text:
    The People ex rel. Augusta Wilmers v. Charles Volksdorf.

      Filed at Ottawa September 27, 1884.

    1. Bastardy—subsequent marriage of the mother—effect upon her rights under the Bastardy act. Under the Bastardy act, complaint during pregnancy, and before delivery of the child, can only be made by an unmarried woman; but after delivery while she is single, the subsequent marriage of the mother will not prevent her from making complaint against the reputed father of the child.
    2. The true construction of the statute is, that the mother shall be unmarried at the time the child is born; and the word “unmarried,” in the law, does not properly relate to the time of making the complaint.
    3. Bastard—liability of one marrying the mother, to support child. The marriage of the mother of an illegitimate child, after delivery, to one not the father, can not affect the status of such child, and the husband will not be liable for its support.

      Writ of Error to the Appellate Court for the First District ;—heard in that court on appeal from the Criminal Court of Cook county; the Hon. William H. Barnum, Judge, presiding.
    This was a prosecution under the Bastardy act, commenced by Augusta Wilmers, against Charles Volksdorf, to compel him to contribute to the support of a bastard child, on the alleged ground of his being its father.
    It appears that the defendant, for about eighteen months subsequent to the birth of the child, made voluntary contributions towards its support, which he ceased making upon the marriage of the mother, whereupon she, after her marriage, made the complaint in this case. A trial was had in the Criminal Court of Cook county, which resulted in a verdict of guilty, and judgment against the defendant in the sum of $493.50, from which he appealed to the Appellate Court for the First District. In the Appellate Court this judgment was reversed, and final judgment entered against the prosecutrix, on the ground that being married at the time of making the complaint, she did not come within the Bastardy act, and could not institute the proceeding. The prosecutrix brings the case to this court by writ of error, and asks a reversal o"f the judgment of the Appellate Court, claiming that the proceeding will lie, for the reason that she was unmarried at the time of the birth of the child.
    Mr. Clarence F. Dore, for the plaintiff in error:
    Similar statutes have been so construed as to authorize one marrying after the birth of a bastard child, to prosecute. Haworth v. Gill, 30 Ohio St. 627; Sisco v. Harman, 9 Vt. 129; Wilkie v. West, 1 Murphy, 319.
    The marriage, here, in nowise affected the status of the bastard child, and the husband is not liable for its support. Brush v. Blanchard, 18 Ill. 46; Mowbry v. Mowbry, 64 id. 383.

      In England, where complaint is limited to single women, the courts have held that a married woman may be considered single, in the sense intended by the statute. Regina v. Pakington, 2 Ellis & Bl. 546; Regina v. Collingwood, 12 Q. B. 681; Rex v. Luffe, 8 East, 193.
    The statute being remedial, should receive a liberal construction, to effect its general design to afford a support to illegitimates. Gastner v. Walrod, 83 Ill. 171; Burgett v. Burgett, 1 Ohio, 221; Potter’s Dwarris on Statutes, 244.
    Mr. W. B. Cunningham, for the defendant in error:
    Under our statute three things are requisite: First, complaint must be made by the mother of the child; second, it must be made within two years from the birth of the child; and third, it must be made by an unmarried woman.
    In the cases of Dunham v. People, 49 Ill. 234, and Cook v. People, 51 id. 143, it appeared the relatrix was a single woman when she made the complaint.
    The Ohio courts, in construing a similar statute, held that the relatrix must be an unmarried woman. Divinney v. State, Wright, 564; Haworth v. Gill, 30 Ohio St. 627. To the same effect, see Williams v. State, 29 Ala. 9; Cooper v. State, 4 Blackf. 316; Coppy v. State, 24 Ind. 391; Sword v. Nester, 3 Dana, 453.
   Mr. Justice Dickey

delivered the opinion of the Court:

This case involves a construction of the first section of the Bastardy act, which provides, “that when an unmarried woman who shall be pregnant, or delivered of a child which by law would be deemed a bastard' shall make complaint to a justice of the peace,” etc., accusing one with being the father of such child, the justice shall issue his warrant, etc. It is contended by appellee that the mother of a bastard, child must be an unmarried woman at the time she makes complaint, while appellant claims that the word “unmarried, ” in the section, is to be referred to the pregnancy or delivery of the mother.

The statute authorizes the making of the complaint when a single woman is pregnant with child. In that case the complainant must be “unmarried” at the time of making the complaint. It also authorizes the institution of the prosecution when an unmarried woman has been delivered of a child, in which case it is not necessary that she be unmarried when she makes the complaint. The marriage of the mother of an illegitimate child, after delivery, to one not the father, can not affect the status of such child, and her husband will not be liable for its support. (Brush v. Blanchard, 18 Ill. 46; Mowbry v. Mowbry, 64 id. 383.) The true construction of the statute is, that the mother shall be unmarried at the time the child is born, and the word “unmarried, ” in the law, does not properly relate to the time of making the complaint.

The judgment of the Appellate Court will be reversed, and the cause remanded to that court, with direction to enter judgment in conformity to this opinion.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Craig

license: Public Domain

text:
    The Pennsylvania Railroad Company v. William J. Connell.

      Filed at Ottawa October 31, 1884.

    1. Carriers op passengers — through coupon tickets over distinct lines of railroad—right of passengers to be carried—duty and liability of the several companies. Through tickets in the form of coupons, sold to a passenger by one railroad company, entitling him to pass over successive connecting lines of road, in the absence of an express agreement create no contract with the company selling the same, to carry him beyond the line of its own road, but they are distinct tickets for each road, sold by the first company as agent for the others, so far as the passenger is concerned.

      2. A person intending to take passage by railroad from Omaha to New York, purchased at the former place, from the Wabash, St. Louis and Pacific Railway Company, a through coupon ticket, purporting to give the right of carriage from Omaha to New York over the several lines intermediate and connecting between those two points, one of the connecting lines being the-Pennsylvania railroad. There was printed on the face of the ticket: “In selling this ticket for passage over other roads, this company acts only as agent for them, and assumes no responsibility beyond its own line.” The coupon over the Pennsylvania railroad declared, “Issued by the Wabash, St. Louis and Pacific railway, on account of the Pennsylvania railroad, ” which the company owning the latter road refused to accept, and on refusal to pay the regular fare demanded, ejected the passenger from the train: Held, in a suit by the passenger against the latter company, that the first named company contracted with the passenger only as agent of the defendant company.
    3. Where a coupon ticket has been sold calling for passage over several distinct lines of railroad, the rights of the passenger, and the duty and responsibility of the several companies over whose roads the passenger is entitled to a passage, are the same as if he had purchased a ticket at the office of each company constituting the through line.
    Í. Same—remedy of passenger for being wrongfully put off a train— and of his rights when his ticket is refused, and payment of fare demanded. Where a conductor of a railway company, acting under instructions from his superior, refuses to accept a ticket issued by another company as agent of the former, and demands full fare, the passenger, if his ticket was issued by authority, may pay the fare again, and recover of the company requiring payment the sum paid, as for a'breach of contract, or he may refuse to pay, and leave the train when so ordered by the conductor, and sue and recover of the company all damages sustained in consequence of his expulsion from the train; but if he refuses to leave, he can not recover for the force used by the conductor in putting him off, when no more force is used than necessary, and the expulsion is not wanton or willful.
    5. Same—measure of damages—in suit to recover damages for expulsion of a passenger from a train. A passenger who has rightfully bought a ticket for his passage over a line of railroad, and such ticket is refused, and who is expelled from the cars on refusal to pay fare to the conductor, will be entitled to recover of the railway company the amount of the cost of a ticket from the place where he was ejected to the place called for in his ticket, and also such damages as he may have sustained on account of delay by his expulsion, and all additional expenses necessarily occasioned thereby, as well as reasonable damages for the indignity of being expelled from the train, but not damages for personal injuries received in putting him off, unless the expulsion was malicious or wanton, as he might have avoided such injury by leaving the train when so ordered. In such case it would be his duty to pay, or leave the train, and sue for damages if he should choose to do so.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Messrs. Willard & Driggs, for the appellant:
    Appellee’s contract for passage from Omaha to New York was with the Wabash, St. Louis and Pacific Eailway Company. As between the appellee and said company, it assumed that the intermediate carriers were its agents, and would lend their agency in the fulfillment of the contract thus made. Railroad Co. v. Copeland, 24 Ill. 332; Railroad Co. v. Johnson, 34 id. 389; Railroad Co. v. Frankenberg, 54 id. 88; Railroad Co. v. Fahey, 52 id. 81; Railway Co. v. Smith, 74 id. 197; Railway Co. v. Packet Co. 70 id. 217; Railway Co. v. Wilcox, 84 id. 239; Railroad Co. v. Campbell, 36 Ohio St. 647; Candee v. Railroad Co. 21 Wis. 582; Argan v. Railroad Co. 132 Mass. 423; Shearman & Redfield on Negligence, sec. 272.
    In such ease there is no difference in principle between an undertaking for the carriage of a passenger and an undertaking for the carriage of freight. Railroad Co. v. Fahey, 52 Ill. 81; Quimby v. Vanderbilt, 17 N. Y. 306.
    A refusal by an agent to act as such, does not give a stranger a right of action against the agent. Railroad Co. v. Fahey, 52 Ill. 81; Railway Co. v. Packet Co. 70 id. 217; Story on Agency, secs. 308-310.
    A railway company has a legal right to make reasonable rules for the government of its agents and employes in the transaction of its business, and a rule which requires a conductor to demand a passage ticket or money in payment of fare, is a reasonable rule. Railroad Co. v. Flagg, 43 Ill. 364; Railroad Co. v. Whittemore, id. 420; Railway Co. v. Williams, 55 id. 185; Railroad Co. v. Griffin, 68 id. 499; Car Co. v. Reed, 75 id. 125; Thompson on Carriers of Passengers, 335, 340; Angell on Highways, secs. 371-378.

