author: Mr. Justice Craig

text:
    John M. Pestel et al. v. Thomas J. Primm.

      Filed at Springfield March 26, 1884.

    1. Bill of review—or cross-bill in the nature of a bill of review— limitation. On a bill filed by the purchaser of land at a master’s sale on foreclosure of a mortgage, against the heirs of the mortgagor, alleging the foreclosure and sale, and the execution and delivery to him of the master’s deed, and its loss or destruction without having been recorded, and praying that the master be directed to make him a new deed in lieu of the lost one, the heirs, more than five years after the youngest became of age, filed a cross-bill, in the nature of a bill of review, seeking to impeach the former decree for errors and irregularities, and to set aside the sale, and for an account of the rents and profits, such purchaser having entered into possession under his lost deed, and the purchaser in his answer set up and relied on the limitation of five years as a bar to the relief sought by the cross-bill. On the hearing, the court granted the relief sought in the original bill, and dismissed the cross-bill: Held, that there was no error in dismissing the cross-bill.
    2. A bill of review for errors apparent on the face of the record in a chancery suit, must be filed within the time allowed for a writ of eiror, and is not allowed after that time has elapsed; and this rule applies to a cross-bill in the nature of a bill of review, to impeach a decree.

      3. Bill to restore lost deed—its scope and effect as to decree under which the original deed was made. On a bill seeking a decree for a new deed in place of a former one made by a master in chancery under a decree of foreclosure, which is lost, the validity of the decree under which the sale and deed were made is not involved, and it can not be assailed for errors and irregularities. On a bill to carry a former decree into execution, the rule might be otherwise, and the court might look into the original case to see if the former decree was equitable and just.
    4. A decree directing the master in chancery to make a deed for premises bought under a former decree, which has been lost without being recorded, confers no title on the - purchaser at the sale, nor does it cut off any title of the former owners of the land. Such a decree leaves the parties in the same position they would have occupied in regard to the title to the land if the original deed had never been lost or destroyed.
    Writ op Error to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court, of Menard county; the Hon. Cyrus Epler, Judge, presiding.
    Mr. N. W. Branson, and Mr. R. N. Stevens, for the plaintiffs in error:
    The original decree of foreclosure, and the proceedings under the same, should have been set aside for want of proper service, and because the decree was erroneous, being based on a mortgage given to secure a void note.
    Primm had no vendor’s lien. A vendor’s lien, not reserved in the deed of conveyance, is not assignable, and the assignee of a note given for the purchase money of land can not enforce the lien of the vendor. Elder v. Jones, 85 Ill. 384; Bonnell v. Holt, 89 id. 71; Small v. Stagg, 95 id. 39; Dayhuff v. Dayhuff, 81 id. 499; Markoe v. Andras, 67 id. 34.
    How, then, can defendant in error assert rights in this case, based upon void instruments ? The notes and mortgage being void, how could he acquire any rights by his decree of foreclosure ?
    The laches of defendant in error should bar him. He claims to have been entitled to a deed in 1860, and this bill was not filed until 1881. Schrader v. Peach, 77 Ill. 615.

      The cross-bill became a part of the original suit, and was filed in time. Fleece v. Russell, 13 Ill. 31.
    As defendant in error bases, and of necessity must base, his claim for relief upon the foreclosure proceedings, thus the validity and regularity of those proceedings become an issue in the case. If defendant in error fails to show that those proceedings are valid and binding on us, we can avail ourselves of such failure by our answer, without a cross-bill.
    Mr. S. H. Blane, and Mr. T. W. McNeeley, for the defendant in error:
    The regularity of the proceedings in the foreclosure suit was not a proper question before the court in this case, which is brought solely for the purpose of having a new deed made for one that has been lost.
    Decrees may be reversed on writ of error, or corrected by a bill of review, within five years after they are rendered, or in case of legal disability, within five years after its removal. Dolton v. Erb et al. 53 Ill. 289.
    The period of limitation had run against the filing of a bill of review before this suit was brought; but it is urged that even if plaintiffs in error could not file an original bill to review the decree of 1859, yet they can do so by cross-bill in this case,—citing Fleece v. Russell, 13 Ill. 31.
    Defendant bought the land in 1859, received a master’s deed, and took possession in 1860, and has ever since held the property adversely. Such possession alone is a bar to the relief sought in the cross-bill. Hodgen v. Henrichsen, 85 Ill. 259; Weber v. Anderson, 73 Ill. 439; Kerr et al. v. Hitt, 75 id. 51.
   Mr. Justice Craig

delivered the opinion of the Court:

In 1850, Abner B. Hall, being the owner of a certain tract of land in Menard county, consisting of forty acres, sold and conveyed the same to Johanna Pestel. A portion of the purchase money ($100) was paid down, and notes and a mortgage given for the balance, which was $200.. In 1853, Hall sold and assigned the notes and mortgage to Thomas J. Primm. In 1856 or 1857 Johanna Pestel died, leaving certain minor children as her heirs. In November, 1857, the notes and mortgage remaining unpaid, Primm instituted proceedings in the circuit court of Menard county, against the children and heirs at law of the mortgagor, to foreclose the mortgage, which resulted in a decree directing the mortgaged premises to be sold in payment of the mortgage indebtedness. On the 2d day of July, 1859, the master in chancery of Menard county sold the premises, under the decree, to the complainant, Primm, for the sum of $212.30,—the amount of the decree and costs of foreclosure. The master executed to the purchaser a certificate of purchase, a duplicate of which was duly recorded, and reported the sale to the court, which was approved by the court. No redemption was made from the sale, and in the latter part of 1860, Primm, the purchaser, entered into the possession of the premises, and from that time to the present he has held the possession of the property, paid the taxes, and received the rents and profits, claiming to own the property under the master’s sale.

In 1881, Thomas J. Primm filed a bill in equity in the circuit court of Menard county, in which he sets up, in substance, the facts above stated, and prays for a decree for a deed for the premises which he purchased under the decree of foreclosure. The heirs of Johanna Pestel were made defendants to the bill, and in the answer they admit that complainant, in 1857, began proceedings to foreclose said so-called mortgage, which resulted in what purported to be a decree of . sale of said first described premises, to which said husband and heirs of said Johanna Pestel were made defendants, but deny that said husband and heirs, or either of them, were duly and legally summoned, but, on the contrary, aver that the court never obtained jurisdiction of the persons of any of the defendants in that suit, by service of process, entry of appearance, or otherwise, and aver that for this, and other reasons hereinafter appearing, the proceedings, decree and sale in said suit were irregular, erroneous and void, and that if such sale was made, the complainant acquired thereby no legal or equitable interest in said premises. The answer also denies that the master in chancery made and delivered to complainant a certificate of purchase for said premises; denies that complainant ever lost or misplaced a certificate of sale for said premises, because he never had one; denies that complainant was ever entitled to a deed from the master ; denies that he ever lost or misplaced such a deed, and denies that he ever received one. The answer further admits that complainant has been in possession of such premises ever since the latter part of 1860, during all of which time he has had the full use and enjoyment of said premises, and has received the rents and profits thereof; avers that the value of the use and occupation of the premises during that period has averaged $200 per annum, and that complainant has received from his tenants, for the use of said premises, the sum of $3000 since 1860.

The defendants also filed a cross-bill. The cross-bill makes Primm defendant; waives answer under oath; prays that the decree entered in the foreclosure case, in April, 1859, be reviewed, reversed and set aside; that the master’s sale to Primm be set aside; that said so-called mortgage and notes, and all proceedings, and the decree in said foreclosure suit, be declared to be invalid, null and void, and that the mortgage and notes be canceled; that Primm be required to account to complainants in the cross-bill for the rents and profits, and the value of the use and occupation, of said premises while in his possession; that in case the court holds said mortgage and notes not to be void, complainants in the cross-bill be let in to redeem, and in such case, that an account be taken of the amount of said notes, and of the rents and profits of said premises while in Primm’s possession; that the rents and profits, or value of use and occupation, of said land, be applied, as the same accrued, towards the liquidation of said notes, and that Primm be required to pay complainants in the cross-bill the amount of such rents, and value of such use and occupation, remaining after paying said notes, and that he be required to pay interest thereon, and to enter said mortgage satisfied of record, and to surrender and deliver up possession of said premises to complainants in the cross-bill; and general prayer for relief.

The complainant put in an answer to the cross-bill, and replication having been filed, the cause proceeded to a hearing on the pleadings and evidence, and the court, in its decree, found that the land in controversy was sold by the master in chancery, on July 2, 1859, under decree of court, to Thomas J. Primm, who received a certificate of purchase therefor; that the premises were not redeemed, and the master in chancery executed and delivered to Primm a deed therefor; that the deed was not recorded, and was accidentally lost or misplaced, and can not be found; that Primm has been in possession ever since the latter part of 1850, as owner, by purchase, and has paid all the taxes thereon. The court ordered that the master in chancery execute a deed to said Primm, conveying said premises to him, and that the cross-bill be dismissed.

In the decree of foreclosure under which the property was sold, the court found, as appears from a recital therein, that the defendants were duly and legally served with process more than ten days before the first day of the term of court. But it is, however, contended by the plaintiffs in error, that in this proceeding they are not barred or concluded by the recitals of service contained in the decree, but they have the right to contradict this finding of the court, and show by the summons and return thereon, which are a part of the same record, that the defendants were not duly and legally served with process, and hence the decree rendered by the court was void. We shall not stop in this case to determine whether the finding of service recited in the decree was shaken or overcome by the summons, and returns thereon, as we do not understand that question is properly involved in the determination of this case.

