text:
    Stewart Patterson v. George M. Pullman et al.

      Filed at Ottawa June 21, 1882

      —Rehearing denied September Term, 1882.

    1. Chancery—under bill to construe deed, court may declare it void. On a bill filed by a guardian of a minor to have a construction of a deed of trust given by the minor’s mother in her lifetime, and a declaration of the ward’s rights under it, the court may'pass upon the validity of the trust deed, and if it is found void and inoperative, it would be the duty of the court to so declare in its decree. To construe a deed or other instrument is nothing more than declaring its legal effect.
    2. Infant—who may prosecute or defend suits, for infants. Ordinarily the guardian is the proper person to represent his ward in all legal proceedings, and he should do so unless some good reason appears to the contrary, of which the court in which the proceeding is instituted or is proposed to be brought is the judge.
    3. In sec. 18, chap. 64, Bev. Stat., relating to guardians and wards, the words “appoint or allow any person, as next friend” for a minor, to commence or defend any suit, etc., clearly show that the court is clothed with a discretion in appointing or allowing one other than the guardian to institute or defend a suit on behalf of an infant. This discretion is necessary to prevent many suits in reference to the same subject matter being brought in behalf of an infant.
    4. Same—person representing infant should be a suitable one. As an infant, when properly in court, is bound by its decrees or judgments the same as adults, it is important that none but a suitable person should be permitted to institute or defend suits on its behalf, and there should clearly be no conflicting interests between the infant and the party representing him.
    5. oIn this case the guardian of a minor brought a suit in equity in his ward’s name to have a deed of trust of his deceased mother construed, and the infant’s rights in the property named in the deed ascertained and declared, in which the minor’s father, who had formerly been the guardian of the minor, filed a. cross-bill seeking to have the trust deed declared void, and claiming a life estate in the property as tenant by the curtesy. On the hearing of the cross-bill it was dismissed, and "thereupon the father, as next friend of his son, filed a bill seeking to have the trust deed set aside, alleging that the interests of his son were not properly protected by the guardian’s bill, and making the guardian a party. On motion of the guardian, and upon affidavit showing these facts, and also the removal of the father as guardian by the county court, the circuit court dismissed the second bill brought by the father, it appearing that the time for suing out a writ of error by the father to review the decree dismissing his cross-bill had not expired: Held, that as the ward’s interest could be as well protected in the prior suit as in the last one, and as the father had claimed an interest adverse to his son, there was no abuse of discretion in the court in refusing to allow the father to prosecute the second suit, and in dismissing the same.
    Appeal from the Circuit Court of Cook county; the Hon. William H. Barnum, Judge, presiding.
    In 1863, Mary Clark, Jane, Hannah, and Helen Stewart, the daughters, and Fanny Matthews, the grand-daughter, of Hart L. Stewart, became seized, as tenants in common, of certain real estate'in the city of Chicago. Mary Clark, who died January 11, 1871, devised her interest to Hart L. Stewart, in trust for Stewart Clark. Jane, Hannah and Helen, on the 26th of October, 1871, conveyed their interests to George M. Püllman, in trust for' Hart L. Stewart, their father, during his life, with remainders over to the daughters in fee, subject to certain limitations not necessary to be noticed. In 1878 an agreement was entered into with the owners of the other two-fifths, by which Pullman was given the exclusive management of the property. Jane, who was married to John C. Pátterson,-December 22,1873, died intestate, January 6, 1875, leaving Stewart Patterson, the complainant, her sole heir. On the 29th' of October, 1881, John C. Patterson, as the next friend of the said Stewart Patterson, his infant son, filed the present hill, in which the foregoing facts are made to appear.
    The bill also charges that the deed of trust to Pullman was not delivered until after the death of complainant’s mother, and that the same is void as to him; that complainant is entitled to a present one-fifth interest in the property; that there has been a general mismanagement of the estate on the part of Pullman and Stewart, to the injury of complainant ; that there was then pending in the same court a bill, filed in the name and on behalf of complainant, teaching 'the same matters,-by James B. Galloway, the then guardian of complainant, which does not properly set forth and protect the rights and interests of complainant, and that the court for that reason should require the bill to be amended so as to truly present the rights of complainant. All the persons living, heretofore mentioned, are made parties to the bill, and there is" a prayer for an accounting, appointment of a receiver, and for general relief. Galloway appeared as guardian, and entered a formal motion in the name of his ward, the complainant, to dismiss the bill. Similar motions were subsequently entered by the other defendants in their own names.
    . The evidence offered in support,of these motions shows that upon the death of. complainant’s mother, Patterson was appointed guardian of the complainant by the county court of Cook county, and that subsequently, on the 23d of March, 1877, by an order of that court, he was removed from his office of guardian and his letters of guardianship revoked; that’on the 8th of April, 1878, the same court appointed Galloway guardian of the estate of complainant, and that he qualified and entered upon his duties as such; that upon his appointment he had various interviews with Patterson and Stewart with respect to his ward’s estate, in which Patterson claimed to have a. life estate in the- fifth of the property belonging to his son as tenant by the curtesy, and in which he further claimed that the trust deed to Pullman was void; that Galloway thereupon took advice from counsel, and came to the conclusion that the Pullman deed was valid, and that it was for the best interest of his ward that the same should be sustained; that upon informing himself as to the condition of his ward’s estate, he, as his guardian and next friend, filed a bill, which was then pending, against Pullman, as trustee under said deed, praying for an account and a construction of the deed, and making Patterson, and the other persons then before' the court, parties to the bill; that Patterson filed a cross-bill, setting "up most of the same matters sought to be litigated by the bill then pending, and asking the Pullman deed to be declared void; that many days were spent in taking testimony, when the cause was finally brought to a hearing on the cross-bill, resulting in a decree dismissing the same, from which decree there had never been any appeal; that all the parties then before the court were made parties to said cross-bill; that the cause upon the original bill had been referred to the master, and he had taken an account and had reported the same, together with the proofs, to the court, and that the cause was then pending for further consideration. Under these circumstances the court sustained the motions to dismiss the bill, and entered a decree accordingly, to reverse which Patterson has appealed to this court.
    Mr. John C. Patteeson, for the appellant;
    A statutory guardian has no authority to make answer for an infant, and a next friend is only authorized to prosecute the rights of an infant, not defend them. On the question of the authority of such guardians in cases involving title to real estate, see Mueller v. Benner, 69 Ill. 108.
    There should have been a reference to a master to inquire whether the present bill, dr the bill of Galloway, the guardian, was more advantageous to the interests of the infant. 1 Daniell’s Chancery Pleading and Practice, 70.
    The 'guardian of an infant has no right to affirm or dis-affirm title to real estate. Mueller v. Benner, 69 Ill. 108.
    It was the duty of the next friend or guardian to assert all the rights of the infant in this property, and if he fails in this duty, either through ignorance or design, the infant ought not to he prejudiced. The law has not left the title to an infant’s property to guardians or next friends for adjudication.
    Messrs. Dexter, .Herrick & Allen, and Messrs. Monroe & Ball, for the appellees: 1 '
    Appellant does not claim to have acted under any previous order or appointment of court, and his mere relationship to the infant gave him no right to act as his next friend which any other person would not have had. 1 Blackstone’s Commentaries, 464; Guild v. Cranston, 8 Cush. 507.
    But Galloway, as guardian, had not merely the implied authority of next friend, but express statutory authority to “appear for and represent his ward in all legal proceedings.” B,ev. Stat.' chap. 64, sec. 18.
    In the exercise of the power over suits by infants, courts have removed the next friend and appointed another in his place. (Ward v. Ward, 3 Merivale, .706.) They have refused to permit him to withdraw from, the case without a reference to the master to see whether it is proper. (Milling v. Milling, 4 Maddox, 261.) They have revoked his authority and stayed the suit indefinitely, (Da Costa v. Da Costa, 3 P. Wms. 140,) or dismissed the suit altogether. (Fox v. Suwerkrop, 1 Beav. 583.) And when there were two suits, dismissed- the one and .retained the other. (Gage v. Safford, 1 Ves. Sr. 545.) The power has been exercised on the ground that the next friend was an unfit person by reason of his habits, (Walker v. Else, 7 Simons, 234,) or that he was actuated by selfish motives, and seeking to accomplish personal ends, (Sale v. Sale, 1 Beav. 586,) on the ground the suit was not for the benefit of the minor, (Nalder v. Hawkins, 2 M. & K. 21-3,) or when the interests of the next friend were adverse to the infant. Peyton v. Bond, 1 Simons, 391.
    The filing of the present bill was an unauthorized interference with the action of the legally appointed guardian of the minor. It was in direct denial and violation of the authority and jurisdiction which the circuit court had already acquired over the ward and his estate in the then pending suit. Hartman v. Hartman, 59 Ill. 103; 2 Story’s Eq. Jur. 35.
    No formal order appointing a guardian ad litem is necessary. It is enough that there should be in court some competent person to look after the infant’s rights, and he should be recognized by the court as representing him. Rhodes v. Rhodes, 43 Ill. 239; Tibbs v. Allen, 27 id. 119; Utile v. Garrett, 77 id. 444; Cate v. Easley, 2 Stew. 214; Beverleys v. Miller, 6 Munf. 99.
    The evidence shows that appellant has an interest adverse to the infant, and that the bill w-as filed from personal motives. The determination of the question raised by the motion involved the exercise of a judicial discretion, which this court can not review except for abuse. 2 Daniell’s Chancery Practice, 416; Rowley v. Benthuysen, 16 Wend. 370; Taylor v. Delaney, 2 Caine’s Cases, 143; Buell v. Street, 2 Johns. 448.
    Mr. Henry B. Mason, for the appellee Stewart Patterson.
   Mr. Justice Mulkey

delivered the opinion of the Court:

In the view we take of this case we do not deem it important to' inquire which of the two bills, that filed by Galloway, or the one in the present case, is best adapted to the conservation of the infant’s interests and rights. Perhaps either of them is amply sufficient for that purpose. The chief object of the bill in the present case seems to have been to obtain a decree declaring the Pullman deed void, and to have the complainant’s rights declared accordingly - while the bill filed by Galloway, as guardian, assuming the, deed to be valid, seeks a construction of it, and a declaration of the complainant’s rights under it. Under the latter bill, if the court shall find, as is claimed by appellant, the Pullman deed void, it will be its duty, and it will, doubtless, so hold and declare the complainant’s rights accordingly. As the object of a bill to com strue a written instrument of any kind necessarily involves a determination of its validity, we are of opinion the chief object of the present bill was attainable under the bill of the guardian, for, to construe a deed or other instrument is nothing more than declaring its legal effect, and if it is void, and consequently wholly inoperative, the court would be bound to so declare.