      The conductor acting in good faith in demanding fare, appellee should have paid, or left- the train and sued for damages. Railroad Co. v. Griffin, 68 Ill. 499; Car Co. v. Reed, 75 id. 125; Hull v. Railroad Co. 9 A. & E. Ry. Cases, 348.
    Upon the foregoing question we desire to refer to two points, viz: First, whether, under the circumstances of this case, the appellee can recover any damages which he himself caused by refusing to pay fare in obedience to the conductor’s request, whereby he subjected himself to expulsion and consequent delay in his journey, and damages which he himself caused by his forcible resistance to the efforts of the conductor to expel him; and second, whether this is a case for the assessment of exemplary or punitive damages. In addition to the Griffin, Reed and Hall cases cited upon this point, we cite the following: Railway Co. v. Pierce, 47 Mich. 277; Railway Co. v. Scurr, 6 A. & E. Ry. Cases, 341; Thompson on Carriers of Passengers, secs. 5, 375; Railway Co. v. Ford, 53 Texas, 634; Townsend v. Railway Co. 56 N. Y. 298; Shelton v. Railway Co. 29 Ohio St. 214; Frederick v. Railway Co. 37 Mich. 342.
    Mr. W. J. Hynes, and Mr. John I. Redick, for the appellee:
    The Wabash, St. Louis and Pacific Railway Company, in selling the ticket, acted as the agent for the defendant and other companies over whose lines a passage was called for. Schouler’s Bailments, including Carriers, 592; 2 Redfield on Railways, sec. 201; Thompson on Carriers of Passengers, 434; Railroad Co. v. Fahey, 52 Ill. 81; Horton v. Railroad Co. 114 Mass. 44; Sprague v. Smith, 29 Vt. 421; Brooke v. Railroad Co. 15 Mich. 332; Knight v. Railroad Co. 56 Maine, 234; Ellsworth v. Tartt, 26 Ala. 733; Melnor s. Railroad Co. 53 N. Y. 304; Railroad Co. v. Sprayberry, 9 Heisk. 852; Hart v. Railroad Co. 4 Seld. 37; Blake v. Railroad Co. 7 H. & N. 987; Berringer s. Railroad Co. 4 C. P. 163; Austin v. Railroad Co. L. R. 2 Q. B. 442; Pickard s. Taylor, 35 Ark. 402; Foulkes v. Railroad Co. 48 L. J. (N. S.) 554; 2 Redfield’s Leading Am. Eailroad Cases, 458; Johnson v. Railroad Co. 70 Pa. 357; Schopman v. Railroad Co. 9 Cush. 24; Hood v. Railroad Co. 22 Conn. 1; Glassco v. Railroad Co. 36 Barb. 557.
    The carrier is bound to make good what the ticket imports on its face, and the passenger is not bound by any rule or usage of the company not so expressed, unless he has notice of the same. Hall v. Railroad Co. 15 Fed. Rep. 57; Maroney v. Railroad Co. 106 Mass. 160.
    It is well established that vindictive or exemplary damages may be given against corporations for the tortious or wrongful acts of their agents. 1 Sutherland on Damages, 716; Field on Damages, secs. 85, 601; Sedgwick on Damages, 36; Wood on Master and Servant, 589; 1 Redfield on Railways, 514, and 2 id. 272; Railroad Co. v. Dalby, 19 Ill. 353; Manufacturing Co. v. Holdfodt, 86 Ill. 456; Reeder v. Purdy, 48 id. 261; Goddard v. Railroad Co. 57 Maine, 202; Hansen v. Railroad Co. 62 id. 84; Railroad Co. v. Rogers, 38 Ind. 116; Brown v. Railroad Co. 7 Fed. Rep. 51; Roberts v. Mason, 10 Ohio St. 278.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action brought by William J. Connell, in the Superior Court of Cook county, against the Pennsylvania Railroad Company, to recover damages for a forcible expulsion from appellant’s car, at Tacona, a station a few miles east of West Philadelphia, on the 16th day of December, 1880. On a trial of the cause before a jury, the plaintiff recovered a verdict, and judgment for $15,000, which was affirmed in the Appellate Court.

It appears from the evidence introduced on the trial, that the Wabash, St. Louis and Pacific Railway Company operated a line of railroad from Omaha to St. Louis, and that appellant operated a line of road from Philadelphia to New York. The Wabash railway company had for several years been in the habit of selling .coupon tickets to passengers, from Omaha to New York, over its own line and the lines of the Ohio and Mississippi, the Marietta and Cincinnati, the Baltimore and Ohio, the Philadelphia, Wilmington and Baltimore, and appellant’s line. On the first day of December, 1880, appellant sent the Wabash company a message by telegraph, as follows:

“December 1, 1880.
“George H. Daniels, W., St. L. and P. Ry., St. Louis, Mo.:
“On receipt hereof, please discontinue sale of tickets to all points north and east of Philadelphia reading via Baltimore and Ohio railroad and this line. Please answer.
L. P. Farmer. ”

The Wabash company received the message, and replied as follows: “Tickets reading via Baltimore and Ohio railroad to all points east and north of Philadelphia have been ordered off sale.” The Wabash notified the Baltimore and Ohio road of the action of appellant, and in reply received the following:

“Baltimore, Md., December 2, 1880.
“To Geo. H. Daniels, Wabash Ry., St. L.:
“Please get up, quickly, tickets New York and points east by B. and O., and Boundbrook route trains run Chicago and Cinti, N. Y., without change. Coupons should read Balto., Phila., Boundbrook R. R., Phila. and Reading R. R., Phila. and Boundbrook Central R. R., New Jersey, Boundbrook, N. Y. Until you get them on, continue sales Penn. R. R., tickets by B. and O., reporting entire proportion east Baltimore to B. and O.; we are exchanging, and will protect. Answer. L. M. Cole.”

On the 7th day of December, 1880, the Wabash company, at Omaha, sold appellee, who had no notice of the action of appellant, a coupon ticket from Omaha to New York, reading via Baltimore and Ohio and appellant’s line, for the sum of $38.05, which was paid. Appellee left Omaha on the 7th day of December; arrived at Washington on the 9th; he remained there a few days, and then resumed his journey; reached Philadelphia on the 16th, where he took passage in appellant’s cars for New York. When the conductor came into the car in which appellee had taken passage, his ticket purchased at Omaha was presented, and refused. The conductor notified appellee that the ticket was not good on that road, and demanded fare, which appellee refused to pay. The train was stopped at Tacona, a regular station, and appellee requested to leave the train, which he refused to do. The conductor then put him off, using such force as seemed necessary for that purpose.

Several questions were raised in regard to the ruling of the court on the admission of evidence, but as they are of minor importance we will not consume time in their discussion, but will proceed to the main points in the case, which are presented by the decision of the court in the instructions to the jury-

It is insisted by appellant that the Wabash company, in the sale of the through ticket from Omaha to New York, contracted as a principal, and not as an agent, with appellee, to carry him over appellant’s line from Philadelphia to New York, and that the refusal of appellant to accept appellee’s ticket was merely a refusal to act as agent of the Wabash company, and a suit by a third person does not lie against an agent for the reason the agent refuses to act for the principal. The court refused the instructions of appellant presenting this view of the law, and gave instructions for appellee presenting the view that in the sale of the through ticket the Wabash company acted as agent of appellant. The ticket, upon its face, gives no sanction to appellant’s position. It says: “In selling this ticket for passage over other roads, this company acts only as agent for them, and assumes no responsibility beyond its own line. ” The coupon over appellant’s line declared, “Issued by the Wabash, St. Louis and Pacific railway, on account of Pennsylvania railroad. ” From these statements upon the ticket and coupons purchased by appellee, which was the contract between the parties, and showed their intentions, it is manifest that the Wabash company, by its contract with appellee, only assumed to act as agent in the sale of tickets over the connecting lines, and intended to assume the responsibility of an agent, and none other.

But aside from the language of the ticket, we think the law on this subject is well settled. We think the rule is well stated by Bedfield. He says: “As the general duty of common carriers of passengers is different from the common carriers of goods, so the implied contract, resulting from the sale of through tickets for passengers, is different. In the case of the carriers of goods and the baggage of passengers, we have seen that taking- the pay and giving tickets or checks through, binds the first company, ordinarily, for the entire route. But in regard to carrying passengers the rule is different, we. apprehend. These through tickets, in the form of coupons, which are purchased of the first company, and which entitle the person holding them to pass over successive roads, with ordinary passenger baggage, sometimes for thousands of miles, in this country import, commonly, no contract with the first company to carry such person beyond the line of their own road. They are to be regarded as distinct tickets for each road, sold by the first company as agent for the others, so far as the passenger is concerned.” (2 Redfield on Law of Railways, sec. 201.) The same rule is announced in Harlan v. Eastern Railroad Co. 114 Mass. 44, and in Pennsylvania Railroad Co. v. Schwarzenberger, 45 Pa. St. 208. The same principle was announced by this court in Chicago and Rock Island Railroad Co. v. Fahey, 52 Ill. 81. It is true a company selling a through ticket might, by contract, bind itself to be responsible for the entire route, but such liability can not arise, nor can it be established, from the fact, alone, that a through ticket has been sold. Something more is required to create a liability of such a character.

Several cases (decisions of this court) have been cited by appellant, to the effect that where a carrier receives goods marked for shipment to a particular place beyond the line of the carrier, in the absence of an express contract limiting the liability the law will imply an undertaking on the part of the carrier to transport and deliver the goods at the place to which they are marked, and in such case, where loss occurs, the carrier receiving the goods is liable to the shipper.

Actions for loss of freight are entirely different from an action of this character, and the cases which control the one do not control the other. Where a coupon ticket has been sold, as here, the rights of the passenger, and the duty and responsibility of the several companies over whose roads the passenger has procured a passage, are the same a's they would have been if the passenger had purchased a ticket at the office of each company constituting the through line. (2 Redfield’s Am. Ry. Cases, 465, note.) If we are correct in this position, the instructions of the court on this branch of the case are not erroneous.