As before observed, the court dismissed the cross-bill, and ordered the master in chancery to execute a deed in lieu of one previously made, which was lost. It is claimed by plaintiffs in error that the court erred in dismissing the cross-bill, and also in directing the master in chancery to make a deed to Primm. It will be observed that the cross-bill was a bill in the nature of a bill of review, and unless the plaintiffs in error were entitled to maintain an original bill to review the decree of the circuit court rendered on the foreclosure of the mortgage, then they could not maintain the cross-bill, and it was properly dismissed. In the answer to the cross-bill the complainant sets up that the right of plaintiffs in error to review -the decree was barred by the Statute of Limitations, and avers that any supposed right to review the decree accrued more than five years before the cross-bill was filed. It appears that plaintiffs in error, at the time the decree of foreclosure was rendered, were minors, and under the statute they were entitled to prosecute a writ of error at any time within five years next after they became of age. The youngest one of the plaintiffs in error, Hannah Buchanan, was born in January, 1857, and hence was of age in January, 1875, and the five years to prosecute a writ of error after she became of age expired in January, 1880. The bill in this case was filed October 3, 1881, and the cross-bill was filed November 26, 1881. Under these facts it is plain that plaintiffs in error could not, under the statute, maintain a writ of error to reverse the decree rendered in the foreclosure case, as the Statute of Limitations barred the prosecution of a suit of that character after January, 1880, more than a year before the bill was filed. In Dolton v. Erb, 53 Ill. 289, it was held that a bill of review for errors apparent on the face of the record must be brought within the time allowed for a writ of error. This case is conclusive of the question, and renders further discussion unnecessary. If the plaintiffs in error were not satisfied with the decree, and intended to sue out a writ of error to reverse it, or intended to file a bill in the nature of a bill of review to impeach the decree, they were bound to proceed within five years after they became of age. This they failed to do, and the cross-bill filed for that purpose stands in the same position as an original bill would if it had been filed, and was barred by the Statute of Limitations. The court, therefore, did not err in the decree dismissing the cross-bill.

The only remaining inquiry is, whether the court erred in rendering a decree requiring the master to make a deed in the place of a deed previously made and lost. We do not understand that the validity of the decree of foreclosure under which the land was sold is involved in this proceeding. No relief is asked under the decree of foreclosure, or under or by virtue of the certificate of purchase executed when the land was sold. If this was a bill to carry a former decree into execution, it might then be proper to look into the original case in which the decree was rendered, and see if the former decree was equitable and just, and if it was not, refuse to enforce it, as held in Wadhams v. Gay, 73 Ill. 415. But such is not this case. The bill in this case, when properly examined and understood, is a bill to restore a- deed which has been lost or destroyed, and nothing more. The claim of the complainant is, that the master in chancery executed to him a deed for the land sold under the decree of foreclosure, and that the deed was never recorded, and has been lost, and the court is called upon to render a decree requiring the master in chancery to make another deed in the place of the one previously made and lost. It is true that the bill sets out a history of the transaction,—a sale of the land to the mortgagor, a failure to pay the mortgage debt, the foreclosure of the mortgage, the sale under the decree,—but no relief whatever is claimed upon those allegations. These averments of the bill may be regarded as a mere history of the transaction, or as inducement to the relief sought in the bill. The decree which was rendered by the court confers no title on the complainant, nor does it cut off any title in and to the property possessed by the plaintiffs in error, but the court found from the evidence, and the testimony fully warrants the finding, that the complainant had obtained a deed from the master in chancery on a sale of the land under a decree of the court, and that such deed was lost. Upon such testimony the court decreed that the master execute to the complainant another deed in the place of the one lost. The decree merely restores the deed, and leaves the parties in the same position they would have occupied in regard to the title to the land if the original deed made by the master had never been lost or destroyed.

It is also urged that the notes and mortgage were invalid, and no decree of foreclosure could be rendered upon them. It may be that the decree of foreclosure was erroneous, and might have been reversed on appeal or writ of error; but mere error will not vitiate a judgment or decree when called in question collaterally, as here. Mere errors in a decree or judgment can only be availed of in a direct proceeding.

After a careful consideration of the whole record, we are satisfied that the decree of the circuit court was correct, and it will be affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Scott

license: Public Domain

text:
    George W. Handly v. Edward B. Munsell et al.

      Filed at Springfield March 26, 1884.

    1. Mortgages—purchaser of equity of redemption—of his rights as against the mortgagee. On bill to foreclose a mortgage, against the mortgagor and another who claimed to have purchased of the mortgagor, the latter filed a cross-bill against the mortgagee, setting up his purchase, possession, and payment of the purchase money, and the refusal of the mortgagee to convey the premises, and praying that he be compelled to make the conveyance, and that he, the purchaser, be allowed to pay the mortgage debt, and have the mortgage assigned to him by the mortgagee. The cross-bill did not state that the mortgagee ever refused to accept the amount due under the mortgage, and release the mortgage: Held, that as to the mortgagee, a demurrer was properly sustained as to the cross-bill, he being under no obligation to assign the mortgage.
    2. In such case the complainant in the cross-bill could have no standing in court, unless he brought into court the amount due the complainant in the original bill. If that had been done, and no relief had been asked except as to his co-defendant, it might be that the court would have kept the mortgage and the debt thereby secured, alive, for his protection, until he could have litigated the matter in contention between himself and his co-defendant. In this case the decree dismissing the cross-bill was modified so as to make the dismissal without prejudice, at the costs of the complainant in the cross-bill.
    3. The most that a purchaser of a mortgagor’s equity of redemption can require of the mortgagee is, that he accept the amount due on the mortgage, and release it of record. The mortgagee is not bound to accept what is due him, and assign his notes and mortgage to the person offering to pay him.
    4. A mortgagee seeking to foreclose his mortgage, having no interest as to litigation between the defendants, on cross-bill by one of them for the specific performance of an alleged contract for the sale of the equity of redemption, will not be compelled to wait for the sum due him until such other litigation is decided.
    5. A purchaser of a mortgagor’s equity of redemption loses no right by a decree foreclosing the mortgage, as, under the statute, he may redeem the property from the mortgage after sale thereof, as well as before.
    Writ of Error to the Circuit Court of Edgar county; the Hon. J. W. Wilkin, Judge, presiding.

      The original bill in this case was brought by Edward B. Munsell, to foreclose a mortgage made by John Morton and Asher Morton, to secure their indebtedness to complainant. To the bill to foreclose, the mortgagors and George W. Handly were made defendants. Neither of the mortgagors made any answer to the original bill, but Handly answered the bill, and admitted all the allegations it contained, except that the premises were meagre security for the indebtedness. After filing his answer, Handly filed a cross-bill, in which he alleges that since the making of the mortgage to complainant, viz: on the 1st day of January, 1875, John Morton sold his interest in the mortgaged premises to Asher Morton, and that after-wards, on the 1st day of September, 1875, Asher Morton, being then the sole owner of the property embraced in the mortgage, sold it to complainant in the cross-bill for the sum of $2000, which he alleges he has since fully paid, and has since entered into possession of the premises and made valuable and lasting improvements thereon, to the value of $1500; that at the time of such purchase, John and Asher Morton agreed to make a deed conveying the premises to him on the full payment of the purchase money, and also agreed to pay and discharge the Munsell mortgage, which was a prior and valid lien thereon, and that they have failed, and now refuse, to make such conveyance, and to pay and discharge the mortgage indebtedness. Complainant in the cross-bill further represents that he is ready and willing, and has at all times been willing, to pay Munsell the amount of the notes secured by the mortgage, and that both before and since the commencement of the suit he has made frequent applications to Munsell to be allowed to pay him the amount of money necessary to satisfy such mortgage, offering him at each time the whole amount of principal and interest, and at one time offering him $100 in addition thereto, but that Munsell refused, and still refuses, to accept the money in payment of the amount due on the notes and mortgage, or any part thereof. The prayer of the cross-bill is, that complainant therein may be allowed to pay Munsell the amount the court shall find to be due him on the notes and mortgage, and may have the same assigned to him, and that he may be subrogated to the rights of Munsell in such notes and mortgage; that defendants John and Asher Morton be decreed to pay him whatever sum he shall be compelled to pay to satisfy the notes and mortgage, and costs: that John and Asher Morton may be decreed to convey to complainant in the cross-bill whatever interest they may have in the mortgaged premises, and for such other and further relief as the nature of the case may require. Both of the Mortons and Munsell were made defendants, and all of them demurred to the cross-bill. Munsell demurred separately, but the Mortons jointly. On the hearing the court sustained the demurrers to the cross-bill, and dismissed the same, and then entered the usual decree of foreclosure in favor of Munsell on his original bill. Handly brings the case to this court on error, and assigns for error the decree of the circuit court dismissing his cross-bill.
    Mr. Robert L. McKinlay, for the plaintiff in error.
    Mr. Edward B. Munsell, for the defendants in error.
   Mr. Justice Scott

delivered the opinion of the Court:

¡No question is made as to the validity of the mortgage sought to be foreclosed by the original bill, nor as to complainant’s rights thereunder. The only error insisted upon is that alleged to have been committed by the court in the dismissal of the cross-bill. It can not be insisted, with any show of reason, there ought to have been any decree on the cross-bill against Munsell. The prayer of the cross-bill as to him is, that complainant be allowed to pay him the amount due on the notes and mortgage, and have the same assigned to complainant therein. That, Munsell was under no obligation to do, and the court could not rightfully decree that he should do so. The utmost that complainant in the cross-bill could ask Munsell to do, would be to accept the amount due on the mortgage, and release it of record. That, he was never asked to do. It is nowhere alleged in the cross-bill that Munsell refused to accept the amount due on the notes, and release the mortgage. Nor is it insisted in argument that he refused to release the mortgage on payment of the notes secured. There can be no question that Munsell’s demurrer to the cross-bill was properly sustained. But in no event could complainant in the cross-bill have any standing in court unless he brought in the amount due complainant in the original bill. That was done in Chicago Artesian Well Co. v. Connecticut Mutual Life Ins. Co. 57 Ill. 424, and it seems to have been on that ground the complainant in the cross-bill was permitted to litigate the equities arising between himself and his co-defendants. But in the case being considered, the complainant in the cross-bill has not brought the money due complainant in the original bill into court. All that he has asked to be permitted to do by his bill, is to be allowed to pay to the mortgagee the amount the court shall find to be due to him, and to have the notes and mortgage assigned to him, and that he may be subrogated to the rights of the mortgagee in the notes and mortgage. That is not sufficient. Complainant in the original bill has not now, and never had, the slightest interest in the litigation between the defendants to his bill, so far as the pleadings disclose, and certainly the law will not require him to wait for the amount of money it is conceded by all parties to be due to him, until their controversy can be adjudicated, which litigation might continue for an indefinite period. Had complainant brought the money into court for complainant in the original bill, and asked no relief except as to his co-defendants, it might be the court would have kept the mortgage, and the indebtedness secured thereby, alive, for his protection, until he could have litigated the matters in contention between himself and his co-defendants. That he did not do, and the relief he did ask was properly denied on the cross-bill, as at present framed.