But as before indicated, the decision of this case does not depend altogether upon the comparative merits of the two bills. In our opinion the real question presented for our determination is, did the circuit court of Cook county, in dismissing the bill, under the circumstances disclosed, so abuse the discretion with which the law has clothed it in cases of this character, as to require a reversal of the decree ? Ordinarily the guardian is the proper person to represent bis ward in all legal proceedings, and he should do so unless some good reason appears to the contrary, of which the court in which the proceeding is instituted, or proposed to be instituted, is to judge, and this is particularly so with respect to the bringing of suits. The 18th section of chapter 64, Rev. Stat., provides, the guardian “shall appear for and represent his ward in all legal suits and proceedings, unless another person is appointed for that purpose as guardian or next friend; but nothing contained in this'act shall impair or affect the power of any court or justice of the peace to appoint a guardian to defend the interest of a minor impleaded in such court, or interested in a suit or matter therein pending, nor their power to appoint or allow any person, as next friend for a minor, to commence, prosecute or defend any suit in his behalf. ” This provision of the statute is but declaratory of the law as it existed before. The language of the act is, “appoint or allow any person as next friend,” etc., thus clearly showing the court is clothed with a discretion in appointing or allowing one other than the guardian to institute or defend a suit on behalf of an infant. The necessity for this discretionary power on the part of the court is manifest. Without it any indefinite number of persons might bring suits on behalf of an infant, and all relating to the same subject matter; and as infants, when properly in court, are, like adults, bound by decrees and judgments rendered against them, it is altogether important that none but suitable persons should be permitted to institute or defend suits on their behalf. There should clearly be no conflicting interests between the infant and the party representing him.

In the present case it is not denied that the appellant, in the suit commenced by the guardian, set up an adverse claim in his own right to the property of the ward. It is true the decree upon the cross-bill is a bar to that claim so long as it remains in force, but the time for the prosecution of a writ of error is not passed, and moreover, the .very fact of his having interposed an adverse claim to the. property of his own child, which it is conceded it inherited from its mother, does not afford very persuasive evidence of his fitness to represent the child in a controversy about the same property, at least so long as there is any possibility of renewing his own claim. In the face of these facts, without any permission on the part of the court, he files the present bill on behalf of the child, by which he seeks to re-litigate, in the same court, the same matters which-were passed upon in disposing of the cross-bill in the other suit, and also other matters which can be fully considered and disposed of on the hearing of the original bill in that suit, which is still pending. Under these circumstances we are unable to say the court below did not properly exercise its discretion in dismissing the bill. It is only when this court is able to say there has been an abuse of such discretion, that it will interpose.

The judgment of the circuit court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mulkey, J.:

license: Public Domain

text:
    Eli Peck et al. v. James Herrington.

      At Ottawa, September Term, 1882.

      Appeal—in suit to restrain threatened injury to land. In the ease of a suit in chancery to restrain the defendant from inflicting a threatened injury upon the land of complainant, as, in the matter of opening a ditch upon the land of defendant, through which the water in certain ponds, also on the land of defendant, would be discharged upon the land of complainant, an appeal will lie from a judgment of the Appellate Court to this court. Such a suit is not for the recovery of money, and does not fall within the category of cases in which a right of appeal is made to depend upon the amount in controversy.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Kane county.
    Herrington exhibited his bill in chancery in the circuit court, against Peck and Booth, by which it was sought to enjoin the defendants from opening a ditch on their own lands, through which the water of certain ponds on the lands of defendants would be discharged upon the lands of complainant. The circuit court dismissed the bill. . On appéal to the Appellate Court, that court found the facts differently from the circuit court, in respect to the threatened injury to the lands of complainant, which would result from the opening of the ditch on.defendants’ land, and reversed the decree dismissing the hill, directing the circuit court to enter a decree in conformity to the finding and opinion of the Appellate Court. Prom the judgment of the Appellate Court the defendants appealed to this court, and now the appellee moves to dismiss this appeal, upon the ground that it does not appear from the record that the amount in controversy is $1000.
    Mr. B. C. Cook, for the motion,
    contended that while the bill was only for an injunction to prevent a threatened injury to lands, yet the extent of the injury so sought to be prevented was susceptible of direct proof, and the record should show the amount in controversy, in order that this court might be informed as to the right to maintain this appeal. In the absence of such showing the appeal ought to be dismissed.
    Mr.- Charles Wheaton, contra.

   Mulkey, J.:

This was not a suit for the recovery of money, but simply to restrain a person from inflicting a threatened injury on the appellee’s land. It does not fall within the category of any of those cases in which a right of appeal is made to depend upon the amount in controversy. The ease falls within the residuary clause of the 8th section of the Appellate Court act, (Sess. Laws 1877, 70,) which gives the right of appeal from the Appellate Court to this court “in all other cases” not embraced in the enumeration in the preceding part of that section. We think the appeal will lie.

Motion denied.


author: Scholfield, J.:

text:
    Frederick Weiss et al. v. The People of the State of Illinois.

      At Ottawa, September Term, 1882.

      Appeal—in oases of misdemeanor—and what is a misdemeanor. A 'person was indicted for keeping a common gaminghouse, tried, found guilty, and a fine of $100 imposed: Held, it was evident, from the character of the charge, together with the penalty imposed, the offence was a mere misdemeanor, and under the act of 1879, amendatory of the Practice act, an appeal will not lie directly from the trial court to this court, but must be taken to the Appellate Court.
    Appeal from the Circuit Court of Lake county.
    This was an indictment for keeping a common gaming house. A trial in the court below resulted in a, conviction of the defendants, and the penalty imposed was a fine of
    Mr. James McCartney, Attorney General,
    moved the court to dismiss the appeal, on the ground that the offence charged, and of which the defendants were • convicted, was a mere misdemeanor, and therefore the appeal should have been taken to the Appellate Court, under the act of 1879, amendatory of the Practice act, (Sess. Laws, 1879, 222,) which provides: “Appeals from and writs of error to circuit courts, * * * in all criminal cases below the grade of felony, shall be taken directly to the Appellate Court. ” Counsel also cited section 127 of the Criminal Code, which fixes the penalty for this offence: For the first offence, not less than $100; for the second offence, a fine of not less than $500, and imprisonment in the county jail not less than six months; for the third offence, a fine of not less than $500, and imprisonment in the penitentiary not less than two nor more than five years. There is no allegation that this was the second or third offence, and the amount of the fine imposed would indicate that it was the first offence.
   Scholfield, J.:

The indictment and conviction in this case were for a mere misdemeanor. That is evident from the character of the charge, taken together with the penalty-imposed—a fine of $100. Under the act of 1879, amendatory of the Practice act, (Sess. Laws, 1879, 222,) appeals from and writs of error to the circuit courts, in all criminal cases below the grade of felony, are. required to be taken directly to the Appellate Court. The offence of which the appellant in this case'was convicted being below the grade of felony, we can not entertain his appeal. The case should have been taken to the Appellate Court.

Appeal dismissed.


author: Craig, J.:

text:
    Chicago, Pekin and Southwestern Railroad Company v. The President and Trustees of the Town of Marseilles.

      At Ottawa, September Term, 1882. .

    Waiter of an appeal bond—its effect as to perfecting the appeal. Where a party praying an appeal to this court is given time for filing an appeal bond, the filing of a waiver of such bond by the appellee before the expiration of the time allowed, and before the filing of the bond, will have no effect whatever in the way of perfecting the appeal for any purpose, either to make it the duty of the person praying the appeal to take steps to bring the cause to a hearing, or to suspend the judgment in the court below. The parties remain in precisely the same attitude in that regard they were before the filing of the waiver.
    In this case an appeal was prayed from the Appellate Court for the Second District. The order granting the appeal, made in vacation, was dated August 23, 1882, and was filed in the clerk’s office August 25. The order allowed an appeal on condition an appeal bond should be filed within thirty days. The cause was heard in the Appellate Court at the May term, 1882, and a judgment of affirmance entered in vacation on the 8th day of August, following. No appeal bond having been filed by the 29th day of August, the appellee filed in the office of the clerk of the Appellate Court a waiver of any appeal bond. On the third day of the present term of this court, the party praying the appeal not having filed a transcript of the record in this court, or taken any steps to bring the case before the court for consideration at the present term, the appellee now moves the court to affirm the judgment of the Appellate Court, under the rule, or, on failure of that motion, that this appeal be dismissed.
    Mr. Charles Blanchard, for the motion,
    contended that the waiver of the appeal bond by the appellee perfected the appeal as fully as if the appeal bond had been filed at that time, and that thereby the appellant was placed in such position that it was his duty to take all the steps in the case necessary to a hearing at the present term. Not having performed that duty, this motion should prevail.
    Mr. Hiram T. Gilbert, contra.

