author: Per Curiam :

text:
    William W. Thornton v. William Roll et al.

      Filed at Springfield September 9, 1886.

      1. Injunction — to prevent a threatened trespass. Where one party threatens to go upon the land of another and remove earth therefrom to make an embankment for a public road, in the absence of any allegation in the bill showing the insolvency of such party, or that irreparable injury will follow, no injunction will lie to prevent the threatened trespass.
    2. Same—as to a threatened nuisance—-as, in case of certain intended action of highway commissioners. Where commissioners of highways are proceeding to do an act within the powers conferred on them by law, and it does not appear with certainty that such act may prove injurious to the private rights of another or become a private nuisance, a court of equity will not enjoin their proposed action until the question of nuisance is determined, by actual experience.
    3. An act required by the public interest will not be enjoined upon the ground that it may prove a private nuisance. To justify an injunction in such case, a very strong case must be made by the bill, aud sustained by the proofs.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Shelby county.
    This is a bill in equity, by William W. Thornton, against William Roll, James Stewardson, and others. The complainant alleges that he is the owner in fee simple of that portion of the east half of the south-west quarter of the south-west quarter of section 8, and of the east half of the south-west-quarter, and the south-east quarter of said section 8, in township 11 north, range é east, of the third principal meridian, in said county, lying north of the main public road running east from the city of Shelbyville through and along the south line of said land and across the Kaskaskia river; that the said river is a private stream running through the said land; that William Roll, James Stewardson and William Henry, Jr., are and have been since the .... day of May, 1883, the commissioners of highways of the town of Shelbyville, in the county of Shelby, and State of Illinois; that the said real estate and. the said road are in the said town of Shelbyville; that about sixty acres of said land, lying north and west of said river, and north of the line of said road, consists of tillable bottom land, and is worth $50 per acre; that in the year 1877 the said road was built, where it now is, by the three commissioners of highways of said town, and an embankment of the height of about twenty feet was by them constructed along the line-of said road, from the foot of what is known as the Thornton bluff, across said bottom land, for a distance of about one hundred and fifty yards, to the said river, and forming the western approach to the public bridge over said river; that at the same time a similar approach was constructed from the-east end of said bridge to the high ground on the east of said river; that said river has well defined banks, within which the stream is usually confined; that once or twice each year said stream overflows its ordinary banks, and the water covers the low lands above mentioned, as has always been the case during times of very high water, both before and since the construction of said embankments or bridge approaches. The complainant further shows, that the said William Roll, James Stewardson and William Henry, Jr., commissioners of highways as aforesaid, threaten, and are about, to take away a. portion of said embankment or bridge approach, about one hundred yards west of said river bridge, and to construct at. said point a bridge of about forty-five feet in length, with an open space or water way of forty-five feet in width underneath the same; that the said commissioners of highways, Roll,. Stewardson and Henry, on or about the 2d day of August, 1883, published and posted up certain notices, in which they advertised they would, on the 13th day of August, 1883, receive bids for the excavation of the earth for the said bridge,. which they termed the “Slough bridge, ” and for stone abutments for the said bridge, and also for foundation timbers for said abutments, and also for widening the said bridge approach, and in which they advertised that the said several pieces of work would be let by contract to the lowest responsible bidder, and in which they also advertised that the earth necessary for the widening of said embankment should be taken from the said Thornton bluff,—a portion of the said land of the complainant. The complainant further shows that thereafter the said commissioners received bids for the said several pieces of work; that on the 22d day of August, 1883, the said Boll, Stewardson and Henry, as such commissioners, entered into a contract with one James Miller for the erection of the said stone abutments for said bridge, and also into a contract with one Jerry Sullivan for the excavation of said embankment for said bridge, and for the widening of the said embankment or bridge approach, to the width of twenty feet at the top of the grade. The complainant further shows, that the said James Miller and Jerry Sullivan are each about to begin the work so contracted for by them; that in the prosecution of said work the said contractors are about to enter upon the land of the complainant; that the said Jerry Sullivan intends and is about to excavate from the said Thornton bluff, belonging to the complainant, large quantities of earth, for the purpose of widening said embankment; that the proposed widening of said embankment, if carried out, will cause the taking of a strip of the complainant’s said land, of the width of about four feet and of the length of about four hundred feet; that the extreme limit of said road extends no further on the complainant’s said land than the present limit of said embankment at the bottom; that neither the said commissioners, nor the said James Miller, nor the said Jerry Sullivan, have received any authority or permission, from the complainant, to enter upon the complainant’s said land, nor to excavate earth from the said Thornton bluff, nor in any way to take or damage any of complainant’s said land; that the said commissioners have not, by legal proceedings or otherwise, acquired any right to take or damage the complainant’s said land. Complainant further shows, that in case the said excavation in said embankment is made and the said slough bridge constructed, large quantities of water from said river, during every period of high water, once or twice during each year, will be carried over the complainant’s lands; that a channel will be formed across said land and through said slough bridge; that large quantities of the soil of said land, which is a light alluvial soil, and easily washed, will be washed away; that each year the channel will grow deeper, and the said washing away of the soil will increase; that large quantities of drifting trees and wood will be carried, by reason of said current, over and upon said lands, and when such high waters subside, said drift will be lodged upon said land; and by reason of said continuous washings and driftings of wood and trees, a large portion of said low lands, to-wit, about forty acres, will be rendered totally unfit for cultivation, and useless to the complainant. And the complainant further says, that at present, and naturally, all of said waters and said drift pass along the current and accustomed channel of said river, under said river bridge, and without damage to the complainant’s land. The complainant further says, that the building of said slough bridge is not a work of public necessity, and will result in irreparable and ever continuing and recurring injury to the complainant’s said land.
    Roll, Stewardson, Henry, Miller and Sullivan are made defendants, and required to answer without oath. And it is prayed that said defendants, and each and every one of them, and their attorneys, solicitors, agents and servants, may be restrained, by an injunction issuing out of this court, from proceeding in any way in the construction of the slough bridge and in the widening of the said embankment as aforesaid, and in the excavation of the said embankment for the said slough bridge, as aforesaid, and from trespassing upon and in anyway interfering with or taking or damaging the complainant’s-' said land, and that the complainant may have such other further and different relief as equity may require. There was-also a prayer for a temporary injunction.
    A temporary injunction was issued upon the filing of the-bill. Afterwards, Roll, Stewardson and Henry answered, as-follows:
    Defendants, for answer, say that they have no knowledge-as to the title of complainant to the lands in bill described, and require proof of such title; but they deny, as they are informed and believe, that he is the owner of any land contiguous to said public road, west of said Kaskaskia river, as-alleged in said bill; they admit they are the highway commissioners of said town; they admit that about sixty acres-of the lands mentioned are in the bottom of said river, and. if said bottom did not overflow so often, that the same would be good, tillable land, but deny that the same is worth $50-per acre, or near such sum; they deny that said road and embankment were made and constructed by the highway commissioners in 1877; they were in that year partially repaired and the embankments made higher and wider; they deny that-in that year an embankment was constructed from Thornton. bluff, on the line of said road, to said river, but aver it was-only repaired in that year. For further answer defendants say, as they are informed and believe, and so charge, that for full thirty years last past, except the last five years, there was a bridge across the said bottom, between the west end of the river bridge and the bluff, where said roadway now is, used by the traveling public, and repaired by the public authorities from about the year 1850 until in 1878; that in the-year 1858 said roadway and embankment, at the same place-they now are, were repaired, and a slough bridge, as a part of the same roadway west of said river, was constructed by order of the county commissioners’ court of said county, and. from that time said embankment and slough bridge were used by the public as a highway, and were repaired by the public authorities continuously, until 1878. In 1878 the said slough bridge was removed, and the place filled with earth, and at the time, the complainant was one of the highway commissioners of said town. Defendants aver that there is no order of said highway commissioners authorizing the removal of said bridge, and that the complainant was clerk of said board at the time, and made the contract. Defendants further answering, say it is true said river, at a low stage of water, has banks then visible; and they aver that said bottom is overflowed three or four times in each year, so as to prevent the same from being either tillable or pasture land; and they further aver that the overflow of said bottom land is as frequent and constant, and with as great depth of water, since the removal of said slough bridge, in 1878, as before; and defendants further aver, that frequently, during every year, the water of said river is not confined within its banks, but overflows said bottom land periodically, and always has done so. For further answer, defendants say, as highway commissioners of said town, and in the discharge of their duties, they had charge of the roads and bridges therein, and it was and is their duty, under the law, to keep the same in repair, and to improve them so far as practicable, and that as said embankment was too narrow to allow travelers to pass each other, and was dangerous to the traveling public, and for other reasons to be mentioned herein, the said defendants, acting as such highway commissioners, did determine to remove fifty feet of said embankment, and with said earth widen the remainder of said embankment, and to place in said excavation a double-track bridge, fifty feet in length, so that the water upon said, bottom land could have sufficient passway; and they also determined to widen said embankment, and in pursuance of such determination they did post up notices, a copy whereof is annexed to the said bill, and they state that before posting of said notices they had permission from