It is not perceived how the dismissal of the cross-bill can work any injury to the complainant therein. The utmost he can claim is the right, as a subsequent purchaser, to redeem the property from the mortgage indebtedness, and that, under the statute, he can do as well after the foreclosure sale as before. It would have been proper,—and no doubt the court would have so decreed had its attention been called to this phase of the case,—to have dismissed the cross-bill without prejudice, so that any future litigation between the parties might not thereby be embarrassed. That will be done now in this court; but as complainant in the cross-bill did not ask in the court below to have it done, the modification will be made at his costs.

The decree of the circuit court will be modified so as to dismiss the cross-bill without prejudice, and with that modification the decree will be affirmed, at the' costs of plaintiff in error. „

t-. „ , Decree affirmed.


author: Mr. Chief Justice Sheldon

text:
    Nellie Highland v. Jane Highland.

      Filed at Springfield March 26, 1884.

      1. Wills—necessity of witnesses. The day before the death of a person there was found in his pocket the following writing: “To my dear-wife: I want you to have all my effects—everything. Tell my sister, if you ever hear from her, I want .to be buried in Woodland cemetery, and want Mr. A., of the Congregational church, to preach my funeral ceremony. I give everything to my wife.” The writing was signed, but had no witnesses to it: Held, that the paper could not be treated as a will.

      2. Same—what constitutes a will—indorsement on a benefit certificate. A member of a lodge of the Knights of Honor had issued to him a benefit certificate, in the sum of $2000, to be paid on his death to such person or persons as he might, by will, or entry on the record book of the lodge, or on the face of the certificate, direct. The constitution of the lodge provided, that “any brother may cause to be entered upon the reporter’s record book a direction to whom his benefit shall be paid, * * * or he may have a benefit certificate issued to him. * * * In case no direction is made by a brother, either by will, entry or benefit certificate, this lodge may cause the same to be paid to the person or persons entitled thereto.” Before his marriage he indorsed upon the certificate the following: “To the officers and members of the Supreme Lodge, Knights of Honor: Brothers, it is my will that the benefit named in this certificate be paid to my sister, J. H.,” to which his name was subscribed, and the same was attested by two witnesses. This indorsement was all printed, except the words, “my sister, J. H.," but the certificate, with the indorsement, was never delivered to the sister. His widow claimed that this indorsement was a will, which was revoked by his subsequent marriage: Held, that in view of the circumstances stated it could not be regarded as a will, but a special direction to whom the benefit should be paid, in one of the modes authorized by the constitution of the lodge and the certificate.
    3. Insxjeanob, or benefit certificate—power of disposition—and to whom it will inure in the absence of direction. Where the charter of a lodge declares that one of its objects is “to promote benevolence and charity, by establishing a widows’ and orphans’ benefit fund, from which, on satisfactory evidence of the death of a member of the corporation who has complied with its lawful requirements, a sum not exceeding $5000 shall be paid to his family, or as he may direct,” the benefit fund will remain for the benefit of the widow and orphans of each member, unless he shall direct to the contrary, and this he may do to the exclusion of his widow and family.
    4. Same—direction as to whom to be paid—delivery not necessary. Where a benefit certificate of a member of a lodge was made payable, at the holder’s death, to such person as he might, by will, or entry on the record book of the lodge, or on the face of the certificate, direct, and he did direct on the face of the same to make payment to his sister, but never delivered the same to her, it was held, that no delivery was necessary, as the sister’s claim was not based on a contract, but upon a direction for payment of the benefit fund to her.
    5. Same—what will amount to a direction as to payment. Where a party died holding a benefit certificate in a lodge in the sum of $2000, payable to such person or persons as he might direct on the face of the certificate, a writing found in his pocket the day before his death, not directed to the lodge, but to his wife, without date, stating that he wanted her to have all his effects, it was held, that such writing could not be regarded as purporting to dispose of the money, or as a direction to whom it should be paid, different from a previous specific one.
    6. Administration or estates—insurance money—whether assets of the deceased. Where a benefit certificate given to a member of a lodge provides that on his death a certain sum of money shall be paid to such person or persons as he may, by will, or entry on the record book of the lodge, or on the face of the certificate, direct, and he, before his death, by indorsement on the face thereof, directs it to be paid to his sister, the amount can not be regarded as assets of the estate of the deceased member, and will not go to his personal representatives.
    Appeal from the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Adams county; the Hon. John H. Williams, Judge, presiding.
    Messrs. Emmons & Wells, and Mr. M. Piggott, for the appellant:
    The indorsement on the face of the certificate of membership by the deceased, was a will, under the statutes of this State. It was made in writing, signed by him, and attested by two witnesses. It was not necessary that Highland should have declared it as his will, or that the attesting witnesses should be aware of the fact it was his will. McBride v. McBride, 26 Gratt. 476; Dickie v. Carter, 42 Ill. 376; Hogan et ux. v. Grosvenor, 10 Metc. 54; Allison v. Allison, 46 Ill. 61.
    Being a will, the subsequent marriage of the testator was a revocation. Rev. Stat. chap. 39, sec. 10; In re Taller, 79 Ill. 99; Tyler v. Tyler, 19 id. 151.
    The word “family, ” as used in the charter and constitution of the lodge, means a household, including husband, wife, children and servants. Chicago and Northwestern Ry. Co. v. Chisholm, 79 Ill. 587.
    The following has been held a will, and admitted to 'probate: “Dear Old Nance: I wish to give you my watch, two shawls, and also $5000. Tour friend, E. A. Gordon.” Clark v. Ransom, 50 Cal. 595. See, also, Nichols v. Chandler, 55 Ga. 369; McBride v. McBride, 29 Gratt. 476.

      The voluntary gift to the sister was contingent and ambulatory, and was revoked by his death, leaving a widow. Richmond v. Johnson, 13 Rep. 111; Bliss on Life Insurance, 567; Connecticut Mutual Life Ins. Co. v. Burroughs, 34 Conn. 305; Durain v. Central Verein, 7 Daly, 168.
    A policy of life insurance is subject to the same rules in respect to its assignment, as other choses in action, and an assignment without delivery is invalid. Marcus v. St. Louis Mutual Life Ins. Co. 13 N. Y. 31; 3 Law & Eq. Rep. 500.
    The charter of the lodge was a part of the contract, and it is not in the power of a member, or of the lodge, or both, to alter, vary or defeat the rights of those who, by the charter and laws of the lodge, are declared to be the beneficiaries, except in the mode and to the extent therein expressed. Kentucky Masonic Mutual Life Ins. Co. v. Miller, 13 Bush, 489.
    Messrs. Hynes, English & Dunne, and Messrs. Ewing & Hamilton, for the appellee:
    The only reasonable construction of the clause of the charter as to the power of disposition is, that if the deceased member has given direction, in either of the ways provided in the rules of the order, for the disposition of his benefit fund, it must he paid as he directs, and if no direction is given, the payment will be to his family, or to the persons lawfully entitled thereto.
    The disposition of the fund was-not a testamentary act, but a direction to whom payment should be made, in accordance with the rules of the lodge. The fact that the words “my will, ” are used, makes no difference. The direction was by the filling up of a blank printed on the certificate.
    The letter found in Highland’s pocket can not be regarded as a will. It has no date or venue, nor does it mention this insurance in any way, and it is not witnessed by any one.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

On the 21st day of March, 1878, Henry M. Highland, being then unmarried, became a member of Oriental Lodge, No. 777, Knights of Honor, at Quincy, Illinois, it being a branch of the “Knights of Honor,” a corporation existing under the laws of the State of Kentucky. A certificate of membership was issued to him, of which the following is a copy:

“Benefit Ceetificate.
“This certifies that Henry M. Highland has received the degree of manhood; that he is a beneficiary member of this lodge in good standing; that in accordance with and under the provisions of the laws governing the order, the sum of $2000 will be paid by the Supreme Lodge, Knights of Honor, as a benefit, upon due notice of his death, and the surrender of this certificate, to such person or persons as he may, by will, or entry on record book of this lodge, or on the face of this certificate, direct the same to be paid, provided he is in good standing when he dies.
“Given tinder the seal of Oriental Lodge, No. 777, Knights of Honor, at Quincy, Illinois, this 21st day of March, 1878.
B. L. Ayers, Dictator.
David G. Williams, Reporter.”

Upon which is the following indorsement, under the signature of said Highland:

“To the officers and members of the Supreme Lodge, Knights of Honor:
“Brothers—It is my will that the benefit named in this certificate be paid to my sister, Jane Highland.
Henry M. Highland.
(Signature of holder.)
“Witness, Geo. F. Jasper.
“Witness, David G. Williams.