   Craig, J.:

The waiver by the appellee of the appeal bond did not operate to perfect the appeal for any purpose, either to make it incumbent upon the party praying the appeal to prepare the cause for a hearing at the present term, or to suspend the judgment in the court below. The parties are in precisely the same attitude they were before that waiver was filed. There is no appeal here for us to act upon,— nothing to dismiss. The case will be stricken from the docket.

Motion denied.


author: Mulkey, J.: Picket, J.:

text:
    Walter B. Scates v. The Chicago and Northwestern Railway Company.

      At Ottawa, September Term, 1882.

      Certiorari—at common law—whether it will lie. . The common law writ of certiorari will not lie merely to bring in review before the Supreme Court the record and proceedings of an inferior court for the correction of alleged errors in the rulings upon questions of law during the progress of a trial. That is the office of an appeal or a writ of error.
    Application for the common law writ of certiorari.

    Walter B. Scates instituted a suit against the Chicago and Northwestern Bailway Company, to recover damages for personal injuries received by him while a passenger on a train upon the railroad of the defendant company, such injuries .resulting, as was alleged, from the negligence of the defendant. A trial resulted in a verdict and judgment for the defendant. On appeal to the Appellate Court that judgment was affirmed. The plaintiff below now enters his motion that this court will award the common law writ of certiorari to the Appellate Court, commanding that court to send to this court the record and proceedings in this cause, to the end that this court may review the same. In support of this application the plaintiff states that he has no right of appeal or writ of error, under the Appellate Court act, by means of which he can bring in review the rulings of the Appellate Court resulting in the affirmance of the judgment. The plaintiff further states that he made application in this ease to the Appellate Court, asking that court, under a provision in that Regard in the Appellate Court act, to certify to this court, as an important question of law, the question whether the circuit court had the power and legal right, on the evidence in this case, to exclude the plaintiff’s evidence from the jury, and to instruct the jury, as it did, to find for the defendant, which application the Appellate Court denied. So the plaintiff says he is wholly without remedy to obtain a hearing and review of manifest errors complained of, by the lower courts committed, by appeal, writ of error, or otherwise than by a common law writ of certiorari.

    Mr. Walter B. Scates, pro sc:

    In support of this petition for a writ of certiorari at common law, as an appropriate remedy in this case, I cite People v. Wilkinson, 13 Ill. 661; Doolittle v. Railroad. Co. 14 id. 382; Hyslop v. Finch, 99 id. 177; Highway Comrs. v. People, id. 587. It lies in eases where the lower court had no jurisdiction, or where its proceedings were irregular or illegal.
    Mr. B. C. Cook, contra:

    A common law writ of certiorari will be granted only where it is shown that the inferior court has exceeded its jurisdiction, or where it is shown the inferior court has proceeded illegally, and no appeal or writ of error lies. (Hyslop v. Finch, 99 Ill. 171.) The objection taken to the action in this case of the courts below does not go to the jurisdiction of those courts, nor to the legality of the proceedings therein, but the question is simply one of alleged error in ruling upon an instruction to the jury, and such a question is not reviewable in the mode proposed.
   Mulkey, J.:

The scope and purpose of this application are clearly only to bring in review before this court an alleged-error in the rulings of the Appellate Court. The objection taken to the action of that court does not go to the jurisdiction of the court. Both the circuit court and the Appellate Court unquestionably had jurisdiction of the subject matter of the suit and of the parties. Nor is it shown that either court attempted to act outside of that jurisdiction. The simple matter of complaint is, that the circuit court erred in excluding all the evidence given by the plaintiff on the trial of the cause, and instructing the jury to find for the defendant, and that the Appellate Court affirmed the judgment resulting from such alleged erroneous ruling. It can not be said, in any proper sense, that a court exceeds its jurisdiction merely because it may have made erroneous rulings upon the law during the progress of the trial, nor would the commission of such error by the court be regarded as proceeding illegally, in any such sense as would authorize the party to invoke the remedy now proposed. It is merely an alleged error in the proceeding that is complained of, and to correct that supposed error it is sought to bring the record and proceedings in the case in review before this court in this manner. Such is not the office of the common law writ of certiorari,. That can only be done upon appeal or writ of error. It may be, as suggested by the plaintiff, that in this case he has no remedy by appeal or writ of error. But that circumstance can not, of itself, transform the common law writ of certiorari into a mere writ of error. The writ of certiorari was never designed or employed as a remedy merely because there was no right of appeal, or to a writ of error. To justify the awarding of a writ of certiorari other elements must exist, which are not present' in this case. The motion will be denied.

Motion denied.

Picket, J.:

I concur in denying the application for a common law writ of certiomri. No case is made for that writ. I think, however, that upon cause shown, as, for palpable error on the face of the record, this court may, in any case, and in special cases ought to, award a writ of error, although the right to such writ be hot given by statute. I concede to the legislature the power to restrict the rights of •parties to take an appeal or to sue out a writ of error; ■ but I can not concede the power to deprive this court of its appellate jurisdiction, in any case. In several cases in which the question has arisen as to the right to maintain an appeal to this court, or to sue out a writ of error from this court, under the provisions of the Appellate Court act and the Practice act, phraseology has been employed which would seem to indicate that it was a question affecting the jurisdiction of this court. The use of that form of expression I am satisfied was inaccurate and unnecessary. The constitution provides that the Supreme Court shall have original jurisdiction in certain enumerated cases, and appellate jurisdiction in all other cases. Of this appellate jurisdiction, in my opinion, this court can not be deprived, however competent it may be for the General Assembly to limit and restrict the right of a party to demand a review of his case by the court of last resort. No doubt the right of appeal may be taken away altogether, and the right to demand a writ of error may be restricted, but the power of this court to award a writ of error can not, in any case, be abridged. In my view, the proper course for the plaintiff to pursue, is, upon cause shown, to move in this court for a writ of error, and I think this record on its face shows a case where such a motion ought to be sustained. I further think that we ought not noto to regard the form of the application, but that we might with propriety, on this application, award a writ of error. The party, by his .motion, in substance asks us to review the proceeding;—and although he suggests a writ of certiorari, (which I think is not the appropriate, writ,) this suggestion might properly be disregarded and the proper writ ordered to issue.


text:
    Ann Furlong, Admx. v. Margaret Riley et al.

      At Ottawa, September Term, 1882.

      Behearing—postponing consideration of petition until another cause is heard. To postpone the decision upon an application for a rehearing until the consideration of another case pending, in which similar questions are supposed to be involved, would be but allowing, indirectly, additional arguments or suggestions in support of the petition for rehearing, after the time prescribed by the rules for the filing of the petition, which, under the prevailing practice in this court, will not be allowed, except upon special cause shown.
    Pending an application for a rehearing in this cause, the petitioner moved the court to, stay a decision upon that application until the court should come to the consideration of a certain other case which is on the docket of the present term, the reason assigned for such request being that the same questions are involved in the two cases, and that these questions have been very fully argued in the case now pending.
    Messrs. M. A. Rorke & Son, for the motion.
   Mulkey, J.:

The avowed purpose of this motion is, that we may be brought to consider arguments and authorities made and presented in another case, as bearing upon the questions involved in the application for a rehearing in this case. This would but be indirectly permitting additional arguments or suggestions in support of the petition for rehearing, after the time prescribed by the rules for the filing of the petition, which, under the prevailing practice in this court, will not be allowed, except upon special cause shown. (Hawley v. Simmons et al. 101 Ill. 654.) We do not find here any special reasons for deviating from the usual practice. The motion will be denied.

Motion denied.


text:
    Minerva C. Cook v. John J. Cook.

      At Ottawa, September Term, 1882.

    1. Extension or time to rile transcript—time for malting the application. An application for an extension of time for filing the transcript of the record in this court, in the case of an appeal, must be made within the time prescribed by the statute for the filing of such transcript.
    2. If the party appealing is unable to procure a complete transcript within the time, as, where his bill of exceptions is not signed by the judge who tried the cause, he -should, within-the time limited by statute, file a transcript of so much of the record as is then obtainable, and, within the same time, move for further time in which to bring in the remaining portion of the record. The fact that the court below, in allowing jhe appeal, may have given time for filing the bill of exceptions beyond the time prescribed by law for filing the transcript in this court, can make no difference in the application of this rule.
    This cause came to this court on appeal from the circuit court of Kane county. A transcript. of the record not having been filed in this court within the time prescribed by the statute, the appellee entered his motion, based upon what is known• ás a “short record,” for a dismissal of the appeal. That motion was allowed. On a subsequent day of the term Mr. J. H. Mayborne, in behalf of the appellant, moved the court to set aside the order of dismissal, and to continue the cause, to the end that appellant may have reasonable time in which to file a transcript of the record in this court. The facts upon which this motion is founded, as disclosed by affidavit, are as follows: The judgment appealed from was rendered on the.9th day of June, 1882. Ninety days were allowed to appellant in which to file an appeal bond and a bill of exceptions. The appeal bond was filed about the first day of September. The bill of exceptions in the case was prepared and agreed upon • by counsel about the 5th or 6th day of September, within the time allowed by the court below for filing the same, but appellant’s counsel was unable to' present the bill of exceptions to the judge who tried the cause, to be signed by him, within the time fixed by the court, for the reason said judge was absent from the State, so that the bill of exceptions was not signed until the 15th. day of the present month, September, when it was filed in the office of the clerk of the court below. It is further stated that the clerk of that court is now preparing the transcript of the record.
   Craig, J.:

The facts stated do not take the case out of the rule that an application for an extension of time to file the transcript of the record in this court, in the case of an appeal, must be made within the time prescribed by the statute for the filing of such transcript. It is not made to appear here at what date the term of the court at which the judgment appealed from was rendered, came to a close, but we will assume, for the purposes of this motion, in the absence of anything showing the contrary, that twenty days intervened between the last day of that term and the sitting of this court. That being the ease, a complete transcript, of the record should have been filed on or before the second day of the present term. Or, if the appellant was unable within that time to procure a complete transcript, then she should have filed a transcript of so much of the record as could be obtained, and within the time go prescribed for filing the transcript she should have made an application for an extension of time to, complete the record. The matter of the court below allowing the appellant ninety days within which to file the appeal bond, and the bill of exceptions, thus extending beyond the time prescribed by law for filing the record in this court, can make no difference. The appellant should have filed in proper time a transcript of so much of the record as was then obtainable, had the cause placed upon the docket, and then .entered a motion, for further time in,which to. bring in the remaining portion of the record. Not having filed a complete transcript within the time prescribed by the statute, or a transcript of so much of the record as could be obtained, and asked for further time to complete the same, within the requirement of the rule, the appellee was entitled to have the appeal dismissed.

