text:
    Union Mutual Life Insurance Company v. William J. Slee.

      Filed at Ottawa May 19, 1884.

    1. Mortgage—whether a deed absolute, or a mortgage. The owner of city real estate, after making default of interest on a loan secured by trust deed on the same, turned over the possession of such property to his creditor, who, from that time, received the rents on the same; and after the advertisement of the premises for sale by the trustee, it was agreed that the creditor should bid in the same, and hold it in trust for the debtor until an accounting could be had, when, if the debtor was still owing the creditor anything, a new loan was to be made upon the property. The property was so purchased by the creditor, who shortly afterward caused a judgment by confession to be entered against the debtor for an alleged deficiency between the sum due on the loan and the amount of the bid, upon which an execution was issued, and levied upon other property of the debtor, which was also sold, and bought by such creditor: Held, that the trustee’s deed to the creditor was in equity a mortgage, and that the debtor had the right to redeem.
    2. Agency—extent of agent’s authority—of facts from which it may be inferred. A debtor applied to an agent of his creditor for an extension of the time of payment or a renewal of the loan, the creditor being a non-resident corporation, and the agent a resident of the State, acting generally for the creditor as to loans in this State. At the first interview the agent stated to the debtor that he would communicate with the home office in regard to the proposition made, and afterward such agent, in another interview, said he was ready to enter into the arrangement that was thereupon made: Held, that from these facts the debtor might properly infer that the agent received the principal’s sanction for entering into the arrangement he made, and that the debtor was justified in his reliance upon the agent’s authority to make it.
    3. Interest—the rate not changed by a change in form of the security. A mere change in the form of the security for a debt for money loaned will not operate to change the rate of interest to be paid from that reserved in the original contract. As, where the creditor bids off the property at a sale under a deed of trust which secures the debt, and agrees with the debtor to hold the title under the trustee’s deed as a security until an accounting can be had as to rents received by the creditor and a new loan is made, which is not done, on a bill for an accounting and for redemption from the trust deed and the trustee’s deed, the decree should require the complainant to pay the stipulated rate of interest provided for in the notes, up to the time of the redemption; and it is error to require the payment of six per cent only from the date of the trustee’s deed, when a higher rate had been reserved in the original contract.
    4. Allegations and decree—relief confined to that sought by the frame of the bill. On a bill filed to redeem property from a deed of trust, and a trustee’s sale and deed 'thereof, by the payment of the sum found to be due the creditor on an accounting, the specific enforcement of an agreement to reduce the rate of interest can not be granted, that not being within the scope of the bill.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.

      Messrs. Swett, Haskell & Grosscup, for the appellant:
    The facts in the record do not make out a case upon which a court should declare the trustee’s deeds absolute on their face, to be mere mortgages. Sutphen v. Cushman, 35 Ill. 193; Strong v. Shea, 83 id. 575; Bartling v. Brasuhn et al. 102 id. 441.
    While a parol agreement to modify or rescind a preexisting contract remains executory, the original contract subsists,-the same as if no such subsequent agreement had been made. Chapman v. McGrue, 20 Ill. 101; 29 id. 277; 40 Maine, 162; 4 Greene, (Iowa,) 181.
    The evidence shows that Warfield had no authority from the defendant to make the alleged contract. Persons dealing with an agent acting under written authority are required to inquire into the extent of his authority. 19 Ill. 477; 34 id. 68; 57 id. 300; 86 id. 570.
    Mr. Consider H. Willett, for the appellee:
    Slee being indebted to the insurance company, and having an interest in the land, an oral contract to change the form of the security will be upheld in equity, and the new security being an absolute deed, may be shown to be a mortgage. Purviance v. Holt, 3 Gilm. 394; Davis v. Hopkins, 15 Ill. 510; Williams v. Bishop, id. 553; Smith v. Cremer, 71 id. 186; Stevens v. Illinois Mutual Fire Ins. Co. 43 id. 327; Ross v. Sutherland, 81 id. 275; Union Mutual Life Ins. Co. v. White, 106 id. 73; Holton v. Meighen, 15 Minn. 69; Hicks v. Hicks, 5 G. & J. 75; Cole v. Bolard, 22 Pa. St. 431; Robinson v. Cropsey, 2 Edw. 138; Peugh v. Davis, 96 U. S. 332; Campbell v. Dearborn, 109 Mass. 131.
    Sale will be set aside, and a redemption allowed, if debtor is induced to rely on the promises of the creditor, and was thereby prevented from making redemption in the time limited. Schoonhoven v. Pratt, 25 Ill. 457; Reigard v. McNeil, 38 Ill. 400; Pensoneau v. Pulliam, 47 id. 58.

      While a promise to extend the time for redemption beyond the period named in the mortgage, if made after the time limited has passed, will have no effect, if not founded upon a legal and sufficient consideration, if made before such limited time expires, though without consideration, it will be enforced. 2 Jones on Mortgages, sec. 1053; Chase v. McLellan, 49 Maine, 375; Ross v. Sutherland, 81 Ill. 275; Dodge v. Brewer, 31 Mich. 227. See, also, Davis v. Dresback, 81 Ill. 393; Stephens v. Illinois Mutual Life Ins. Co. 43 id. 327.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

This was a bill in equity to redeem from two trustee’s sales of real estate in Chicago, made, respectively, on the 19th day of February, and the 24th day of March, 1879, under two separate trust deeds upon separate pieces of property, which had been given by the complainant to secure the payment of loans of money to him by the defendant insurance company.

The bill alleges that complainant having made default in the payment of interest on the loans, and taxes on the property, he, in April, 1877, turned over to the defendant the possession of the premises, the rents from which since then had been received by the defendant; that after the advertisement of the sale of the property under the trust deeds, and before the sale, complainant, with his attorney, made application to the defendant for an accounting of such rents, and demanded that the sales should not be made until after such accounting and an ascertainment of the amount due; that said accounting was promised, and after several interviews the demand that the sale should not be made was waived, and an agreement entered into whereby the property was all to be sold and bought in by the defendant, and held in trust for the complainant until an accounting could be had, whereupon, if it should appear that complainant was still owing defendant any sum of money, a new consolidated loan for that sum was to be made to complainant upon all of the property on ten years’ time, or less, at his election; that in pursuance of such arrangement all the property was sold at the times mentioned in the notices of sale, and was bought in by the agents of defendant. The bill further alleges that in violation of said agreement, the defendant, on the 22d day of July, 1879, caused to be entered against complainant, in the Superior Court of Cook county, a judgment by confession, for a pretended deficiency between the amount due on the loans and the amount of the bids at such sales, and upon execution issued, bought in certain other property than that described in said trust deeds, for the sum of $254, for which was issued a certificate of purchase. The circuit court, on hearing, decreed in favor of the complainant, and the defendant appealed.

The proof quite satisfactorily establishes that previous to the trustee’s sales there was made such an arrangement, substantially, as that alleged in the bill, and showing the existence of such a state of facts that defendant, under the sales that were made, must be taken to hold the property purchased but as security for the payment of the sums of money mentioned in the trust deeds. There is really no attempt at denial, by the evidence, that the alleged arrangement which was testified to by complainant and his attorney, or at least some arrangement to the effect that the property was to be bid in by the company, and be held but as security for their mortgage debt, was in fact made with Mr. Warfield, the defendant’s agent at Chicago for the collection of moneys loaned in this State, but it is denied that the agent had authority to make such an arrangement. The agent appears to have been acting under a written agreement between him and the company, as follows:

“The party of the first part (Warfield) hereby agrees with the party of the second part (the defendant) to act as its agent at Chicago, for the collection of moneys loaned by it in the State of Illinois aforesaid, and have the general management of the affairs of said company in relation to its loans and securities therefor, according to such written instructions as shall be from time to time given to him by the said party of the second part, or its executive officers.”

It is said that under this agency the arrangement agreed upon could have been made only under written instructions to make it, and none such are here shown. It does not appear that this written agreement was ever brought to the knowledge of the complainant or his attorney. Mr. Warfield himself testifies' that he had general instructions to renew loans by making new papers at six per cent interest, provided the parties would pay one-twentieth of the principal sum every six months until the whole indebtedness was paid. It was testified to that at the first interview with Warfield upon the subject, he stated that he would communicate with the home office in regard to the proposition made, and that afterward, at a subsequent interview, he said he was ready to make the arrangement, and he did enter into the arrangement. We think, from all this, the complainant might very properly infer that Warfield had received the company’s sanction for entering into the arrangement which he made, and that complainant was justified in his reliance upon the agent’s authority to make it.