Highland remained a member of the lodge, paying all assessments, and being in good standing, until the 15th of November, 1880, at which time, at Kansas City, Missouri, he committed suicide. On the 15th of September, 1880, he was married, at Quincy, Illinois, and he died leaving no child or the descendant of a child. The certificate above named was never delivered to Jane Highland, the person named in the indorsement, but remained in the possession of Henry M. Highland until his death. On the 15th of January, 1881, the Supreme Lodge issued its order upon the treasurer to pay the money mentioned in the certificate to said Jane Highland, which order was forwarded to the trustees of the Supreme Lodge, at Quincy, for delivery to her, but before the same was delivered this bill in equity was brought by Nellie Highland, the widow of Henry M. Highland, against Jane Highland, Supreme Lodge, Knights of Honor, and others, to have payment of said money decreed to the complainant, as such widow, and by direction of the court the money was paid to the clerk thereof, and the lodges discharged of all liability. On final hearing in the circuit court, a decree was rendered in favor of the complainant, which, on appeal to the Appellate Court for the Third District, was reversed, and the complainant appeals to this court.

The simple question presented is, whether the complainant, as the widow of Henry M. Highland, or the defendant, Jane Highland, as the person to whom said benefit fund was directed to be paid, is entitled thereto.

It is insisted that the indorsement by Henry M. Highland on the face of the benefit certificate, being in writing, and attested by two witnesses, was a will, under the statute of this State, and that the subsequent marriage of Highland revoked the will, under our law, and left the distribution of this benefit fund, under the provisions of the charter and bylaws of said Knights of Honor, to be made to his widow, as a case where there was no direction as to its disposition. This indorsement, in determining its character, is to be viewed differently from an ordinary, independent writing, to be judged of by itself alone. . It is to be passed upon in the light of the special circumstances under which it was made. It is a provision of the constitution of the subordinate lodge, that “any brother may cause to be entered upon the reporter’s record book a direction to whom his benefit shall be paid, * * * or he may have a benefit certificate issued to him. * * * In case no direction is made by a brother, either by will, entry or benefit certificate, this lodge may cause the same to be paid to the person or persons entitled thereto. ” And in accordance therewith the benefit certificate issued to the member expresses that the benefit will be paid to such person “as he may, by will, or entry on record book of this lodge, or on the face of this certificate, direct the same to be paid.” Thus it will be seen that both by the constitution and the benefit certificate there are prescribed three different modes of direction to whom the payment shall be made, namely, by will, entry on the record book of the lodge, or direction on the face of the benefit certificate. Direction by will, or by entry on the face of the benefit certificate, are contra-distinguished from each other,—they are not contemplated to be one and the same. Therefore the indorsement in question naming to whom the payment should be made, is the adoption of that mode of directing payment to be made which is provided for by entry on the face of the benefit certificate, as distinguished from the mode of direction by will.

As more fully marking the character of this indorsement on the face of the benefit certificate as not a will, it appears that the certificate and indorsement are printed, except the words in italics. Thus, Highland’s indorsement, except his signature and the words “my .sister, Jane Highland,” was printed on the face of the certificate furnished by the lodge, so that we must suppose that in furnishing this printed blank indorsement, and in signing it, it was the understanding and intention of both parties that such indorsement was not the lash will of Highland, but that it was the special mode of direction of payment provided for by entry on the face of the certificate. No intention of making a will is disclosed. We do not regard the use of the word “will, ” in the writing, as of any more significance, under the circumstances, than if “wish, ” “request” or “direction” had been used instead. The indorsement was, in purport, a communication addressed to the officers of the lodge, directing them to whom to pay the benefit named in the certificate. To call it a will, would be, by a forced construction, to make it something which it does not purport and was not intended to be, and we can not recognize it to be such. The fact of the benefit certificate, with the indorsement on it, never having been delivered to appellee, but remaining in Highland’s possession, detracts nothing from the effect of such indorsement as a direction for the payment of the money. Appellee’s claim of right to the fund does not rest upon contract, but upon a direction for its payment to her.

It is urged that by the terms of the charter or act of incorporation .of the order, the fund out of which appellee seeks payment is established as a “widows’ and orphans’ benefit fund, ” which is sacred to the relief of widows and orphans, and that it is not in the power of the member, or of the lodge, or both, to alter or defeat the right of those who by the charter are declared to be the beneficiaries. The charter, among the objects of the corporation, declares to be: “To promote benevolence and charity, by establishing a widows’ and orphans’ benefit fund, from which, on the satisfactory evidence of the death of a member of the corporation who has complied with its lawful requirements, a sum not exceeding-five thousand dollars (|5000) shall be paid to his family, or as he may direct.” It is insisted that this makes the primary object to be the establishment of a widows’ and orphans’ fund, and that it is only in the absence of a family that the member may direct to whom the benefit shall be paid, or at least, where there be a family, that the power of direction is limited to naming the proportions in which the fund shall be divided among them. No doubt it is an object to provide a widows’ and orphans’ benefit fund, and it will remain as such a fund, unless the member directs to the contrary. But notwithstanding the description as a “widows’ and orphans’ benefit fund, ” it is equally the purpose that the member should have the power of directing to whom payment of his benefit should be made, as that the fund is to be for the benefit of his family. The language that the sum shall be paid to'the member’s “family, or as he may direct,” gives to him, in the most plain terms, the power of absolute direction to what person or persons the payment shall be made. Evidently the language of the charter will not bear the construction which appellant’s counsel would place upon it.

There is some evidence in the record of a desire and attempt on the part of Highland, after his marriage, to have a change made in the benefit certificate, in favor of his wife, which we need not consider, as no change was made, and any mere intention in that way we could not give effect to.

There was found in the pocket of Highland, the day before his death, the following writing:

“To my dear wife:
“I want you to have all my effects—everything. Tell my sister, if you ever hear from her, I want to be buried in Woodland cemetery, and want Mr. Anderson, of the Congregational church, to preach my funeral ceremony. I give everything to wife.
H. M. Highland.”

This writing being without a witness, can not be pretended to be a will. Without passing upon the question whether there could be any valid direction for the payment of this benefit fund except in one of the three specific modes prescribed in the benefit certificate, we do not regard this as a writing purporting to dispose of the fund, or to direct to whom it should be paid. This fund,—at least in this case, where there was a direction for its payment,—was not effects of the deceased,—it would not go to his personal representatives, as his property would,—but it was merely a benefit, which, after his death, the lodge were to pay to whom he had directed it to be paid. Having, by previous indorsement on the benefit certificate, disposed of the benefit by directing to whom it should be paid, in the precise mode in which the rules of the lodge required the direction should be made, the generality of the words of disposition contained in this writing should not be held to embrace this particular benefit, which had previously thus been disposed of. To give to this writing the effect of revoking the former direction, and giving a different direction for the payment of this benefit, there should have been specific reference made to it, and the unmistakable intent shown, to produce such specific effect. The general language of this writing does not manifest that intent, and it is not to be held to have the effect above named.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    James A. Cunningham v. John Stein.

      Filed at Springfield March 26, 1884.

    1. Evidence—on question of damage from a nuisance. On the trial oí an action on the case, brought by the owner of a brewery, against the defendant, the owner of a starch factory, located near the brewery, to recover damages for polluting the waters of a stream that ran through a part of the plaintiff's premises, by the flow of slops into the same, and for befouling the air with unhealthy and unsavory odors, arising from the using and operating the starch factory, the court allowed the plaintiff to be asked, when testifying as a witness, the difference in the sales of his beer before and after the construction of the starch factory: Held, that the question was properly allowed, the other proof showing that the flow of the slops from the sewer affected the atmosphere at the brewery, and the plaintiff’s theory being that the atmosphere so polluted affected the beer, and rendered it unsalable. Such theory was, however, not conclusive, but was open to proof that other causes, and what, affected the sales of the beer.
    2. Instruction—omitting to refer to the preponderance of the evidence. It was objected to instructions for a plaintiff, that they failed to inform the jury that they must believe the propositions of law therein laid down, from a preponderance of the evidence. The jury were instructed, on the part of the defendant, that as to each and every alleged ground of action it was incumbent on the plaintiff to make proof by a clear preponderance of evidence: Held, that the defendant had no just ground of complaint.
    3. Same—as to measure of recovery, construed. It was objected to one of plaintiff’s instructions, given in an action to recover damages for befouling and polluting the water of a stream across plaintiff’s premises, and polluting the air with unhealthy odors, from the discharge of slops near plaintiff’s premises, that it allowed the jury to assess damages for “such amount as they might find from the evidence, ” instead of limiting them to such an amount as would compensate for the injury sustained. The gist of the instruction was, that if the defendant injured the plaintiff by the acts named, he was liable for such injury, whether he knew it was being done or not: Held, that the instruction could only be reasonably understood as announcing a right of recovery for, and to the extent of the loss sustained by, the wrongful act, and was not erroneous.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Vermilion county; the Hon. Jacob W. Wilkin, Judge, presiding.
    Messrs. Mann, Calhoun & Frazier, for the appellant.
    Mr. W. B. Lawrence, and Mr. J. C. Black, for the appellee.
   Mr. Justice Scholfield

delivered the opinion of the Court:

Appellee recovered a judgment against appellant, in the circuit court of Vermilion county, in an action on the ease. That judgment, on appeal to the Appellate Court for the Second District, was affirmed, and this record is brought before us by appeal from the last named judgment.

Appellant is the owner of a starch factory, and appellee is the owner of a brewery, located near each other, in the city of Danville. A small stream runs near the starch factory and the brewery, and, for a short distance, over land owned by appellee. Appellant, by means of sewers, discharged slops from the starch factory into this stream, at a point above appellee’s premises, and thereby polluted the water. The action is for damages caused by the polluting of the waters of this stream, and also by befouling the air with unsavory and unhealthy odors, arising from the using and operating of the starch factory. There was evidence tending to show that by reason of the slops from the starch factory being discharged into the stream, it was rendered unfit for the formation of ice for use, and that thereby appellee suffered some loss. There was also evidence tending to show that the unhealthy and unsavory odors arising from the using and operating of the starch factory impregnated the beer manufactured by appellee, and injured the sale of it, and also that such odors rendered his habitation uncomfortable, unhealthy, etc.