But the instructions in regard to the measure of damages present a more serious question. In regard to the damages, the court, in substance, directed the jury that the plaintiff was entitled to recover compensation for loss of time, or actual pecuniary loss, as the result of being forcibly ejected from the train; also, such sum as will compensate for injuries to the person resulting from being forcibly ejected from the train, and for bodily pain. The conductor had been ordered by his superiors not to receive, a ticket for fare over the road like the one presented by appellee, and when, in the discharge of his duty as conductor, he called upon appellee for fare, and the ticket was presented, he notified appellee that he could not receive the ticket, and at the same time informed him that he must pay fare to New York. This, appellee refused to do, and then the conductor notified him that he must pay the regular fare or leave the train. Appellee refused to pay or leave the car, and the conductor stopped the train at a regular station and put appellee off by force, but it does not appear that more force was used than was necessary. This was, in substance, the transaction. If it be true that appellee, by virtue of his ticket, was entitled to be carried over appellant’s road, the question presented is, whether he can recover damages for being forcibly expelled from the train, or was it his duty, when notified by the conductor that he would not receive the ticket, to pay his fare under protest, or leave the train and hold the company responsible for the expulsion, without compelling the conductor to resort to force. Had appellee paid the fare demanded, he might have sued the company and recovered for a breach of the contract. Had he left the train when the conductor refused to receive the ticket and ordered him to leave, he might have sued and recovered for all damages sustained in consequence of the act of the conductor expelling him from the train; but can he recover for the force used by the conductor, which he by his own act induced the conductor to resort to in order to put him off the train ?

A question similar in principle to the one involved in this case arose in Chicago, Burlington and Quincy Railroad Co. v. Griffin, 68 Ill. 499, and it was there said: “If a passenger pays his fare to a certain station, and the ticket agent inadvertently gives him a ticket to an intermediate station, the demand of a fare a second time by the conductor will be a breach of the implied contract on the part of the company to carry him to the proper station. By paying on such demand, his action will be as complete as if he resists the demand and suffers himself to be ejected, and his ejection in such case will add nothing to his cause of action. It is his duty to pay the fare demanded, and if the company fails to make suitable reparation for the indignity, he can maintain his appropriate action. ” In Pullman Palace Car Co. v. Reed, 75 Ill. 125, Eeed had purchased a ticket for a particular berth in a sleeping car, and had lost it after entering the car. He refused to pay a second' time, and was forcibly expelled, after pro-, ducing proof that he had purchased a ticket for a berth. A verdict of $3000 was held to be excessive, and it was also held that the plaintiff was only entitled to recover the price paid for the ticket, and reasonable compensation for the trouble and inconvenience he suffered by being deprived of a berth in the sleeping car. See, also, Hall v. Memphis and Charleston Railroad Co. 9 Am. & Eng. Ry. C. 349.

In the case first cited, it was expressly held by this court that where the passenger paid on the demand of the conductor, his action will be as complete as if he resists and suffers himself to he ejected, and his ejection in such ease will add nothing to his cause of action. We entertain no doubt that appellee was entitled to recover the amount of the cost of a ticket from the place he was ejected from the cars, to New York. He was also entitled to recover such damages as he sustained on account of the delay occasioned by the expulsion, and all additional expense necessarily occasioned thereby, as well as reasonable damages for the indignity in being expelled from the train; but we perceive no ground upon which he can recover for personal injuries received, unless the expulsion was malicious or wanton. When the conductor demanded that appellee should pay fare or leave the train, he would have been justified in refusing to- pay fare, and in leaving the train on the command of the conductor, and had he done so he would have received no personal injuries, and might then have brought his action and recovered, as before stated ; but when he refused to leave the train, and thus compelled the conductor to resort to force, he can not recover for an injury which he voluntarily brought upon himself. The conductor was ordered by his superior not to receive a ticket like the one presented. This order he was bound to obey, and so far as appears he acted in good faith, and when appellee was notified by the conductor that his ticket was not good, and would not be received, it was his duty to leave the train in a peaceable manner and hold the company responsible for the consequences, rather than resist or undertake to retain his place on the train by force. A train crowded with passengers,—often women and children,—is no place for a quarrel or a fight between a conductor and a passenger, and it would be unwise, and dangerous to the traveling public, to adopt any rule which might encourage a resort to violence on a train of cars. The conductor must have the supervision and control of his train, and a demand on his part for fare should be obeyed, or the passenger should in a peaceable manner leave the train, and seek redress in the courts, where he will find a complete remedy for every indignity offered, and for all damages sustained.

The instructions in reference to the damages we regard erroneous, and for this error the judgment will be reversed and the cause remanded.

Judgment reversed.

Mr. Justice Mulkey, dissenting.


author: Mr. Justice Mulkey Mr. Justice Dickey :

text:
    Edmund S. Holbrook v. John Forsythe et al.

      Filed at Ottawa October 14, 1884.

    1. Description—of land devised or conveyed—general description— as, all the lands owned by the testator or grantor in a particular county or State. If one devises or conveys all lands belonging to him in a particular county or State, to another, not by a particular description of the lands, but generally,—as, “all the real estate and_ lands to the testator or grantor belonging, and being in the State of Illinois, ”—the will or deed will pass to the devisee or grantee all such lands as belong to the testator or grantor in such county or State at the time the will or conveyance shall take effect.
    2. Color of title—devise. A devise of all lands belonging to the testator in the State of Illinois, by that general description, while it will pass to the devisee the title to all such lands lying in this State as belonged to the testator at the time of his death, yet it will not be given effect as to a particular tract claimed under the will, without proof that the testator owned the same at the time his will took effect; but such devise will not constitute color of title under the Limitation law, even though the testator may have had color of title.
    3. Same—how acquired or passed. A person having only color of title to lands in this State may transfer the same by a general devise of all lands owned or claimed by him in the State, or by a specific designation of the same in any appropriate way by which they may be identified. In like manner, if one having only color of title dies intestate, such color of title will descend to his heirs at law.
    Appeal from the Circuit Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    Mr. Edmund S. Holbrook, pro se:

    The devise to Maurice Wakeman was not color of title, as it did not purport, on its face, to pass any land except such as belonged to the testator. Like a deed, it must purport on its face to convey the land claimed. Shackleford v. Bailey, 35 Ill. 392; Bride v. Watt, 23 id. 507; Stearns v. Gittings, 19 id. 385; 23 id. 387; Dunlap v. Daugherty, 20 id. 397; Dickenson v. Breeden, 30 id. 325; Sedgwick and Wait on Trials of Real Property, sec. 767, et seq.

    How little chance for a devise of interest in general words, without any description of any land, will constitute color of title to a specific tract of land, see Wood v. Bank, 14 N. H. 101; Bride v. Watt, 23 Ill. 507; Rigor v. Frye, 62 id. 508; Busch v. Hustin, 75 id. 343.
    Mr. W. C. Goudy, for the appellees:
    A general description of all the grantor’s lands in a particular State, county or city, is good. Prettyman v. Walston, 34 Ill. 191; Doty v. Wilder, 15 id. 411; Bird v. Bird, 40 Maine, 403; Harmon v. James, 7 S. & M. 118; Jackson v. De Lancey, 11 Johns. 366.
    As to what is good color of title, see Hassel v. Ridgely, 49 Ill. 197; Holloway v. Clark, 27 id. 423; Payne v. Markle, 89 id. 66; Bride v. Watt, 23 id. 507; Waterhouse v. Martin, Peck, (Tenn.) 409; Callender v. Sherman, 5 Ired. L. 711; Henley v. Wilson, 81 N. C. 405; Wright v. Mateson, 18 How. 56; Bemal v. Gleim, 33 Cal. 676; McCall v. Neeley, 3 Watts,. 72; Teabout v. Daniels, 38 Iowa, 161; McConnel v. Street, 17 Ill. 253; Brooks v. Bruyn, 35 id. 394.
   Mr. Justice Mulkey

delivered the opinion of .the Court:

This case is now before, us on the third appeal, and was once considered on a petition for a rehearing, so that if it is not by this time pretty well understood, it is not likely to be. A full statement of the facts will be found in 99 Ill. 312, being the report of the case when last before us. Since then the appellant has taken a new trial under the statute, and the trial court having reached the same conclusion from which the last appeal was taken, appellant again askg a reconsideration of the case in this court.

With one exception the facts are substantially the same as they appear in the report of the case above referred to. The defence now, as heretofore, is based upon the Limitation act of 1839. The trial court held that the defence was sufficiently made out, and consequently gave judgment for the defendants. On the present appeal we propose to discuss but a single question, namely, the sufficiency of the color of title as presented by the present record.

On the former trial, color of title was clearly shown by the introduction of the unrecorded deed from Egan to Wakeman, of the 7th of July, 1836, and connecting appellees with it by the introduction of Wakeman’s deed of the 29th of June, 1869, to Thomas Lord, and the latter’s conveyance of January 12,1871,. to Eliza Forsythe. On the last trial, however, after appellees had shown color of title in Wakeman, and connected themselves with it in the manner just stated, appellant, by way of rebuttal, showed that Maurice Wakeman, on the 26th of April, 1837, conveyed the premises to Ebenezer T)imon, Jr., whereby Wakeman was divested of his color of title. To meet this state of case, appellees then showed that Dimon, on the 1st of August, 1839, reconveyed the lands in question to Jessup Wakeman, who died in 1844, leaving a will, which was admitted to probate at Fairfield, Conn., on the 1st of June of that year, containing, among others, this provision: “I give and bequeath to my son, Maurice Wake-man, his heirs and assigns, all the real estate and lands to me belonging and being in the State of Illinois. ” Under this provision of the will it is contended by appellees that Maurice Wakeman became again invested with color of title to the lands in controversy, and that his subsequent payment of taxes under it, for the requisite number of years, made out a ease under the statute.

If one wills or conveys to another all lands belonging to him in a particular county or State, the will or deed will clearly pass to the devisee or grantee the title of the former to all such lands as belonged to the testator or grantor in such county or State at the time the instrument of conveyance took effect. But it is contended by appellant, that where, in such cases, no particular lands are described, and the instrument can only be given effect by showing, as an extrinsic fact, that the grantor or testator actually owned the particular tract or tracts of land claimed to pass by it, a mere contingent or inchoate right not coming within the general description of lands owned by or belonging to the testator or grantor, will not pass by it. It must be conceded there is much force in this position. By the express terms of the devise to Wakeman it is limited to the “real estate and lands” belonging to him in the State of Illinois. It is conceded that the lands in dispute did not at the time this will took effect, nor, indeed, at any other time, so far as the record shows, belong to the testator. The utmost that is claimed is, that he had color of title to it. If the will had given Wakeman all the lands which the testator claimed to own or had deeds for, or color of title to in the State of Illinois, these lands could clearly have been shown to come within the description. Or, if the lands devised had been specifically designated as in the government survey, or in any other appropriate way by which they could have been identified, it is clear enough any right connected with the lands, including color of title, would have passed by the devise. On the same principle, if one having color of title, only, to a particular tract of land, conveys it by a specific description, the color of title will pass by his deed. In like manner, if one having only color of title dies intestate, such color of title will descend to his heirs at law. All these cases are clear enough, and well understood. But the case in hand is unlike any of the ones suggested. Here, as already seen, the will does not specifically describe any lands, and to give it operation as to any particular tract in the State, as is sought to be done here, it must be shown, unless we depart altogether from the words of the instrument, that such particular tract belonged to the testator at the time of his death. The will clearly does not purport to give any other kind or description of lands, and it would certainly be extending judicial construction to its utmost limits to say this description includes a particular tract of land that is conceded to have never belonged to the testator. This we are not prepared to do.