The court below found “that said trustee’s deeds of Levi D. Boone (the trustee) to the defendant are, in equity, mortgages, and that the complainant, by reason of the premises, has a right to redeem under the said two original trust deeds, and the deeds of said Levi D. Boone to the defendant, computing the interest as provided for in said trust deeds until they were merged into the deeds of Levi D. Boone to the defendant, and from that time at a legal rate of interest. ” We are satisfied with the correctness of the decree in respect of the right of redemption, but think the decree incorrect in the particular of allowing, in the computation of interest, only the legal rate of interest from the time of the making of the trustee’s deeds to defendant. We are of opinion the stipulated rate of interest named in the trust deeds, and the notes they were given to secure, should have been computed'uninterruptedly. There was no merger of the trust deeds and the notes they were given to secure in the trustee’s deeds, which Boone, the trustee, executed to the defendant, so as to stop the running of the stipulated rate of interest. There was a mere change in the form of the security, and the property still remained in defendant’s hands as a security for the indebtedness secured by the trust deeds, and the complainant had but the right of redemption upon the payment of such indebtedness according to its tenor and effect. The reduction of interest from the stipulated to the legal rate/ could only be justified as in the enforcement of the specific performance of a contract to re-loan the money at that rate. But the claim or proceeding of complainant is not at all of that nature. The written declaration of complainant in the matter filed and recorded in the recorder’s office of Cook county is, that the trustee’s deed made to the defendant, although absolute in form, is but a mortgage to secure their mortgage debt, which the trust deeds were given to secure. The object of the bill is to redeem, it offering to pay whatever may be found to be due upon an accounting. The right of redemption is the claim which is made and asserted, and the condition of its allowance should be upon the payment of the mortgage debt in accordance with "its terms.

For the error indicated in respect of the computation of interest the decree will be reversed, and the cause remanded for further proceedings in conformity with this opinion.

Decree reversed.


source: Caselaw Access Project

author: Mr. Justice Scott

license: Public Domain

text:
    John Mullins v. The People of the State of Illinois.

      Filed at Ottawa May 19, 1884.

    ■1 Criminal law—degree of proof required to make out a defence—and as to different defences, in that regard—of a reasonable doitbt, as applied to distinct elements in the case, or to the whole case. On the trial of one indicted for robbery, in which an alibi was set up in defence, the proof on the part of the People tending to prove defendant’s guilt, and on the part of the defence the alibi, the court instructed orally, by consent, as follows: “You should not convict defendant, unless, after considering all the evidence introduced in this case, you are satisfied of his guilt beyond all reasonable doubt; and if, after considering all the evidence introduced by the prosecution, and all the evidence introduced by the defence, you entertain a reasonable doubt as to whether the defendant, J. M., has been identified as one of the persons present and participating in the offence charged, you should find him not guilty:” Held, that such instruction was as favorable to the defence endeavored to be made as the defendant could ask.
    2. It seems that some defences in criminal cases must be proved by a preponderance of the evidence, among which are licenses or authorizations from the State, and pleas of autre fois acquit. But whether the burden of proving an alibi by a preponderance of evidence rests on the defendant, the authorities are not harmonious.
    3. The general rule is, that when the prosecution makes out such a case as will sustain a verdict of guilty, and the defendant offers evidence, the burden is on him to make out that defence, whatever it may be; but as to an alibi, and all other like defences that tend merely to cast a reasonable doubt on the case made by the prosecution when the proof is in, then the primary question is, the whole evidence being considered, is the defendant guilty beyond a reasonable doubt.
    4. It is not correct to instruct the jury in a criminal case, that when they have considered all the evidence offered on the point made as to an alibi, which is interposed as a defence, if they have a reasonable doubt as to whether “ defendant was in some other place when the offence was committed,” they should acquit. A better expression of the law would be, when the jury have considered all the evidence, as well that touching the question of the alibi, as the criminating evidence introduced by the prosecution, then, if they have any reasonable doubt of the guilt of the accused, they should acquit, otherwise not.

      5. It is not proper for the court to designate any particular branch of the case, and tell the jury unless it is proved beyond a reasonable doubt they should acquit. The “reasonable doubt” the jury is permitted to entertain, must be as to the guilt of the accused on the whole evidence, and not as to a particular fact in the case.
    6. Credibility of witness—the jury to determine—not the court. It is not the province of the court to determine, as a matter of law, in regard to the witnesses examined, whom the jury may or may not believe, and an instruction that so states, or even conveys that impression, is vicious.
    Writ of Error to the Criminal Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    On an indictment preferred against him for robbery, John Mullins was tried in the Criminal Court of Cook county, and on conviction was sentenced to the penitentiary for a period of five years. Both the People and defendant consented the court might charge the jury orally, and thereupon the court said: “Gentlemen of the jury: You should not convict defendant, unless, after considering all the evidence introduced in this case, you are satisfied of his guilt beyond all reasonable doubt; and if, after considering all the evidence introduced by the prosecution, and all the evidence introduced by the defence, you entertain a reasonable doubt as to whether the defendant, John Mullins, has been identified as one of the persons present and participating in the offence charged, you should find him not guilty. ” To the giving of this instruction in the form expressed, defendant excepted. The defendant then asked the court to instruct the jury as follows: “1. The court instructs the jury that one of the defences interposed by the defendant in this case is what in law is known as an alibi,—that is, that the defendant was at another place at the time of the commission of the offence,—and that such a defence is as proper and legitimate, if proved, as any other, and all the evidence on that point should be carefully considered by the jury; and if, in view of all the evidence, the jury have a reasonable doubt as to whether the defendant was in some other place when the offence was committed, they should give the defendant the benefit of the doubt, and acquit him.
    “2. The court instructs the jury that to justify a conviction of the defendant, John Mullins, his identity as the guilty person must be proved beyond every reasonable doubt, and the jury are not bound to believe that the witness Stetson was able to identify the defendant with any certainty because he swears positively to his identity, and the jury should not so believe if they themselves are satisfied, from the circumstances proved, that there is a reasonable doubt as to whether the witness was able to and did identify the defendant as the guilty person.”
    The court refused to give these instructions, and to that decision of the court defendant excepted.
    Messrs. Forrest & May, for the plaintiff in error,
    insisted the attempt to prove an alibi in behalf of the defendant was a matter in defence, as distinguished from a plea of confession and avoidance, and that the consequences in regard to the proofs followed that distinction, citing Toler v. The State, 16 Ohio St. 583; Wharton on Crim. Ev. (8th ed.) secs. 330, 331, 332, 333; 1 Bishop on Crim. Proc. (3d ed.) secs. 1061-1067; 1 Greenleaf on Evidence, 81 b; Turner v. The State, 86 Pa. St. 54; Binns v. The State, 46 Ind. 311; Howard v. The State, 50 id. 190; Pollard v. The State, 53 Miss. 410; The State v. Henry, 48 Iowa, 403; The State v. Waterman et al. 1 Nev. 543; Miller et al. v. The People, 39 Ill. 457; Hopps v. The People, 31 id. 393; 1 Leading Crim. Cases, B. & H. 299-304.
    Mr. Luther Laflin Mills, State’s Attorney, and Mr. Geo. G. Ingham, Assistant State’s Attorney, for the People:
    The charge given by the court, orally, by consent, was full and complete, covering the case in every particular. The jury are told that if, after considering all the evidence in the case, on both sides, they have a reasonable doubt of the guilt of the defendant, it is their duty to acquit; and what more could be said, except to repeat the same thing under different forms ?
    The first of the two instructions marked “refused, ” under the doctrine laid down in Garrity v. The People, 107 Ill. 167, is clearly erroneous. This court there say, that the “onus of proving this defence devolves upon the accused, and it must be clearly and satisfactorily established before it can avail, where the evidence otherwise makes out a clear case against the accused. ”
   Mr. Justice Scott

delivered the opinion of the Court:

Only what the evidence tends to prove is preserved in the record, so that the question of the guilt or innocence of defendant may be regarded as one fairly for the consideration of the jury, and if no error of law hurtful to the defence intervened at the trial, the judgment must of course be affirmed. The only error of law insisted upon is the refusal of the court to give two instructions asked by defendant. Evidence given on behalf of the People tends to prove a case that would warrant a conviction on the charge preferred against defendant. The defence mainly relied on is.what is known in law as an alibi, and evidence introduced by defendant tended to establish.that defence. On this latter branch of the case the court was asked by defendant to instruct the jury, “such a defence is as proper and legitimate, if proved, as any other, and all the evidence on that point should be carefully considered by the jury; and if, in view of all the evidence, the jury have a reasonable doubt as to whether the defendant was in some other place when the offence was committed, they should give the defendant the benefit of the doubt, and acquit him.” Two reasons suggest themselves why this instruction was properly refused: First, all that it contained that was proper to be given to the jury was contained in the instruction that was given by the court to the jury, that charge having been given on behalf of defendant as much as on behalf of the People, and was as favorable to the defence defendant was endeavoring to make as he could ask to have it; and second, it is not an entirely accurate expression of the law on this subject. The authorities quite uniformly hold that some defences, when sought to be made in criminal cases, must be proved by a preponderance of the evidence, and among these are licenses or authorizations from the State, and pleas of autre fois acquit. But whether the burden of proving an alibi by a preponderance of the evidence rests on the defendant who asserts it, the authorities are not so harmonious. The general rule is, where the prosecution makes out such a case as would sustain a verdict of guilty, and defendant offers evidence, the burden is on him to make out that defence, whatever it may be; but as to an alibi, and all other like defences that tend merely to cast a reasonable doubt on the case made by the prosecution when the proof is in, then the primary question is,—the whole evidence being considered, both that given for defendant and for the prosecution,—is the defendant guilty beyond a reasonable doubt. (Wharton on Crim. Ev. (8th ed.) sec. 333.) It will be seen the instruction asked by defendant is broader than the law will warrant, while the charge by the court covers the whole ground sufficiently. Nor is it quite correct to say, as this instruction seems to hold, that when the jury have considered all the evidence offered on the point made as to the alibi, if they have a reasonable doubt as to whether “defendant was in some other place when the offence was committed, ” they should acquit. A better expression of the law would be, when the jury have considered all the evidence, as well that touching the question of the alibi, as the criminating evidence introduced by the prosecution, then, if they have any reasonable doubt of the guilt of the accused, they should acquit, otherwise not. The principle is embodied with sufficient accuracy in the oral charge by the court, and that was all that was necessary to be given on this branch of the case.

The other refused instruction, although slightly different in phraseology, is in substance like the one disapproved by this court in Devlin v. The People, 104 Ill. 507. It is erroneous for other reasons. It is not the province of the court to'determine, as a matter of law, in regard to the witnesses examined, whom the jury may or may not believe, and an instruction that so states, or even conveys that impression, is vicious. Nor is it proper for the court to designate any particular branch of the case, and tell the jury unless it is proved beyond a reasonable doubt they should acquit. The “reasonable doubt” the jury is permitted to entertain must be as to the guilt of the accused on the whole evidence, and not as to a particular fact in the ease.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    Robert McMillan et al. v. Mary F. McDill et al.

      Filed at Ottawa May 19, 1884.

    1. Evidence—admission by one, as to joint interest—whether binding on all. Where parties have a joint interest in a matter in suit, an admission made by one is in general competent evidence against all.
    2. Same—on contest of will—as to sanity of testator—admissions of devisee or legatee. In the case of several legatees or devisees, however, who take, not a joint interest, but separate interests, the declarations or admissions of a portion only of them, are not competent to show the insanity or want of mental capacity of the testator, on bill in chancery to contest the validity of the will on that ground, and it is error to admit such evidence, though limited by the court to the party or parties making the same. The effect of such testimony upon the issue involved, the validity or invalidity of the will, could not be so limited but that if it operated against the legatee or devisee making the admissions, it must operate against all who claimed under the will. It seems the rule is different as to the declarations of a sole legatee or devisee.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Henderson county; the Hon. John J. Glenn, Judge, presiding.
    Messrs. Stewart & Stewart, Mr. Jno. Simpson, and Mr. R. J. Grier, for the appellants:
    The admissions of one who is not the sole party in interest in contest of a will, whether on record or not, are not evidence. Bauerman v. Radenius, 2 Smith’s L. C. 396.
    An opinion said to have been expressed by one of the devisees that the testator was insane, is not admissible to prove his insanity. Phelps et al. v. Hartwell, 1 Mass. 71; 1 Greenleaf on Evidence, 255; 3 Phillips on Evidence, 391, 397.
    A common or several interest does not render the statements of the one party admissible against the other, unless they were made in the presence and hearing of the latter. Crippen v. Morse, 49 N. Y. 63; Buchanan v. Barnum, 15 Conn. 68; Peck v. Yorks, 47 Barb. 131; Dunn v. Brown, 4 Conn. 483.
    As to the distinction between joint and common interests, see 1 Addison on Contracts, 78, 88; 1 Parsons on Contracts, 11; 1 Story on Contracts, sec. 32.
    The above reasoning will apply to declarations or admissions proven against our objection, of other of the legatees.
    Messrs. Kirkpatrick & Alexander, and Mr. Raus Cooper, for the appellees:
    Upon the question of the admissibility of the general declarations or admissions of one not a sole devisee or legatee, there is an undoubted conflict of authority. The general rule is, that the declarations of a party to a suit are admissible against him.
    The rule is, that an admission is evidence against the individual interest of the person making it, and against a joint interest in which he shares. The admission of every defendant is evidence against himself. Bauerman v. Radenius, 2 Smith’s L. C. 387.
    In the case at bar, under the limitation imposed by the court, the declarations proven could only be used against the person making them. They could not be used against the other legatees.
    As to such admissions and declarations being admissible as against the parties making them, counsel cited Clark v. Morrison, 25 Pa. St. 453; Whitford v. Lutin, 6 C. & P. 228; Brown v. Moore, 6 Yerg. 272; Barnhardt v. Smith, 86 N. C. 473; McCraine v. Clark, 2 Murphy, 317; Dennis v. Weeks, 46 Ga. 514; Harvey v. Anderson, 12 id. 69; Morris v. Stokes, 21 id. 552; Davis v. Calvert, 5 Gill & J. 270; Peeples v. Stevens, 8 Rich. Law, 198; Armstrong v. Farrer, 8 Mo. 627; Allen v. Allen, 26 id. 327; Milton v. Hunter, 13 Bush, 166; Rhode v. McLean, 101 Ill. 467; Mueller v. Rebhan, 94 id. 143.
   Mr. Justice Craig

delivered the opinion of the Court:

William McMillan dévised all of his property to seven persons. The language of the will creating the devise is as follows:

“Second—I give and bequeath to my niece, Rachel L. McMillan Thompson, Mary A. McDill, Robert T. McMillan, Daniel I. McMillan, Nancy E. McMillan, William L. McMillan, Martha H. McMillan, a right and title to equal shares of all my property, personal or real. ”

Following this bequest was a clause appointing Robert T. McMillan executor of the will. In the bill to contest the validity of the will, the devisees above mentioned were all made parties defendant, and on the trial the contestants were permitted, over the objections of the defendants, to prove the declarations of Robert T. McMillan, to the effect that the testator did not have the mental capacity to make a will. Similar declarations of other defendants (devisees) were allowed to be proven. The court, however, ruled' that the declarations of each devisee were admissible as against him, but not as against co-defendants, and under this ruling the evidence was admitted for the consideration of the jury.

There is no doubt but this evidence had an important bearing with the jury in the decisión of the case, and if the evidence thus admitted was incompetent, for this error alone the judgment will have to be reversed. It may be stated, as a general rule, that the declarations of a party to the record, or of one identified in interest with him, are, as against such party, admissible in evidence. (1 Greenleaf on Evidence, sec. 171.) To this general rule, however, there may be exceptions. It is plain that the admission of one who is the sole party interested in the issue before the jury, would always be competent evidence, when called out, against such party; but where several persons are interested parties, as here, can the declarations of one be admitted as evidence against that one, when such admission will directly affect the issue as against the other parties ?

This question arose in Phelps v. Hartwell, 1 Mass. 71, and it was held that an opinion expressed by one of the devisees that the testator was insane, was not admissible to prove insanity. In the decision of the question, Sedgwick, J., said: “If the appellee who is stated to have made the declaration were solely interested in establishing the will, he should be in favor of admitting the evidence offered; * * * but as the other appellee is interested in the establishment of the will, it would not be proper to admit the evidence offered. ” In Massear v. Arnold, 13 Serg. & Rawle, 323, it was held that the admissions of one who is the sole party interested in the issue on one side, are evidence against that side. But in the following cases it was held that the admissions of one who is not the sole party in interest, are not competent evidence: Bovard v. Wallace, 4 Serg. & Rawle, 499; Massear v. Arnold, supra; Dietrich v. Dietrich, 1 Pen. & Watts, 306; Boyd v. Eby, 8 Watts, 66; Hanberger v. Root, 6 Watts & Serg. 431; Bauerman v. Radenius, 2 Smith’s Leading Cases, 320, note. See, also, Dow v. Brown, 4 Cow. 483, where the same principle is announced.