The first error of law claimed to have occurred in the ruling of the trial court, to which our attention is directed, is in allowing appellee to be asked, when testifying as a witness, the difference in e the sales of his beer before and after the construction of the starch factory, and the ground of the objection is, that it assumes that the flow from the sewer affected the atmosphere at his brewery. As we understand the evidence, that can not be regarded as a contested point. But if it were otherwise, appellee’s theory of the ease was, that the flow from the sewer affected the atmosphere at the brewery, and that this in turn affected the beer, and rendered it unsalable, and he gave evidence to sustain this theory. The question put was simply in the line of that theory. It was not conclusive,—it was open to proof that other causes, and what cause, affected the sale of the beer, and that this theory of the case was incorrect. We think it improbable that the question dicl, in any degree, prejudice appellant by improperly influencing the jury against him. Indeed, we see no valid objection, even technically, to the question.

The next objection to which our attention is invited is, that it is omitted to inform the jury, in the instructions given at the instance of appellee, that they must believe the propositions therein laid down from a preponderance of the evidence. It seems to us that the instructions as given, without any qualifications, are more favorable for appellant than they would be when qualified as he insists. But whether this be so or not, they were qualified precisely as he asked they should be, and as he now contends is the law. The third and fourth instructions, given at the instance of appellant, cover this ground fully, and nothing more could have been needed. They, in substance, tell the jury that as to each and every alleged ground of action it is incumbent upon appellee to make proof by a clear preponderance of evidence.

An objection is urged that the first of appellee’s instructions, in relation to the measure of recovery, allows the jury to assess damages for “such amount as they might find under the evidence, ” instead of limiting them to such an amount as would compensate for the injury sustained. This is hardly a fair construction of the language of the instruction. The gist of that instruction is, that if appellant injured appellee by befouling the air, polluting the water, etc., he is liable for that injury, whether he knew that it was being done or not, and was apparently drawn to anticipate an idea that the jury might otherwise draw that in order to a recovery it should appear that the act was knowingly and intentionally done. Besides, a juryman could only reasonably understand from its language that there should be a recovery for and to the extent of the loss sustainéd by the wrongful act.

Some other objections, of a trivial character, were urged, which we do not deem it important to notice.

We perceive no substantial error of law in the record, and the questions of fact are settled by the judgment of the Appellate Court.

The judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Mhlkey Mr. Justice Dickey,

text:
    Moses Deer v. Commissioners of Highways.

      Filed at Springfield March 26, 1884.

    1. Highway—right of commissioners to change' road from that petitioned for. While the commissioners of highways, by the statute, may “make such changes between the termini of the road specified in the petition, as the convenience and interest of the public, in their judgment, may require, ” yet they have no right to change either terminus of the road, and if they do so, the proceeding will be quashed on certiorari.

    2. Certiorari—office of writ at common law. It is not the office of a common law writ of certiorari to afford the complaining party an opportunity of having his case re-tried, but the object of the writ is to have the proceeding in the inferior tribunal quashed and annulled altogether.
    3. Same—hearing is confined to the record. The hearing on a common law writ of certiorari consists simply of an inspection by the court of the record brought before it, for the sole purpose of determining whether the inferior tribunal has proceeded irregularly or exceeded its jurisdiction. It is not proper to receive ex parte affidavits to show that a road has, in fact, been located over another and different route than the one shown by the order laying out the same.
    Writ of Error to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.
    Messrs. Gere & Beardsley, for the plaintiff in error:
    Writ of certiorari is the proper .method of reviewing the proceedings of commissioners of highways in the laying out of a public road. Bailey et al. v. McCain et al. 92 Ill. 278; Dieteriek v. Commissioners, 6 Bradw. 70; Commissioners of Sonora v. Supervisors, 27 Ill. 140; Hyslop et al. v. Finch, 99 id. 171; Commissioners v. Harper, 38 id. 103.
    The trial is upon the record alone, but affidavits will be permitted, to explain what would not otherwise be understood. This is a common law writ, and affidavits have constantly been admitted, even to the extent of showing that no jurisdiction existed, where the record stated upon its face the facts necessary to give jurisdiction. Creeps v. Durden et al. 1 Smith’s L. C. 1088; Knapp et al. v. Heller, Town Clerk, 32 Wis. 467.
    The record fails to show that the western terminus of the road, as surveyed, is the same as that called for in the petition. The road, as surveyed, terminates “near,” not “at,” the point called for. The variation, though small, is fatal. Shinkle et al. v. Magill et al. 58 Ill. 422.
    Mr. Francis M. Wright, for the defendants in error:

      Ex parte affidavits have never been held admissible on the final hearing of the common law writ of certiorari. The case must be tried by the record alone. Hyslop v. Finch, 99 Ill. 171.
    Section 74 of the Road law allows changes to be made in the line of the road as petitioned. Proper notice of the appeal was given. Besides, the order of the supervisors recites that due notice had been given, which is held conclusive. Wells v. Hicks, 27 Ill. 343.
   Mr. Justice Mhlkey

delivered the opinion of the Court:

This writ of error brings before us for review a judgment of the Appellate Court for the Third District, affirming a judgment of the circuit court of Champaign county, quashing a common law writ of certiorari, which had been sued out of that court by Moses Deer, plaintiff in error, for the purpose of having annulled and set aside certain proceedings by the commissioners of highways of Sidney township, the defendants in error, in laying out a public road, which are claimed to be erroneous, illegal and void.

The first objection urged against these proceedings is, that “the record fails to show that the western terminus of the road, as surveyed, is the same as that called for in the petition.” If this claim is warranted by the facts, it is certainly fatal to the validity of the proceedings, and they should for that reason have been quashed on certiorari; for while the commissioners, upon consideration of the petition, may, under section 74 of the chapter on Roads and Bridges, “make such changes between the termini of the road specified in the petition, as the convenience and interest of the public, in their judgment, may require, ” yet they have no right to change either terminus of the road. (Shinkle v. Magill, 58 Ill. 422.) We are of opinion, however, that while the report of the surveyor who laid out the road is not as clear and happily worded as it might have been in fixing its western terminus, yet we think when carefully considered as a whole, in connection with the plat accompanying and constituting a part of the report itself, it clearly and unmistakably appears the corner of sections 4, 5, 8 and 9, town 18 north, range 10 east, is the western terminus of the road as surveyed, and hence there is no variance between the survey and the petition in that respect.

The petition calls for the laying out of a road, “commencing at the north-east corner of the west half of the north-west quarter of section 10, in said town, (Sidney,) and running thence west on the section line to intersect the public road running north and south between sections 4 and 5, and 8 and 9,” etc. The surveyor’s report recites, “that he was called upon to survey a road beginning at the north-east corner of the west half of the N. W. qr. Sec. 10, T. 18 N., B. 10 E., 3d P. M., running thence west over most eligible route to corner of Secs. 4, 5, 8 and 9, same town and range. Survey was made as follows: Began on N. E. corner W. J N. W. ¿ Sec. 10, T. 18 N., of B. 10 E., and ran thence west at a variation of 4° 30', and at 20-j-0^ chains I find original corner, as shown by original witness tree; thence west at 4° 20', and at 30T9^ chains I strike an elm tree, which the original field notes call for. I produce the line thence straight to a point 47 links west of a rock I find near corner of Secs. 4, 5, 8 and 9, which rock is -in line and 47 links too far west. I left a stake 11J links north of the rock, for future reference.” The accompanying plat shows the western terminus of the road to be at the corner of the -four sections, as above stated, and across it is the following indorsement by the surveyor: “Boad runs from elm, on east side of creek, straight to a point forty-seven links (a short two rods) east of a stone which sets near the section corner. I marked my actual outcome by a stake eleven links north of the rock, for future reference, my back-sight showing the rock to be in line, at proper variation. The controlling points of this survey are the elm and corner for Secs. 3, 4, 9 and 10.”

The contention is, that by this survey the road terminates near, not at, the point called for by the petition and order of the commissioners. This is a misapprehension of the terms used. As we understand the language of the survey, it is the “rock, ” which is near the corner of sections 4, 5, 8 and 9, the terminal point of the road, and not the terminus of the road itself. This rock, which is said to be near the corner of the above sections, is on the line running, with the proper variations, west from the correct starting point, and is stated in the survey to be forty-seven links too far west. Too far west from what ? Manifestly, the west end of the road, which, as stated in the surveyor’s report itself, was required to coincide with the corner of the sections last above mentioned. But if there could be any doubt of this, it is certainly removed when we look at the indorsement on the plat, which declares, in so many words, the “road runs (west) * * * to a point forty-seven links east of a stone which sets near the section corner, ”—of course meaning the same rock or stone which is referred to as being “too far west. ” Now, if, as is here said, the road runs west on the proper line to a point forty-seven links east of the stone, and the stone is just forty-seven links west of the corner of the above sections, it certainly follows the road terminates at the corner of these sections, as required by the petition and the order of the commissioners, and hence there is no ground for the objection under consideration.