Thomas M. Thornton, a brother of complainant, to obtain the necessary earth from said Thornton bluff, and that said Thomas M. Thornton informed them that he had control of the same, but on the day of said letting he withdrew said permission, and said he would prosecute all persons who undertook said work. Defendants for further answer say, in consequence of the withdrawal of said permission to procure earth from said 'Thornton bluff, they did, on the 22d day of August, 1883, make a contract with their co-defendant, Jerry Sullivan, only to make an excavation in said embankment to admit a bridge of the length of fifty feet, including abutments for the same, and to place the earth so excavated from said embankments, or the remaining portion thereof, so as to. widen the same, and on the same day they made a contract with their co-defendant, James Miller, to furnish the material and erect the necessary stone abutments for said bridge; but respondents deny that in their prosecution of said work, under said contracts, said James Miller and Jerry Sullivan, or either of them, ever had, or have, any intention to enter or trespass upon the land of complainant, and they deny that said Jerry Sullivan, in pursuance of said contract or otherwise, intended or intends, or was, or is about, to excavate or take any earth or other material from said Thornton bluff for the purpose of widening said embankment, or for any other purpose; and they deny that the widening of said embankment will encroach in the slightest degree upon any land of complainant; and they deny that said road, where said work is contemplated, is upon the land of complainant, or that he is the owner of any land adjoining the same, and they deny any and all intention, in any manner whatsoever, by themselves, or through their co-defendants, or any other person, to encroach upon or take or damage any of the lands of complainant. Defendants, for further answer, deny that the making of said excavation, and the construction of said contemplated bridge, will cause large quantities of water to flow over the land of complainant, and form a channel across the same, and wash away the soil thereof, and lodge, drifting trees and wood thereon; and they deny that thereby forty acres, or any portion of the land of the complainant, will become unfit for cultivation, or useless; and they deny that it has ever been true that the water of said river and driftwood naturally pass along the channel of said river without injury to the land of complainant. On the contrary, for further answer, defendants say and aver that the waters of said river, from time immemorial, have passed over and overflowed the said land of complainant; and he states in his bill, “that once or twice each year said stream overflows its ordinary banks, and the water covers the low land above mentioned, as has always been the ease during times of very high water, both before and since the construction of said embankments or bridge approaches.” And defendants further aver, that in the year 1858 an embankment was constructed on the same ground where it is at present, from the west end of the river bridge across said bottom to the high land, a distance of about five hundred feet, except that a bridge called a “slough bridge, ” of the length of one hundred feet, was erected as a part of said embankment and roadway; that said embankment was about thirteen feet high, and that the same embankment has continued, and been used and worked upon, as a public highway, from the year 1858 until the present time; that said slough bridge remained a part of said highway from the year 1858, and prior, until the year 1878; that in the year 1878, when the complainant was one of the highway commissioners of said town, said slough bridge was removed, and the space occupied by it was filled with earth; and defendants aver that since the removal of said slough bridge, as aforesaid, as much water, during the rainy season, has flowed over the land of complainant as did before said removal, and that during the past spring and summer the said bottom has been overflowed by the waters of said river as many as six times. Defendants, further answering, say, that said bottom land in the bill mentioned, is not good, tillable land, and same is not good pasture land, on account of said overflow, and in proof thereof they aver that the complainant has not cultivated the same, nor had it cultivated, for the past two years, and they further-state that the passway for the water, by the erection of the contemplated bridge, would cause the water to flow from the land of the complainant more rapidly than without the bridge. For further answer, defendants say the building of the bridge contemplated by them, and contracted for, is a work of the highest public necessity. There is a costly bridge across said river, to which the said embankment across said bottom leads. The banks of said river at said point are low, and the stream is sluggish.' In freshets, which occur every year, and a number of times in each year, the said bottom lands are frequently overflowed, and this has been the case beyond memory. The channel of the i-iver is not sufficient to carry off the increased volume of water since the removal of said slough bridge, in the year 1878. The said embankment obstructs the passage of the water from the bottom land; it remains thereon longer than it did before, and when it reaches the embankment, and is there checked in its onward course, the action of the water softens the earth of said embankment and gradually washes it away, and thereby its stability is endangered. Since the removal of said slough bridge a portion of said embankment east and west of said river bridge was washed away, so as to render the same dangerous to the traveling public, and a portion of the bank of the river, of the length of one hundred and thirty-seven feet, and about the width of sixty feet, has, by the action of the water, been washed away, or has fallen into the stream, and this has been caused by obstruction of the water by said embankment. Also, the forcing of so much more water into the channel of the river, by the solid embankment, has caused an extensive washing around and about the abutments of the river bridge, and greatly •endangered said bridge, hence the defendants, in the exercise of their best discretion, and in the discharge of their duty, under the law, to repair and improve the roads and bridges in said town, have determined that the contemplated bridge is necessary, and in pursuance of such determination did, on -the 18th of August, 1883, enter into a contract for the same. For further answer, defendants say that the construction of said contemplated bridge will not be an irreparable injury to the land of complainant, for they aver that the water will overflow said land as much without said bridge as with it, in a time of freshet, and that with the bridge it will pass away from said land more rapidly than without said bridge. They also deny that the said bridge or the said embankment has resulted, or will result, in “ever continuing and recurring injury to said land, ” for they state the fact to be that the ■character and location of said land as low and bottom land, contiguous to a sluggish stream, with very low 'banks, cause all the injury "which complainant’s land has or will sustain. Defendants," for further answer, say it is necessary to the convenience and safety of the public that said embankment should be widened, so as to permit carriages and wagons to pass ■each other; that it is about thirteen feet high, and, including the contemplated bridge, is about five hundred feet long, and it is now too '-narrow to allow carriages and wagons to pass each other, and they aver that there is a good deal of travel ■over the same, and it is essential to the traveling public that the same should be repaired and widened, but they deny that in the prosecution of said work a strip of four feet, or any part of the land of complainant, will be needed or taken, or ■damaged, or in any manner trespassed upon, even if he owns any land contiguous to said embankment, for they aver the complainant has by his conduct, and by fencing said bottom land near said roadway and embankment, dedicated to the public a strip of land wider and more than is or ever will be necessary in the repair of said embankment.
    This answer was sworn to. Sullivan and Miller answered as follows: “Defendants, for answer to such of said bill as charges them in any manner, say it is true that said Miller made a contract with the highway commissioners of said town of Shelbyville, to furnish the stone and construct the necessary stone abutments for the bridge called the slough bridge, and said Sullivan made a contract with said commissioners for the excavation of said embankment where the said bridge is to be placed, and put such earth on the said embankment, between said slough bridge and the bridge across the river, and not, as stated in said bill, to widen said embankment to the width of twenty feet at the top of the grade, but they deny that in the prosecution of the work contracted, they were about or intended to enter on the land of complainant. Said defendant Sullivan says he did not intend and was not about to excavate from said Thornton bluff, or to take any earth or other material therefrom, to be used on said embankment, and that he made no contract so to do, and that all allegations to that effect in said bill are wholly untrue. Defendants deny any and all intention to intrude or trespass upon the lands of complainant. This was also sworn to.
    Complainant was allowed to file the following amendment to his bill. After striking out certain specified words, insert: “That the complainant is the owner of the south-east quarter of section 8, and of the east half of the south-west quarter of section 8, and of 18^^ acres off the east side of the southwest quarter of the south-w'est quarter of section 8, being lots 8 and 9 of Brewster’s subdivision of lands adjoining Shelbyville, as platted and recorded in book —, on page —, in the recorder’s office of said county, all being in township 11 north, range 4, east of the third principal meridian; that the public road running east from the city of Shelbyville runs-through and across said land, and across the Kaskaskia river, upon said land; that the complainant is seized in fee simple of said south-east quarter of section 8, and of said east half of the south-west quarter of section 8, and of said lot 8, and of ¿3i%6o' acres off of the north side of said lot 9; that the complainant is seized in fee simple of the undivided one-sixth part of the remaining portion of said lot 9, to-wit, all of said lot 9, except said acres off the north side of the same, containing 5-j1^- acres.”
    During term time, a motion was made by the defendants to dissolve the injunction, upon bill, answers and affidavits, and .the court, after duly considering the motion, dissolved the injunction and dismissed the bill. From that decree an appeal was prosecuted to the Appellate Court for the Third District, where the decree of the circuit court was affirmed. The present appeal is from that affirmance.
    Messrs. Hamlin & Holloway, for the appellant:
    When a corporation of quasi public nature is about to do-permanent injury to private property, the act, though a trespass in its nature, being a continuous one, will warrant the interposition of equity. High on Injunctions, sec. 764; Bryan v. Brown, 18 Mich. 196; Green v. Green, 34 Ill. 320; McIntyre v. Storey, 80 id. 127; Hilliard on Injunctions, sec. 9; Bispham’s Eq. sec. 402.
    When the result would be irreparable injury, the party threatened is not required to wait until he can demonstrate that the injury will follow. Cobb v. Railroad Co. 68 Ill. 235; Livingstone v. Livingstone, 6 Johns. 497; Comrs. of Highways v. Durham, 43 Ill. 92; Hicks v. Silliman, 93 id. 255.
    Public authorities have no right to change the natural flow of "water to the injury of private property. Railroad Co. v. Cox, 91 Ill. 500; Nevins v. Peoria, 41 id. 502; 3 Kent’s Com. 439.
    Any injury to land which deprives the owner of the ordinary use of it, is equivalent to a taking of the land. Hooker v.
      N. H. and N. Co. 14 Conn. 146; Pumpelly v. Green Bay Co. 13 Wall. 166; Avimand v. Green Bay Co. 31 Wis. 316; Nevins v. Peoria, supra.