Motion denied.


author: Scott, Ch. J.:

text:
    John McGowan et al. v. The People of the State of Illinois.

      At Ottawa, September Term, 1882.

    1. Wbit of ebbob in criminal case—escape of prisoner. Where a person who has been convicted upon a criminal charge has sued out a writ of error, and pending the writ makes his escape from the custody of the law, it is within the discretion of the court whether it will proceed to the hearing of the cause while the escaped, prisoner is still at large.
    2. The better practice is, that the cause shall not proceed to a hearing while the person to be affected is not within the jurisdiction of the court, either actually, by being in custody, or. constructively, by being on bail, to respond to its judgment.
    3. In the particular case, upon motion to dismiss the writ of error sued out by a person who had been convicted of a criminal offence, upon the ground that he had broken jail and escaped, and was still at large, the court refused to dismiss the writ at once, but ruled that if the plaintiff in error should not in some way be brought into custody by the first day of the next succeeding term of the court, the writ of error would be dismissed.
    Writ of Error to the Circuit Court of La Salle county.
    John McGowan and Thomas Garrity were indicted, and upon a trial were convicted of the crime of burglary, and were duly sentenced to serve a term in the penitentiary. After their trial and conviction the defendants sued out this writ of error to bring in review the rulings and judgment of the court below. It is now made to appear to the court that since the suing out of the writ of error the prisoners have escaped from the county jail of La Salle county, in which they were still imprisoned, and as yet they have not been recaptured, nor have they voluntarily returned to the custody of the proper officer.
    Mr. James McCartney, Attorney General,
    thereupon moves the court to dismiss the writ of error, upon the ground that the writ will not be heard when the.parties suing it out have escaped from the jurisdiction of the court, and are standing in defiance of the law and its officers, citing Anon. 31 Me. 592; Chitty’s Crim. Law, 751; Sherman v. Commonwealth, 14 Gratt. 687; Regina v. Caudwell, 17 Q. B. 503, (6 Eng. Law & Eg. 352;) 1 Bishop’s Crim. Prac. 277.
    Mr. L. W. Brewer, State’s Attorney,
    also for the People, in support of the motion, cited the following additional authorities: Wharton’s Crim. Pl. and Prac. 774a, (8th ed.); Smith v. United States, 94 U. S. 97; Commonwealth v. Andrews, 97 Mass. 543; People v. Genet, 59 N. Y. 80; Leftwich v. Commonwealth, 20 Gratt. 716.
   Scott, Ch. J.:

The plaintiffs' in error are in no position to invoke the judgment of this court in respect to the errors alleged to have been committed on their trial and conviction in the court below. They do not stand ready to abide that judgment when pronounced, but since suing out the writ they have broken jail, and fled from the custody of the officer, and are standing in defiance of the law and its officers. It is a matter within the discretion of the court whether we will hear the writ under these circumstances. The better practice clearly is, that the cause shall not proceed to a hearing when the persons to be affected are not within the jurisdiction of the court to answer to its judgment, but are in the attitude of fugitives from justice. While it is not essential to the validity or binding force of any judgment which may be rendered by this court upon exceptions presented by one who has been convicted upon a criminal charge, that he should be present in court, either at the hearing of the cause or upon the rendering of the judgment, yet it would be idle for the .court to proceed to determine th'e questions presented, when the possibility of enforcing whatever judgment it might pronounce must depend upon the option of the fugitives to return into custody, or upon the remote chances of their ultimate recapture by the officers of the law. Before the powers of the court can ‘appropriately be called into action in a criminal procedure like this, the person to be affected by the judgment ought to "be within the control of the court below, either actually, by ‘ being in custody, or constructively, by being on- bail. The .reason of the rule is obvious. Should a hearing of the cause re'sult in an affirmance of the judgment below, the escaped prisoners would not be likely to return voluntarily to meet the execution of the sentence. Should a reversal result, they might return and submit to another trial, or not, as the grounds of the decision might suggest to them the prudence of one or the other course of action. We do not think it would subserve the ends of justice to permit persons charged -with crime to speculate in this manner upon their chances of escape or conviction. Persons appealing to this court for redress should stand in an "attitude to accept and abide the result, whatever that may be. The authorities upon the question are in harmony with the reason of the rule, as will appear by an examination of the cases cited by counsel.

We will not dismiss the writ, of error at this time, but if ■the plaintiffs in error shall not return and submit themselves to the custody of the law, or in some other way be brought within the control of the proper officer, by the first day of the next term of this court, then the writ of error will be dismissed.

t> ,7„ Mule nisi.


author: Sheldon, J.:

text:
    William Ennor v. Galena and Southern Wisconsin Railroad Company, use, etc.

      At Ottawa, September Term, 1882.

    Appeal boot}—liability thereon—sufficiency as to amownt. A judgment 'was rendered in the trial court for $5i568. On an appeal to the Appellate 'Court an appeal bond was given in the sum of $7000. The judgment was affirmed on that appeal, and on a further appeal to the Supreme Court an appeal boAd in the sum of only $500 was given. On the question whether the latter bond was for a sufficient amount, it was considered that in case of ' an affirmance by this court of the judgment of the Appellate Court, the • appeal bond givbn on the appeal fi;om the trial court would stand as security for the judgment rendered in that court, and as the appeal bond given on the appeal to the Supreme Court was sufficient in amount to cover the costs in this court, that-was all that was required.
    •Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Jo Daviess county.
    The judgment in this case, as rendered in the circuit court, was for the sum of $5668, .which, with interest and costs, amounted to nearly $7000. On granting the appeal from the circuit court to the Appellate Court the appeal bond was required to be given in the penalty of this latter sum, and the bond was so executed. The judgment rendered in the circuit court, on the appeal to the Appellate Court, was affirmed. Then, upon the appeal from the Appellate Court to this court, the appeal bond was required to be given in the penal sum of only $500. The appellee now moves the court to dismiss the appeal,, on the ground of the alleged insufficiency of the appeal bond in respect to the amount of the penalty, it being contended the bond should have been given in a penal sum large enough to -secure to him the amount of his claim—some $7000.
   Sheldon, J.:

This motion seems to be made on a misapprehension as to the effect of the appeal bond given on the appeal from the circuit court to the Appellate Court, standing as a security for the amount of the judgment appealed from. The adequacy of that bond, as respects the amount of the penalty in which it is given, does not seem to be called in question, or its sufficiency in any other respect. The bond given on the appeal to this court is in a sum sufficient to cover the costs in this court, and in case of an affirmance of the judgment of the Appellate Court, the bond given in the circuit court will stand as security for the payment of the judgment. So the appellee has ample security for his judgment, and the costs, in the event of his having to resort to such security, and that is all he can require. A similar question was before us in McCall v. Moss, 100 Ill. 461. The motion will he denied.

Motion denied.


text:
    Stewart Patterson v. Hart L. Stewart.

      At Ottawa, September Term, 1882.

    Practice in the Supreme Court—extension of time for filing records— time for malting application. An application for further time within which to file a transcript of the record, in a case brought to the Supreme Court by appeal, must be made within the time prescribed by law for filing such transcript.
    Appeal from the Circuit Court of Cook county.
    The final decree from which this appeal was taken was entered on the 12th day of June, 1882,- of the May term of the circuit court, which ended on the 10th day of June, 1882, so that more than twenty days have intervened between the last day of the term at which the decree appealed from was entered and the sitting of the present term of this court. On the 9th day of September, 1882, being the fourth day of the present term, the appellant moved the court for further time to file the transcript of the record in this case. The motion was supported by affidavit setting forth the reasons for the application.
    Mr. Henry B. Mason, for the motion.
    Messrs. Dexter, Herrick & Allen, contra,

    citing Palmer v. Gardner, 77 Ill. 143; Simpson v. Simpson, 3 Bradw. 432; Jones v. Dunton, 5 id. 211; Graff v. Reed, id. 561.
   Scott, Ch. J.:

The application for an extension of the time for filing the transcript of the record comes too late. This court has repeatedly held that applications of this character must be made within the time prescribed by the statute for the filing of the transcript. (Adams v. Robertson, 40 Ill. 40.) The act of May 24,1879, (Sess. Laws, 221,) provides: “Authenticated copies of records of judgments, orders and decrees appealed from, shall be filed in the office of the clerk of the Supreme Court * * * on or before the second day of the succeeding term of said court: Provided, twenty days shall have intervened between the last day of the term at which the judgment, order or decree appealed from shall have been entered and the sitting of the court to which the appeal shall be taken. ” Here the twenty days intervened the last day of the term of the circuit court at which the decree appealed from was entered, and the first day of the present term of this court. The motion should have been made on or before the second day of the term. It was not made until the fourth day, and so comes too late. The rule is founded upon the statute prescribing the time within which records should be filed.

Motion denied.


author: Mr. Justice Walker

text:
    Asahel Gage v. Christian Schmidt et al.

      Filed at Ottawa Nov. 10, 1881

      —Rehearing denied September Term, 1882.