On the hearing in the circuit court, counsel for plaintiff offered to show by affidavits that the road, as established by the county surveyor, is not, as a matter of fact, located on the section line, as stated in the survey,—which, on objection by defendant in error, the court refused to allow, and we think properly. It is clear from what has already been said, whatever the real facts may be in this respect, the record before us shows that the road is located in conformity with the petition and the order of the commissioners, and hence the application to prove by affidavits the road was located over another and different route, was but an offer to contradict the record, and re-try the case upon the merits, so far as this question was concerned, on ex parte affidavits. To have permitted this would have been, in effect, giving the plaintiff in error an appeal and trial de novo on this question, in a case where the law allows none. It is not the office of a common law writ of certiorari to afford the complaining party an opportunity of having his case re-tried, but the object of the writ is to have the proceedings in the inferior tribunal quashed and annulled altogether, and whatever the rule may be elsewhere, it is well settled in this State that the hearing in such a case consists simply of an inspection by the court of the record brought before it, for the sole purpose of determining whether the inferior tribunal has proceeded irregularly or exceeded its jurisdiction. If it "has, the proceedings will he quashed, otherwise they will not. Chicago and Rock Island R. R. Co. v. Whipple, 22 Ill. 105; Same v. Fell, id. 333; Commissioners v. Supervisors of Carthage, 27 id. 140; Commissioners v. Harper, 38 id. 103; Doolittle v. Galena and Chicago Union R. R. Co. 14 id. 381; Hyslop v. Finch, 99 id. 171.

In England, and in many of the States, the practice in these cases has been largely modified by statute, and from this cause some confusion and apparent conflict have arisen in the cases. Of course, where there is a statute regulating the subject, that must control, and it is hardly necessary to remark that decisions based on such statutes can have no controlling influence here, where the proceeding rests exclusively on common law grounds. 2 Wait’s Actions and Defences, 141.

We do not think any of the other points raised by counsel for plaintiff in error are well taken, or that they are of sufficient importance to demand a discussion at our hands.

The judgment will be affirmed.

Judgment affirmed.

Mr. Justice Dickey,

dissenting:

I concur in the rules of law laid down in this opinion, but think there is error in the construction of the surveyor’s return. I think it entirely fails to show that the western terminus is at the intersection of the section line with the north and south road. This point, of course, is on the section line, and two rods east of the section corner,—the north and south road being four rods wide, and the section corner being in the middle of the road. The road in controversy was to be one mile and a quarter long,—was to run on the section line. The first quarter of a mile of the survey was on the section line. There (at the north-east corner of section 9) the surveyor changed his variation, and run on that changed course until he intersected the north and south road, in line with a stone, which he says was near the section corner,—not at the section corner. If the straight line from the north-east corner of section 9, through the elm, produced, was on the section line, it would have struck the section corner,—not a stone near the same. This is error for which the survey should he set aside, unless it was so close as to be unimportant. The affidavits that it is one hundred and ninety feet too far north, were competent.


text:
    The Laclede Bank v. Chauncey H. Keeler.

      Filed at Springfield March 26, 1884.
    1. Impeachment of witness—as to the mode. The proper mode of inquiring into the general reputation of a person who has given testimony in a cause, for truthfulness, is to ask the impeaching witness whether he knows such person’s general reputation among his neighbors for truth and veracity, and what that reputation is. In the English courts the course is, further, to inquire whether from such knowledge the impeaching witness would believe that person under oath. While this court has adopted the English rule as correct, it has never held, and such is not the law, that it is compulsory that the opinion of the witness shall be asked or stated.
    2. The general practice in the circuit courts of this State has been, to leave it optional with the party calling the impeaching witness, to ask the opinion of the witness, or not, as he may think proper; and this practice is correct, and in harmony with the current of authority upon the question.
    3. Attorney and client—of dealings between them. The law does not prohibit an attorney from purchasing property from his client when the transaction is fair and honest, and in no manner tainted with fraud, undue influence or corruption.
    4. Attachment—whether the debtor has such an interest as will be subject to attachment. A mere stockholder in a corporation procured his attorney to purchase the indebtedness of the corporation, which was secured by a deed of trust on the property of the corporation, the attorney advancing his own money for that purpose, and the corporation being unable to pay the debt, he caused a sale of the property to be made, at which the client became the purchaser, but paid nothing, agreeing to pay the attorney within sixty days or convey the property to him, and the trustee’s deed, though executed, was never delivered to the purchaser, but left with the attorney to whom the purchase money was coming, and the purchaser being unable to pay the amount of his bid, conveyed the property to the attorney according to his prior agreement, which conveyances were recorded before the levy of an attachment issued against such purchaser. It was held, that such purchaser had no title, legal or equitable, subject to the attachment, his only interest being his bid, and his deed being a transfer of that.
    5. Sale under trust deed—inadequacy of price. The fact that a person acquires property, through a sale under a power in a deed of trust, at less than its real value, when the sale was at public vendue, where all wishing might bid, and it was conducted legally, will not impair the validity of the sale.
    Appeal from the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.
    Mr. Charles W. Thomas, for the appellant:
    The English rule requiring that the attacking witness should testify that he would not, from his knowledge of the reputation of the attacked witness, believe him on oath, has been adopted in this State. Starkie on Evidence, (9th Am. ed.) 210; Massey v. Farmers’ Bank, 104 Ill. 327; Frye v. Bank of Illinois, 11 id. 369. And for a statement of the reasons for this rule, see Hamilton v. People, 29 Mich. 185, and Eason v. Chapman, 21 Ill. 33.
    It is the policy of the law to forbid all dealings between an attorney and client whereby the attorney obtains any advantage. Jennings v. McConnell, 17 Ill. 148; Alwood v. Mansfield, 59 id. 496; Weeks on Attorneys, sec. 268.
    So rigidly is this rule enforced that it is applied in cases where the relation has ceased, but its influence continues. Weeks on Attorneys, sec. 268, note.
    The burden of proof is shifted upon the attorney to show that every transaction had with a client was fair. Merryman v. Euler, 59 Ind. 588.

      Where an attorney buys a note, given by his client, and secured by a mortgage, as in the case at bar, the client is entitled to all the benefits of the purchase. McDowell v. Milroy, 69 Ill. 498.
    And the rule is not changed or affected by the circumstance that the attorney is a member of a firm of lawyers. The relation exists between the client and every member of the firm. Weeks on Attorneys, sec. 244; Walker v. Goodrich, 16 Ill. 341.
    Mr. A. S. Wilderman, and Mr. Cecil V. Scott, for the appellee:
    It is exclusively the province of the jury to determine to what extent the credibility of a witness is affected by testimony tending to his impeachment. Craig v. Rohrer, 63 Ill. 325; Roach v. People, 77 id. 31.
    It is true, an impeaching witness may be asked whether he would believe the witness under oath; but it is not necessary to ask such question to effect an impeachment. People v. Tyler, 35 Cal. 553; Massey v. Farmers’ Bank, 104 Ill. 334.
    There is no rule of law which prohibits an attorney from becoming the purchaser of land owned by his client. Hess v. Voss, 52 Ill. 481; Weeks on Attorneys, 450.
    Messrs. Wilderman & Hamill, for the interpleader the St. Louis Carbon Works:
    The facts, as testified to by all the witnesses, do not show that the relation of attorney and client ever existed between Hauessler and Keeler, either generally or in relation to this particular business. Hauessler had refused to advise Keeler, or to be employed by or for him, and he had employed Noble & Orrick. Weeks on Attorneys, secs. 153, 154; Granger v. Warrington, 3 Gilm. 299; Setzer v. Wilson, 4 Ired. 501.
    The rule in regard to impeaching a witness by evidence of general reputation for truth and veracity, does not seem to render it necessary to prove that the impeaching witness would not believe him under oath, but simply permits the question to be asked. Frye v. State Bank, 11 Ill. 378; Grabtree v. Hagenbaugh, 25 id. 233; People v. Tyler, 35 Cal. 553.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action in attachment, brought by the Laclede Bank, in the circuit court of St. Clair county, against Chauncey H. Keeler. The writ was issued on the 19th day of July, 1881, and was levied upon the real estate in question on the same day. Subsequently, and on the 17th day of March, 1882, a judgment was rendered against the defendant in the attachment. In the meantime, however, and on October 22, 1881, the St. Louis Carbon Works Company appeared in the action and filed an interpleader, in which the corporation claimed to own the real estate attached; that Keeler, (defendant in attachment,) on the 1st day of July, 1881, for a good and valuable consideration, conveyed the property to Hauessler, who recorded his deed July 9, 1881, and that on the 9th day of September, 1881, Hauessler conveyed to the inter-pleader.

A number of replications were filed, upon which issue was joined. The third replication is, that the deed from Keeler to Hauessler was in fact a mortgage, and that Keeler retained an equitable interest in the land conveyed, of which the interpleader had notice when it took its deed from Hauessler. There was a rejoinder traversing this replication, and issue was joined. The fifth replication is, that the deed from Keeler to Hauessler was in fact a mortgage, given to secure an indebtedness of, to-wit, $7756, due from Keeler to Hauessler, the land conveyed being worth at the time $15,000, of all of which the interpleader had notice, etc. To this there were two rejoinders,—first, that the deed was absolute; and second, that the land was not worth $15,000, and the inter-pleader had no notice. Issue was joined on both of these rejoinders. The sixth replication is, that when the deed from Keeler to Hauessler was made, Hauessler was a practicing attorney at law in Bt. Louis, retained by Keeler to advise and counsel him with reference to claims of Keeler’s creditors, and that Hauessler, as such attorney, advised Keeler to make the deed, so as to hinder and delay Keeler’s creditors, and the deed was made for said purpose, of which the interpleader had notice. To this there was a rejoinder, which merely said, generally, that the replication was not true. The seventh replication is, that the deed from Keeler to Hauessler was made, as Hauessler well knew, for the purpose of hindering and delaying Keeler’s creditors, of which the interpleader had notice, etc. To this there was a rejoinder, in general terms, that the replication was not true.

Upon the issues formed, a trial was had before the court, a jury having been waived by the parties, and the court found in favor of the interpleader, and as a freehold is involved, the plaintiff in the attachment, the Laclede Bank, has appealed directly to this court.