In the case under consideration, the court, in deciding the question, admitted the declarations only as against the party who made them; but this did not relieve the evidence of its injurious effect. The evidence was admitted upon the issue involved in the case. It was incompetent as against the other defendants, and as it could not affect the issue without affecting the other defendants, it was, in our judgment, incompetent to go to the jury on the issue involved. If the interest of the devisees had been joint, the evidence might have been admitted against all of them, as we understand it to be a rule of evidence where the parties have a joint interest in the matter in suit, an admission made by one is in general competent evidence against all. But here the devisees did not have a joint interest under the will, but they had separate interests in one subject,—the validity of the will, as held in Dietrich v. Dietrich, supra. If this was a case where a judgment could be rendered against one of the defendants without affecting the rights of the others, there might be some ground for admitting in evidence the declarations as against the defendant who made them; but such is not the case. The only question here is as to the validity of the will, and testimony which defeats one defendant—one devisee—defeats all, and a judgment against one necessarily defeats all. While it might be proper to defeat a will on the admissions of a party who was a sole devisee, it would be manifestly unjust, where there are several devisees, to suffer the rights of all to be concludéd and swept away by the admissions of one, and these admissions made in their absence and without their knowledge or sanction. If the admissions here could have gone to the jury and affected the rights of none but the one making them, no error would have been committed; but such was not the ease. The admissions, notwithstanding the ruling of the court, went to the issue devisavit vel non, in which all the devisees were equally interested.

There are some authorities which support the ruling of the circuit court, but we think the decided weight of authority is the other way. We have been cited to Atkins v. Sanger, 1 Pick. 192, as a precedent in favor of the admission of the evidence. The case seems to favor the view of appellees, but the court, in the conclusion of the opinion, expressly state that the decision does not interfere with the case of Phelps v. Hartwell, 1 Mass. 71, where, as we have heretofore seen, the court decided that the evidence was not admissible. Armstrong v. Farrer, 8 Mo. 627, is another case relied upon, but this case, upon examination, -will be found to be predicated mainly on Atkins v. Sanger, which affirms the Phelps case. Other cases have been cited, but it will not be necessary to review them here. We are of opinion that the rule we have indicated is in harmony with the weight of authority, and one, too, better calculated to preserve the rights of parties in such cases.

For the error indicated, the judgment of the Appellate Court will be reversed and the cause remanded.

Judgment reversed.


author: Mr. Justice Scholfield

text:
    John C. Hannas v. Margaret Hannas.

      Filed at Ottawa May 19, 1884.

    1. Purchaser—reversal of decree—effect upon title of purchaser, Where the title of a husband in real estate is, by a decree on bill to enforce a trust or specific agreement, vested in the wife, and before appeal or writ of error to reverse the decree the wife sells the property to a third person, in good faith, who pays a part of the price and secures the balance by mortgage on the premises, and the trustee holding for the wife conveys to such purchaser in pursuance of such decree, the title of the purchaser can not be defeated by a reversal of the decree for error, if the court rendering it had jurisdiction of the subject matter and of the persons of the parties in interest.
    2. Non-resident defendants in chancery—publication of notice— sufficiency of affidavit. An affidavit of non-residence in a chancery case, to authorize publication of notice, alleged that the complainant had made due inquiry to learn the place of residence of the defendant, and was unable to ascertain the same; that his last known place of residence, so far as affiant’s personal knowledge went, was the city of Chicago, in this State, which place he left about six years before, and, as affiant was informed and believed, went to California; that about two years before, affiant was informed that he was in San Francisco, in the State of California, since which time affiant has, upon due inquiry, been unable to find where he was residing: Held, that the affidavit fully complied with the statute, and was amply sufficient.
    3. Same—sufficiency of the notice—absence of the summons. A notice published against a non-resident defendant in a bill in chancery, setting forth the pendency of the suit, the names of the parties thereto, the title of the court, the time and place of the return of the summons, and that a summons had been issued so returnable, is sufficient.
    4. Where it appears by the clerk’s certificate that he sent a copy of a notice by publication, by mail, addressed to the defendant at his last Imown place of residence, as stated in the affidavit, and it is further proved that the defendant actually received such notice before the return day of the summons, and in ample time to have made defence to the suit, the circuit court will have jurisdiction over the person of the defendant, although no summons is found in the record.
    5. The positive recitals in a notice to a non-resident defendant in a chancery suit, published by the clerk of the court, and the inference to be drawn from recitals in the decree that due notice of the pendency of the suit was given, and the presumption that the clerk did his duty by issuing a summons against defendant, are not overcome by the mere fact that no summons is found in the record.
    6. Party—becoming a party voluntarily—its binding effect. One may waive the necessity of a formal summons, and come in on the hearing of a suit in chancery, and consent to be treated as a party to the decree and to be bound by it; and this will obviate any error there might be in not making him a formal party in the bill, and he will then be bound by the decree.
    7. Error—as to one not complaining. An error that does not affect the party appealing or prosecuting a writ of error, can not be urged by him as a ground of reversal.
    8. Practice—time to object—as to admissibility of evidence. A party can not stand by and permit improper evidence to be given, and object to its competency for the first time in this court. So when a party is .duly served he is theoretically in court, though defaulted, and will not be allowed, on error, to object for the first time to the introduction of secondary evidence.
    9. Preserving evidence—in chancery. Where the findings of fact by the court sustain the decree, this will be sufficient, although the evidence is not preserved in the record by certificate.
    10. Decree pro conpesso—whether proof required. Where the bill is taken for confessed, the sufficiency of the evidence admitted to sustain the decree can not be considered in this court. In such case a decree may be rendered without any evidence, and the only inquiry admissible on error is as to the sufficiency of the allegations of the bill.
    11. Laches — of the pleadings, to present that defence. Where the defence of laches is not interposed by the answer to a bill in chancery, and the bill does not seek to explain and excuse the delay, evidence of such defence is inadmissible.
    Writ of Error to the Circuit Court of Cook county; the Hon. T. A. Moran, Judge, presiding.
    Bill was filed by Margaret Hannas, in the office of the clerk of the circuit court of Cook county, on the 28th of August, 1880, wherein, among other things, ■ it was alleged, that- in pursuance of an ante-nuptial agreement, which is previously recited, she, and her husband, John C. Hannas, conveyed a lot located in Chicago, specifically described, to Homer Cook, in trust, that he should reconvey an undivided half of said lot to said John C. Hannas at the end of one year from that time, if said Hannas should, before that time, erect, build and finish upon said premises, in good and workmanlike manner, a frame dwelling house of the value of $2000, and should also, during said time, fence said lot, in good and workmanlike manner, said Hannas furnishing all the materials, of every kind, for said house and fence; and said trustee was to hold the other undivided half of said lot for said Margaret Hannas, her heirs, etc.; that it was further expressly provided, in and by said deed of trust, that if said John C. Hannas should fail, neglect or refuse to erect said dwelling house or fence on said lot, as and within the time provided, then said trustee was to hold all of said lot for the sole and separate use of the said Margaret Hannas, her heirs, etc., forever, free from the control, disposal, interference, debts and liabilities of the said John C., and the said trustee was to permit her to collect all rents to her sole and separate use, and she was to have full and absolute power to encumber or grant said lot, as if she were sole and unmarried. It was further therein alleged that the said John C. Hannas failed, neglected and refused to erect the dwelling house and fence the lot according to the terms and provisions of said trust deed, and that the said Margaret thereby became entitled to have all said lot, with the appurtenances thereon, to be held in trust for her sole and separate use, free from the control, disposal, interference, debts and liabilities of the said John C., with full and absolute power of conveying, etc.; that said John C. refuses to convey, but demands $1000 for his interest, etc. John C. Hannas is made defendant, and required to answer without oath, and it is prayed that said Margaret be decreed to have all of said lot held in trust for her use and benefit, as provided in said deed of trust, and that all the rights and interests of the defendant therein be declared forfeited, and that he be forever barred from asserting any title and interest whatsoever therein; and the bill concludes with a prayer for general relief.
    An affidavit of Margaret Hannas was, at the same time, filed with the bill, which, after the caption, states that the defendant is a non-resident of the State of Illinois; that she has made due inquiry to learn his place of residence, and is unable to ascertain the same; that his last known place of residence, so far as her personal knowledge goes, was Chicago, Illinois, which place he left about six years before, and, as she is informed and believes, went to California, and two years before, she was informed, he was in San Francisco. Notice was published in the “Chicago Legal News,” reciting the issuing of summons, when returnable, the affidavit of non-residence, etc., of which a certificate was filed with the bill; and the clerk also filed therewith a certificate that he mailed a copy of such notice to the address of the defendant, at San Francisco.
    On the 20th of October, 1880, the defendant having made default, it was ordered that the bill be taken as confessed by the defendant. On the 8th of November, 1880, it was referred to the master in chancery, to take and report evidence in the cause. He made his report on the 2d of December, 1880, and reported, among other things, that the trustee, Homer Cook, testified that on the 20th of September, 1880, he received a letter in the defendant’s handwriting, and signed by him, inclosing a copy of the notice by publication of the pendency of this suit. The letter was dated San Francisco, California, September 13, 1880, and post-marked at the same place, and made inquiry about the suit. The substance of the decree is as follows, after the caption:
    “And now on this day comes the complainant, by Cook & Upton, her solicitors, and it appearing here, from the affidavit on file, that defendant is not a resident of Illinois, and that due notice of the pendency of this proceeding has been given by the publication, for at least four weeks, successively, by notice in the ‘Chicago Legal News,’ the first insertion being August 28, 1880, prior to the first day of the October term, 1880, of this court, and by mailing a notice thereof to defendant at San Francisco, California, within ten days from the first publication of said notice, and the said John C. Hannas, defendant, having been severally three times called in open court, to plead, answer or demur to the complainant’s bill, came not, but herein made default, it is therefore ordered, adjudged and decreed that the same be taken for confessed against the said defendant. And the court having ordered a reference to a master to take proofs of the matters stated in the bill, and the said master having made report thereof to the court, which said report is hereby approved and confirmed, and this cause coming on for a final hearing upon the bill and master’s report, and the court being fully advised in the premises, doth find: That the allegations in said bill are true; that the court has jurisdiction of the subject matter and the parties in the cause; that the defendant, John C. Hannas; received the notice required to be sent him, by mail, at San Francisco, California; that complainant, on April 27, 1868, was a widow, and the owner in equity and entitled to a deed of sub-lot 9, aforesaid; that on said date John Boyd conveyed to defendant, with complainant’s consent; that said conveyance was made to defendant, in trust for complainant, upon certain conditions, to-wit: That defendant should, within one year, erect upon said premises a house of not less value than $2000, should fence said premises and keep down the taxes, and in default of so doing was to hold the premises for the sole and separate use of complainant; but should he perform his said covenants in good faith, then an undivided half of said premises was to be conveyed to defendant in fee, and the remaining undivided one-half to be held in fee by complainant; complainant and defendant intermarried April 30, 1868, and cohabited until 1875; November 20, 1868, complainant and defendant conveyed to Homer Cook, as stated in the bill; that said defendant wholly failed to perform the covenant entered into by him; that he failed to build the fence ■ * * * that he failed to build a good, substantial house, within one year, at his own cost, but built a poor dwelling house, continually in need of repair, and the cost of which was largely paid by complainant from her own means, and which was not completed sufficiently for a residence until nearly three years after the date of said deed; that defendant has not kept down the taxes, but complainant has paid them since 1875; defendant, without sufficient cause, deserted complainant for five years. It is therefore ordered, adjudged and decreed by the court, that the rights and interests of defendant, John C. Hannas, in and to said real estate, under and by virtue of anything in said deed of trust to said Homer Cook recited or contained, or otherwise, be forfeited, and that said defendant be forever barred and foreclosed from claiming or asserting any right, title or interest whatsoever therein, and that the complainant, Margaret Hannas, have all of said real estate held in trust for her, and for her use and benefit, as in the way and manner provided in said deed of trust to said Homer Cook. ”
    Homer Cook, the trustee, indorsed on the decree the following :
    “I hereby consent to the entering of the within decree, and agree to hold the title to the premises therein described, in trust, as declared and defined by the said decree, or by any decree the court may enter in said suit, and hereby consent to be made a party thereto. Homer Cook ”
    “Witness: E. L. Upton.”
    After the rendering of the above decree, and before suing out this writ of error, Mary E. Knowles purchased the lot from the complainant, and at the request of the complainant, the trustee, Homer Cook, conveyed said lot to said Mary E. Knowles, a part of the purchase money therefor having been paid before suing out the writ of error, and the balance being secured by the notes and mortgage of said Mary E. Knowles and her husband, and said Mary E. Knowles is made a party to the writ of error as a terre tenant.