    1. Behoving ceoud upon titee—requisites of the bill. If the complainant in a bill in chancery, who seeks thereby to remove a cloud upon title to land, is in the actual possession of the land, that fact should be alleged in the bill.
    2. Same—effect of a sale of the land by party seeking the relief. A sale of land by the owner pending a suit brought by him to remove a cloud from the title, will not operate to defeat the suit. The decree obtained will inure to the benefit of his grantee.
    3. Chancery practice—jurisdiction—of the pleadings—waiver. In such.suit, if the fact of possession in the complainant be not alleged in the bill, the objection, to be availed of on demurrer to the bill, should be specifically pointed out in the demurrer, according to the practice in chancery. If not made in that mode, or by plea, or by answer, the objection will be deemed to have been waived.
    4. The court may, of its own motion, interpose the objection of the want of jurisdiction over the subject matter of a suit, at any stage of the proceeding. It is otherwise, however, as to jurisdiction of the parties,—that must be raised by the pleadings. <
    5. Amendment op record—on petition for rehearing—whether allowable, and on what terms. In a suit in chancery to remove a cloud upon title, which was before this court on error, the answer of the complainant in the original bill to a cross-bill filed by the defendant, as the same appeared in the original transcript of the record, admitted that the defendant in the suit was in possession of the land, and the case was considered in the light of that admission. Afterwards, on petition for rehearing, a certified copy of the answer was filed with the petition, by which it appeared possession in the defendant was denied instead of being admitted, the clerk, in making up the transcript in the first instance, having made the mistake. An amendment of the record in this court was allowed, in respect to the discrepancy between the two copies of the answer, on the terms that complainant in the suit pay all costs subsequent to the entry of the previous judgment in the case.
    6. Tax deed—service of notice. The notice, required by the constitution as preliminary to the making of a deed for land sold for taxes, served upon a mere laboring man in the employment of the owner, not his business agent, or in any way authorized to receive such-notice, will not be regarded as sufficient.

      ’ 7. Proof of title—on 6ill to remove a cloud. If it appear that the complainant in a bill in chancery to remove a cloud upon the title to land, is in the actual possession of the land, that will be sufficient proof of title to authorize the relief sought, in the absence of proof of title in some one else.
    8. Awarding execution—in chancery. Upon bill to set aside certain tax deeds as a cloud upon complainant’s title, where, upon granting the relief sought, it is decreed that the complainant pay to the defendant a certain sum in redemption of the property from the tax sale, the decree should award execution therefor, and it is error if the decree omits to do so.
    Writ of Error to the Circuit Court of Cook county; the Hon. William H. Barnum, Judge, presiding.
    Mr. Augustus N. Gage, for the plaintiff in error.
    Messrs. Decker, Douglas & Kistler, for the defendant in error Schmidt.
   Mr. Justice Walker

delivered the opinion of the Court:

Defendant in error filed his bill in equity against plaintiff in error, to set aside certain tax deeds as clouds on the title of the former to certain real estate. The bill contains no allegation whether the property in controversy is improved or unimproved, occupied or unoccupied. Defendant filed a demurrer, but specified no grounds why the bill was defective, but objected it could not be maintained for the want of equity appearing on its face. The demurrer was overruled by the court, and Gage answered, denying in general terms the allegations of the bill. Subsequently complainant filed an amended bill, but it did not differ materially from-the original bill. To this Gage also filed an answer denying its material allegations, and concluded it by asking the same benefit as though he had demurred specifically to the bill. Afterwards Gage filed a cross-bill against Schmidt, alleging that by virtue of the tax deeds for the land he held the legal title thereto, that he was in the actual legal possession of the same, and praying that the deeds under which Schmidt claimed be set aside as clouds on his title. The Chicago and Western Indiana Railroad Company was made a party, on the ground that it claimed some interest in the property. Schmidt answered, and, among other things alleged, “he claims that said Gage is in the actual legal possession of said lots, or either of them, and denies that he has any good right or title to said lots, or either of them. ” On a hearing the court below decreed that Gage’s tax deeds be set aside as clouds on Schmidt’s title, that Gage’s cross-bill be dismissed at Gage’s costs, and that Schmidt pay Gage $80 in redemption of the property from the tax sales. The record comes before us on error.

The testimony clearly shows that defendant in error was in possession of the lots at the time of the filing his bill, and the bill should have alleged that fact. (Hardin v. Jones, 86 Ill. 313; Whitney v. Stevens, 97 id. 482.) Had the demurrer, according to chancery practice, pointed out the omission of such an allegation, the court would have been required to sustain the demurrer; but it was not objected to in that mode, by plea or by answer, and defendant thereby waived the objection. But the court may, of its own motion, interpose the objection of the want of jurisdiction over the subject matter at any stage of the proceeding. (Kimble v. Walker, 30 Ill. 482.) It is otherwise as to jurisdiction of the parties, as that must be raised by the pleadings.

It is insisted, that inasmuch as the answer to the cross-bill admits that plaintiff in error was in possession, it thereby appeared that the court, under sec. 50, chap. 22, Rev. Stat. 1874, and general rules, had no jurisdiction of the subject matter, and the bill should have been dismissed. As an answer to the objection, on a petition for a rehearing, a certified copy of the answer is filed with the petition, by which it appears that instead of the answer admitting that, plaintiff in error positively denied he was in possession; that the clerk, in making a transcript of the record, used one word for another, which changed the meaning to the very opposite of the sentence as written, and while it is irregular, after the issues have been made, the cause tried and decided, to allow an amendment of the pleadings so as to materially change the issues, or otherwise, as the fault in the first case was that of the clerk the amendment will be allowed on the terms that defendant in error pay all costs subsequent to the entry of the previous judgment in this case. In the last paragraph of the argument of plaintiff in error, on the former hearing, it was distinctly urged that the answer to the cross-bill admitted possession in plaintiff in error, but there was no effort made to have the error corrected, but counsel contented themselves by saying it was a mistake, when they must have known that the record, duly certified to this court, could not be amended by the mere assertion of any person, or any number of persons. That must be known to all persons in the profession.

There is an entire want of proof that the constitutional requirement of notice was complied with by plaintiff in error before he received his tax deeds. The evidence, if it could be held to prove notice at all,, as to the sale of one lot, was only on a person hired by defendant in error, in his meat shop,—a mere hand, and not his business agent. It is not shown that he was an agent to pay the taxes of defendant in error, or had the slightest connection therewith, or that he had the semblance of authority to receive such notice. Defendant resided in the city, and his name and residence were given in the city directory. Then why serve it on a mere employé, unless it was with the hope or design that the notice would never reach the owner ?—and defendant in error swears it never did. As to the notice claimed to have been served on Bobertson, there is an entire failure of proof. The person serving the notice testified that he did not know the man on whom he served it; that he served it on a man calling himself Bobertson, on a particular street, while he testifies he resided at a different number, and that no notice was served on him. Correct notices were essential to the validity of the tax deeds.

It is objected that there is no proof that the abstracts of title read in evidence by complainant are true copies from the original abstract books, and the evidence can not be considered; and if they are rejected, there is a want of proof that defendant in error had title. Concede that the' abstracts can not be considered, still it is proved that defendant in error was in possession of the property, and until rebutted, and other title is shown by defendant, that is evidence of title in' the occupant. It has always been held that a .plaintiff in ejectment may recover on a prior possession, as title, unless-overcome by proof that the title is in some one else. The proof that defendant in error was in possession, therefore, answered the requirement that he must prove title in himself before he could obtain the relief sought.

It is also urged that it appears that defendant in error sold the property, or a portion of it, after the suit was brought, and before the decree was rendered, and that should have prevented the allowance of the relief. He had the right to the relief when he brought his suit, and we do not understand that the sale of the land would defeat the -suit. He may have warranted the title, and if so, he had the right to maintain the suit to protect his covenants. Conveyances of land usually contain covenants for title, and it would not be unrea-' sonable, for the purposes of this case, to indulge such a presumption. But be this as it may, had the grantee made an application it would have been admitted as complainant to prosecute the suit, and it is therefore purely formal in whose name the relief is had, as nothing is recovered, but the cloud' on the title is removed. The grantee was also party defendant, to the suit, and the decree inures to the benefit of the grantee.

It is urged there is no evidence of the amount that had been paid by Gage. There is evidence that the taxes, etc., did not amount to more than the amount found by the decree. If plaintiff in error was not satisfied with that sum, he should have shown, by evidence, that he was entitled to recover a larger sum.

The decree fails to award execution in favor of plaintiff in error, and in this there was error. The decree will therefore be so far modified as to award execution, and the clerk of the circuit court ordered to issue an execution for the amount decreed to be paid to plaintiff in error, and affirmed in all other things.

Decree modified.


author: Mr. Justice Mulkey

text:
    George W. Fitch v. Levi P. Johnson.

      Filed at Ottawa June 21, 1882

      —Rehearing denied September Term, 1882.