    It is inconsistent with the easement in the public to cut an ■opening or make a waterway in the highway, the effect of which will be to divert the water of a regular defined river, and to change or divide its. channel, and to destroy private property. Pettigrew v. Evansville, 25 Wis. 223; Livingstone v. McDonald, 21 Iowa, 160; Butler v. Peck, 16 Ohio St. 335.
    Messrs. Thornton & Ladd, for the appellees:
    A court of equity will not interfere with the exercise of the ■discretionary powers vested in officers. Bush v. Carbondale, 78 Ill. 75; 2 High on Injunctions, sec. 1240; 1 Dillon on Mun. Corp. sec. 94.
    As to when an injunction is the proper remedy, see Dickey v. Reed, 78 Ill. 269; 1 High on Injunctions, secs. 7, 9, 22, 1270.
    It may be regarded as settled that an injunction will not he granted to an abutting land owner on account of expected or consequential damages. Patterson v. Railroad Co. 75 Ill. 588.
    Appellant must first settle his right to damages, and ascertain the measure in an action at law, and then, if necessary, ■equity may assist. Denning v. City of Awrora, 40 Ill. 480; Bliss v. Kennedy, 43 id. 67.
    To authorize an injunction in a case like this, the injury ■and damage must be real, not speculative. The damages must be actual. From the proof the injury is not only very uncertain, but the evidence greatly preponderates against the conclusion that the land will sustain any damage. Railroad Co. v. Francis, 70 Ill. 238; Railroad Co. v. Hall, 90 id. 43.
    There is no charge of insolvency in the bill, and the commissioners of highways, who act in an unlawful or careless manner in the performance of their duties, are individually liable, and may be sued, whether in or out of office. Leanney v. Smith, 86 Ill. 391; County v. Town of Hartland, 95 id. 517.
    The commissioners can not be directed or controlled by the •court to make repairs in any specified manner. County of St. Clair v. People, 85 Ill. 397.
   Per Curiam :

That part of the bill which alleges that it is threatened to take earth from Thornton bluff, without the •consent of the appellant, charges but a threat to commit a trespass upon real estate; and there being no allegation that the parties threatening are insolvent, it can afford no ground for an injunction. (Owens et al. v. Crossett, 105 Ill. 354.) That allegation is, moreover, put effectually out of the case by the answers of the defendants, and the proofs, which show that before the bill was filed, the intention to take earth from Thornton bluff was abandoned. The contract with Sullivan is simply to make an excavation for an opening in the embankment, and to deposit the earth taken therefrom, on the remaining embankment, and there is no pretence that the commissioners have a contract with any one else to take earth from Thornton bluff.

The allegation in the bill, that the commissioners threaten and have contracted to widen the embankment to the width of twenty feet, and that this will result in taking four feet in width and four hundred feet in length of the land of the appellant, is not sustained by the preponderance of The proofs. Each defendant, under oath, denies that it is intended, in widening or improving the embankment, to invade the possession of the appellant, and this is not satisfactorily overcome by other proof.

This leaves, then, only the allegation of the threatened nuisance,—namely, that by making the excavation, as proposed, in the embankment, the water will be drawn off appellant’s land, when it is flooded, in a current, whereby his soil will be washed away," and driftwood will be deposited upon his land. This allegation, it is manifest, is not a charge of the creation of a nuisance per se, like the erection of a powder mill, or works emitting offensive and poisonous vapors.' The excavation is within the discretion conferred by law upon the commissioners, and there is no reason to apprehend that, of itself, it can be harmful to others, or that, in effecting it, injury will result to the appellant, but the fear is, simply, after it is made, floods will come, and the water then upon appellant’s land, in consequence of this excavation, will be so drawn off as to injure it, in a manner that it would not otherwise injure it. The rule, as applicable to such cases, is thus laid down in Wood on Nuisance, sec. 788: “But to entitle a party to relief in such cases, a very strong case must be made by the bill, and sustained by the proof, as if, on coming in of the answer, the fact of contemplated nuisance is fully denied, or if, upon the facts, there is a reasonable doubt of the effect of the erection, the injunction will be denied until the question of nuisance is determined by the actual use of the property. ” To like effect, see, also, Dunning v. City of Aurora, 40 Ill. 486; High on Injunctions, sec. 488.

There is here a large number of witnesses, quite respectable in character, we have no doubt, who show, by their affidavits, that the appellant will be injured in the way he alleges in his bill; but, on the other hand, there is about an equal number of witnesses, and, we presume, of equal respectability, who show, by their affidavits, directly the reverse,—and to us it seems quite as probable that they are right as the others. We do not think it advisable to enlarge this opinion by quoting these affidavits, or commenting at length upon their language. They have all been read and carefully considered, and, to say the least, we are not clearly satisfied that appellant must sustain the injury he apprehends. Some witnesses, indeed, express the belief that the excavation will be a positive benefit to him, and give plausible reasons for the belief. Necessarily, much connected with the question is purely theoretical, and never can be demonstrated by any other mode than actual experiment. The good faith of the commissioners is put beyond question by the evidence, and it is likewise very satisfactorily shown that the public interest requires either this improvement, or one of a kindred character, for the protection of the embankment near the river. We are not satisfied that the decree of the circuit court is wrong.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

This case, when first decided, was assigned to the late Justice Dickey, to prepare the opinion, but he having prepared no opinion in his lifetime,-the case was again assigned since his death, and the present opinion has been prepared.


source: Caselaw Access Project

author: Mr. Justice Shops

license: Public Domain

text:
    Alonzo L. Baker v. Louis Rockabrand.

      Filed at Ottawa October 6, 1886.

    1. Jurisdiction—city cowrt of Aurora—bill to rescind contract for exchange of lands—situs of lands to be affected. The city court of Aurora has jurisdiction of a bill to rescind an executed contract for the exchange of lands, for fraud, and to enjoin the prosecution of an action at law for the recovery of one of the tracts of land, where it acquires jurisdiction of the person of the defendant, although the lands the title to which may be affected by the decree are not within the limits of the city.
    2. Same—jurisdiction territorially, in respect to title to lands—and to stay proceedings in suit at law. Where effect may be given to a decree rescinding a contract of exchange of lands, by compelling the defendant to reconvey, jurisdiction of the person of the defendant will give the court power to proceed to final decree, although the land, the title to which is affected thereby, may not be within the territorial jurisdiction of the court.*
    *See, also, Johnson v. Gibson et al. 116 Ill. 294, and authorities there cited.

      3. Rescission of executed contract—for fraud. Where a false representation of any material fact is made by one party, and the other, in ignorance- - of the truth, relies upon such false representation, and is thereby induced to-enter into a contract, to his injury, such representation will vitiate and avoid. the contract, and if the injured part)' in apt time offers to rescind, and invokes the aid of a court of equity, relief will be granted, and the parties restored, to their original status.
    4. In this case, the equitable owner of a tract of land in this State, exchanged the same for land in the State of Missouri, possession of the latter tract to be given on the first day of the following March. The owner of the-Missouri land positively assured the other party that his land was in the possession of a tenant whose term would expire on March 1, next ensuing, when, in fact, the land was leased for two years longer, at a nominal rent of $50 a. year: Held, that for the false representation as to the leasing of the Missouri land and when possession could be lawfully had, the other party had a. right to rescind the exchange by tendering a reconveyance of the Missouri land, and the fact that the legal title of the Illinois land had been in another, who conveyed to the defendant, was no impediment to the right of rescission.
    5. Hew trial, on the evidence—in chancery. Where, on a hearing in-chancery, the trial court has seen and heard the witnesses on the stand, and. thus had opportunity of .observing their manner of testifying, and appearance, a reviewing court will attach great weight to its findings, and will not. reverse for a finding of fact, unless palpably erroneous. But when the evidence is heard in the form of depositions, this rule fails.
    Appeal from the City Court of Aurora.
    Mr. M. O. Southworth, for the appellant:
    When the property lies at a distance, so that the truthfulness of representations respecting it can not be ascertained, a party may rely on them. Hiner v. Richter, 51 Ill. 299 Weatherforce v. Fishback, 3 Scam. 171; Gordon v. Parmalee, 2 Allen, 212; Cooley on Torts, 474.
    That we are entitled to a rescission for the fraud, reference-is made to Deen v. Lewis, 51 Ill. 254; Thomas v. Coultas, 76 id. 493; Hall v. Fullerton, 69 id. 448; Merwin v. Arbuckle, 81 id. 501; Railway Co. v. Rice, 85 id. 406; Hammond v. Pennock, 61 N. Y. 145; Long v. Warren, 68 id. 426; Mead v. Bunn, 32 id. 275; Coop v. Handy, 41 Barb. 454; Whitney v. Allaire, 1 Com. 305.