      Numerous errors are assigned, fully raising all the questions discussed in the opinion.
    Mr. Consider H. Willett, for the plaintiff in error :
    The trustee was a necessary party, and a decree without making him a party was a nullity. In litigation respecting trust property, both the trustee and cestui que trust must be made parties. Scanlan v. Cobb, 85 Ill. 296.
    As to necessity of making all persons having an interest •parties, counsel cited McGraw v. Bayard, 96 Ill. 146; Hopkins v. Roseclare Lead Co. 72 id. 373; Brown v. Riggin, 94 id. 560; Rees v. Peltzner, 75 id. 475; Shinn v. Shinn, 91 id. 477; Roberts v. Fleming, 53 id: 196; Hellman v. Schneider, 75 id. 423; Harris v. Cornell, 80 id. 54; Atkins v. Billings, 72 id. 597; Story’s Eq. Pl. secs. 207, 209.
    The issuing of a summons was essential to give the court jurisdiction. Jacobus v. Swett, 14 Ill. 359.
    Purchasers are held chargeable with notice of everything which a man of ordinary caution and prudence ought to know when his attention is directed to the facts, or to those channels which would lead to the truth. The law will not allow him to shut his eyes to the information necessarily indicated by the process under which he claims. Hamilton v. Quimby, 46 Ill. 90; Doyle v. Teas, 4 Scam. 249; Scott v. Moore, 3 id. 319.
    The purchaser was bound to know that the decree was a nullity unless Homer Cook, the trustee, was made a party to the suit.
    Mr. Charles H. Ferry, for the defendant in error, Margaret Hannas:
    The correct mode of taking advantage of the want of a necessary party is by demurrer, when the defect appears on the face of the bill. Objection can not be made, on error, after the bill has been taken for confessed. Burger v. Potter, 32 Ill. 66; Stookey v. Carter et al. 92 id. 129.

      If an error was committed in this regard, it did the plaintiff in error no injury, and would be no ground for reversing the decree. Stookey v. Carter et al. 92 Ill. 133.
    The trustee consented, in writing, to be made a party defendant, and to the entry of the decree. It was not necessary that the decree should recite it was entered by consent. Haas v. Chicago Building Society, 80 Ill. 248.
    It appears that the record fails to show any summons, but the clerk, in the notice to the defendant as a non-resident, states that a summons was issued, which is sufficient under the rule laid down in the cases of Tompkins et al. v. Wiltberger et al. 56 Ill. 35, Tibbs v. Allen, 27 id. 119, and Millett et al. v. Pease et al. 31 id. 377.
    Messrs. Schuyler & Follansbee, for the purchaser and terre tenants:

    Subsequent purchaser is not affected by reversal of decree. McJilton v. Love, 13 Ill. 486; Goudy v. Hall, 36 id. 316; Feaster v. Fleming, 56 id. 457; Horner v. Zimmerman, 45 id. 14; Harris v. Lester, 80 id. 307; Eldridge v. Walker, id. 270; Mulvey v. Gibbons et al. 87 id. 367; Wadhams et al. v. Gay, 73 id. 415; Guiteau v. Wisely, 47 id. 433; Barlow et al. v. Standford et al. 82 id. 298.
    One voluntarily becoming a party will be bound. Walker v. Abt et al. 83 Ill. 227; Short et al. v. Raub, 81 id. 509; Horner v. Zimmerman et al. 45 id. 16; Greenman v. Harvey, 53 id. 386.
    The absence of the summons from the record will not overcome the prima facie evidence that one was properly issued and duly returned, the decree having found “that the court had jurisdiction of the subject matter and the parties in the cause.” Prout v. The People ex rel. 83 Ill. 154; Turner et al. v. Jenkins, 79 id. 228; Miller v. Handy, 40 id. 448; Mulvey v. Gibbons et al. 87 id. 367; Haworth v. Huling et al. id. 23.
   Mr. Justice Scholfield

delivered the opinion of the Court:

Inasmuch as the circuit court unquestionably had jurisdiction of the subject matter of the litigation, if it also had jurisdiction of the persons affected by the decree, it must follow, that so far as Mary E. Knowles is concerned, the errors assigned in regard to the admissibility and sufficiency of the evidence are unimportant, for, being a purchaser in good faith, while the decree was unreversed and in full force, she will be protected, although there may have been error in rendering the decree. Barlow et al. v. Standford et al. 82 Ill. 298; Mulvey v. Gibbons et al. 87 id. 367; Wadhams v. Gay, 73 id. 415.