    1. Appeaes—reviewing controverted questions of fact. By section 89 of the Practice act, this court is prohibited from examining controverted questions of fact, or considering any assignment of error calling in question the determination of the inferior or Appellate Courts upon any controverted questions of fact, in any case, except those named in the preceding section.
    2. Same—what this court may consider. Although a claim that the trial court, where a jury was dispensed with, erred in rendering judgment for the plaintiff, if based upon the alleged insufficiency of the evidence may not be considered by this court, yet if the claim be based upon the hypothesis that, admitting the facts charged in the declaration to be true, there is no right of recovery, this court may consider it, and whether the trial court erred in rendering judgment for the plaintiff upon the facts in the declaration, is directly presented by a motion in arrest of judgment.
    3. Peaotioe—mode of preserving questions of law on trial by court alone. A party may protect himself against any erroneous view the judge may entertain with respect to the law governing a case where a jury has been dispensed with, by submitting to the court propositions of law as applicable to the facts, and thus have the court make a ruling upon the legal effect of any portion of the evidence, or with respect to any other matter or thing. affecting the legal status of the cause, and thus avail himself in this court of any erroneous view of the law entertained by the trial court, and not corrected in the Appellate Court.
    4. Covenants-^» ZteiZier personal to the grantee, Or rum, with the land. A party owning a dam and other property conveyed a mill and the land on which it was situated, together with a water power equal to 2500 inches of water under a six feet head, covenanting to complete the dam, and forever to keep up and maintain.at least a six feet dam, and all necessary piers, races, bulkheads and gates, so as to enable the grantee, Ms heirs and assigns, to fully use and enjoy the water granted, at all times, unless prevented by some unforeseen accident or casualty to the works of the grantor or hie grantees, and that in case of damage being done to the works of the grantor by force of -the water, or ice, or other cause, he would repair the same without unreasonable delay, and in case of neglect to do so for a period of thirty days, the grantee of the mill property, his heirs or assigns, might, make the necessary repairs after ten days’ written notice, so as to enable him to enjoy the water power granted, or to prevent further damage from being done to the property of the grantee, and that the grantor should be liable in a suit for the amount so expended by the grantee, less his proportion of the expense, which was one-tenth part thereof: Held, that the covenant was one that run with the estate granted, and passed a right of action to any subsequent owner of the mill deriving title tMou'gh the original grantee.
    5. The conveyance of the mill and water power by a deed giving the right of entry upon the adjacent property under certain contingencies, for the purposes of repair, and the covenants therein on the part of the grantor to keep the dam, etc., in repair, conferred upon the grantee of the mill property and his assigns an easement in the adjacent premises, including the dam and hydraulic works, which thereby became appurtenant to the mill property, and passed with that property on its subsequent conveyance by the grantee.
    6. Same—when it binds covenantor’s assigns. Where the owner of premises conveys a part of .them, covenanting that the purchaser, Ms heirs and assigns, shall enjoy certain rights in and with respect to the premises retained by him, and also covenants in the conveyance to do and perform, from time to time, certain acts on the premises retained which are essential to the use and enjoyment of the purchased premises, such covenant, although regarded as a burden, will be deemed to run with the servient estate, and to subject the assignee thereof to its performance, and this burden is co-extensive with the estate granted to which it is made appurtenant.
    Q7. Same,—may be attached to and rum, with incorporeal hereditaments. By the decided weight of authority covenants may run with incorporeal as well as corporeal hereditaments, and will when such intention appears.
    8. Where the owner of mill property, and of a dam and hydraulic works on adjacent premises, conveys the mill and the ground on which it is situate, and grants certain water power with it from the head of water produced by his dam, and covenants to keep his dam and other works in repair, so as to give the full enjoyment of the water power granted, and gives the grantee or his assigns the right to enter upon the lands retained hy him, and make the necessary repairs to protect his right, upon certain contingencies, upon the failure of the grantor to do so, at the cost of the grantor or his assigns, this will create a servitude upon the .premises retained, in favor of his grantee and assigns, and a subsequent purchaser of the servient estate will take it subject to the burden thus imposed upon it, and will be held personally responsible for a breach of the covenant.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Whiteside county; the Hon. John Y. Eustace, Judge, presiding.
    Messrs. C. J. & G. C. Johnson, for the appellant:
    Covenants are said to run with the land when either the liability for their performance or the right to enforce them passes to the assignee of the land itself. Wood’s Landlord and Tenant, 499; 1 Smith’s Leading Cases, 107; Dorsey v. St. Louis, Alton and Terre Haute R. R. Co. 58 Ill. 65; Wiggins Ferry Co. v. Ohio and Mississippi Ry. Co. 94 id. 83.
    In order that a covenant may run with the land, its performance or non-performance must affect the nature, quality or value of the property granted or demised, independent of any collateral circumstances, or it must affect its mode of enjoyment. And see generally, 1 Smith’s Leading Cases, 111-127; Wood’s Landlord and Tenant, 499; Dicey’s Parties to Actions, 44; Taylor v. Owen, 2 Blackf. 301; Town of Plymouth v. Carver, 16 Pick. 183; Hurd v. Curtis, 19 id. 459; Wheelock v. Thayer, 16 id. 68; Angell on Watercourses, sec. 258; Taylor’s Landlord and Tenant, see. 261; Webb v. Russell, 3 Term R. 393; Wiggins Ferry Co. v. Ohio and Mississippi Ry. Co. 94 Ill. 95.
    An appurtenant is defined to be a thing used with, and related to or dependent upon, another thing more worthy, and agreeing in its nature and quality with the thing where-unto it is dependent or appurtenant. 3 Washburn on Real Property, 340.
    A thing corporeal can not be appurtenant to a thing corporeal, nor a thing incorporeal appurtenant to a thing incorporeal. Harris v. Elliott, 10 Pet. 54; Leonard v. White, 7 Mass. 6; Jackson v. Hathaway, 15 Johns. 454.
    To make a covenant run with the land, in any case, there must be privity of estate between the parties. Wood’s Landlord and Tenant, 499; Taylor’s Landlord and Tenant, sec. 261; 1 Smith’s Leading Cases, .125; Dicey on Parties to Actions, 44; Angell on Watercourses, secs. 257-258; Hurd v. Curtis, 19 Pick. 459; Wheelock v. Thayer, 16 Pick. 68.
    To constitute privity of estate the position of the parties must be such as would have formerly given rise to the relation of tenure. 1 Greenleaf on Evidence, sec. 189; 1 Washburn on Real Property, 138.
    Covenants which cast a burden on land do not run with the ‘ land. 1 Smith’s Leading Cases, 110; Bawle on Covenants, 341; Dicey on Parties to Actions, 120; Kepple v. Bailey, 2 Mylne & K. 517.
    The right which Church & Patterson and their assigns obtained by the deed to go upon the dam and works and make repairs, was a mere license, and gave them no interest in the land upon which the dam, etc., was located; nor would the conveyance of such a license carry a covenant running with the land. Angell on Watercourses, secs. 285, 286; Washburn on Easements, 6; Vandenburg v. Van Bergen, 13 Johns. 212; Mumford v. Whitney, 15 Wend. 381; Wood v. Leadbitter, 13 M. & W. 836; 2 American Leading Cases, 690.
    Mr. F. Sackett, for the appellee:
    A covenant is said to run with the land when either the liability for its performance or the right to enforce it passes to the assignee of the land itself. 1 Smith’s Leading Cases, (6th Am. ed.) 133; Dorsey v. St. Louis, Alton and Terre Haute R. R. Co. 58 Ill. 65; Wiggins Ferry Co. v. Ohio and Mississippi Ry. Co. 94 id. 83. See, also, Angell on Watercourses, see. 258; Hurd v. Curtis, 19 Pick. 459; Taylor’s Landlord and Tenant, 261.
    Covenants may run with all the subordinate rights and privileges which, without being a part of the land, issue out of it, and can properly be viewed as incorporeal hereditaments. 1 Smith’s Leading Cases, (6th Am. ed.) 165, 173, 211; 3 Washburn on Real Property, (3d ed.) 340; Sterling Hydraulic Co. v. Williams et al. 66 Ill. 393.
    The right to enter upon the land of another, and there erect and maintain permanent structures, is an interest in the land. Prescott v. White, 21 Pick. 341; Bronson v. Coffin, 108 Mass. 675; Morrill v. Markman, 24 Mich. 279.
    The same privity that exists between lessor and lessee exists between grantor and grantee when a grant is made of a subordinate interest in land. 1 Smith’s Leading Cases, (6th Am. ed.) 165,173,177; Holmes v. Buckley, Prec. in Ch. 39, 1 Equity Cases, Abr. 27; Rowbotham v. Wilson, 6 E. & B. 593; Prescott v. White, 21 Pick. 341; Morse v. Aldrich et al. 19 id. 449; Bronson v. Coffin, 108 Mass. 675; Batavia Mfg. Co. v. Newton Wagon Co. 91 Ill. 230.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This is an appeal from a judgment of the Appellate Court for the First District, affirming a judgment for the sum of $1562.52, rendered by the circuit court of Whiteside county, at its March term, 1881, in favor of the plaintiff, in an action for breach of covenant, wherein Levi P. Johnson, the appellee, was plaintiff, and George W. Fitch, the appellant, and Pardon A. Brooks, were defendants.

The. facts., as they substantially appear of record, are, that on the first day of May, 1873, the Lyndon Hydraulic and Manufacturing Company, a corporation organized under the laws of this State, was the owner in fee of certain real estate at or near Lyndon, in Whiteside county, this State, lying on either side and extending across Bock river, upon which there were in the course of construction a dam across the river, a head race, and other hydraulic works connected therewith, designed to be used in operating a certain flouring mill then being built on a portion of the premises on the north side of the river; that the company, on the day last mentioned, by its deed of that date, containing full covenants of warranty, for the consideration of $20,000, conveyed the mill and the land upon which it is situated, together with a water power equal to 2500 inches of water under a six feet head, to Bradford 0. Church and Samuel Patterson, which said deed contained, among others, the following express covenants on the part of the company:

“The party of the first part hereby covenants and agrees that it will complete and finish its dam and works in a good and substantial manner, according to the contract between the party of the first part and the original contractor, David B. Sears, and that it will forever keep up and maintain at least a six feet dam, and all necessary piers, races, bulkheads and gates, so as to enable the party of the second part, their heirs and assigns, to fully use and enjoy the water power herein above granted at all times, unless prevented by some unforeseen accident or casualty to the works of the party of the first part or its grantees. And the party of the first part further covenants and agrees, to and with the party of the second part, their heirs and assigns, that in case of any damage being done to the works of the party of the first part by force of the water or ice, or from any other cause, it will, without unreasonable delay, cause the same to be repaired; and in case the party of the first part shall fail or neglect to so make any such necessary repairs for a period of thirty days after the same might have been done, that then and in that case the party of the second part, or their heirs or assigns, shall have the right, after having given to the party of the first part ten clays’ notice in writing, to enter upon the works of the party of the first part and make such necessary or reasonably necessary repairs upon the same, so as to enable the party of the second part to enjoy the water power hereby granted, or for the purpose of preventing further damage being done to the works or property of the party of the second part; and for the expenses incurred in so doing, the party of the first part shall be' liable in a suit at law for the amount so expended by the party of the second part, less the party of the second part’s proportion of such expenses as hereinafter covenanted and agreed to be paid by them. ”