      Mr. A. C. Little, and Mr. Samuel Alschuler, for the appellee :
    This is a suit wherein real estate must, of necessity, be-affected, and wherein the prosecution of a suit at law, now pending in the county court of Kane county, is sought to be enjoined.
    The city court of Aurora is a court of limited jurisdiction, being circumscribed by the corporate limits of the city of Aurora. Rev. Stat. chap. 37, sec. 191.
    “Suits in chancery, * * * if the suit may affect real estate, shall be commenced in the county where the same or some portion thereof is situated.” Rev. Stat. chap. 22, sec. 3.
    “Bills for injunction, to stay proceedings at law, shall be brought in the county in which the proceedings at law are had.” Rev. Stat. chap. 22, sec. 3; chap. 69, sec. 4.
    The so-called Aurora property does not lie within the limits of the city of Aurora, but a little south-east thereof.
    It is a well settled rule of 1'aw that the plaintiff must show that he has an interest in the subject matter, before he can recover. The complainant never owned the Aurora property he seeks to have reconveyed to George M. Hern.
   Mr. Justice Shops

delivered the opinion of the Court:

This was a bill in chancery, filed in the city court of the city of Aurora, by appellant, to rescind an exchange of lands, and compel appellee to reconvey the tract conveyed to him by appellant, and to enjoin certain forcible entry and detainer suits then pending in the county court of Kane county, brought by appellee, to recover possession of such tract of land. Upon hearing, the court dissolved the injunction and dismissed the bill, from which decree this appeal is prosecuted.

It appears that appellant, claiming to be the owner of a tract of land lying near the city of Aurora, in this State, entered into negotiations with appellee, who was owner of an eighty-acre tract in Macon county, Missouri, for an exchange of properties. The legal title of appellant’s land was in one Hem, who held it by way of mortgage, and who, it appears, was willing to convey at appellant’s request. Upon appellant’s tract was a mortgage to secure $700, while appellee’s land was incumbered by a mortgage for $600. Appellant was in possession of the Aurora land, and the Missouri tract was occupied by one Carr, as the tenant of appellee. It was also understood that appellant made the trade with the expectation of removing upon the Missouri land, with his family, the 1st of March following, appellee conceding that he represented that Carr’s right, as his lessee, would then terminate, and, as appellant could not get possession until the 1st day of March, 1884, it was agreed that he should occupy the Aurora premises until that date, at a rental of $8 per month, after the 1st day of October then next following. No value seems to have been put upon either tract, but the trade was consummated, appellee assuming the $700 mortgage "on the property he received, and appellant assuming the $600 mortgage on the Missouri land, and on the 14th day of September, 1883, deeds were exchanged, conveying to appellant the Missouri land, and to appellee the tract near Aurora. It is abundantly proved, if it was not substantially conceded, that appellee represented, during the negotiations, and again on the day of the acknowledgment and delivery of the deeds, that Carr’s lease to the Missouri land would expire March 1 following, and that appellant would be entitled to possession on that day. The attention of appellee was specifically called, by the scrivener who drew the deeds, to the question of when the lease to Carr would expire and when appellant could get possession, and the representations were repeated, and appellant assured that he could get and would be entitled to go into possession of the land conveyed to him, on the 1st day of March, 1884, and that Carr’s lease then expired. The only question of fact really controverted by appellee, in his answer and at the hearing, was, whether Carr’s lease did expire that day.

Immediately upon receiving his deed, appellant went to Missouri to see his purchase, found Carr in possession under a written lease from appellee, expiring March 1, 1886. Carr refused to agree to surrender March 1, 1884, and insisted upon holding the full term of his lease, as he claimed it to be, unless paid $250 for a surrender of it. Appellant returned to Aurora about the 1st day of October, and upon his return went to appellee, told him of the claim of Carr, and demanded a rescission of the contract, and upon appellee refusing to do so, on the 3d day of October caused said Hem to execute and acknowledge a deed reconveying said Missouri land, and the same, properly acknowledged, was on that day tendered to appellee, and a reconveyance of the Aurora property demanded.' Appellee refused to accept the deed tendered, or to reconvey. No objection is made that the deed tendered was not, in every way, sufficient to reinvest appellee with the title to the Missouri land. A notice to quit was served on the tenant, Carr, ’ who refused to surrender March 1, 1884, unless paid for his unexpired term of two years. And afterwards, on the 6th day of March, the deed from Hem to appellee was again tendered,: and a reconveyance of the Aurora tract of land demanded. Appellee again refused to accept the deed or reconvey. After the tender of the deed to appellee and the attempt by appellant to rescind, he refused to pay rent to appellee, and forcible detainer proceedings were brought by appellee to recover possession of the land near Aurora, and which suits were pending, on appeal, in the county court of Kane county, when this bill was filed.

Upon looking into the evidence, we find that the only point really in controversy is between appellee and his tenant, Carr. Appellee nowhere denies the representations alleged, but insists that they were true, and that, in fact, the lease of Carr did expire March 1, 1884, and his right to the Missouri land then terminated.

This court has frequently said, that when the trial court saw and heard the witnesses, with the opportunity of observing them while testifying, this court would attach much weight to the finding of the trial court, and would not reverse upon, mere questions of fact unless such finding was palpably erroneous, and we are not disposed to depart from that rule. But in eases where, as in the one at bar, the evidence is in the form of depositions, the reason of the rule fails. This court,, having the same facility of determining the truth or falsity of the testimony, must determine, from the record, the questions of fact, as shall appear just and right. The witnesses Garl- and his wife both testify that they went into occupancy of the-Missouri land under a lease running from March 1, 1881, to> March 1, 1882; that they held over under that lease until some time in December, 1882, when appellee came to their house, on the land, and an agreement was entered into between Carr and appellee, by which there was a re-leasing to Carr, the term to end March 1, 1886, at the same annual rental; that after the agreement was made they were about to prepare a new lease, when appellee suggested that it would do just as well to change the date of the old lease, and make-it terminate March 1, 1886 ; that thereupon the figures in the old lease were changed by Carr, in appellee’s presence and at his suggestion, and the lease, thus changed, delivered to Carr,, and kept by him. These two witnesses are not impeached or contradicted by any one, except by the appellee, wrho denies-in toto the extension of the lease after March 1, 1884.

Conceding that Carr and his wife and appellee are interested witnesses, there are two to one testifying to the affirmative fact. Besides, the Carrs are corroborated by the production of the original lease, changed as described and testified to by them, leasing the land to Carr to March 1, 1886. Appellant, testifies, that after his return from Missouri, about October 1,. 1883, he notified appellee that Carr claimed to have leased the land until March 1, 1886; that he had paid appellee the rent for the entire term, and that Carr refused to surrender on March 1, 1884, unless paid $250 for so doing, and that appellee then admitted that he had leased to Carr until March, 1886, but denied that Carr had paid rent for the premises beyond March 1, 1884. Appellee is also shown to have been at the land in Missouri at the date alleged by Carr that the new contract of leasing was made. It is true, that appellee denies these admissions, and, as before stated, denies any extension of the contract of leasing after March 1,1884. It is impossible for us to conceive how his testimony, unsupported, can overcome the evidence of the Carrs, supported and corroborated, as before stated. We are of opinion that the lease to Carr is shown, by a clear preponderance of the evidence, to have expired March 1, 1886, and not March 1, 1884. Indeed, the lease itself shows that fact, and in view of this evidence we can not hold that it was a forgery.

It is insisted that the city court of Aurora did not have jurisdiction, because none of the land sought to be affected was situated "within the corporate limits of that city. The statute (chap. 37, sec. 274, Starr & Curtis,) provides, that such city courts “shall have concurrent jurisdiction with the circuit court, within the city in which the same may be, in all civil cases.” It is true, the effect of a recovery by complainant will be to divest appellee’s title; but the land can not be said to be directly affected. The purpose and scope of the bill is to complete the rescission of the contract, and compel appellee to restore that which he has wrongfully received. Effect can be given to such a decree by acting upon the person of the defendant, and in such cases the rule is, that jurisdiction of the person invests the court with power to proceed to final decree. (Enos v. Hunter, 4 Gilm. 211; Cooley v. Scarlett, 38 Ill. 316.) Here, as the court, within its territorial jurisdiction, had all the power of a court of chancery, and had jurisdiction of the person of the defendant, there is no reason why, by the exercise of its chancery powers, it might not compel him to do equity.

It is also contended, that as the statute provides that “bills for injunction to stay proceedings at law shall be brought in the county in which the proceedings at law are had,” the injunction was properly dissolved in this case. The forcible detainer proceedings were pending in the county court of Kane county, which, by law, is to be held at the county seat of that ■county. It will be sufficient to say, that the injunction was ancillary, merely, to the main purpose of the bill, and if the court had jurisdiction to grant the relief sought, it had power to preserve statu quo until effect could be given its decree for relief.