First, then, was the notice to the defendant, John C. Hannas, sufficient ? The 12th section of chapter 22, of the Revised Statutes of 1874, entitled “Chancery,” is as follows: “Whenever any complainant, or his attorney, shall file in the office of the clerk of the court in which his suit is pending, an affidavit showing that any defendant resides or hath gone out of this State, or on due inquiry can not be found, or is concealed within this State so that process can not be served upon him, and stating the place of residence of such defendant, if known, or that upon diligent inquiry his place of residence can not be ascertained, the clerk shall cause publication to be made in some newspaper printed in his county, * * * containing notice of the pendency of such suit, the names of the parties thereto, the title of the court, and the time and place of the return of the summons in the case; and he shall also, within ten days of the first publication of such notice, send a copy thereof by mail, addressed to such defendant whose place of residence is stated in such affidavit.” The affidavit here filed fully conforms to these requirements. It alleges that complainant “has made due inquiry to learn the place of residence of the defendant, John C. Hannas, and is unable to ascertain the same; that his last known place of residence, so far as her personal knowledge goes, was the city of Chicago, in this State, which place he left about six years ago, and, as she is informed and believes, he went to California, and about- two years ago she was informed he was in San Francisco, in the State of California, since which time she has, upon due inquiry, been unable to find where he is residing. ” Assuming, as for the present question we must, that these allegations are true, we can not conceive how the affidavit could have been any more full and specific. The notice published also fully conformed to the requirements of the section. It contained a notice of the pendency of the suit, the names of the parties thereto, the title of the court, the time and place of the return of the summons, and that a summons had been issued so returnable.

It not only appears by the clerk’s certificate that the clerk had sent a copy of the notice by publication, by mail, addressed to the defendant, John C. Hannas, at his last known place of residence, as stated in the affidavit,—i. e., “San Francisco, California, ”—but it is proved by other unquestioned evidence that such defendant actually received such notice before the return day of the summons, and in ample time to have made defence to the suit. We do not think the mere fact that no summons is found in the record can be regarded as sufficient to overcome the presumption that the clerk did his duty and issued one, the positive- recitals in the notice published by him, and the inference to be drawn from the recitals in the decree that due notice of the pendency of the suit was given. The tendency of our decisions is directly the other way. The logical deductions to be drawn from them sustain the sufficiency of this notice. Tompkins v. Wiltberger et al. 56 Ill. 385; Millett et al. v. Pease et al. 31 id. 377; Tibbs v. Allen, 27 id. 119; Prout v. The People ex rel. 83 id. 154; Turner et al. v. Jenkins, 79 id. 228; Miller v. Handy, 40 id. 448; Mulvey v. Gibbons et al. 87 id. 367; Haworth v. Huling et al. id. 23. It is made morally certain here, by the evidence, that the defendant, John C. Hannas, was not, in fact, in Cook county, or anywhere else in this State, between the date of the filing of the bill and the term to which the summons was, if issued, returnable, and hence that it would have been impossible that the summons should have been personally served upon him; and he was, in fact, personally furnished with a copy of the notice, by publication, and so he had all the notice- that he needed, and all that is contemplated by the statute in such cases. We think there was ample jurisdiction of the person.

Second—The only object in making Cook, the trustee, a defendant, is to bind him by the decree. We are unable to perceive why he might not, as he has done, waive the necessity of a formal summons in that regard, and come in, on the hearing, and consent to be treated as a party to the decree, and to be bound by it. He here indorses upon the decree: “I hereby consent to the entering of the within decree, and agree to hold the title to the premises therein described, in trust, as declared and defined by the said decree, or by any decree the court may enter in said suit, and hereby consent to be made a party thereto. ” Surely one may voluntarily consent to be bound by a decree, although not a formal party thereto. But it is quite clear, even if the omission of this party was error, it is not an error that affects the defendant, John C. Hannas. Cook was a mere dry trustee, having no interest whatever in the property affected by the decree. It was a matter of indifference to the discharge of his duties, whether the complainant was entitled to the relief she sought or not. The real and only controversy was between Margaret and John C. Hannas, and so any error there may have been in omitting to make Cook a party to the bill can not now be urged as ground of reversal by the defendant, John C. Hannas. Walker v. Abt et al. 83 Ill. 227; Short et al. v. Raub, 81 id. 509; Horner v. Zimmerman et al. 45 id. 16; Greenman v. Harvey, 53 id. 386.

So far, then, as Mary E. Knowles is concerned, there is no error by which she can be affected. But we are also of opinion the record discloses no substantial error in respect of the admission of evidence, or the sufficiency of the evidence to sustain the-decree. The fact that there was no objection to the admission of any evidence is a sufficient answer to the objection that secondary evidence was improperly admitted. Theoretically the defendant was in court, and no principle is better settled than that a party can not stand by and permit improper evidence to be given, and object to its competency for the first time in this court. There was no certificate of evidence, and whether all the evidence is preserved in the record, we can not, therefore, know. The findings sustain the decree, and that is sufficient. Walker v. Carey, 53 Ill. 470.

But again, in this case the bill was taken pro confesso. In such case, although evidence is admitted, its sufficiency to sustain the decree can not be considered. The decree may be rendered without any evidence, and therefore the only inquiry admissible is as to the sufficiency of the allegations of the bill. Boston v. Nichols, 47 Ill. 353; Gault v. Hoagland, 25 id. 266; Stephens v. Bicknett, 27 id. 444; Harmon v. Campbell, 30 id. 25; Manchester et al. v. McKee, 4 Gilm. 511.

The objection that complainant was guilty of laches in not filing her bill, is not tenable. No such defence is interposed in the answer, nor does the bill seek to explain and excuse the delay, as in Hall v. Fullerton, 69 Ill. 448, and Williams v. Rhodes et al. 81 id. 571, and evidence of such defence would therefore have been inadmissible. (Trustees v. Wright, 12 Ill. 432.) But even if the pleadings were, in this respect, sufficient, there is nothing in proof to show that any shorter period of limitation should be applied than that prescribed by the statute.

The decree must be affirmed.

Decree affirmed.


author: Mr. Chief Justice Sheldon Mr. Justice Walker:

text:
    Elijah S. Alexander v. The Tolleston Club of Chicago.

      Filed at Ottawa May 19, 1884.

    1. Corporation—right to acquire and hold title to real estate—limit of the right. By section 81, of chapter 32, of the Revised Statutes of 1874, corporations, associations and societies, not for pecuniary profit, formed under that act, are made- capable, in their corporate names, of taking, purchasing, holding and disposing of real and personal property, for the purposes of their organization.
    2. Same—who may object that a corporation is holding real estate in excess of its right. Where a corporation, by the law of its creation, is authorized in some cases, or for some purposes, or to a certain extent, to take and hold the title to real estate, it can not be made a question by any party, except the State, whether its real estate has been acquired for the authorized uses or not, or is in excess of the capacity of the corporation to take and hold. The State alone must assert her policy in that regard.
    3. So the right of an association, assuming it to be a corporation under a law authorizing the creation of corporations of the class to which it claims to belong, and which has exercised powers as a corporation, to hold property, can not be questioned by an individual citizen in a suit to set aside a contract he has made with the association in its corporate name and character.
    4. Chancery—;jurisdiction—injunction as to right in another State. A court of equity in this State has jurisdiction of a bill, the object of which is to obtain an injunction to prevent the defendant from interfering with a right of way claimed by the complainant over lands situate in another State, where the defendants are personally served. The jurisdiction in equity by way of injunction is strictly in personam.

    5. Lease—construed, as to period of duration—as affected by the mode of organization of the lessee corporation. The owners of land leased to a club all their ground in a certain section, used for a canal and right of way, “for and during the existence of said club,” with this clause: “Whenever said club shall cease to exist as now organized, this lease, etc., shall be determined and cease. ” On the day before the execution of this lease the club had passed a resolution to become incorporated, and the lessors were members of the club: Held, that the grant of the right of way, or canal and its appurtenances, did not cease upon the club becoming incorporated under the statute, assuming all the debts of the same and taking all its property; and that the words, “as now organized,” referred to the purpose of organization,— not the mode of organization.