On the trial of the cause, Chauncey H. Keeler was called as a witness, and testified in favor of appellant. For the purpose of impeaching the testimony of the witness, appellee called several witnesses, who testified that they were acquainted with the general reputation of the witness for truth and veracity in the neighborhood in which he resided, and that his reputation was bad. It was contended that the evidence offered did not go far enough to impeach the testimony of Keeler, and in order to save the question, two propositions (Nos. 1 and 2) were submitted to the court, to be held as law in the case, which, in substance, declared that the witness Keeler was not successfully impeached unless the witnesses called to impeach were asked whether, from their knowledge of his reputation, they would believe him upon his oath. The regular mode of examining into the general reputation is, to inquire of the witness whether he knows the general reputation of the person in question among, his neighbors for truth and veracity, and what that reputation is. In the English courts the course is, further, to inquire whether from such knowledge the witness would believe that person upon his oath. (1 Greenleaf on Evidence, sec. 461.) The English rule was adopted as the correct one in this State in Frye v. Bank of Illinois, 11 Ill. 367, and followed in subsequent cases. Eason v. Chapman, 21 Ill. 34; Massey v. Bank, 104 id. 327.

But while the rule we have heretofore established permits the witness, after he has stated that he knows the general reputation of the person for truth and veracity among his neighbors, to go on and state that, judging from such reputation, he would not believe the person upon his oath, yet this court has never held, and we do not understand it to be the law, that the rule is compulsory that the opinion of the witness should be asked or stated. The cases cited supra, which establish the rule in this State, none of them hold that the law requires the opinion of the impeaching witness to be taken. Indeed, no authority has been cited in the argument which establishes or sustains such a doctrine, and we are aware of no such authority. On the other hand, in People v. Tyler, 35 Cal. 553, where the trial court held that it was essential that the impeaching witness should testify that from such reputation he would not believe the person upon oath, on appeal the Supreme Court reversed the judgment, and decided that the ruling was erroneous. Our attention has not been called to any case in this State where the precise question has arisen, but we think the general practice in the circuit courts has been to leave it optional with the party calling the impeaching witness, to ask the opinion of the witness, or not, as he may think proper; and this practice, in our judgment, is correct, and in harmony with the current of authority bearing upon the question.

The court was also requested, in the third proposition, to hold, in substance, that if Hauessler was a member of a firm of practicing attorneys, and that the relation of attorney and client existed between Keeler and the firm when Keeler deeded the property to Hauessler, then the equitable title to the property was in Keeler, and that the property was subject to the attachment. The refusal of the court to allow this proposition is relied upon as error. The rules of law which govern the duties of an attorney to his client are well settled, and are not of doubtful meaning. As was said in Alwood v. Mansfield, 59 Ill. 496: “It is the duty of the solicitor to protect the interest of his client. The client is entitled to the full benefit of the best exertions of his solicitor; and the solicitor may not bring his own personal interest in any way into conflict with that which his duty requires him to do on behalf of his client.” We do not, however, understand it to be the law that an attorney is prohibited from purchasing property from his client, where the transaction is fair and honest, and in no manner tainted with fraud, undue influence or corruption. Dealings between attorney and client will be scrutinized closely, in order to guard against wrong being committed, owing to the confidential relations existing between them, and the supposed personal influence of an attorney over his client; but there is no rule of law which absolutely prohibits a sale merely on account of the existence of the relation of attorney and client. (Hess v. Voss, 52 Ill. 472.) A sale of property from a client to an attorney will be sustained, where the transaction is open, honest and fair, and no undue influence is used. Under the proposition submitted to the court to be held as law, if the relation of attorney and client existed when the deed was made, no title passed, although the attorney concealed nothing, made no misrepresentations, and although the transaction may have been in every respect fair and honest. Such is not the law, and it would have been error if the court had given the proposition.

_— ■ -______

But independent of the decision of the court on these propositions of law, we perceive no ground upon which it can be held that the property is liable to the attachment. Unless Keeler, at the time the writ of attachment was levied, owned the property, or had an equitable interest therein, it is plain that the property could not be held subject to the writ. It is, then, an important inquiry whether Keeler had title of any character to the property. The fact's bearing upon this question are not conflicting, nor is there any substantial dispute in regard to them.

The property in question was owned, originally, by the "Western Fertilizer and Chemical Works, a corporation organized under the laws of this State. Prior to 1879 the company made a deed of trust on the property to John B. Bowman, as trustee, to secure the sum of $10,000. This indebtedness was held and owned by the Bank of Commerce of St. Louis, and in April, 1879, $7500 remaining due, the bank demanded the money. Keeler was then secretary of the fertilizer company, and as such he employed Slayback, of the firm of Broadhead, Slayback & Hauessler, to procure from the bank an extension of one year’s time in which to pay the indebtedness. The extension was obtained, and thus matters stood until September, 1880, when the bank again insisted on payment. Keeler and Slayback again called on the bank for a further extension, but they were refused, when Hauessler, on September 20, 1880, was induced to go to the bank and purchase the claim on his own account, which he did, and paid his own money therefor. He held the claim until April 9, 1881, when the trustee named in the deed of trust (Mr. Bowman) sold the property in satisfaction of the deed of trust, at public vendue, and at the sale Keeler bid it off for $7500, but not being able to raise the money to pay his bid, Bowman, the trustee, executed the deed, and left it in the hands of Hauessler, to be delivered to Keeler when he should pay the money, as required by the terms of the sale. No part of the purchase money was ever paid by Keeler. He agreed with Hauessler to pay the money in sixty days, and in case he failed at the end of the sixty days agreed upon, he was then to make a deed to Hauessler, and thus place the title in him in like manner as if he had been the purchaser at the trustee’s sale. Keeler failing to raise the money to pay his bid, on the first day of July made the deed to Hauessler, as he had agreed to do. We have made no mention of the deed of trust for $20,000 made by Keeler on the property, upon which he attempted to raise money, as we do not think it has any material bearing on the case. Keeler was a stockholder in the corporation which owned the property when the deed of trust under which it was subsequently sold was executed, but it is nowhere claimed that he had any title to the property prior to his purchase under the deed of trust, and he certainly acquired no equitable title under his purchase at the trustee’s sale. He bid in the property, but paid no part of the bid, and was never entitled to a deed. The fact that a deed was given him, in order that he might make a deed to Hauessler to avoid a re-sale under the deed of trust, can not, under the circumstances, be regarded as vesting the title to the property in him. At all events, receiving a deed in the manner he did, he held as a mere trustee for Hauessler. The only real interest Keeler bad, was his bid, and the deed which he made was merely a transfer of that bid, and as he had transferred his bid before the attachment was levied, he had, at the time of the levy, no interest whatever in the property liable to be reached at the suit of his creditors.

Much stress is placed upon the alleged fact that Hauessler purchased the property for less than its real value. The sale under which he acquired the title was made under the power contained in the deed of trust. The property was sold at public vendue, where all had a full opportunity to bid. The sale was conducted in the mode provided by law, and although the property may not have sold for its full value, that fact did not impair the validity of the sale.

After a careful examination of the entire record, we are satisfied that the judgment of the circuit court is correct, and it will be affirmed.

Judgment affirmed.


text:
    Ruth A. Price v. J. D. England.

      Filed at Springfield March 26, 1884.

      1. Tax title—of the notice to entitle the purchaser at a tax sale to a deed—requisites of the affidavit. An affidavit to entitle the purchaser of land at tax sale to a deed, must follow the requirements of the statute, and state particularly the facts relied on as showing service of notice, so that the court can see that the mode of service is such as is required by the constitution and the statute.
    2. An affidavit of a purchaser of land for taxes on a purchase in June, 1878, after stating the service of notice of the sale of the premises for taxes on certain of the persons named, proceeded as follows: “That on the 11th day of February, A. D. 1880, affiant served a notice on J. D. E., the owner, occupant, and person in whose name taxed, of the land hereinbefore described; that all the notices served, as above set forth, were printed, a copy of which notice is hereto attached and made a part of this affidavit:” Held, that the affidavit was fatally defective in not showing that the occupant was served with personal notice, as required by the constitution.
    Writ of Eror to the Circuit Court of Champaign county; the Hon. C. B. Smith,, Judge, presiding.
    Mr. F. M. W. Price, for the plaintiff in error.
    Mr. Wm. B. Webber, for the defendant in error.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

This was an action of ejectment, wherein there was judgment for the defendant, and the plaintiff appeals to this court.

The plaintiff’s claim of title was under a tax deed made upon a sale of the premises, for taxes, on June 17, A. D. 1878. The point of attack on the tax deed is as to the sufficiency of the notice of the sale for taxes.

Section 5, article 9, of the constitution of 1870, requires that the General Assembly shall provide by law for reasonable notice to be given to the owners or parties interested, by publication or otherwise, of the fact of the sale of real property for taxes, and when the time of redemption shall expire: “Provided, that occupants shall in all cases be served with personal notice before the time of redemption expires. ” Section 216 of the Revenue act, (Rev. Stat. 1874, p. 893,) as amended May 31, 1879, (Laws 1879, p. 256,) provides that no purchaser of real property at a sale for taxes shall be entitled to a deed for the property so purchased until he shall have complied with certain named conditions, one of which being, that he shall “serve, or cause to be served, a written or printed, or partly written and partly printed, notice of such purchase on every person in actual possession or occupancy of such land or lot; also, the person in whose name taxed; * * * also, the owners of, or parties interested in, said land or lot, * * * if they can * * be found, * * * at least three months before the expiration of the time of redemption.on such sale.” Section 217 of said act provides, “that every purchaser, by himself or agent, shall, before he shall be entitled to a deed, make an affidavit of his having complied with the conditions of the foregoing section, stating particularly the facts relied on as such compliance.”