The remaining question in the case involves the determination of the right of appellant to rescind the contract of exchange of lands. It is apparent, and, indeed, not controverted, that appellant traded for the Missouri land with the intention of removing thereon March 1, 1884. At that time he was to surrender possession of the premises on which he then lived with his family, and, as we have seen, was repeatedly assured by appellee that he could then get possession of his purchase. If this transaction is to be upheld, it follows that he must surrender his Aurora property March 1, 1884, and be postponed two years before he can enter into the enjoyment of the premises he had purchased with the intent to' make a home for his family. Appellee is abundantly shown to have been apprised of the purpose of appellant in consummating the exchange of properties. The right of possession of real estate forms an essential element in determining the value, and this is especially so where it is designed to occupy it as a homestead. Here, appellant, surrendering his home, was compelled to lose the right of occupancy for two years, at a nominal rental of $50 per annum, and this appellee knew, and not only suppressed the fact, but, as shown by the weight of the evidence, suggested the falsehood by which appellant was induced to make the trade, relying upon the right to enter into occupancy March, 1884. The fact of Carr’s rights, under his lease, must have been known to appellee, and appellant had a right to rely upon his representations in respect thereto. The trade was made at Aurora, Illinois, .some hundreds of miles from the Missouri land. Appellant had no knowledge, nor was there anything to put him upon inquiry, as to Carr’s holding, and it became not only the moral, but legal, duty of appellee to represent truthfully every material fact in reference to it. That appellee knew appellant was relying on his representations, can not, in view of this record, be denied,' and common honesty between men required, not only that he should not suppress the truth, but that he should not suggest and represent an untruth. When it is apparent that a false representation of any material fact is made, and the other party, in ignorance of the truth, relies upon such false representations, and is induced thereby to enter into a contract to his injury, such representations will vitiate and avoid the contract. And when the injured party, in apt time, offers to rescind, and invokes the aid of a court of equity, relief will he granted, and the parties restored to their original status. 1 Story’s Eq. secs. 193,197, 204; Lockridge v. Foster, 4 Scam. 569; Mitchell v. McDougall, 62 Ill. 500.

It is apparent, that appellant did not get that for which he traded; that he parted with the title to his property relying upon the truth of the representation that he could enter into the enjoyment of his purchase the following March; that he made the trade with the expressed intention of so doing; that upon finding that he must surrender possession March 1, 1884, of his property, and seek a home elsewhere for two years before he had a right of entry into his purchase, he at once offered to restore the appellee to his former rights, and demanded a reconveyance of his property. We think the case falls clearly within the rule authorizing a rescission of the contract. Nor is there any force in the contention, that as the legal title was in said Hem, appellant has no standing in a court of equity. The record shows that appellant was the equitable owner of the land conveyed to appellee, and a court of equity, having regard for the substantial rights of the parties, will treat him as the owner, and restore him to his rights in these lands.

We are therefore of opinion that the city court erred in dissolving the injunction and dismissing the bill. The decree of that court will be reversed, and the cause remanded to that court, with directions, that, upon appellant’s filing with the clerk of that court, for the use of appellee, a deed conveying to appellee the title to said Missouri land mentioned in the bill and answer in this case, which appellee, by his deed, conveyed to said Hem, a decree be entered in said court making the injunction herein perpetual, and requiring appellee to re-convey to appellant, or to said Hem, as the right shall appear, the said tract of land by said' Hem conveyed to appellee, and mentioned in said bill and answer, by a day to be fixed by that court, and, by appropriate orders entered in that behalf, enforce said decree conformably to the practice in chancery in like cases.

Decree reversed.


author: Mr. Justice Magruder

text:
    Maria K. Barth v. Louisa Lines et al.

      Filed at Mt. Vernon June 12, 1886.

    1. Dower—ante-nuptial agreement, as a bar to dower right. An ante-nuptial agreement entered into by parties of mature years, with a full understanding of its meaning, whereby each party released and waived his or her right of dower in the lands and estate of the other, and it was provided that each should retain his or her separate property, then had or afterwards acquired, free from any and all claims of the other growing out of the mar-triage relation: Held, that such agreement operated as a bar to the claim of ■dower by the wife in the husband’s lands, resting upon the consideration of liis release of his legal rights in her separate estate.
    2. The provision of our statute (chap. 41, sec. 7,) that a jointure in favor of an intended wife shall bar any claim for dower by her in the lands of her husband, does not deprive her of the power to bar her right of dower by any other form of ante-nuptial contract.
    Appeal from the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.
    Mr. W. C. Ejjeffner, and Mr. James M. Dill, for the appellant:
    In construing marriage settlements, courts incline, in case of doubt, to that construction which renders the arrangement mutually beneficial, and, as far as possible, upholds marital rights of property as adjusted by public policy. Schouler on Husband and Wife, sec. 361.
    The contract should not be construed as barring dower, the object being only to secure to each the control of his or her own property during coverture. Any reasonable- provision which an adult person agrees to accept in lieu of dower, will amount to an equitable jointure, and although it may be wanting in the requisites of a legal jointure; in equity it will bar ■dower. McGee v. McGee, 91 Ill. 551.
    An ante-nuptial contract, to bar dower must, be entered into bona fide, and make provision for the' wife which is' reasonable, fair and just. Grogan v. Garrison, 27 Ohio St. 65; Stilley v. Folger, 14 id. 647; Beiser’s Appeal, 92 Pa. St. 267; Kline v. Kline, 7 P. F. Smith, (57 Pa. St.) 120; Kline’s Estate, 64 Pa. St. 124; Pierce v. Pierce, 71 N. Y. 159.
    There must be a consideration other than marriage, for the agreement not to claim dower. Curry v. Curry, 10 Hun, 360; Power v. Shell, 1 Malloy, 311.
    Before the wife can be deprived of her dower, the agreement must be executed in her favor. Johnson v. Johnson, 23 Mo. 56; 30 id. 72.

      The utmost good faith is required between parties to ante-nuptial contracts, and if the provision secured'to the wife be unreasonably disproportionate to the means of the intended husband, it raises the .presumption of intended concealment, and throws upon himself the burden of disproof. 3 Wait’s Actions and Defences, 669; Ex parte McBurnie, 1 DeG., M. & G. 446.
    A jointure or marriage settlement, to bar the widow’s claim of dower, must be adequate to her support, or, at all events, a fair equivalent to the dower in her husband’s estate. 3 Bed-field on Wills, chap. 14, sec. 44, par. 5; Drury v. Drury, 3 Br. P. C. 492; McCartee v. Telle, 2 Paige, 511.
    A jointure, to be a bar, must be something conceded to the wife. 1 Washburn on Beal Prop. 270, sec. 22; Blackman v. Blackman, 16 Ala. 633.
    Messrs. Turner & Holder, Mr. B. A. Halbert, and Mr. A. S. Wilderman, for the appellees:
    The parties, at the time of making the contract, were sui juris. It was respecting a subject-matter which was perfectly legitimate. It was- not opposed to any rule of law, nor to any principle of sound public policy. McGee v. McGee, 91 Ill. 548; Phelps v. Phelps, 72 id. 545; Parsons v. Eli, 45 id. 232; Weaver v. Weaver, 109 id. 225; Andrews v. Andrews, 8 Conn. 79; Naill v. Mourer, 25 Md. 532; Gelzer v. Gelzer, 1 Bailey’s Eq. 389; Wentworth v. Wentworth, 69 Me. 247; Jacobs v. Jacobs, 42 Iowa, 600; Cauley v. Lawson, 5 Jones’ Eq. (N. C.) 132; Culberson v. Culberson, 37 Ga. 296; Freeland v. Freeland, 128 Mass. 509; Stilley v. Folger, 14 Ohio, 610; Baldwin v. Carter, 17 Conn. 201; Logan v. Phillips, 18 Mo. 22.
    It was made upon a valuable and sufficient consideration— marriage—and the mutual covenants of the parties to waive their rights in each other’s property. McGee v. McGee, 91 Ill. 548; Otis v. Spencer, 102 id. 622; Phelps v. Phelps, 72 id. 545; Prewitt v. Wilson, 103 U. S. 22; Magniac v. Thomp

      son, 7 Pet. 348; Herring v. Wickham, 29 Gratt. 628; Charles v. Charles, 8 id. 486; Peck v. Peck 12 R. I. 485; Stratton v. Stratton, 58 N. H. 473; Heald’s Petition, 22 id. 265; Ludwig’s Appeal, 101 Pa. St. 535.
    The contract being duly executed and acknowledged, it was incumbent upon appellant to show some defect in it, upon which it would be declared void. Baird v. Jackson, 98 Ill 78; Blackman v. Hawks, 89 id. 512; Myers v. Parks, 95 id. 408; Mahaffy v. Mahaffy, 63 Iowa, 55; Ladd v. Ladd, 8 How. 10.
    This is not a proceeding to specifically enforce the ante-nuptial contract, but one to avoid it. Naill v. Maurer, 25 Md. 532; Wentworth v. Wentworth, 69 Me. 247; Gelzer v. Gelzer, 1 Bailey’s Eq; 389; 1 Bishop on Married Women, sec. 425.
    The contract having been executed by the parties upon a sufficient consideration, by a fair and liberal construction, most certainly intended to and does carry the title to the property beyond the termination of John Barth’s life, and bars appellant’s claim to dower. 1 Bishop on Bights of Married Women, sec. 425; Stewart on Marriage and Divorce, sec. 41; Wentworth v. Wentworth, 69 Me. 247; Culberson v. Culberson, 37 Ga. 296; Marshall v. Beall, 6 How. 78; Holmes v. Liptroll, 8 Ga. 281; Baldwin v. Carter, 17 Conn. 201; Waters v. Tazewell, 9 Md. 291; Townshend v. Matthews, 10 id. 251; Ward v. Thompson, 6 G. & J. 349; Bullard v. Taylor, 4 Dessau. Eq. 550.
   Mr. Justice Magruder

delivered the opinion of the Court:

In June 1875, John Bartli,- a resident of St. Clair county, a widower, forty-seven years old, with nine children, the owner of about one thousand acres of land, worth from $80,000 to $100,000, and of personal property, worth from $1500 to $2000, married a widow, named Maria K. Lines, now Maria K. Barth, the appellant in this cause. The marriage took place in St. Louis, Missouri, on the 29th day of June A. D. 1875. Previous to the marriage, an ante-nuptial, contract was made between Barth and Mrs. Lines, which was signed by them on June 18, 1875, the day of its date, and acknowledged, on June 21, 1875, before a justice of the peace in St. Clair county. It was recorded in that county on June 8, 1876, and is as follows:

“This agreement, made this 18th day of June, A. D. 1875, between Mary K. Lines, of Mascoutah, in the county of St. Clair, and State of Illinois, of the first part, and John Barth, the second, of the county and State aforesaid, of the second part, witnessbth, that whereas, a marriage is about to be had and solemnized between said parties, and whereas, said Mary K. Lines is possessed of real and personal estate, to-wit, certain houses and lots in the platted town of Mascoutah, a stock of store goods, negotiable securities, etc., and the said John Barth, the second, is also possessed of real and personal estate, to-wit, farming and timber lands, in the county and State aforesaid, farm stock and negotiable securities; and whereas, it is mutually desired by the said parties, that the estate of each shall remain separate, and be subject only to the sole control of its respective owner, as well after as previous to the solemnization of the marriage, they hereby mutually agree and covenant, first, that the estate of the said Mary K. Lines shall remain her separate property, subject entirely to her individual control and management, as if she were unmarried, the said John Barth, the second, not acquiring, by force of said marriage, for himself, his heirs, assigns or creditors, any interest therein, or in the use or control thereof, or in the income, rents, profits or dividends arising thereout.
“And whereas, it is also agreed, that all estate, real or personal, which said Mary K. Lines may hereafter acquire or become entitled to in any manner, shall be held by her to her separate use as aforesaid, and be thereby placed beyond the control and management of John Barth, the second:
“Now, therefore, it is agreed by said John Barth, the second, in consideration of the marriage, and of a further consideration hereinafter mentioned, that he will waive, release and relinquish unto the said Mary K. Lines, all the dower interest in the real estate which she now possesses or hereafter may acquire, or in any manner become entitléd to, of which he may become vested by force of the contemplated marriage, and at all times during the coverture of said Mary K. Lines, permit her to control and manage said estate, and such estate as may hereafter come to her, as hereinbefore is named, and to receive, expend or re-invest the income, rents and profits and dividends thereof, at her own separate discretion, free from his interference or control, to her own separate use; and the said John Barth, the second, hereby covenants and agrees to and with said Mary K. Lines, her heirs and assigns, that he will warrant and defend said estate and property, and all such estate and property as she may hereafter become in any manner entitled to, to the said Mary K. Lines, against himself and his heirs, to her separate use; that he will permit her to dispose of the same by .will, as she may bequeath the same, and that he will not in any manner interfere with her absolute control thereof; that the estate of the said John Barth, the second, shall remain his separate property, subject entirely to his individual control and management, as if he were unmarried, the said Mary K. Lines not acquiring, by force of said marriage, for herself, her heirs, assigns or creditors, any interest therein, or in the use or control thereof, or in the income, rents, profits or dividends arising thereout.
“And whereas, it is also agreed, that all estate, real or personal, which said John Barth, the second, .may hereafter acquire or become entitled to in any manner, shall be held by him to his own separate use as aforesaid, and be thereby placed beyond the control or management of said Mary K. Lines :
“Now, therefore, it is agreed by said Mary K. Lines, in consideration of said marriage and of the foregoing covenants on the part of said Barth, the second, that she hereby expressly waives, releases and relinquishes unto said John Barth, the second, all dower interest in the real estate which he now possesses or hereafter may' acquire, or in any. manner become entitled to, of which she may become vested by the contemplated marriage, and will at all times, during the coverture of said John Barth, the second, permit him to control and manage said estate, and such estate as may hereafter come to him, as hereinbefore is named, and to receive, expend or re-invest the income, rents, profits and dividends thereof, at his own separate discretion, free from her interference or control, at his own separate use. And the said Mary K. Lines hereby covenants and agrees to and with said John Barth, the second, his heirs and assigns, that she will warrant and defend said estate and property, and all such estate and property as he may hereafter become in any manner entitled to, to said John Barth, the.second, against herself and her heirs, to his separate use; that she will permit him to dispose of the same by will, as he may bequeath the same, and that she will not in any manner interfere with his absolute control thereof.
“Witness our hands and seals the day and year above written. John Barth, the second. [Seal.]
M. K. Lines. [Seal.] ”

On July 7, 1884, John Barth died intestate, leaving the appellant, his widow, and eleven children, nine of them, the children of a former wife, as above stated, and two of them, the fruit of his marriage with appellant, all of whom are the appellees in this cause.

The appellant filed her bill on September 5, 1884, in the circuit court of St. Clair county, for assignment of dower and homestead, and the contract, above recited, is set up by appellees, as a bar to her claim for dower. The circuit court found it to be a bar and so decreed. This is an appeal from that decree, and the question, which it brings before us, is, whether the agreement in question is a bar to appellant’s right of dower in her deceased husband’s lands.

The case of McGee et al. v. McGee et al. 91 Ill. 548, seems to be decisive of the" question. We there held, that an agreement, substantially the same, as that in the case at bar, was, in equity, a bar to the dower of the demandant, although it was wanting in the requisites of a legal or statutory jointure. In that case, the agreement recited, that each party owned real and personal property, and provided, that each should retain the control and possession of his or her own property, free from all claim on the part of the other, and each thereby renounced all claims of dower or otherwise in the lands or personalty of the other.

It is said, however, that the contract, passed upon in McGee et al. v. McGee et al. was made nnl857, and that, “as the law then was, the husband, on the consummation of the marriage, succeeded to the absolute ownership of the personal property of the wife, and was entitled to curtesy in her real estate, as well as the usufruct thereof, ” whereas, under the law, as it stood in June 1875, the husband had no estate, as tenant by the curtesy in his wife’s land, and a married woman was as much entitled to the separate ownership and control of her personal property, as though she was a feme sole. It is, therefore, argued, that, by the agreement now under consideration, Barth surrendered nothing, to the appellant, as a consideration for the release of her dower interest in his lands, which the law did not already secure" to her, independently of any contract.

It is to be noted, however, that, when appellant made the agreement in question, she was a woman of mature years, and a merchant, engaged in business for herself. She owned real estate, worth from $1500 to $2000, consisting of two lots, in Mascoutah, upon one of which was a house, in which she kept a store. She also owned a stock of “store goods,” worth some $4000 or $5000. If she should die before her husband, he would have dower in her real estate, and become the absolute owner of one-third of her personalty. By the agreement, he released all claim to the interests, which the law would thus have given him in her estate, and empowered her to dispose of it by will, free of any dower rights therein on his part. She made the same relinquishment to him of what*ever interest the law would give her in any of his property. He was a farmer, and she kept a store. Bach was to control and manage his or her own property, free from any interference by the other. The marriage seems to have been a sort of business arrangement.

The statutes of most of the States now make the wife, as free and independent in the control of her property, as the husband is in the control of his property. As a result of this legislation, the tendency of the modern decisions ih to uphold ante-nuptial contracts, made fairly and without fraud by adult, single women. A woman “may bar her dower in any lawful manner, since by the statutes she can make any lawful contract. ” (Wentworth v. Wentworth, 69 Maine, 244.) “There is, perhaps, no principle better settled than that any provision, which an adult, before marriage, agrees to accept in lieu of dower, will amount to a good equitable jointure. ” (Andrews v. Andrews, 8 Conn. 79.) “Where the parties agree beforehand, that, after marriage, each shall hold his or her ante-nuptial property to his or her separate use, and on the death of one of them, neither shall have any marital claim on the estate of the other, this is, at least in a court of equity, generally esteemed to be a good bar to dower. ” Bishop on the Law of Married Women, sec. 423.

The provision of our statute, that, when a conveyance is made to, or in trust for, an intended wife, for the purpose of creating a jointure in her favor with her assent, to be taken in lieu of dower, such jointure shall bar any claim for dower by her in the lands of her husband, (Hurd’s Rev. Stat. of 1885, chap. 41, see. 7,) “can not be said to deprive her of the'power to bar her right to dower by any other form of ante-nuptial contract. * * * This, however, is not the case of a settlement or jointure, but of a contract. ” Naill v. Maurer, 25 Md. 532.

. Scribner, in his work on Dower (vol. 2, pages 409 and 413), says: “With respect to the legal requisite, that the estate, limited in jointure, be such an estate of freehold as should continue during the wife’s life, no such circumstance will be-necessary in equity, in order to make the jointure an absolute bar to dower, if the intended wife be of age and a party to the-deed; because, as she is able to settle and dispose of all her rights, she is competent to extinguish her title to dower upon any terms, to which she may think proper to agree. * * *" The eases are not entirely agreed upon the question, as to-whether an ante-nuptial contract, which merely secures to-the wife her separate property and makes no provision for her out of the husband’s estate, is a good equitable jointure but, in a majority of the cases, it is held, that, if it be a part of such agreement, that the wife shall relinquish her dower, it will be good in equity. ”

For the reasons, here stated, we think, that the agreement, made by appellant with her deceased husband, operates as a bar to her claim of dower in his lands. The proof shows, that she entered into it, with a full understanding of its meaning and effect. It rests upon the consideration of her husband’s release of all his legal rights in her separate estate. The decree of the circuit court is, therefore, affirmed.