      6. Same—as to what passes by lease of a canal—the foot-way as an incident. Where a hunting and fishing club constructed a canal across a tract of land, so as to connect its club-house with a river and its marsh grounds, through which to transfer boats, and which was used in connection with a foot-way along its side, over which the hunters walked, and the owners of the land, knowing the use made of the canal and foot-way, leased to the club all the ground then used for the canal, it was held, that the lease passed the foot-way, as an actual, constant incident to the use of the canal, especially when the lessors, by their subsequent acts, showed an acquiescence in the continued use of the foot-way in connection with the canal.
    7. Construction or contract—acts of the parties. The acts of parties under a contract which they have entered into, and their acquiescence in its provisions, which seem to evince their understanding of its meaning, and to be a construction of the contract by the parties themselves, are entitled to regard in considering what was their intention in the making of it.
    8. Grant—as to an easement passing with the principal thing. It is the rule that whenever a thing is granted, all and every easement necessary to its beneficial enjoyment will pass.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    Messrs. Walker & Carter, for the appellant:
    The burden is upon a corporation, and those claiming under it, to show that by its charter it is a body politic, authorized to take or convey lands. Lumbard v. Aldrich, 8 N. H. 34; Angell & Ames on Corp. secs. 161, 162.
    If appellee can not, under the laws of this State, take and hold land^for sporting or other amusements, it can not do so in any other State. In Indiana there is no statute authorizing a corporation of the character of appellee. It will not, therefore, be claimed that it is the policy of the State of Indiana to permit foreign corporations to do what its own citizens may not. As to our State policy in regard to corporations acquiring and holding real estate, see Carroll v. City of East St. Louis, 67 Ill. 568.
    An easement for right of way is an interest in the land over which it is to be enjoyed. Washburn on Easements, 5 ;
      Ex parte Coburn, 1 Cow. 568; Dodge v. McClintock, 47 N. H. 386; Forbes v. Balsenseifer, 74 Ill. 183; Anderson v. Buchanan, 8 Ind. 133; Richter et al. v. Irwin, 28 id. 26.
    The Tolleston Clnh was a mere voluntary association, while the Tolleston Club of Chicago is an incorporation. Formally and most purposes it is, in law, an artificial person of this State, entirely different in law and in fact from the Tolleston Club. The lease was not to the incorporation, but to the voluntary association, and that ceased when the association ceased to be as it was organized at the date of the lease. The court has no jurisdiction to grant the injunction. Western Union Telegraph Co. v. P. and A. Telegraph Co. 49 Ill. 92.
    Messrs. Jewett, Norton & Larned, for the appellee:
    Corporations, etc., not for pecuniary profit, formed under chapter 32 of the Revised Statutes, are made capable, in their corporate names, of taking, holding, etc., real and personal estate for purposes of their organization. Rev. Stat. sec. 31, chap. 32.
    An easement is a privilege. It is not a right to land, nor to any corporeal interest in land, and a grant of a right of way does not convey the soil over which the way passes. Goddard’s Law of Easements, 4; Cook County v. Chicago, Burlington and Quincy R. R. Co. 35 Ill. 464; Washburn on Easements, 3, 5.
    The right of a corporation to hold property i£im only be questioned by the State in a direct proceeding. Hayward v. Davidson, 41 Ind. 214; Baker v. Neff, 73 Ind. 68.
    The lease, if made in view of the proposed incorporation of the club, or confirmed by acknowledgment after incorporation, is not avoided by the misnomer of the corporation. Northwestern Distilling Co. v. Brant, 69 Ill. 658; Board of Education v. Greenebaum, 39 id. 609; Tallcott Mountain T. Co. v. Marshall, 11 Conn. 186; First Parish in Sutton v. Cole, 3 Pick. 237; Chadsey v. McCreery, 27 Ill. 253; Kentucky

      Seminary v. Wallace, 15 B. Mon. 35; Burton v. American Tract Society, 23 Vt. 336; Potter on Corporations, p. 17, sec. 12.
    The canal could not be used in the manner and for ■ the purposes contemplated by the lease without the use of the rwalk, and therefore this use must have passed by the lease, as an appurtenant to the canal. Angell on Watercourses, (6th ed.) secs. 158, 167, 358.
    The acts of the parties to this lease clearly evinced their understanding that it included the necessary path on the bank, for such path was constantly used without question, and this construction of the lease by the parties themselves should be especially regarded. Seavers v. Cleary, 75 Ill. 349.
    The courts of equity may decree the specific performance of contracts respecting land situated beyond their jurisdiction. Story’s Eq. Jur. sec. 744.
    The fact that property the subject matter of the controversy is located in a foreign country, does not prevent the court from exercising jurisdiction, when all the parties to the transaction are within its reaclyand amenable to its process. High on Injunctions, 105; Kerr on Injunctions, 9; Wells on Jurisdiction, 80; 2 Spence’s Equity, 6, 7; White v. White, 7 Gill & J. (Md.) 208; 1 Ves. Sr. 444; Hawley v. James, 7 Paige, (N. Y.) 213; Guerant v. Fowler, 1 Hen. & M. (Va.) 5; Episcopal Church v. Wiley, 2 Hill, (S. C. Ch.) 584; McDowell v. Read, 3 La. Ann. 391; Miller v. Block, 2 Jones, (N. C. Law,) 341; Ward v. Lathrop, 4 Texas, 180; Butterworth v. Kinsey, 14 id. 495; Wood v. Warner, 2 McCarter, (N. J. Eq.) 81; Massey v. Watts, 6 Cranch, 148; Mitchell v. Bunch, 2 Paige’s Ch. 606; Clasen v. Corley, 5 Sandf. 461; Burnley v. Stevenson, 24 Ohio St. 474.
   Mr. Chief Justice Sheldon

delivered the' opinion of the Court:

This was a bill filed by the Tolleston Club of Chicago, for an injunction against Elijah S. Alexander, to restrain him from interfering with the complainant in the use of a certain canal and foot-path along its bank, in respect of which complainant claims a right of way.

The case, in its general outline, as made by the proofs, is, that during the spring of 1871 certain gentlemen of Chicago formed an association called the “Tolleston Club,” the object of which was shooting and fishing in the Tolleston marshes. They purchased a tract of sixty acres of land in Lake county, in the State of Indiana, situate about one-half mile from the Little Calumet river, in said county, upon which were erected a club-house, and barn, outbuildings, and large boat-house, the buildings being of the value of some $10,000. The fishing and hunting of the members of the club could only be prosecuted in the Little Calumet river and the marshes adjacent to the banks thereof, in front of the club-house. About that time Alexander, with S. H. Turrill and James H. Foster, all being members of the club, purchased certain lands between the land of the club and the river and marsh. In the fall of 1871 the club excavated a canal across this land of Alexander, Turrill and Foster, with their knowledge and consent, at a cost of $2500, it being for the purpose of passing boats from the river to the boat-house, the latter being at the upper end of the canal, about one hundred yards from the club-house. The water being seldom of sufficient depth for the passage of boats, the members of the club were accustomed to tow or pole their boats from the marsh as far as the depth of the water would allow, and walk the rest of the distance, following a uniform path along the canal. The path was used only for foot travel. There was a plank walk, composed of two planks, and being about three feet wide, put down along this path, from the club-house to the marsh, in 1875. On the 3d day of March, 1873, the members of the club, at a meeting thereof, resolved to incorporate under the general act of this State for forming corporations “not for pecuniary profit. ” The license of the Tolleston Club of Chicago was issued March 27, 1873, and at a meeting of the incorporators on June 6, 1873, the constitution and by-laws of the former club were adopted, its debts and liabilities assumed, and its property and effects received. Alexander, Turrill and Foster executed the following lease to the Tolleston Club :

“Whereas, E. S. Alexander, S. H. Turrill and James H. Foster are the owners in fee simple of section 18, in the town of Tolleston, Lake county, Indiana, and whereas the Tolleston Club has cut a small canal from the property owned by the said club near and adjacent to said property of Alexander, Turrill and Foster, over and through said section 18, to the Little Calumet river, which is to be used by the said club for the security of their boats, and other sporting purposes. Now, in consideration thereof, know all men by these presents, that we, the said E. S. Alexander, S. H. Turrill and J. H. Foster, parties of the first part, and the Tolleston Club, party of the second part,—
“Witnesseth: That the said parties of the first part do hereby lease to the said party of the second part, for and in consideration of the work done upon the said canal, and one dollar to the said parties of the first part in hand paid, all the ground in section 18 now used for said canal, for and during the existence of said club,—all the expense of making, repairing, keeping and protecting the said canal, now and at all times, to be paid by the said club, the said parties of the first part to be saved harmless from the same; and whenever said club shall cease to exist as now organized, this lease, and all the rights thereunder, shall be determined and 'cease, and the said parties of the first part shall resume possession without let or hindrance.
“Witness our hands and seals this fourth, day of March, A. D. 1873.
E. S. Alexander, [seal.]
S. H. Turrill, [seal.]
James H. Foster, [seal.] ”

Foster and Turrill subsequently conveyed all their interest in the above mentioned land to Alexander,—Foster on June 26, 1874, and Turrill on March 25, 1876. The club, in 1881, purchased about one thousand acres more of these marsh lands on the river, for shooting grounds for its members, at a cost of some $20,000. The evidence is, that there are no means of access from the club-house grounds to this marsh and the river other than by way of this canal and foot-path, except by going several miles out of the way, and going by way of the river; that if this access to the river were cut off, it would very much depreciate in value the property of the club,—as some witnesses say, would destroy the club. The canal was of much benefit to the land of Alexander, draining some thirty acres of it. There was no interruption in the use of the walk or canal, or objection thereto, till in 1881. The circuit ¿ourt decreed the relief prayed. The decree, on appeal to the Appellate Court for the First District, was affirmed, and the defendant appealed to this court.