The affidavit, under the last section, relied on in this case, after stating the service of notice of the sale of the premises for taxes on certain other persons named, proceeds: “That on the 11th day of February, A. D. 1880, affiant served a notice on J. D. England, the owner, occupant, and person in whose name taxed, of the land hereinbefore described; that all the notices served, as above set forth, were printed, a copy of which notice is hereto attached and made a part of this affidavit. ” The objection taken to the affidavit is, that it does not show a sufficient service of notice on England.

The affidavit is defective, in not, as the statute requires, “stating particularly the facts relied on as such compliance” with the condition of giving notice. The constitution requires that occupants shall be served with personal notice. It does not appear here that there was personal notice served. If there was service of a printed notice, the mode of service might have been by sending the notice by mail, or by leaving a copy at the residence of the occupant, or delivering it to some member of his family. All these are recognized modes of notice, and in the idea of the person making the affidavit, either of them might have been considered a proper manner of service of notice. The affidavit should have followed the requirement of the statute, and stated particularly the facts relied on as showing service of notice, so that the court might see that the mode of service was that which is required by the constitution and the statute.

There being, then, failure to show compliance with the condition upon which, only, could the purchaser at the tax sale become entitled to a deed, there is no title made by the tax deed, and the judgment must be affirmed.

Judgment affirmed.


author: Mr. Justice Walker

text:
    Francis Hurlbut v. William B. Bradford.

      Filed at Ottawa March 26, 1884.

    1. Limitation—act of 1839—payment of taxes—first and last payment—whether seven years must intervene. The payment of all taxes on vacant and unoccupied land by a party, under color of title acquired in good faith, before possession taken, is a bar to an action of ejectment brought by the owner of the paramount title, even though the last payment of taxes is made more than four months less than seven years from the first payment, where possession is not taken under the color of title until after seven years have elapsed since the first payment.
    2. Same—former decisions. In Meacham v. Winstanly, 77 Ill. 269, it is inadvertently said that there must be seven years between the first and last payments, to complete the statutory bar. In that case it was not intended to overrule the cases of McConnel v. Konepel, 46 Ill. 519, and Clark v. Lyon, 45 id. 388. That question was not presented by the record, and in so far as it conflicts with those prior decisions it is overruled.
    3. Same—by whom the taxes must be paid. To create the statutory bar, the claim and color of title must coincide with the payment of taxes for seven successive years. The person paying the taxes must in some way be interested in or connected with the claim and color of title. A payment by a stranger to the claim and color of title does not answer the requirements of the statute.
    4. Same—as to proof of payment by the proper person. To defeat the parmount title by the payment of taxes under color of title, the proof of the payments by the holder of the color of title, or some one interested in the same, or on his behalf, must be clear and convincing. Such titles should not be overcome by loose and uncertain testimony, or upon mere conjecture or violent presumptions.
    5. The holder of claim and color of title to vacant and unoccupied land, paid the taxes thereon in November, 1839, and soon after died. The receipts for the taxes of 1840,1842 and 1843 were in his name, instead of being in the name of the heir or heirs: Held, that these payments could not be presumed to have been made by the heirs, or in his name by some unknown person for them, and without other evidence could not be treated as payments by the owner of the color of title.
    Appeal from the Circuit Court of Knox county; the Hon. John J. Glenn, Judge, presiding.

      Messrs. Sanford & Carney, for the appellant:
    It is not necessary that seven years should elapse after the first payment of taxes before the last one in the series. It is sufficient if the taxes of seven successive years are paid, and possession is not taken until after seven years from the first payment. McConnel v. Konepel, 46 Ill. 519; Clark v. Lyon, 45 id. 391. The case of Meacham v. Winstanly, 77 Ill. 269, was not intended to overrule these cases.
    The tax receipt for 1839 is in the name of Russell Persons, dated November 16, 1839, before his death. The receipts for the years 1841, 1844 and 1845 are in the names of the heirs of Russell Persons, and are prima facie evidence of payment of taxes by them. The other three receipts, for the years 1840, 1842 and 1843, are in the name of Russell Persons,—a son of the deceased, and one of the heirs,—and are prima facie evidence of payment of taxes by him.
    Mr. L. Douglass, and Mr. J. B. Boggs, for the appellee:
    The Statute of Limitations did not begin to run until the first payment was made, November 16, 1839. The last payment was made June 5, 1846. The statute, as we understand it, requires seven full years between the date of the first and last payment of taxes. Bride v. Watt, 23 Ill. 507; Clark v. Lyon, 45 id. 391; Dickenson v. Breeden, 30 id. 327; Stearns v. Gittings, 23 id. 392; Meacham v. Winstanly, 77 id. 269; Rawson v. Fox, 65 id. 209.
    The case of McConnel v. Konepel, 46 Ill. 519, was overruled by Meacham v. Winstanly, 77 Ill. 269.
    In order to claim the benefit of section 9 of the Limitation law, the taxes must be paid for seven successive years by the person holding color of title. If paid for any one of the seven years by one not having the color of title, the limitation fails. Dawley v. Van Court, 21 Ill. 460; Fell v. Cessford, 26 id. 522; Jayne v. Gregg, 42 id. 416; Coleman v. Billings, 89 id. 183.

      If the tax was paid by the proper party, in person, or by guardian, or by agent, it was a matter of proof, and no presumption can be indulged in the absence of proof. Rawson v. Fox, 65 Ill. 208.
   Mr. Justice Walker

delivered the opinion of the Court:

This was an action of ejectment, brought by appellee, in the Knox circuit court, against appellant, for the recovery of a portion of the north-west quarter of section 8, town 11 north, range 4 east. On the trial in the court below the parties waived a jury, and submitted the case to the court for trial. The court found the issues for plaintiff, and a judgment was rendered against defendant, and a writ of restitution was awarded.

It is not disputed that appellee produced and read in evidence a connected chain of title from the United States government to himself; but to meet that title and defeat a recovery, appellant introduced a tax deed executed by the Auditor, bearing date the 9th day of February, 1835, for the entire quarter, to Bussell Persons. He also produced and read in evidence a connected chain of title from Persons to himself, and read in evidence seven tax receipts for as many years’ taxes on the land, the first bearing date the 16th day of November, 1839, and the last the 5th day of June, 1846. He also proved that the land was vacant and unoccupied during that period, and for many years afterwards; that the first improvement made on the land was in 1866 or 1867, and he had been in possession six or eight years at the time of the trial.

It is insisted that there was not payment of taxes for the statutory period, so as to create a bar to the action. From the date of the first payment to the last lacks something more than four months of seven years. Such payments were held to fulfill the requirements of the statute, in the cases of McConnel v. Konepel, 46 Ill. 519, and Clark v. Lyon, 45 id. 391. It was, however, said, in Meacham v. Winstanly, 77 Ill. 269, that there must be seven years between the first and last payments to complete the bar of the statute. That was inadvertently said, and was not intended to overrule McConnel v. Konepel, and Clark v. Lyon, supra. That question was not presented by the record, and so far as it conflicts with those previous decisions, it is overruled. We think that it does not matter that there is not seven years between the first and last payments, provided seven years does elapse from the first payment and entering into possession of the land.

But it is claimed that a number of payments were not shown to have been made by or for the heirs of Persons, after his death. It has been repeatedly held that the claim and color of title must coincide with the payment of taxes,—that the person paying the taxes must, in some way, be interested in or connected with the claim and color of title. (Cofield v. Furry, 19 Ill. 183.) A payment by a stranger to the claim and color of title does not answer the requirements of the statute. The payment must be under the color of title. Dawley v. Van Court, 21 Ill. 460, Fell v. Cessford, 26 id. 522, Jayne v. Gregg, 42 id. 416, Coleman v. Billings, 89 id. 183, Newland v. Marsh, 19 id. 376, Dunlap v. Daugherty, 20 id. 404, and Bride v. Watt, 23 id. 512, all assert this doctrine.

Inasmuch as the payment of taxes under color of title operates to defeat the paramount and all other titles, when relied on, the proof must be clear and convincing. Such titles should not be overcome by loose and uncertain testimony, or upon mere conjecture or violent presumptions. Is the evidence of payment of taxes by those holding the color of title, for seven years, clear and convincing ? We think not. Persons paid taxes in 1839, as shown by the tax receipt; but soon after, and before the next taxes became due, he died, and the receipts dated in 1840, 1841 and 1842 are in his name. The remaining three are in the name of his “Hrs.,” or the “Hrs.” of B. Persons, and were evidently paid by or for his heirs. On the death of Persons his claim of title descended to his heirs, and a payment in his name by some unknown person can not be presumed to be a payment for the heirs. In some of the cases referred to above, the payment was made by the grantor after he had sold the land, and it was held not to be sufficient under the statute. So, without explanation, payment in the name of a dead man is not sufficient, because the color of title and payment of taxes do not unite in the same person.

But it is urged that inasmuch as one of his sons was named Russell Persons, we must presume he paid the taxes for those years, or at least they were paid for him by the other heirs or his guardian, and under the cases of Chickering v. Faile, 38 Ill. 342, and McConnel v. Konepel, 46 id. 519, the payments inured to the benefit of all the heirs, and hence were under the color of title. The presumption that he paid them is repelled by his testimony. He says he was about thirteen years old at the time of his father’s death; that he did not pay them, nor does he know who did,—in other words, he knows nothing in regard to their payment. Nor is there any evidence that he had a guardian, or if he had, that he had any means of his ward with which to pay the taxes. We are asked to make presumptions that are not warranted by the rules of evidence. If the payment was thus made, there surely is some evidence of the fact capable of being adduced. But be that as it may, appellant has failed, as to these three years, to prove that color of title and payment of taxes coincided in the heirs of Bussell Persons, deceased.

We therefore are of opinion that the bar of the statute has not been made out by the proof, and the judgment of the court below must be affirmed.

Judgment affirmed.

Mr. Justice Craig took no part in the consideration or decision of this case.