Decree affirmed.


text:
    The Phenix Insurance Company v. John B. La Pointe.

      Filed at Ottawa October 5, 1886.

      1. Evidence—res gestee—report of insurance agent concerning matters affecting the rislc—in suit on the policy. An insurance company required its agents taking applications for insurance, to report all matters affecting the risk, upon which it is required to act. After a policy had been issued, an agent—not the one taking the application—reported that the property was unincumbered, which report must have been based upon information received from some other source than the assured. This report was offered in evidence, in a suit to recover on the policy, as a part of the res gestee, to prove that the assured had represented the property as unincumbered, when in fact there was an incumbrance upon it: Held, that it was not of the res gestee, and was properly excluded.
    2. Same—insurance—of evidence to rebut the theory of negligence on the part of the assured to save property. In an action on a policy of insurance for a loss by fire, if a point in the defence is made that the property, or some part thereof, was lost by the neglect of the assured to use his best endeavors to save the same, which is made a bar to a recovery, evidence to rebut this theory, as, that other property of the assured was destroyed, is proper; but if not material for such purpose; its admission, when no recovery is sought for such other property, can work no injury, and is no ground for a reversal.
    3. Witness—credibility—interest of witness to be considered. It is always competent to show the interest of a witness, as affecting his credibility; and such interest in the result of the litigation is a proper element for the consideration of the jury.
    4. Instruction—singling out witness by name, on question of interest. In an action to recover a loss under a policy of insurance, the court was asked to instruct the jury, that in weighing the testimony it was their duty “to take into consideration that the plaintiff, La Pointe, and the mortgagee, Hartman, (a witness,) are both interested in the event of the suit, and that while said interest does not render them incompetent as witnesses, it goes to their credibility as such.” The court refused to give the same: Held, that the instruction was properly refused, as giving undue importance to a fact tending to discredit plaintiff’s witnesses, while ignoring corresponding causes alleged to affect the credibility of the defendant’s witnesses.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.
    This was an action of assumpsit, by appellee, La Pointe, to recover upon a policy of insurance issued by appellant company, upon certain goods, chattels and fixtures of dppellee, in a building in South Chicago. The policy was dated June 26, 1883, and insured the property in the sum of $1000, for one year. The loss by fire occurred March 17, 1884. A trial resulted in a verdict and judgment thereon for $1000. Upon appeal to the Appellate Court for the First District this judgment was affirmed, and appellant prosecutes this further appeal from that judgment of affirmance.
    The policy contained, among others, the conditions, in substance, that if there was a mortgage or incumbrance on the property insured, it must be so represented to the company and mentioned in the policy, otherwise the policy should be void; that the best endeavors of the assured should be used in saving and protecting the property insured, from damage at or after a fire, and in case of failure to do so, the company should not be liable for damages accruing in consequence of such failure; and that the assured, in case of loss or damage by fire, should forthwith give notice of loss, in writing, to the company, and as soon as possible furnish proofs of loss, etc. The defendant below pleaded the general issue, with notice that it would rely upon a breach of the several conditions named, as defences.
    Mr. Robert Rae, and Mr. John S. Miller, for the appellant :
    The court erred in refusing appellant’s fourth instruction, relating to the credibility of an interested witness. Flaherty v. McCormick, 7 Bradw. 411; Ammerman v. Teeter, 49 Ill. 402;
    We will consider but one objection to a recovery, and think that will suffice. One of the conditions of the policy is as follows: “Persons sustaining loss or damage by fire shall forthwith givé notice of loss, in writing, to the company, and as soon thereafter as possible render a particular account of such loss,” etc. The fire in this case occurred March 17, 1884. La Pointe rendered his proofs of loss April 16,:— thirty days after the fire.
    It is well settled that compliance with this provision of the-policy is a condition precedent to the right to recover. (Flanders on Fire Ins. 523.) And it seems to be equally well settled that the words, “as soon as possible,” are equivalent to the words, “with due diligence.” (Scammon v. Insurance Co. 101 Ill. 626; Insurance Co. v. Gould, 80 id. 388; Insurance Co. v. McGinnis, 87 id. 70.) And that where there is no-dispute about the facts and circumstances bearing on the-question of diligence, the question may be regarded as one of law, for the court. Insurance Co. v. Gould, supra.

    Messrs. Abbott, Oliver & Showalter, for the appellee:
    It is not error to refuse an instruction which singles out one fact in the case, so as to give it undu'e prominence befora the jury. Drohn v. Brewer, 77 Ill. 284.
    Where testimony is contradictory, an instruction is calculated to mislead, and is erroneous, which singles out the testimony on one side for careful examination of the jury, as if, in the judgment of the court, it was more to be suspected than that of the other side. Devlin v. People, 104 Ill. 508 Wright v. Bell, 5 Bradw. 355, Pennsylvania Co. v. Stoelke, 104 Ill. 205.
    The proofs of loss, in view of the provisions of the policy,, were rendered in. apt time. The language of the policy is:. “Persons sustaining loss or damage by fire shall forthwith give notice, in writing, of said loss, to the company, and as-soon thereafter as possible render a particular account of such loss,” etc. This court has held the words, “as soon as possible, ” to mean, “without unreasonable delay, or within. a reasonable time, under the circumstances,” and that the jury ordinarily are to be the judges. Scammon v. Insurance Co. 101 Ill. 626; Insurance Co. v. Scammon, 100 id. 648; Insurance Co. v. Lewis, 18 id. 553, May on Insurance, sec. 462.
   Mr. Justice Shops

delivered the opinion of the Court:

At the time of issuing the policy of insurance sued upon, there was a chattel mortgage upon the property insured, to secure $1000, previously given by appellee to Lewis Hartman, agent, and which remained a lien thereon at the time of the loss. No mention is made of this mortgage in the policy, and it was insisted that the policy was therefore void. To this it was replied, that before the acceptance of the premium by appellant company, or issuing the policy, the company had notice of the incumbrance. There was sharp conflict in the evidence as to such notice, the witnesses for appellee testifying that at the time of the application for insurance by appellee, and the agreement to insure, appellee told the agent of appellant company of the mortgage, fully, and the agent replied it would make no difference in the company taking the risk. The agents of the company deny this, and testify that the first knowledge they had of any incumbrance on the property was after the fire. There is no contention that the company is not liable if its agent had such notice, and it will therefore be unnecessary to discuss that branch of the case.

It appears that appellant company requires its agents to make report to its home office of all matters material to the risk, upon which the company acts in determining upon its; acceptance or rejection of the insurance. At the trial below, as part of the res gestae, as it is contended, appellant company offered in evidence a written report by the agents, of this risk, made to the company, in which it is represented that the property proposed to be insured was unincumbered, which, on objection, was excluded by the court. This ruling is assigned for error. It is proved, and not denied, that the agreement to insure was'made “about the last of May, ” and the report mentioned was mailed to the company on the 18th day of June, but it does not appear when it was in fact made out by the agent. It is not, however, pretended that it was made at the time of the agreement to insure, or in appellee’s presence, or that he had any knowledge of it whatever. It is shown by the testimony of the agent, Smith, that he made the report, and that he at no time had any conversation with appellee in reference to the insurance, until the night of the fire. It is claimed by both Smith and Wilder, appellant’s agents, that Wilder alone arranged with appellee for the insurance. Thus it will be seen, not only that this report was not made as part of the transaction with appellee relating to the insurance, but must have been made by Smith, from information derived from Wilder, or some other source. It was no part of the res gestee, and was properly excluded.

The plaintiff was permitted, against the objection of defendant, to testify what property, other than that covered by the policy, was in his building, and destroyed. This is also assigned for error. There is no pretence that any such property was included by the jury in their assessment of damages. The evidence shows, without contradiction, that property covered by the policy, in excess of $1000, was consumed. If the evidence objected to tended to rebut the theory of defence, that the insured property was lost by reason of the failure of appellee to use his best endeavors to save the same, it was clearly admissible; but if it did not so tend, it was immaterial, and appellant was not prejudiced thereby.

The next point urged, that appellee did not give notice and make proof of loss as required by the terms and conditions of the policy, presents a question of fact, with which we can have no concern. The question was fairly submitted to the jury by the trial court.

It is next urged, the court erred in refusing appellant’s fourth instruction, which is as follows:

“The court instructs the jury, that the plaintiff is bound to make out his case by a preponderance of proof, and that in weighing the testimony it is to take into consideration that the plaintiff, LaPointe, and the mortgagee, Hartman, are both interested in the event of the suit, and that while said interest does not render them incompetent as witnesses, it goes to their credibility as such.

An instruction covering the question of the burthen of proof was given.

It is always competent to show the interest of the witness, “as affecting his credibility,” and such interest in the result of the litigation is a proper element for the consideration of the jury. The practice of singling out witnesses in an instruction of this character, where the credibility of others testifying in the case may also be affected by their interest, has frequently been criticised by the courts. In Ammerman v. Teeter, 49 Ill. 402, cited by counsel for appellant, in speaking of an instruction naming the witness, the court says: “We must presume that the judge trying the case would not give such an instruction unless the manner of the witness justified and called for it. ” There, the instruction related to the conduct of the witness in court, as well as to his interest. We are not called upon to determine whether the giving of this instruction would have been erroneous. It often happens that the giving of an instruction would not constitute reversible error, where the refusal of such • instruction would not be improper. There is nothing apparent, here, calling for or justifying the court in departing from the correct practice.