The deed also contained a covenant on the part of the grantees to pay one-tenth of the cost of maintaining and keeping in repair the above mentioned hydraulic works. That the copipany, on the 9th day of September, 1874, conveyed to Martin M. Potter the dam and other hydraulic works, together with the land upon which they were constructed and located, who afterwards, on the 17th of January, 1870, conveyed the same to Fitch and Brooks; that appellant subsequently, on the 3d of July, 1879, conveyed all his interest in the premises to his son, Frank E. Fitch, the conveyance being recorded on the 19th; that on the 15th of April, 1875, Church and Patterson conveyed to appellee the flouring mill and lot of land upon which it is located, including» the water power, and all rights and interests purchased by them from the company, as above stated; that in the month of March, 1879, the dam was partially destroyed by high water and. ice; that on the 18th of June, 1879, appellee gave notice to Fitch and Brooks of the condition of the dam, and of his purpose to repair it if neglected by them; that after the expiration of the notice, some time in July, appellee commenced the required repairs and completed the same, at a cost of §1618.30, one-tenth of which he was bound, as assignee of Church and Patterson, to bear himself. The substance of the foregoing facts we regard as sufficiently averred in the declaration.

This case having been tried by the court, with the consent of the parties, without a jury, upon certain issues of fact, and there having been a general finding and judgment in favor of appellee, and such finding and judgment having been affirmed by the Appellate Court, the case, so far as those issues are concerned, must be regarded as conclusively settled against the appellant.

The legislature having declared, by the 89th section of the Practice act, “the- Supreme Court shall reexamine cases brought to it by appeal or writ of error as to questions of law only, and no assignment of error shall. be allowed which shall call in question the determination of the inferior or Appellate Courts upon any controverted questions of fact in any case, excepting those enumerated in the preceding section, ” and as this case is not embraced within the excepted cases, it follows that all matters relating to the character, force and effect of the testimony, which counsel for appellant have discussed with so much earnestness and marked ability, are not before us at all, and by the above provision of the statute we are expressly forbidden to consider them. Such matters were eminently proper for the consideration of the Appellate Court, and they doubtless there received that careful and deliberate examination their importance demanded.

It remains only for us to inquire what, if any, errors of law are presented by the record for our consideration. To enable a party to protect himself against any erroneous view the judge may entertain with respect to the law governing a case, where a jury has been dispensed with, as was done in this case, the statute has wisely provided: “In all cases in any court of record of this State, if both parties shall agree, both matters of law and fact may be tried by the court; and upon such trial either party may, within such time as the court may require, submit to the court written propositions to be held as law in the decision of the case, upon which the •court shall write ‘refused,’ or ‘held,’,as he shall be of opinion is the law, or modify the same, to which either party may except, as to other opinions of the court.” Under this provision of the statute it • was clearly the right of counsel, •and would have been highly proper, by means of such written propositions to have required the court trying the cause to make a ruling upon the -legal effect of any portions of the evidence offered, or with respect to any other matter or thing affecting the legal status of the cause, and thus have availed themselves in this court of any erroneous view of the law entertained by the trial court, and not corrected in the Appellate Court. But on examination, the record shows nothing of this kind was done. Indeed, no act or ruling of the court which we are permitted to consider is claimed by appellant’s counsel to be erroneous, except the rendering of the judgment, and even that claim, so far as it is based upon the alleged insufficiency of the evidence, we are not, as we have already seen, permitted to consider; but in so far as it is based upon the legal hypothesis that, admitting the facts charged in the declaration to be true, there is no right of recovery, we are. If, conceding the facts to be true in manner and form as charged in the declaration, there is in law no right of recovery, then the circuit court erred in rendering the judgment, and that error, not having been corrected in the Appellate Court, may be corrected here; and whether such error exists in fact is directly presented by appellant’s motion in arrest of judgment.

Appellant claims that the covenant sued on was a mere personal covenant on the part of the company with Patterson and Church, and that the liability to perform it did not therefore devolve upon the assignee of the dam and hydraulic works, and that for the same reason the right to sue upon it did not pass to appellee as assignee of the mill property, or, .more shortly stated, that the covenant in question does not run with the land. If such is the true character of the covenant, it is hardly reasonable to suppose the parties so understood it, for surely no one capable of contracting would invest $20,000 in property that might on the next day be rendered almost valueless by a mere transfer of an adjacent estate, or by the sudden insolvency of its owner, which would necessitate such a transfer,—the very contingency which happened in this case. The relation between the two properties clearly shows that such could not have been the intention or understanding of the contracting parties. So far as their usefulness is concerned they are dependent on each other. The water power would be useless without the mill, and the mill could not be operated at all without the water power.

Again, on the one hand, no one except the owner - of the hydraulic works, or some one acting under his license or authority, could lawfully perform the covenant to keep the works in repair, for every entry for the purpose of repairs by another would be a trespass. On the other hand, the covenant was of no value to the covenantee except in his character as owner of the mill, and if his right, as owner, to enforce the performance of it by action would not pass to his assignee, it would in effect be to deprive him of one of the most valuable incidents of all property, namely, the right and power of transfer, for certainly no one would want the property at any price without power to enforce the covenant. The mill without the motive power which the hydraulic works furnished to operate it, would certainly be of but little value. These, and other considerations of a similar character that might readily be suggested, leave but little, if any, doubt that it was the intention of the parties to bind their respective assignees as well as' themselves, and we are of opinion they did so.

The conveyance of the mill and the water power by a deed giving the right of entry upon the adjacent property, under certain contingencies, for purposes of repair, and the covenant therein on the part of the grantor to keep the dam, etc., in repair, we regard as conferring upon the grantees of the mill property and their assigns an easement in the adjacent premises, including the dam and hydraulic works, which became, and is, appurtenant to the mill property, and hence passed with it to appellee on his purchase from Patterson and Church. And we are of opinion, also, the burden of the covenant to repair devolved upon the assignee of the servient estate upon its transfer by the company, and that such assignee or assignees, whether immediate or remote, are personally liable thereon, in their character as owners of such servient estate, so long as it remains in them,—or, more shortly, we are of opinion the covenant runs with the land, and it therefore follows, the declaration shows upon its face a good cause "of action.

While it is true the cases are not all in harmony on this subject, yet we are of opinion that by the decided weight of authority the doctrine that covenants run with incorporeal as well as corporeal hereditaments is fully established, and where the owner of certain premises conveys a part of them, covenanting that the purchaser, his heirs and assigns, shall" enjoy certain permanent rights in and with respect to the premises retained by the grantor, and also covenants in the conveyance to do and perform, from time to time, certain acts which are essential to the use and enjoyment of the purchased premises, as was done in this case, such covenant, although regarded as a burden, will be deemed to run with the servient estate, and to subject the assignee thereof to its performance. The acts embraced within the covenant being essential to the use and enjoyment of the purchased estate, it must be assumed their performance was intended by the parties to be co-extensive with the estate conveyed, which was one of unlimited duration, and we áre aware of no means by which such intention can be made certainly effectual except by holding, as we do, the covenant runs with the servient estate, and that the assignee thereof is personally liable thereon. The principle here 'announced is no new doctrine of this court. It is distinctly recognized in Sterling Hydraulic Co. v. Williams et al. 66 Ill. 393, Wiggins Ferry Co. v. Ohio and Mississippi Ry. Co. 94 id. 83, and also in Batavia Mfg. Co. v. Newton Wagon Co. 91 id. 230.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Dickey

text:
    Milton L. Willetts v. Harriet Willetts.

      Filed at Ottawa September 27,1882.

    1. Bescinding contract—undue influence—duress—as between husband aund wife. A wife was induced to execute and accept deeds and other contracts, whereby the husband leased her a house and lot worth $400 for her life, and obligated himself to pay her $300 a year and deliver her five cords of wood a year, and she released her dower in his lands and estate, her right in the homestead, and all other rights growing out of her relation to him as his wife, and she executed and accepted the same under such circumstances as to show her acts were affected by the undue influence of her husband, amounting to a moral duress, considering her mental condition from sickness and unkind treatment. It was held, a court of equity would be fully warranted in setting aside such contract, and other papers relating thereto.
    2.. Separate MAiNTENANCE^-MilieM.fifrcwiied. Where a husband mistreats his wife, so that she can not live with him, and keeps another woman in the same house with her, under such circumstances as to justify her belief of an improper intimacy between them, and refuses to live with her any longer as his wife for an alleged want of congeniality, and finds her another place in which to live, keeping such other woman as an inmate of his house, and otherwise mistreats his wife, the court will be authorized in decreeing the wife a separate maintenance.
    3. SAME'—of the amount. Where the husband, who is a farmer, owns property, mostly real estate, of the value of $30,000, and is guilty of such misconduct as to authorize his wife to have a separate maintenance, $500 allowance per annum is not unreasonable.

      Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Mercer county; the Hon. John J. Glenn, Judge, presiding.
    This was a bill in chancery, brought by Harriet Willetts, against Milton L. Willetts, in the Mercer circuit court, to cancel an agreement to provide separate maintenance for the complainant, a mortgage to secure the same, a lease to her for life, and a release by her of her.dower in the estate of the defendant, her husband, made and entered into on July 5, 1880, and then provide separate maintenance other and different from that provided in the agreement.
    The bill, after stating the marriage and good conduct of the complainant, charged in substance that the defendant is a spiritualist, and in March, 1880, one Piney Willard, a pretended medium, came and made mischief; that defendant had a bad hand, and refused to let any one else than Mrs. Willard treat it, and generally took a dislike to his wife; that the spirit of his first wife was conjured up, and made to say that complainant and defendant must separate; that thereupon complainant became sick, and remained so a long time, by reason of the destroying of her domestic happiness, and was driven to distraction, and could not recollect what happened fully, but had a faint recollection of some one coming to the house and talking about dividing the property, and that she refused to be parted from her husband, or to make any arrangement; that some days after some one took her to the city of New Boston; that just before she had been locked in her room; that when she went to New Boston she felt as if she was fleeing from some unseen power; that she was taken to the house, of a friend, where she was shown a paper which she was told she must sign; thinks she signed it, but don’t know what was in it, and does not know whether it was read to her or not; that she is informed that her husband, on July 5, 1880, executed to her a mortgage, by which he secured to her $300 a year, payable half-yearly, hut that she knows nothing about it; that it was never delivered to her, or any one for her, and no agreement-was given to her by her husband, promising to pay her any money; that she has recovered her mind and memory to some extent, and finds herself dependent upon the kindness of friends; that all these papers were made to enable defendant to go away with Mrs. Piney Willard; that she did not consent to the arrangement of separate living and maintenance, and does not now; that Willetts is worth $27,000, and a large amount of personal property; that whatever paper she signed she signed under duress, and that the lawyer who prepared the papers was employed by Willetts. The. prayer of the bill was, that the writings be declared void, and she be decreed a reasonable sum for separate maintenance.
    The release sought to be set aside recited, that in consideration that said Milton L. Willetts had furnished her with a home, well and comfortably furnished, and bound himself to pay her $300 per annum during her life, and five cords of wood yearly, she had granted, remised, released and forever quitclaimed unto said Willetts, his heirs and assigns forever, all her dower and thirds, right of homestead, widow’s award, claim for separate maintenance, and all other right, title, interest, property, claim and demand whatsoever in law and equity she might then or thereafter have in the property, both real and personal, of the said Willetts, as his wife or widow, etc.
    The defendant, in his answer, said that his wife was not kind or affectionate, but unreasonable, turbulent and quarrelsome, of bad temper and abusive conduct, and that there had been no happiness in their home for years; denied that his wife was crazy, sick, or driven to distraction, but was in a mental condition to transact business; that she talked for many weeks about separation and dividing the property, and his making provision for her if she went away and lived separate; that the agreement for living apart, and her separate maintenance, and the other papers, were read over and explained to her carefully, and she knowingly and voluntarily' executed the same.
    The evidence showed considerable domestic trouble between the parties, and that the defendant’s affections were alienated from his wife for some time before their final separation. It also appeared that the wife’s health was not good, and that she was very excitable, and at times not capable of transacting business; that some time before the papers were executed between the parties she was taken sick, from which sickness she did not recover until after the agreement was made. The proof also tended to show considerable influence brought to bear on her by the defendant before the papers were executed, and that he shut her up in his house for a while, and did not allow her to see any one, and frequently told her that he would not live with her as her husband any longer, as she was not congenial to him, and urged her to make up her mind what she wanted or was going to do. The proof also showed such conduct between the defendant and Mrs. Willard as to lead to the belief of an improper intimacy between them, and that he took her to live with him after the separation. It also appeared that the defendant was a farmer in good circumstances, and that his property, mostly real estate, was worth from $25,000 to $30,000.
    The circuit court granted the relief sought, setting aside all the papers relating to the contract for the separate maintenance of the wife, and her release of her rights in his property and estate, and granted a decree of separate maintenance, requiring the defendant to pay her $500 per year for that purpose. This decree was affirmed in the Appellate Court, and an appeal prosecuted to this court.
    Messrs. Peppeb & Wilson, for the appellant.
    Messrs. Holmes & McBbide, for the appellee.
   Mr. Justice Dickey

delivered the opinion of the Court:

The record in this case has been examined and considered with care. We are of opinion that no cause is found requiring that the decree of the circuit court should be disturbed. The deeds and contracts and other papers, which are set aside by the decree of the circuit court, were executed and accepted by Mrs. Willetts under such circumstances that we think the court was fully warranted in the conclusion that her acts were so far affected by the undue influence of her husband that she has a right to have- the same set aside. This being done, the allowance decreed to her as a separate "support we think is not unreasonable.

The judgment of the Appellate Court affirming that decree we think was right, and the same is therefore affirmed.

Judgment affirmed.


text:
    Anton Mussing v. Serena Mussing.

      Filed at Ottawa September 27,1882.

      Amhony—reasonableness of amount allowed. On bill for a divorce by a wife against her husband, for extreme and repeated cruelty, it appeared that the parties were married in 1860, and had four children, all sons, aged, at the time of the commencement of the suit, eighteen, seventeen, fourteen and eleven years, and that the husband owned two lots, one occupied as a homestead, worth from $1500 to $3500, and the other without buildings, and used for gardening, worth from $1000 to $2500, and was also the owner of a horse, wagon, harness, furniture, and tools necessary to carrying on the boot and shoe business; that his trade was that of a boot and shoemaker. It further appeared that the wife had supported and clothed the family by gardening and close habits of industry and hard labor, and her labor and earnings had contributed largely in acquiring the lots then held by the husband; that the children had all been reared and inured to habits of industry and frugality from their infancy up, and that the two oldest were then receiving for their wages, the one $35 and the other $70 a month, which, in contemplation of law, was the property of their father; and that the wife, at the time of the decree, was about fifty years of age, poor, and without means of support, and theievidence also clearly showing that her life, since the marriage, had been one of constant toil and drudgery, and that during at least the last ten years of her life she had scarcely had a kind word from her husband, but, on the contrary, had received nothing at his hands but insult and injury, often culminating in cowardly assaults upon her person, and that the charges of cruelty were true: Held, upon granting the divorce, that a decree for alimony giving the wife the lot used for gardening purposes, and requiring her to release to the husband her right of dower and homestead in the other lot, and requiring him to pay the wife’s solicitor’s fees of $300, shown to be reasonable, was justified and fully warranted.
    Appeal from the Appellate Court for the First District; —heard in that court on appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Mr. James S. Murray, for the appellant.
    Messrs. Swett, Bates & Haskell, for the appellee.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This is an appeal by Anton Mussing from a judgment of the Appellate Court for the First District, affirming a decree of the Superior Court of Cook county, dissolving the marriage between himself and his wife, Serena Mussing, and awarding to her permanent alimony, on the ground of extreme and repeated cruelty.

The propriety of so much of the decree as dissolves the marriage and grants to her a divorce,. is not seriously questioned. Indeed, it is substantially conceded, if appellee’s witnesses are to be believed, and no reason is perceived why they should not be, the court was warranted in granting the divorce for the cause stated. The real controversy is about that part of the decree which disposes of the question of alimony.

It appears from the record before us, appellant and appellee were married the 16th of October, 1860, and that they have four children, the fruits of said marriage, all of whom are sons, and still living, namely, Martin,. Oscar, Alfred and John, of the respective ages of eighteen, seventeen, fourteen and eleven years. The decree gives Alfred, the third son, to the mother, and John, the youngest, to the father, and makes no disposition of the other two, which is equivalent to giving them to the father. It is apparent from the record, these children have been instructed and inured to habits of industry and frugality from almost their cradles upwards, and the evidence shows the two oldest, for several years past, have found constant employment at remunerative wages, and that they now are receiving, respectively, for their services the sums of $35 and $70 a month, which, in contemplation .of law, is the property of the father, and their earnings will so continue to be his until they attain their majority. The two younger children are doubtless at least self-sustaining. Appellant is by trade a shoe and bootmaker, and the family for several years past has been gardening and keeping a dairy on a small scale, and by these means the wife and smaller children have mainly defrayed the family expenses, including clothing.

Appellant, as appears from the evidence, is the owner of two lots of ground in. the town of Evanston, Cook county, one of which constitutes the homestead, and is variously estimated at from $1500 to $3500 in value. The other is without buildings, and is used for gardening purposes. The witnesses estimate this lot at from $1000 to $2500. In addition to this, appellant is shown to be the owner of a horse, wagon, harness, furniture, and tools necessary to carrying on the shoe and boot business. The decree finds, and we think the finding is warranted by the evidence, the above real estate is worth, altogether, about $5000; that it is free from incumbrances, and that the same was acquired partly by appellee’s own money, and by her earnings since her marriage; that she is about fifty years of age, poor, and without means of support. In addition to this-, the evidence clearly shows her life since her marriage has been one of constant toil and drudgery, and that during at least the last ten years of her life she has scarcely had a kind word from appellant to encourage and cheer her in the performance of her arduous duties, but, on the contrary, she has.received nothing at his hands but insult and injury, often culminating in cowardly assaults upon her person. It is true, he denies this, but his wife and all his children contradict him, and he is not sustained by any one. Under these circumstances the court decreed that he should convey to appellee, in her own right, the lot used for gardening purposes- above mentioned, and that she should release to him her right of dower and of homestead in the homestead property, and“ also decreed that he should pay to her solicitors, for their services in the court below, including the taking of testimony and preparing the case for trial, and also for defending the case in the Appellate Court, the sum of $300, which, under the proofs, we regard as reasonable.

We do not fee! called upon to further discuss the testimony in the case. That has been ably done by counsel on both-sides, and we are satisfied nothing we could say would throw any additional light on the subject. We shall, therefore, content ourselves by simply adding, we are of opinion the evidence fully sustains the findings of t.he court below, and the decree was justified by the findings, consequently the Appellate Court committed no error in affirming the decree.

The judgment of the Appellate Court will therefore be affirmed.

Judgment affirmed.