After a careful consideration of the question, we are satisfied appellees failed to satisfactorily establish color of title in Wakeman, and that the defence consequently failed. Such being the ease, the defence insisted upon can not prevail against any one who may have the paramount title.

The judgment of the court below is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Judgment reversed.

Mr. Justice Dickey :

I concur in the views above expressed, but would prefer to rest the judgment upon another ground, in which I feel more confidence. I think when this case was here, and passed upon in the case reported in 99 Ill. 312, the decision was wrong. I think when a new trial is taken under the statute, it sets aside all previous proceedings on the former trial,' and entitles each party to a hearing de novo on all questions of law as well as of fact which may arise, and that decisions made on or relating to such former trial are not res judicata. I think that opinion should be overruled and disregarded, and that the possession relied upon in this case as a basis of defence, under the statute of 1839, is not sufficient to sustain the defence.


author: Mr. Chief Justice Scholfield

text:
    John Tomlinson et al. v. Emanuel Earnshaw et al.

      Filed at Ottawa November 17, 1884.

    1. Practice—time to object—that an amendment of declaration was allowed after the verdict. The objection that the trial court allowed the ad damnum laid in a declaration to be amended after verdict, by increasing the amount, should first be made in that court on motion for a new trial, or the same can not properly come before this court.
    2. Amendment oe declaration—increasing ad damnum after verdict. There is no error in allowing an amendment of a declaration by increasing the ad damnum after verdict. Such an amendment relates to matter of form, rather than substance.

      3. Reversing, and remanding—with directions. It is not erroneous for the Appellate Court, upon reversing and remanding a cause, to direct the court below, upon a remittitur being made of so much of the judgment as is improper, to enter judgment for the balance of the verdict.
    4. Evidence—as to characteristics of a particular article contracted for as of the best quality. In a suit to recover the price of Aux Sable sandstone, sold under a contract to furnish the first quality of such stone, the defence being that all the stone delivered under the contract contained iron spots, it was held, that evidence on the part of the plaintiff tending to show that all Aux Sable stone contained iron spots, was material and admissible. The seller can not be held to furnish stone free of a blemish or defect common to all stone of the quality contracted to be furnished.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. Allan C. Story, for the appellants.
    Mr. W. W. Gurley, for the appellees.
   Mr. Chief Justice Scholfield

delivered the opinion of the Court:

A reversal of the judgment below is asked upon three grounds: First, because the court allowed the ad damnum to be amended by increasing the amount, after verdict; second, because the Appellate Court, after reversing and remanding the cause, directed that the Superior Court, upon a remittitur being made by appellees of $230.90, enter judgment in their favor upon the verdict for the residue of the amount found by it (namely, $768.36,) to be due from appellants to appellees; and third, because the Superior Court admitted evidence to go to the jury, over appellants’ objection, tending to prove that all Aux Sable stone contained iron spots, etc.

The first of these grounds is not properly brought before us. The point should have been made in the motion for a new trial, so that the Superior Court could have had an opportunity to revise, and, if need be, correct, its ruling in that regard. It is not assigned as one of the grounds why a new trial was asked, nor was it assigned for error in the Appellate Court. Waiving these objections to its consideration, however, we are of opinion the amendment was properly allowed. It is within the spirit, if not the very letter, of the statute, and it could not, possibly, have prejudiced the rights of appellants. It related to a matter of form, rather than of substance. In principle, the rulings in Thompson v. Sornberger, 78 Ill. 353, McCollom v. Indianapolis and St. Louis Railroad Co. 94 id. 534, Cogshall v. Beesley, 76 id. 445, and Chester and Tamaroa Goal and Railroad Co. v. Lickiss, 72 id. 521, are analogous.

The second ground is answered by West Chicago Alcohol Works v. Sheer, 104 Ill. 586. Here, as there, the only error was in the allowance of interest, and the Appellate Court, upon appellees manifesting a disposition to enter a remittitur of the amount of interest, followed the practice observed in that case, and directed the Superior Court, upon the remittitur being made, to give judgment for the balance of the verdict. We think the practice unobjectionable. In such cases there can be no useful end subserved by sending the ease to another jury. The issues of fact are correctly settled, and the error is one of law, only, and in nowise affecting the merits of the verdict in any other respect.

As to the remaining ground, it became upon the trial a material question whether first quality Aux Sable sandstone contained iron spots. The contract was to furnish first quality Aux Sable sandstone, and the evidence objected to, tended to show that such stone contained iron spots. Instead of being collateral, the evidence was direct to a material issue. Appellees could not be held to furnish stone free of a blemish or defect common to all -stone of the quality contracted to be furnished. We think the evidence was properly admitted.

Perceiving no error in the record, the judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Walker Mr. Justice Mulkey :

text:
    Andrew Crawford v. The Chicago, Burlington and Quincy Railroad Company.

      Filed at Ottawa September 27, 1884.

    1. Notice—what constitutes notice to purchaser—of matters to put one on inquiry. Anything which apprises a purchaser of land or an incumbrancer that a particular person claims the property, or an interest in it, makes it the duty of the former to pursue that notice to its source, and make inquiry of the person claiming such ownership, and failing to do so, he will be chargeable with all he would have learned had he pursued and investigated the matter to the full extent to which it led. It is not required that he must have full, complete and accurate information of the nature, extent, and all the particulars of the prior incumbrance.
    2. Same—record of an agreement to sell—notice, of prior incumbrance by recitals in such agreement. The owner of lots, after having given a trust deed thereon to secure the sum of $125,000, being the purchase money, executed his written agreement for the sale of the same to another, which recited that the sale was subject to an incumbrance of $130,000, due in four years, from “October next, with interest at seven per cent, payable semiannually.” The contract of sale was duly recorded. The incumbrance recited therein, was described as that created by the trust deed in all things except in the omission of the name of the person for whom it was given, and was for a larger sum: Held, that the record of this agreement of sale was notice to a subsequent purchaser, of the prior incumbrance created by the trust deed, although the latter was not recorded, the recitals in the agreement being sufficient to put the purchaser on inquiry.
    3. Same—notice by possession through tenant. The possession of a lot by a tenant of a party whose debt is secured by deed of trust on the same, is notice to all subsequent purchasers or incumbrancers of the rights of the prior incumbrancer.
    4. Practice—when specific objection must be made—as to admissibility of secondary evidence. A. general objection to documentary evidence goes alone to its pertinency, and under such an objection the party will not be allowed, on appeal or error, to urge the specific objection that the execution of a written agreement was not .proved, nor the foundation laid to authorize a copy from the record to be read. Such objections must be specifically made on the trial, so as to afford an opportunity of obviating the same.
    5. Cloud upon title—sale under a judgment which has been satisfied—as against a purchaser under prior incumbrance. Where a judgmeat has been fully satisfied, and afterwards assigned, and the assignee had knowledge of the fact that the judgment had been paid when he took the assignment, and also had actual notice of a prior unrecorded trust deed, his deed to the property thus incumbered, derived under a levy and sale under execution issued on the judgment, will be set aside in equity as a cloud on the title of a purchaser derived through a foreclosure of the trust deed
    Appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    This was a bill in chancery, filed by the Chicago, Burlington and Quincy Bailroad Company, against Andrew Crawford and the First National Bank of Geheseo, and others, for the purpose of removing an alleged cloud upon the title of complainant to certain real estate derived under the foreclosure of a trust deed. The alleged cloud was a sale and sheriff’s deed, under a judgment against a holder of the legal title, recovered before the recording of the trust deed, and the grounds for relief were, both actual and constructive notice to the judgment creditor of the deed of trust at the time of t the rendition of the judgment, and to the purchaser, and the charge that such judgment had been fully paid and satisfied before the levy and sale, and that the purchaser at the sheriff’s sale had notice of such satisfaction of the judgment. The court, by its decree, found that long before the date of the sheriff’s levy and sale, said judgment had been fully paid and satisfied, and it was not a valid and subsisting judgment, and that prior to the entry of said judgment, and thereafter, the Bank of Gfeneseo and the said Crawford had both actual and constructive notice of the existence of the deed of trust under which complainant derived title, and ordered that the levy, sale and deed made under the execution be set aside as a cloud upon complainant’s title. From this decree Crawford appealed to this court, and asks a reversal. The other material facts are stated in the opinion of the court.

