-also the ruling in Bradshaw v. Hubbard, 1 Gilm. 390; Reece v. Smith, 94 Ill. 362; Snyder v. Gaither, 3 Scam. 91; Missouri River Telegraph Co. v. First National Bank of Sioux City, 74 Ill. 217; Davis v. Taylor, 41 ad. 405; James v. Dexter, 113 id. 654.

There is no bill of exceptions here, and consequently the -question is only one'of pleading,—is either count of the declaration, tested by itself, good and sufficient to sustain the judgment? And there being no objection to the common counts, ■on the authority of the cases referred to, supra, there was no -error in overruling the motion to arrest the judgment.

Second—It is contended by appellant’s counsel, that the trial court erred in sustaining a demurrer to the first special plea of the appellant. There are several grounds alleged by ■counsel for appellee, justifying that ruling, but we think it ■sufficient to observe that the plea professes to answer the whole cause of action, but is, in fact, only an answer to the ¡special count. Chitty says: “If a plea profess, in its commencement, to answer the whole cause of action, and after-wards answers only a part, the whole plea is bad,” and he •says the proper course is to demur. 1 Pleadings, (7th Am. -ed.) 554, *555. And so we have held, where a declaration in -assumpsit contained the common counts, and also a special -count, upon a promissory note, a plea which purported to ■answer the whole declaration, but only answered the special ■count, was bad on demurrer. Goodrich v. Reynolds et al. 31 Ill. 490; American Ins. Co. v. Holly, 81 id. 353; People v. McCormack, 68 id. 226; People v. Weber, 92 id. 288.

Third—Two other objections are urged, which, in the view we take of the case, may be considered together. They are, first, that the court erred in going to trial without having disposed of the demurrer to the defendant’s pleas of fraud to the original declaration; second, the court erred in proceeding to trial on the amended declaration, without first ruling the defendant to plead, etc.

An amended record was filed, by leave, in the Appellate-Court, while the cause was pending there, which shows that-the demurrer to the defendant’s pleas of fraud to the original declaration was sustained, and that, on appellant’s own motion, his pleas filed to the original declaration were ordered to stand as pleas to the amended declaration. Counsel for appellant, however, contend that the amended record ought-not to have been filed, because the amendment of the record was made at a term subsequent to that at which the cause was tried, and there was nothing to amend by. The court can not make an original order in a case at a term subsequent to that at which final judgment is rendered, but it may, at a subsequent term, cause the clerk to enter upon the records of the-court an order made at a previous term, at which judgment-was rendered, provided, only, there shall be some minute or memorial paper from which it can be determined what such order, made at the previous term, was. (Church v. English, 81 Ill. 442; Dunham v. South Park Commissioners, 87 id. 185 ; Howell v. Morlan, 78 id. 162.) The amended record here-recites that “the court, upon the inspection of the records of this court in this cause, * * * finds that two certain orders made by the court herein, have not been entered upon the records of this court, through an omission of the clerk to-do so, ” and it then proceeds to order that they be entered nunc pro tunc. The presumption here, as in respect of all judgments, decrees and orders of the circuit court, is, that the ruling is right until it is affirmatively made to appear that it is wrong. And it was incumbent on appellant, if, in fact, there was nothing here to amend by, to have tendered a bill of exceptions, reciting all the evidence in this respect then before the court, and not having done so, the order can not be reversed or disregarded. Prout v. Grout, 72 Ill. 456; Indianapolis and St. Louis Railroad Co. v. Miller, 62 id. 468; Krebaum v. Cordell, 63 id. 23 ; Bowman v. Bowman, 64 id. 75 ; Cunningham v. Craig, 53 id. 252; Wallahan v. People, 40 id. 104. This last case is, in the respect under consideration, precisely analogous to the present. We can not listen to assertions of counsel that there was no notice, the record showing the contrary.

The pleas of fraud, like the other special plea before noticed, professed to answer the whole cause of action, but, in fact, only answered the special count, and the demurrer to them was, for that reason, if for no other, properly sustained.

The judgment of the Appellate Court is affirmed.

Judgment affirmed„