The interest of the witnesses named in the instruction, it is conceded, was proper for the consideration of the jury; but if their testimony is believed, it might well be that the agents of the company would be responsible over to the company, and at least they would be greatly interested in maintaining the correctness of their report to the company, upon the faith of which the company had acted in' insuring appellee’s property. The instruction under consideration, if given, would give undue promi'nencé to facts alleged as operating to discredit appellee’s witnesses, while it ignored corresponding causes alleged to. affect the credibility of witnesses for appellant. When there is a conflict in the evidence, so that the issue must be determined from a consideration of the credibility of the witnesses, the instructions on that branch of the case should be so framed as to fairly present the rules of law applicable, and leave it to the jury to apply them impartially, under the evidence. We are of opinion the instruction was properly refused.

• Again, it has been repeatedly held by this court, that to justify a reversal because of the refusal of the lower court to give an instruction, it must appear that if it had been given the result of the trial might have been materially affected thereby. We have, with this principle in view, carefully examined the evidence in this record, and are satisfied that substantial justice has been done.’ That the' loss was an honest one, without the fault of appellee, is not seriously disputed, and we can not see how, upon any just consideration of the evidence, a different result could have been reached. The refusal of the instruction, for this reason, also, furnishes no ground for reversal. Chicago and Western Indiana Railroad Co. v. Dooling, 95 Ill. 202; Hubner v. Feige, 90 id. 208; Chicago and Eastern Illinois Railroad Co. v. Rung, 104 id. 641.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Chief Justice Scott

text:
    James C. Cloyd v. William Trotter.

      Filed at Mt. Vernon November 10, 1886.

    1. Non-besident defendants in chcmcery—service by copy of bill, and notice of pendency of suit—of character of jurisdiction thereby acquired— of requisites attending that mode of service. The service of a copy of a "bill in chancery to remove a cloud upon title to land, and notice of the commencement of the suit, upon a non-resident defendant, will be a sufficient ■service under section 14 of the. Chancery Code, and will give the court jurisdiction, except to render a personal decree, although the notice be not signed. The notice may be regarded as a part of the bill, and if that is signed, it will be sufficient.
    2. In such case, the service out of the State, by copy of the bill and notice, ■so far as property in this State is sought to be affected, will give the court jurisdiction to decree concerning it, but not to render a personal decree against the defendant for the recovery of money or costs, and to award a .general execution against him for the collection of the same.
    3. The statute does not make the issue and return of a summons necessary to the validity of a service by a copy of the bill with a notice of the commencement of the suit, as to a non-resident defendant; but if it did, a finding in the decree of such fact will answer, where the record fails to show the contrary. The absence in the record of any summons will not overcome •such a finding.
    4. Costs in Supbeme Cotjbt—on partial reversal. In this case the ■court, on a partial reversal of a decree on a question not affecting the merits, required the plaintiff in error to pay all the costs in this court.
    Wbit of Eeeoe to the Circuit Court of Wayne county; the Hon. C. S. Congee, Judge, presiding.
    Mr. E. Beeches, for the plaintiff in error:
    Two objections are made to the service in this case,—that "the notice was not signed by any one, and no summons was issued and returned. Jacobus v. Smith, 14 Ill. 359.
    The court erred in entering a personal judgment against ■Cloyd for costs, and awarding execution. Jurisdiction is acquired in one of two modes: First, as against the person of the defendant, by the service of process; or, second, by a. procedure against the property of the defendant within the jurisdiction of the court. In the latter case the defendant is not bound by the judgment beyond the property in question. Boswell’s Lessees v. Otis, 9 How. 348; Galpin v. Page, 18 Wall. 350; Pennoyer v. Neff, 95 U. S. 714; Harkness v. Hyde, 98 Ill. 476; Smith v. Woodfolk, 115 U. S. 149.
    The finding of the court as to jurisdictional facts is conclusive only in collateral proceedings. In a direct preceding to reverse, the jurisdiction must appear from the record itself. Harris v. Lester, 80 Ill. 317; Swearingen v. Gulick, 67 id. 211.
    The notice is distinct from the bill. It can not be contained in the bill, and it must be after the suit is brought, and that is brought by the bill.
    Mr. H. Tompkins, for the defendant in error:
    The supplemental abstract shows that the court below found, as a matter of fact, and so recited in its decree, the issue of a summons against the defendant, and its return of “not found/’
    The notice was made a part of the bill, and served as a. part of the bill. Being attached to the bill, it became a part of it, and the bill being signed, it was, in effect, the same as. if the notice was signed.
    There is a marked distinction between a service by copy of bill and notice, and that by publication.- The legislature has made the first mode of service as conclusive as if by summons. Chancery Code, secs. 14, 12, 19.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

The bill in this case was brought in the circuit court of Wayne county, by William Trotter, against James C. Cloyd, and was to remove a cloud from the title to property which complainant claimed to own. A decree was rendered in accordance with the prayer of the bill, and as the title to the property is involved, defendant brings the case directly to this court on error, as he is authorized by law to do. •

No question is raised on the bill, and the assignment of errors does not make any discussion of the merits of the case necessary. Defendant is a non-resident of the State of Illinois, and the service upon him was by a service of a copy of the bill upon him, at his residence in the city of New York. It is objected, the service was insufficient, and as there was no appearance by defendant, or by any solicitor for him, the court had no jurisdiction to render the decree it did. Section 14 of the Chancery act, (Eev. Stat. 1874, p. 200,) provides: “The complainant may cause a copy of the bill, together with a notice of the commencement of the suit, to be delivered to any defendant residing or being without this State, not less than thirty days previous to the commencement of the term at which such defendant is required to appear, which service, when proved to the satisfaction of the court, shall be as effectual as if such service had been made in the usual form within the limits of this State.”

The point is made against the sufficiency of the service in this case,, that the notice of the commencement of the suit was not signed, either by complainant, or any solicitor for him. The statute does not, in terms, require the notice to bé served shall be signed either by complainant or his solicitor, but the better practice, no doubt, is, that it should be signed. In this case the notice was attached to the bill, and may be treated as a part of it, and as the bill was signed by the solicitor of complainant, that is thought to be sufficient, and especially when considered in connection with the affidavit of the party making the service, wherein it is alleged he “served a copy of the within bill and notice of the commencement of the suit, upon” defendant. In this respect the notice is sufficient.

It is further objected, no summons was issued for defendant, and no effort made to obtain personal service upon him. Here, again, the statute is silent. It is not provided summons shall be issued, and returned not found, before a defendant residing or being without the limits of this State may be served with a copy of the bill filed against him, and of a ■notice of the commencement of the suit. But if the statute did require the issuing and return of a summons, it is thought this record does show a summons was issued, and returned not found, as to defendant, before the copy of the bill was served upon him. The question of jurisdiction is always a preliminary one, and the court, in this case, found, by its ■decree, it appeared “to the court a summons had been issued against defendant, and returned not found. ” There is nothing in the record itself that contradicts this finding of the court, and it must therefore be regarded as having been correctly found. No summons is found in the record for defendant. The clerk recites that the only summons found among the papers of the case, is one for J. B. Cornell, at the suit of William Trotter, Cornell is not a party to this suit in any way. There is nothing whatever to show the summons transcribed into the record was issued in this case, or that it was before the court when it found, as it did, that “a summons had been issued against defendant, and returned not found. ” It may be that a summons for defendant, was issued, and lost from the files. How that may be, of course does not appear, but it is certain there is nothing to show the court found incorrectly on this jurisdictional question.

The third error of the series, viz., the court erred in entering a personal judgment against defendant for costs, and in awarding execution against him for the collection of the same, ■seems to be well assigned. There was no appearance in the •court below, either by defendant, or any solicitor for him, and it is not perceived how that court obtained jurisdiction of his person so as to render a personal decree against him, for costs or otherwise, and to award execution against him as for the collection of a personal money decree. So far as the property situated within the jurisdiction of the court is involved, the ■court had jurisdiction to decree concerning it, and defendant, and all parties claiming through or under him, would be bound. But that fact gave no jurisdiction to the court to render a personal money decree against him, as the court might do if defendant had been within its jurisdiction. It affirmatively appears in this case, defendant resided in another State. Treating the service by copy of the bill, and notice of the commencement of the suit, as effectual “as if such service had been made in the usual form within the limits of this State,” as the Statute provides shall be done, still such service does not confer jurisdiction on the court, of the person of defendant, so as to enable it to render a personal money ■decree against him, to be collected by execution. No one will insist the court could send its process out of the State, and by proof of service within a foreign State acquire jurisdiction over the person of defendant, so as to render a personal m'oney decree against him. It is so obvious it need not be stated, that persons residing or being without the limits of this State can not be subjected to the jurisdiction of the local courts by the service of process or other service upon them at the place of their domicil.

The decree of the circuit court, so far as it adjudged costs against defendant, and awarded execution for the collection x of the same, will be reversed in this court, but in all other respects it will be affirmed; and as he ought, on account of the wrongful conduct alleged against him in the bill, to pay such costs, plaintiff in error will be required to pay all costs in this case in this court.

Decree reversed in part and in part affirmed.

Magruder and Craig, JJ., dissent from so much of the foregoing opinion as reverses the judgment for costs.