      Mr. W. T. Burgess, for the appellant:
    The contract for-the sale of the lots by Young to Sea, and its record, was not notice of the prior trust deeds-given by Young, a's it did not fully describe the incumbrance. It does not agree in amount of the debt, and it does not appear by or to whom made.
    The original of this contract was not offered, nor its absence accounted for, nor any attempt made to do so. It Was objected to, and admitted subject to objection. It was therefore evidence of nothing.
    The evidence fails to show a satisfaction of the judgment. At least $1500 of the judgment was owned by the appellant, and he had a right to enforce it to that extent
    It does not lie in the mouth of the railroad company to say that Crawford is estopped from setting up his title. He did no act to deceive them or lull them into security. Powell v. Rogers, 105 Ill. 318; Davidson v. Young, 38 id. 146.
    The possession of Walker’s tenant, after Walker had sold the notes secured by the trust deed, and had no interest in the land, was not notice of the trust deed; and, under Kerfoot v. Cronin, 105 Ill. 609, the recitals in the trust deed to Scammon afforded no notice to any one. The laches of the complainant bars it from any relief.
    Messrs. Dexter, Herrick & Allen, for the appellee:
    The contract to Sea was made by Young, under whom appellant claims, and its recitals were notice that the lots covered by it, including lot 24, were subject to an aggregate incumbrance of $130,000, payable in four years, with seven per cent interest, from October, 1874. Inquiry of Young would have led to the disclosure of the facts. It is well settled that purchasers and creditors are chargeable with constructive notice of the recitals of all instruments appearing in their chain of title. Jones v. Williams, 24 Beav. 47;
      White v. King, 42 Ill. 510; Bellows v. Floyd, 2 Watts, 401; Hatch v. Bigelow, 39 Ill. 548.
    The objection that the paper was secondary evidence, was one that could have been obviated by proof; and it is well settled that such an objection is not preserved by a general objection to the evidence. Walsh v. Wright, 101 Ill. 178; Moore v. Wright, 90 id. 470; Board, etc. v. Taft, 7 Bradw. 571.
    The possession of a party is notice of his rights, as mortgagee or otherwise. Brainard v. Hudson, 103 Ill. 218; Ford v. Marcall, 107 id. 136; White v. White, 89 id. 460. Audit is equally well settled that possession by a tenant is, in law, notice of the landlord’s title, the same as if the landlord was himself in possession. Pitman v. Gaty, 5 Gilm. 186; Whitaker v. Miller, 83 Ill. 381; Franz v. Orton, 75 id. 100; Smith v. Jackson, 76 id. 254; Ford v. Marcall, 107 id. 136; Wade on Notice, secs. 284-287.
    Hence it has been held that if a grantor remains in possession by his tenant after conveyance by absolute deed, the. possession of the tenant is notice of any rights of the grantor in the land. Ford v. Marcall, 107 Ill. 136; Smith v. Jackson, 76 id. 254.
    Appellant had actual notice of the trust deed, and the judgment had been fully satisfied at the date of the levy.
    So far from appellee having been guilty of laches, the conduct of appellant was such as to estop him from asserting title as against appellee.
   Mr. Justice Walker

delivered the opinion of the Court:

On October 1, 1872, Samuel J. Walker conveyed to Joseph B. Young lots numbered from 20 to 31, inclusive, of block 11, Walker’s dock addition to Chicago.. The consideration named was $125,000, to secure the payment of which, Young gave his notes for. $10,000 for each lot, except No. 20, for which he gave a note for $15,000. He executed a deed of trust on each lot for $10,000, except lot 20, on which he executed a trust deed for $15,000, its price. The deeds of trust were executed to J. Y. Scammon. There being default in payment, sales were made under the several trust deeds, at different dates, and to several persons. On the 14th of July, 1880, those purchasers conveyed the lots to James M. Walker, solicitor of the Chicago, Burlington and Quincy Railroad Company, the consideration being paid by the company. The executrix of Walker, after his death, quitclaimed the lots to the company, and it entered into possession. The deed of trust on lot 24 was not recorded until the 12th of March, 1879; but at the date of the trust deed from Young to Walker the latter was in possession by a tenant, who occupied the lot as a brick-yard. The tenant continued to hold under Walker until the possession was surrendered to the railroad company. There was also a contract given by Young, and of record, which is claimed to have been notice of Walker’s rights, to all persons. On the 4th of March, 1874, the First National Bank of Gfeneseo recovered a judgment against Young and Henry Crawford, in the Superior Court of Cook county, for $6402.92, on four notes the bank held against them. "Andrew Crawford was a director, and president of the bank. A few months before, he had removed to Chicago, and was acting as the agent of the bank at the time the judgment was recovered under his direction. He caused a fi. fa., an alias, and pluries to be issued before and on the 4th of March, 1877. They were all returned no property found. No further execution was issued until in February, 1880, when an alias pluries was sued out, and levied on lot 24 and other property. On the 31st of May, 1880, the lot was sold, under the execution, to appellant, who paid no money on the purchase, but satisfied the judgment, his bid being the amount of the judgment. The bill alleges the title and possession of the railroad company of the lot, that defendant had both actual and constructive notice of the trust deed before he acquired any title to the lot, and the judgment was paid in full and satisfied before the levy was made and the sale had, and concluded with a prayer that appellant’s deed he set aside as a cloud on the title of the company. Defendant, .answered, and a hearing was had on the pleadings and evidence. The court found the issues for the company, and granted the relief sought, and defendant appealed to the Appellate Court, and now to this court.

The questions we propose to consider are, whether appellant, Crawford, had notice, and whether the judgment in favor of the bank was paid before the levy and sale were made, and before he acquired title. The evidence, we think, proves, satisfactorily, both' of these propositions in the affirmative. On the 31st of July, 1873, Young agreed, in writing, to convey all these lots to S. W. Sea, subject to an incumbrance of $130,000, due in four years, from “October next, with interest at seven per cent, payable semi-annually.” This contract was duly recorded on the 2d of August, 1873. It will be observed that the incumbrance referred to corresponds as to the lots to which it attached, the date of payment, rate of interest, and the time of its payment. It was in all things an accurate and precise description of the incumbrance of these trust deeds, except it does not give the date, nature and amount of the incumbrance. We are aware of no decision that has ever held, that to be a notice to put a party on inquiry he must have full, complete and accurate information of the nature, extent and all of the particulars of the incumbrance. On the contrary, where a person contemplates the purchase of property, and is informed that a particular person claims title, or to hold an incumbrance, such information has been held to charge him with notice of the nature and extent of the claim. It pointed out the source from which accurate information could be obtained. In fact, the rule is, that if anything apprises a purchaser or incumbrancer that a particular person claims the property, or an interest in it, the former must pursue that notice to its source, and failing" to do so, he will be charged with all he would have learned had he pursued and investigated the matter to the full extent to which it led. In this case, appellant- must be presumed to have examined the title before the levy and his purchase, and if so, he must have seen this agreement between Young and Sea, and seeing that, he was apprised that the lot was incumbered to a large amount. He was also notified of the sources of -information,—that he had only to apply to Young or Sea and learn the precise nature and extent of the incumbrance. It did not matter that the incumbrance was misdescribed as to the amount.' It informed him that there was an incumbrance on the lot, and it charged' him with notice! Had the agreement stated the incumbrance at less than its true amount, he in all probability would not have been charged beyond the amount stated; but here the incumbrance was stated at more than the claim, unless the interest increased it to the sum named. According to a long line of decisions in this court, too familiar to the profession - to require citation, this agreement charged appellant with notice of the debt against this lot, secured by the trust deed, and such notice, as has been repeatedly held, is as effectual as if the trust deed had been duly recorded.

It is, however, urged, that the execution of the agreement was not proved, nor was the proper foundation laid to authorize a copy to be read in evidence. These specific objections were not made in the trial court, and they come too late on appeal or error. It has been so repeatedly held that a general objection to the admission of documentary evidence goes alone to its pertinency, that it must be familiar to the entire profession; The rule may be found frequently repeated from an early date after the organization of the court, and it must be regarded. as too firmly established to- be disturbed. It is' unfair t-o permit a party to interpose a general objection, and on error urge specific objections that no doubt would have been at once removed on being interposed. Such objections, to be availing, must be interposed on the trial, so as to afford the party offering them the opportunity to remove them, and not to be entrapped by raising them on appeal for the first time.

But if this was insufficient to charge appellant with notice, he had actual notice. He had the trust deed in his possession, and examined its contents. It clearly appears that at one time S. J. Walker pledged to appellant the notes secured by the trust deeds on lots 22 and 23, as collateral security on indebtedness of Walker. Through some inadvertence, Walker sent him the notes and trust deeds on lots 23 and 24. Appellant discovered the mistake, and they were returned to Walker, who then sent him the trust deed securing the indebtedness on lot 22, thus correcting the mistake. Having possession of the trust deed on lot 24, and finding it was not on lot 22, as agreed, he must have read it to have learned that it was not" on lot 22, and in reading it he must have learned that it was on the lot in controversy. There can be no other rational conclusion. There could be no more satisfactory evidence that he had notice, and actual, and not constructive, notice, more certain than by the recording of the deed, and equally accurate.

Again, Jones, Walker’s tenant, was in the actual, open and visible possession. Appellant is presumed to have known the fact, and had he inquired of Jones under whom or what title he held, he would have learned he held under Walker. Had he called on him, he would have learned of bis claim, its nature and extent. Such occupancy has been repeatedly held to charge a purchaser or incumbrancer with notice, and all that it would lead to, if pursued. Appellant, then, had notice, by the record, of Young and Sea’s agreement, by having had actual possession of the deed of trust and by Walker’s possession by his tenant,—and all this before and after the recovery of the judgment under which appellant claims, and also before and at the time of suing out the execution under which the levy and sale were made. The notice charged him with the knowledge of the rights of the railroad company, and those under whom it claims. Their liens were more meritorious, and prior and superior to his.

Without going into a detailed statement of the evidence, we will say it most satisfactorily proves that the judgment was paid before the execution was issued under which the levy and sale were made, and appellant purchased. The evidence shows that appellant sent at one time $1000 as a payment, and it was credited on Young and Crawford’s notes to the bank; at another time $500 in the same manner, and for the same purpose, which was also credited thereon. It is true these amounts were not indorsed on the notes, still they were understood by all parties, and treated as'payments, and a purchase by appellant of an interest in the notes was not spoken of, or even thought of, at the time. A payment once made can not, as against the interests of third parties, be changed to a purchase or other agreement. Afterward, Henry Crawford, whose name was on the notes, and who, Young claimed, was to pay them, pledged, as security for the judgment, two $500 bonds of the city of Wabasha, and afterwards ten more of like bonds for like sums, all of which were after-wards received in satisfaction of the judgment,—and this was all before the levy, sale and purchase of the property by appellant. Thus it is established that there was nothing due on the judgment when it was assigned to appellant, and he was apprised of that fact when he took the assignment.

In any view of the case, the evidence clearly required the decree, and the judgment of the Appellate Court must therefore be affirmed.

Decree affirmed.

Mr. Justice Mulkey :

While I concur in the conclusion in this case, I do not approve of all that is said in the opinion.


author: Mr. Justice Sheldon

text:
    Eliza P. Allen v. Truman D. Allen et al.

      Filed at Ottawa November 17, 1884.

      Estoppel—to claim dower in proceeds of sale of land under decree by consent. Where land is sold under a decree entered by consent, in a proceeding for partition and the assignment of a homestead, in a case where the widow is heir to one-half the real estate, which decree provides for such sale, giving the widow $1000 in lieu of her homestead, and for the division of the proceeds, and the widow and other heirs convey all their interest in the premises to the heir purchasing, as required by the decree, no dower right being claimed, or saved in the decree, the widow, after receiving the enhanced price of a sale free from the dower incumbrance, will be estopped from afterward asserting any claim to dower in respect to the proceeds of the sale not given her as heir and for her homestead, and thus increase her allowance.
    Appeal from the Circuit Court of Warren county; the Hon. Arthur A. Smith, Judge, presiding.
    On September 6, 1882, Eliza P. Allen, Truman D. Allen, Ambrose S. Allen and Mary J. Reece, with J. N. Reece, her husband, being the widow and heirs at law of Edwin W. Allen, deceased, filed their petition for partition of the real estate of which the latter died seized, in the circuit court of Warren county, asking the court to give to Eliza P. Allen, the widow, a homestead, and to make division of the residue between her, Truman D. Allen, Ambrose S. Allen and Mary J. Eeece, giving the widow one-half and the others one-sixth of the residue, the petition being silent as to the right of dower on the part of the widow, and praying for general relief. On September 25, 1882, the court made a decree that the widow have set off to her a homestead of $1000 in value, and that one-half the lands be set off to her in fee simple, the other half to the other parties, one-sixth to each, appointing commissioners to make the partition. On October 20, 1882, the commissioners filed their report, showing an assignment of homestead and partition of the lands in accordance with the decree. Up to this point the proceedings were ex parte, one firm of attorneys acting as solicitors for all parties. On said 20th of October the brothers of the deceased, Truman D. and Ambrose S. Allen, by -leave of court, became parties defendant, and were dismissed as complainants. They filed exceptions to the report of the commissioners dividing the lands, and reference was made to the master to take proofs.
    On December 23, 1882, the parties, complainants and defendants, by their respective solicitors, came into court, and a decree was entered as follows: It recites that the commissioners theretofore appointed made report that the lands were so circumstanced that a division thereof could be made without manifest prejudice to the parties interested, and made partition of the premises; that the said report as to the partition and division was now, by consent of all the parties in interest, set aside; and that the parties in interest having agreed that the premises were not divisible without manifest prejudice to the parties interested therein, and that the same should be sold, and that the parties having consented and requested that the court order and decree such sale, the sale was decreed; and it was ordered that the widow’s homestead money should be first paid out of the proceeds, next the costs of the proceeding, and that afterwards the remainder should be paid to the parties according to their respective rights and interests therein, as had theretofore been determined by the court; and it was further ordered, that upon such sales being made and confirmed by the court, the parties should make the purchaser or purchasers quitclaim deeds conveying all the right, title and interest of such parties in and to the lands.
    On May 7,1883, the master filed his report,' showing a sale under the decree of all the lands, for $24,642, all being sold to Truman D. Allen, Eliza P. Allen and Jasper N. Eeece, parties to the proceeding. On June 6,1883, the court entered a decree directing the master, after the deduction of costs and attorney’s fees, and $1000 for the homestead right, to divide the remainder,—one-half to the widow, the other half to the three next of kin, in equal parts. October 11, 1883, the master filed his report, showing that he had collected the whole amount of the purchase price of the lands, and after deducting the other payments allowed, distributed the balance,— one-half to Eliza P. Allen ($11,461.01), to Mary J. Eeece one-sixth ($3820.33), to Truman D. Allen two-sixths ($7640.68) ; and on said October 11, 1883, the court entered a decree confirming said report, and directing the cause to be stricken from the docket. On November 3, 1883, being one of the days of the September term, A. D. 1883, of the court, the complainants, Eliza P. Allen, Mary J. Eeece and J. N. Eeece, entered a motion to set aside and vacate the final decree of October 11, 1883, and give to Eliza P. Allen her dower in one-half the lands, or in the proceeds derived from the sale thereof. On the hearing of the motion, the affidavits of Truman D. Allen, and Homer Allen, his son, who bid off for his father the land purchased by him, (two hundred and thirty-five acres,) were introduced, which affidavits showed that the land was so purchased by Truman D. Allen in reliance upon there being no right of dower therein; that had he supposed it to be incumbered with dower, he would not have bid more than $50 per acre, instead of the bid of $65 per acre which he did make; and there were other affidavits that a dower right in the lands would make a difference of at least $15 per acre in the value of the lands. Affidavits were introduced by the complainants to the effect that the land was worth, on the market, all that Allen paid for it. The court overruled the motion, and confirmed the former order of distribution of the proceeds derived from the sale. From this decision complainant, Eliza P. Allen, appeals.

      Messrs. Poster & Porter, for the appellant: .
    The failure to claim dower in the petition wall not bar the widow of that right. The court should grant such relief as the facts alleged show she is entitled to. Allen v. Woodruff, 96 Ill. 11; Smith v. Smith, 85 id. 189; Harvey v. Allen, 16 Blatchf. 29; Story’s Eq. Pl. secs. 40-42.
    The court has jurisdiction of the parties and of the subject matter, and it is a rule of equity practice that when the court acquires jurisdiction of the subject matter, for any purpose, it will retain it for all purposes necessary to do complete justice. Labadie v. Hewitt, 85 Ill. 344; Carter v. Penn, 99 id. 390; Henrichsen v. Hodgen, 67 id. 179; Sherlock v. Village of Winnetka, 59 id. 389; Henson v. Moore, 104 id. 403; Murphy v. Loose, id. 514.
    By the modern practice, on the final hearing of a suit in chancery, ail previously rendered decretal orders are before the court, and may be altered, modified or vacated, as justice may require. Gibson v. Rees, 50 Ill. 410; Faunniquet v. Perkins, 16 How. 82.
    We contend that the widow, having consented to a decree for the sale of the entire premises, stands precisely as she would had she, under section 32 of the Partition act, given her assent in writing, and filed the same in the court wherein the proceedings were pending, and that it was the duty of the court, on final hearing, to have ascertained the value of the dower estate in the lands, as it did the value of her homestead, and to order it paid over in gross, or one-third the amount which was distributed to the next of kin, invested, and the income paid over to her during her life, according to the provisions of section 34 of said act. Sections 38 and 39 of said act gave the court ample power to do so. Merritt v. Merritt, 97 Ill. 243; Gage v. Reid, 104 id. 509; Hopkins v. Medley, 99 id. 509; 97 id. 402; Gage v. Lightburn, 93 id. 248; Miller v. McMannis, 104 id. 421.

      Messrs. Lanphere & Brown, for the appellees:
    This being a consent decree, no appeal or writ of error lies. The evidence shows that the distribution, as well as the sale, was made by consent, and the execution of the quitclaim deed shows such to be the fact. 2 Daniell’s Ch. Pr. 1179; Flagler v. Crow, 40 Ill. 414; Armstrong v. Cooper, 11 id. 540; Holderman v. Graham, 61 id. 362; Mason v. Patterson, 74 id. 191; Haas v. Chicago Building Society, 80 id. 248.
    We submit, the quitclaim deed of Eliza P. Allen bars her dower, and her right to claim dower out of the purchase, money, inasmuch as it conveys all her rights, legal and equitable. Sec. 10, Stat. Conveyances, on force and effect of quitclaim deed; Bigelow on Estoppel, 475, 480.
    All the elements of estoppel are in this case. Doane v. Walker, 101 Ill. 628; Mason v. Patterson, 74 id. 191; Vilax v. Mason, 25 Wis. 325; Hoppin v. Hoppin, 96 Ill. 265; Heard v. Hall, 16 Pick. 457.
    It was Mrs. Allen’s duty to have set up her claim to dower, in her petition. Rev. Stat. sec. 5, Partition act.
    The rights of a widow may he lost by laches, the same as in other cases. Steele v. Gellatly, 41 Ill. 39; Whiting v. Nichol, 46 id. 230.
    Attorneys filing motions to reinstate, go upon the theory that appellant is not bound by the acts of former attorneys,— that their ignorance and appellant’s ignorance of the law is a reason for reinstating the ease. Not conceding that the advice of appellant’s first attorneys in respect to dower in the “other half” is wrong, we insist that mistakes of law, as herein claimed, can not be corrected. 1 Story’s Eq. Jur. sec. 111; Beebe v. Swartwout, 3 Gilm. 163; Goltra v. Sanasack, 53 Ill. 457.
    Appellant is bound by the acts of her attorneys. Wilson v. Spring, 64 Ill. 16, and cases cited therein.
   Mr. Justice Sheldon

delivered the opinion of the Court:

The decree of December 23, 1882, was one by consent, the widow, Eliza P. Allen, being one of the parties thereto. By the decree, the parties were to make quitclaim deeds to the purchasers of the lands under the decree, of all their right, title and interest in and to the lands. The lands, then, by the decree, were to be sold free from any claim of dower." All the lands were sold under the decree, to parties to the suit. Truman D. Allen, in reliance upon the decree, and the supposition, which he had the right to entertain, that the lands were sold unincumbered by dower, purchased two hundred and thirty-five acres of the land, at $65 per acre. The parties, the widow among the rest, executed to the purchasers quitclaim deeds of all their right and interest in the lands, as provided by the decree. The proceeds of the sale were distributed,—$11,461 to the widow, and $7640.68 to Truman D. Allen,—and all was confirmed by the court. The claim that after all this, Eliza P. Allen, the widow, should be permitted to come in and assert a dower right with respect to the money derived from the sale, does not appear to have any equitable consideration for its support. She held out, by her conduct and acquiescence, the idea to purchasers that the lands were to be sold free from any claim of dower on her part. The lands were sold as being free from dower right, and so at a correspondingly higher price on that account. She executed a quitclaim deed of her right and interest in the land, in conformity with the decree. She received her share of the proceeds of the sale, considerably enhanced in amount because of the sale being free from her dower right. Truman D. Allen made the large bid that he did under the expectation that his full share of the proceeds of the sale would come to him without being diminished in amount by allowance of a dower right out of it. The motion made does not go to the disturbance of the sale, or the consent decree for the sale, but rests content therewith, and only seeks to have the order of distribution modified, to increase the widow’s allowance by the addition to it of the amount of a dower right, she retaining in her hands her share of the moneys from the sale, clear of her dower right. She has enjoyed the benefit of her dower in the increased amount which she has received from the sale of the lands, because of the sale being made free from the claim of dower. We are clearly of opinion that the widow is concluded by the consent decree, and what transpired subsequently, from asserting the claim which she now makes.

This renders it unnecessary to consider the point which has been made, whether, under our statute as it now stands, there being a widow and no child or children, or descendant of a child or children, the widow is entitled to dower in the one-half of real estate descending to the next of kin.

The judgment of the court below is affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    Mary Louise Lloyd v. Alice R. Kirkwood et al.

      Filed at Ottawa November 17, 1884.

    1. Infants—as wards of the court—interests to be protected, how— supervision over conduct of guardian as to defences to be interposed. An infant suitor or defendant, when brought into court, becomes the ward of the court, whose duty it is to see that his rights in the subject matter of the litigation are properly presented and protected. If the general guardian fails to appear, the court should appoint a guardian ad litem to look after the infant’s rights.
    2. If the guardian who undertakes this trust, whether he be the general guardian, or guardian ad litem, fails to properly protect the interests of the ward, it is the duty of the court, sua sponte, to compel him to do so whenever that fact comes to the knowledge of the court. The court should see that the proper pleadings are made to present any defence the infant may have.

      3. Same—failure to interpose the defence of laches in behalf of an infant—decree showing that fact—remedy by bill of review. Where a bill to establish and enforce a resulting trust as against an infant heir, showed upon its face that the alleged trust arose twenty-five years before suit, and the court rendering a decree therein against the infant failed to require the guardian ad litem to set up the laches in defence, it was held, that the proceedings and decree against the infant showed error on their face, sufficient to justify the court in setting the decree aside on bill filed by the infant.
    4. Same—grounds for bill of review, generally. A decree against an infant may be impeached for fraud or for error of law apparent upon the face of the record, on a bill of review or bill in the nature of a bill of review, filed by the infant before arriving of age, or within three years after his majority.
    5. Same—as to the binding effect of a decree against an infant—qualification of the right to have decree set aside. A decree against an infant in this State is absolute in the first instance, like one against an adult, subject to the right, however, to attack it by original bill, for either fraud, or error, merely; but until so attacked, and set aside or reversed, on appeal or error, it is binding to the same extent as any other decree or judgment.
    6. The rule allowing an infant, before or after his majority, to impeach and set aside a decree against him for error, is subject to the qualification, that the decree, when the court rendering it had complete jurisdiction, will not be thus set aside as against third persons who have, in good faith, acquired rights under it. But as against the original parties to the suit, and their legal representatives, the rule will be enforced.
    7. Laches—lapse of time as a bar to a bill to establish a resulting trust. Where a party claiming a resulting trust as to an interest in land, sleeps on his rights for twenty-five years before filing a bill to establish and enforce the same, during which time the original owner and his heir have died, such laches and delay, unexplained, will be a complete bar to the relief sought. The fact that the land has remained unoccupied, is no sufficient excuse for the delay.
    8. Cross-bill—whether germane to original bill. Where a plaintiff, after having obtained a decree against an infant owner of land establishing a resulting trust as to two-thirds of the land, and investing him with the legal title, filed his bill for a partition of the' premises, and the infant, after answering, filed a cross-bill to impeach and set aside the decree under which the plaintiff derived title, on the ground of error in the proceedings, it was held, that such cross-bill was properly filed, and that it was error to dismiss the same as not being germane to the original bill.
    Appeal from the Circuit Court of Cook county; the Hon. T. A. Moran, Judge, presiding.

      Mr. Edward Roby, for the appellant:
    If the cross-bill was improperly filed, plaintiffs should have moved to strike it from the files. By demurring they admitted it was properly filed. Forman v. Stickney, 77 Ill. 577.
    This bill was clearly maintainable as a bill of review, for fraud and error on the face of the decree, and it was error to dismiss it.
    Upon the face of the decree the claim was clearly barred. The evidence was conclusive that no claim ever existed, or that it had been surrendered or released. Powell on Evidence, *49, 327; Matthews on Presumptive Evidence, 5, 8, 11, 12, 13, 382, 387, 388, 413.
    The bill is to be maintained as a bill impeaching the original decree for fraud in obtaining it, and the parties are to be placed in the same condition as if it had never existed. The purchaser has gained no right under it. 2 Daniells’ Ch. Pr. 1584; Cooper’s Eq. Pl. 96, 97; Mitford’s Eq. Pl. 73; Carew v. Johnston, 2 Sch. & Lef. 280.
    Bill may be maintained to impeach a decree against an infant, for fraud in obtaining it, or for error. Gooch v. Green, 102 Ill. 507; Loyd v. Malone, 23 id. 43; Kuchenbeiser v. Beckert, 41 id. 172; Griggs v. Gear, 3 Gilm. 2.
    On a bill to carry a former decree into execution, the defendant may have it modified or annulled. And this bill will lie for that purpose. 2 Daniells’ Ch. Pr. 1586.
    A minor is entitled to the protection of the court, whether his guardian pleads properly, or not. Gilmore v. Gilmore, 109 Ill. 277; Stark v. Brown, 101 id. 395.
    The next friend is powerless to yield any of the infant’s rights. Railroad Co. v. Kennedy, 70 Ill. 350.
    Neither a guardian, nor guardian ad litem, can, by answer, or in any other way, admit that the matters of fact stated in the bill are true, so as to dispense with the necessity of proving, by competent evidence, the facts alleged against the infant’s rights. Greenman v. Harvey, 53 Ill. 389; Cochran
      v. McDowell, 15 id. 10; Reddick v. State Bank, 27 id. 148; Masterson v. Wiswood, 18 id. 48. Yet the decree in the ease before us was obtained by confession of the facts by the guardian ad litem, as much as if he had put in an answer admitting the alleged facts to be true. The ease of Greenman v. Harvey, 53 Ill. 389, is exactly in point.
    The guardian can not waive anything. Enos v. Capps, 12 Ill. 255; Greenman v. Harvey, 53 id. 386; McClay v. Norris, 4 Gilm. 370; Sconce v. Whitney, 12 Ill. 150; Hitt v. Ormsber, id. 166.
    If the guardian does not appear and answer, a guardian ad litem must be appointed. Hall v. Davis, 44 Ill. 494; Quigley v. Roberts, id. 503.
    A decree can only be rendered against minors on full proof, nor can their natural or legal guardians, by consent, waive this requirement. Waugh v. Robbins, 33 Ill. 181.
    The bill can not be taken as confessed, nor can the guardian admit the bill so as to bind minor defendants. Quigley v. Roberts, 44 Ill. 403.
    It is the duty of the court to refuse to render a decree against infants’ rights, unless the evidence is preserved in the record so that the decree can be reviewed by it. Quigley v. Roberts, 44 Ill. 505; Hughes v. Washington, 65 id. 245.
    Mr. Albert H. Veeder, Mr. A. H. Lawrence, and Mr. F. A. Smith, for the appellees:
    A decree is not erroneous if it does not reserve to an infant a day to show cause against it, after he becomes of age. Enos v. Capps, 15 Ill. 278; Barnes v. Hazzleton, 50 id. 430; Kuchenbeiser v. Beckert, 41 id. 172; Hess v. Voss, 52 id. 472; Wadhams v. Gay, 73 id. 424.
    The defence of laches was not pleaded in defence. To rely on such defence, it must be set up by demurrer, plea or answer.

      Until possession was taken, the Statute of Limitations did not begin to run. In this respect equity follows the law. Ryder v. Emrich, 104 Ill. 470; Kane County v. Herrington, 50 id. 232.
    A bill of review lies only where the decree contains errors in law appearing in the body of the decree, or where some new matter has arisen which could not have been used when the decree was entered. Griggs v. Gear, 2 Gilm. 2; Getzler v. Saroni, 18 Ill. 516; Evans v. Clement, 14 id. 206; Fellers v. Rainey, 82 id. 114; Garrett v. Moss, 22 id. 363.
    A bill to set aside a decree must state the decree, and the proceedings which led to it, with the circumstances of fraud, in detail. Boyden v. Reed, 55 Ill. 459; Elston v. Blanchard, 2 Scam. 420; Newell v. Bureau County, 37 Ill. 253; Roth v. Roth, 104 id. 37; Story’s Eq. Pl. sec. 428.
    Counsel also made various other points, both of law and upon the pleadings and evidence.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The United States, on the first day of May, 1849, issued a patent to Thomas A. Speers for the south-east quarter of the north-west quarter of section 17, town 37, north, range 15, east, in Cook county, this State. Speers died intestate, in 1855, leaving Josephine Speers, an only child and heir, who afterwards intermarried with Sidney P. Walker. Josephine Speers Walker died in November, 1864, leaving Sidney P. Walker, her husband, and Mary Louise Walker, her only child and heir at law, the latter being then an infant about ten months old. On the 31st of January, 1874, Samuel Bay filed in the circuit court of Cook county a bill in chancery, against the said Mary Louise Walker, to establish an alleged resulting trust to an undivided two-thirds of the land, and to compel a conveyance of the legal title thereto, she being then about ten years of age. The bill set forth, in substance, that although the purchase of the land from the United States was in the name of Speers, alone, yet, as matter of fact, it was made by the said Samuel Ray, Martin G-. Taylor and the said Thomas A. Speers, who, respectively, advanced one-third of the money paid to the government therefor, and that as to the two-thirds of the land thus purchased by Ray and Taylor, Speers was a mere trustee. The bill further showed that Ray, about the first of May, 1850, purchased of Taylor his third interest in the property, paying him for it at the time, and that in pursuance of such purchase Taylor conveyed the same to him, by quitclaim deed, on the 23d of June, 1873. The bill prayed that Ray might be decreed to be the equitable owner of said two-thirds of the land, and that a commissioner be appointed, with directions to convey to him the légal title thereto. A decree in conformity with the prayer of the bill was entered on the 21st of July, 1877, in pursuance of which Walter Butler, as special commissioner, by deed dated March 5, 1878, conveyed to said Ray an undivided two-thirds of said land. Ray died January 23, 1880, leaving a will, by which he gave to his widow, Esther Ray, one-third, and the residue to Sarah J. Mann, Harriet E. Smith and Josephine Klein-man. Alice R. Kirkwood, subsequently, through mesne conveyances, acquired the interest of Esther Ray by purchase, paying a valuable consideration therefor.

Such being the condition of the property with respect to its ownership, Alice R. • Kirkwood and Sarah J. Mann, with their respective husbands, Edwin C. Kirkwood and Bill Mann, on the 30th of March, 1882, filed in the circuit court of Cook county a bill for the partition of said land, making Mary Louise and Sidney P. Walker, and Harriet E. Smith and Josephine Kleinman, and their respective husbands, defendants to the bill. There were other defendants to the bill, whose interests are collateral to the main questions involved in the case, and therefore require no special notice. The bill thus filed set up the former decree and proceedings thereunder, and charged, in detail, the facts above stated. Mary Louise Walker appeared and answered the bill, and also filed a cross-bill, in which she charges, in substance, that the land in controversy was purchased and paid for exclusively by her grandfather, Thomas A. Speers, and that neither Taylor nor Kay now has, or ever had, any interest in the land or any connection with its purchase, and that she is now the sole and exclusive owner thereof, as the heir of her deceased mother. In short, by her said cross-bill she negatives all the material allegations in the bill filed by Ray against her, as above set forth, and in addition thereto charges, in substance, that at the time of the alleged proceeding she was but a little child, only ten years of age, and unable to comprehend the nature of it, but that the files of the suit show that one Joseph L. Wilson, a deputy clerk of the court, appointed on the suggestion of complainant’s solicitor, appeared for her as guardian ad litem, and as such filed an answer on her behalf, prepared by complainant’s said solicitor; that Sidney P. Walker also filed an answer in his own right, and as guardian of his daughter, the said Mary Louise, setting up their respective interests in the land, and disclaiming all knowledge of the alleged equities of the complainant in that bill. To this answer there was a replication, but none to the answer of Wilson, as guardian ad litem.

After setting out the decree in that suit to the effect heretofore stated, and certain irregularities in taking and certifying certain depositions, the cross-bill then proceeds to charge as follows: “It appears by said record that said Samuel Ray was of sufficient capacity to maintain his suit in 1849 and 1850; that he then knew of all claims and causes of action or suit set out or claimed in said bill by him exhibited in 1874; that no reason existed why he should not have brought such suit at any time after the said pretended claims arose, if any such claims or rights ever existed, and the failure to bring such suit, or to demand the declaration of such trust and confidence, as is alleged in said bill, for the period of twenty-five years, is conclusive evidence that no such claims, trusts or confidences ever existed, and the laches and delay in bringing suit on said pretended claim barred all suit thereon, and would have barred the best and most perfect claim, rendering it the duty of the court to dismiss the bill.”The cross-bill then charges, in substance, that complainant’s interests were not protected in said former suit; “that said Wilson (the guardian ad litem) took no part in taking any evidence, or in any proceeding or in the hearing of said cause, nor did any person in any manner act for him; * * * that no evidence was given or received in said cause that was admissible against your oratrix, or that proved or tended to prove anything against your oratrix. ” It further appears, from the cross-hill, that Bay himself was examined orally in court against her, and that certain depositions were read against her on the hearing, which are claimed to be obnoxious to various objections, particularly specified, requiring their ' suppression, about which, in the view we, take of the case, it is not necessary to express any opinion.

To the cross-bill thus framed the "court sustained a demurrer, and entered an order dismissing the same. On the day previous to the entry of this order, to-wit, the 24th of January, 1884, the death of Sidney P. Walker was suggested, he having died pending the suit. The cause proceeded to a hearing on the original bill, and a final decree was entered therein on March 1 following, directing a partition of the premises in conformity with the prayer of the bill, from which decree complainant in the cross-bill prayed an appeal to this court. On the 14th of the month her intermarriage with L. H. Lloyd was suggested of record, who joins her in this appeal.

Assuming appellant is entitled to relief against the decree of 1874, by a bill of review, or by an original bill in the nature of a bill of review, we perceive no force in the claim that the cross-bill in this case is not germane to the original bill, and that for that reason it was properly dismissed. If, as matter of law, she was entitled to have the. decree upon which appellees base their right to partition set aside and annulled, on a bill filed by her for -that purpose,- most assuredly such right in her is appropriate matter for a cross-bill to an qriginal bill filed by them for the express purpose of enforcing such partition.

The question is then presented, whether the decree of 1874 can be successfully assailed by a bill of either character indicated. The authorities are universally agreed that a decree against an infant may be so attacked for fraud, and this is conceded by appellees; but they are not so agreed where the decree or judgment is assailed-for error, merely. Upon this proposition there is considerable diversity of opinion. By the law as it is judicially declared in England, and in many of the States here, a decree against an infant is not absolute in the first instance. It is binding sub modo only. On becoming of age he is entitled to his day in court to show cause against the decree, and his right to do so must be expressly reserved by the decree itself, otherwise it will be erroneous, and subject to be reversed and set aside. In many of the States, however, including our own, a decree against an infant, like that against an adult, is absolute in the first instance, subject to the right to attack it by original, bill, for either fraud, or error, merely; but until so attacked, and set aside or reversed, on error or appeal, it is binding to the same extent as any other decree or judgment. This right to attack a decree by original bill may be exercised at any time before the infant attains his majority, or at any time afterwards within the period in which he may, under the statute, prosecute a writ of error for the reversal of such decree. (Kuchenbeiser et al. v. Beckert, 41 Ill. 172.) In this case, which was a bill to impeach and set aside a decree against an infant, the rule as above stated is expressly laid down, and has been followed in subsequent eases. The rule thus established is, of course, subject to the qualification that the decree of a court having jurisdiction of the subject matter of the suit and the person of the infant against whom it is rendered, will not be thus set aside as against .third parties who have in good faith acquired rights under it; but as against original parties to the suit, and their legal representatives, the rule as above stated will be enforced. Freeman on Judgments, sec. 513.

In Loyd et al. v. Malone et al. 23 Ill. 43, this court, after citing Richmond et ux. v. Taylewr, 1 P. Wms. 734, and other English cases, together with the rule as laid down in Mitford’s Chancery Pleadings, sec. 113, in support of the position that an original bill will lie to impeach a decree against an infant for mere error, and after citing certain cases in New York, Kentucky and Ohio, where the right to file such bill is limited to cases of fraud, proceeds to say: “We are inclined to go to the extent of the rulings of the English courts, and not confine the right to' cases where fraud has intervened to obtain a decree against infants. * * * The interests of infants are the peculiar care of courts, and if their rights have been outraged and disregarded by an unfaithful guardian, the courts should not be slow to apply a remedy. ”

The rule here adopted, upon a deliberate consideration of the authorities on both sides of the question, has been frequently recognized by this court, and whatever the rule may be elsewhere, it must be regarded as settled in this State. (Kuchenbeiser et al. v. Beckert, supra.) Whenever the property rights of an infant are drawn into litigation, and the infant himself, whether as plaintiff or defendant, has been brought into court, he at once becomes the ward of the court, and as such it is the duty of the court to see that his rights, as such, are properly protected. If, having a legally appointed guardian, such guardian does not appear to the action for the purpose of managing his suit, it is the duty of the court to appoint a guardian ad litem to perform that duty. If the guardian who undertakes the performance of this trust, whether he be the general guardian or merely a guardian ad litem, fails to properly protect the interests of the ward, it is the duty of the court, sua sponte,' to compel him to do so whenever the fact in any manner is brought to the notice of the court. If, for instance, the infant is defending, and his guardian has failed to file some pleading essential to the admission of his defence, or has filed one so imperfect as not to be sufficient for that purpose, it is the duty of the court, whenever the fact is disclosed, to see that the proper pleading is filed on behalf of the infant before proceeding. These general propositions are so well settled and understood that they will hardly be eontrovérfced. Looking at the record before us in the light of these well recognized principles, and the authorities heretofore cited, we think there can be but little, if any, doubt that the cross-bill showed such a state of facts as entitled the complainant to relief.

Passing over all other matters set up in the cross-bill, without expressing any opinion upon them the one way or the other, and coming at once to the question of delay in filing the bill in 1874 to establish and enforce,the alleged trust, we have no hesitancy in holding that under the circumstances, as shown by the record, a delay of some twenty-five years, as was the case there before attempting to enforce the trust, afforded a complete defence to the bill, and this fact being apparent upon the face of the bill, the court should not have permitted the decree to have passed as against an infant. The land in question, during these twenty-five years, was in the actual possession of no one. The legal title, and, so far as the record showed, the equitable title also, was, during this entire period, in the appellant’s grandfather or his lineal descendants, and he and they, for the same period, were in the constructive possession of the premises. No reason is assigned why this suit was not brought in Speers’ lifetime, nor do we, from the record, perceive any. The parties in interest not only waited until his mouth was forever closed by death, so that it was impossible for him to give his version of the transaction, but waited until the mother of appellant had also died, who may possibly have known of the purchase, and might have testified with respect to it had the suit been brought even in her lifetime and while the title was in her; but the suit was deferred until she died, also, thus making two descents cast, and a lapse of twenty-five years from the time it might have been brought till the day it was actually commenced.

To the suggestion there was no adverse holding on the part of appellant or her ancestors, we do not think, under the circumstances of the case, there is much force in it. If one having a claim of this kind to vacant and unoccupied land, resting solely upon the mere memory of witnesses, unaided by any documentary proof, as was the case here, may lie by for some twenty-five years, and until all the parties on one side of the alleged transaction are dead, and then maintain a bill of this kind against an infant representative of such deceased parties, it may be safely said that no owner of land so long vacant as this was, is safe.

To the further suggestion that this defence should have been set up by answer, it is sufficient to repeat what has already been said, that the delay in suing was a fact apparent upon the face of the bill; and conceding it should have been set up by way of answer, it was the duty of the court to have required such an answer to be put in, and the failure to do so would have been error. But we hold the rule suggested can have no application to an infant who is the ward of the court, as appellant was. In connection with this case we refer to Walker v. Ray, 111 Ill. 315, decided upon substantially the same state of facts.

The decree of the court below, for the error indicated, will have to be reversed, and the cause remanded for further proceedings in conformity with this opinion.

Decree reversed.