Appellant’s counsel contend that the decree can not be sustained, for the following reasons: First, the power to acquire and hold lands, easements or right of way is not delegated to or conferred upon the appellee by the statute of 1872, under which appellee is incorporated; second, such power is not delegated to any corporation by the statutes or laws of the State of Indiana, where the land is situated, and is contrary to its policy; third, there is no evidence in support of appellee’s claim of easement or right of way in or upon appellant’s lands; the Tolleston Club has no legal existence; by the terms of the lease, all its rights thereunder have ceased and are terminated; a parol license will not support an easement; fourth, the court below has no jurisdiction over the subject matter of the action.

The statute of 1872 referred to, in section 31, of chapter 32, of the Revised Statutes of 1874, provides that “corporations, associations and societies, not for pecuniary profit, formed under this act, shall be bodies corporate and politic, by the name stated in such certificate, * * * may have power to make and enforce contracts in relation to the legitimate business of their corporation, society or association, * * * and they and their successors, by their corporate name, shall, in law, be capable of taking, purchasing, holding and disposing of real and personal estate for purposes of their organization, ” etc. There is certainly given here the capacity to hold real estate. The titles to the club-house property and thé marsh property are not in issue in this case. What is here in controversy is but the question of a right of way across intervening lands. Even if appellee has exceeded in extent its power of holding real estate, appellant, we conceive, can not take advantage of the fact. In Hayward v. Davidson, 41 Ind. 214, the rule is acknowledged to be, in such cases where a corporation is authorized by its charter or the law of its creation, in some cases, to take and hold the title to real estate, that “as the corporation may, for some purposes, acquire and hold the title to real estate, it can not be niade a question by any party, except the State, whether the real estate has been acquired for the authorized uses or not, ” and quotes the language of Judge Dillon upon the subject, in his work on Municipal Corporations, sec. 444: “If there is capacity to purchase, the deed to the corporation divests the estate of the grantor, and. there is a completed .sale; and whether the corporation in purchasing exceeds its power, is a question between it and the State, and does not concern the vendor. ” And in Baker v. Neff, 73 Ind. 68, where a party, having conveyed land to a supposed corporation by its corporate name, sought to set aside the conveyance, the court say: “The right of an association, assuming it to be a corporation under a law authorizing the creation of corporations of the class to which it claims to belong, and which has exercised powers as a corporation, to hold property, can not be questioned in an action brought by an individual citizen to set aside a contract which he had made with the association in its corporate name and character. The right of a corporation to hold property can only be questioned by a direct proceeding prosecuted in behalf of the State.” (See Hough v. Cook County Land Co. 73 Ill. 23.) In Darst v. Gale, 83 Ill. 140, it was said: “The general rule is, that the plea of ultra vires shall not prevail when, instead of advancing justice, it would accomplish a wrong; and it makes no difference, in this respect, whether it is interposed for or against the corporation.”

The inequitable character of the claim which is here set up to defeat this lease because of the alleged incapacity of appellee to take it, is, under the facts of this case, apparent. This objection, that the power to acquire and hold lands is not conferred .by the statute of 1872, is not well taken. And we think the same must be said with respect to such power not being conferred by the laws of the State of Indiana, and as to its supposed policy. Whatever such may be, would seem, under the authorities above cited, to be a matter which appellant can not avail himself of in this suit,—that that is not a thing of individual concern, but that it is to be left with that State alone to assert for herself any laws or policy of her own upon the subject, as she may, or not, see fit to do.

As to appellee’s claim of right of way not being supported by the evidence, it is insisted that the lease in evidence, which is relied on in support of such claim, became avoided by the subsequent incorporation of the club. As the club had taken actual steps to become incorporated before the lease was made, such a result as that contended for would be an extraordinary one. The club had passed a resolution to become incorporated on the 3d day of March, 1873, and the lease was executed on the next day, March 4th. It certainly could not have been the understanding of the club that their incorporation was to terminate the lease, nor of at least one of the lessors, Turrill, who was president of the club, and as such signed the record of the meeting at which the resolution for incorporation was passed. Such notion of the lease having become determined rests upon, the words of the lease: “And whenever said club shall cease to exist as now organized, this lease and all the rights thereunder shall be determined and cease. ” The duration of the lease had before been fixed as “for and during the existence of said club, ” and the words quoted are, whenever said club shall “cease to exist, ” as now. organized. It is the existence of the club which is made the measure of the life of the lease, and the words “as now organ-, ized, ” relate to the club’s existence,—such a club as it then was, “as-now organized,”—a club for its then purposes,- and not- a club of a different character. We think the words “as now organized, ” refer to purpose of organization, not mode of organization,—to a shooting club, and not to the manner in which it should be organized,—whether as a voluntary association or body corporate. It makes no manner of difference, with any rights involved in this lease whether the eltib be a voluntary association or a corporation. It in no way affects the use of the right of way or the burden upon the land, and it can not be supposed that the mere manner of being organized as a voluntary association, or as an incorporated body, was at' all in the contemplation of the parties to the lease. It may be remarked of the resolution of March 3, to become incorporated, it begins: “Resolved, that pursuant to the original design the members take immediate steps to incorporate, ” etc. Some point is made upon the meeting at which it was resolved to become incorporated being attended by but a small portion of the members of the club, and it not appearing that all of the members of the club went into the incorporation. We perceive nothing substantial in this. There is no pretense of the existence now of two separate bodies, or of any adverse claim of interest in any of the club property. All of the members of the former club are made members of the incorporated club. It has succeeded to all of the old club,—its property and liabilities, constitution and by-laws. Its object is the same, and all the difference, as affecting anybody, is that its legal name is now the “Tolleston Club of Chicago,” instead of the “Tolleston Club,” and it has the privileges, as a corporation, which the statute gives to it. We can not adopt the literal reading, as insisted upon, of this language of the lease, and we do not find that the lease became determined upon the club’s incorporation.

It is contended the lease gives no right to use the plank walk laid along the bank of the canal. This foot-path was ever in constant use by the members of the club, in connection with the use of the canal, from the time the canal was dug. The mode appears to have been for the hunter to have some one to paddle or push the boat, with his accoutrements in it, up and down the canal, and he would walk along upon the bank. A year or two after the canal was dug, from the taking away of a dam upon the river, the water in the canal became lowered, and to such an extent as to cause a disuse of the canal, in a great measure, but it can not be said to have been abandoned. It rarely was used through its entire length or greater part, but a portion of it next the river could always be and was used for the boats. This disuse of the canal increased more and more the use of the footpath. Boats would land at various points along the bank, according as the depth of water admitted of the passage of boats, and the members of the club would walk the rest of the distance along the bank. The canal and this foot-path were the only practicable means of access from the river and marsh to the club-house back of them. Wherever there is the right of navigation there is the incidental right to use the banks of the stream, to a greater or less extent, as the purposes of navigation may require. The lease is, in terms, “all the ground in section 18 now used for said canal.” We think this may not unreasonably be held as including all the ground then used, together with the canal, or in connection with the canal. This foot-path, we may infer from the evidence, was as much used in connection with the use of the canal as the canal itself was used. It had ever been so used before, and was so used at the time of -the making of the lease, and has been ever since, until in 1881, with certainly the knowledge and consent, and without objection, of the lessors.

t It is the rule that whenever a thing is granted, all and every Easements necessary to its beneficial enjoyment will pass. (Angell on Watercourses, sees. 158, 358.) Although this footpath was not absolutely necessary for the use of this canal, as is the tow-path in the case of an ordinary canal where the mode of propelling boats is by animal power, still its use was an actual, constant incident of the canal’s use,—such a convenience therein, and accessory, and so far necessary, that its use may, not improperly, we think, be regarded as appurtenant to the canal, and passing by the lease thereof. There are acts of the lessors which have a bearing in this particular. It is in evidence that in 1871 or 1872, when Mr. Turrill was the owner of one-third of the land as tenant in common, and also president of the club, with his concurrence and 'assistance, and for the purpose of defining the right of way as stated by him, there was built a fence, some twenty or twenty-five feet from the edge of the canal, for a distance of sixty or eighty rods, and a plank walk was laid down for this footpath, along the inside of the fence. About 1878 appellant wished to have the location of the plank walk changed, and upon seeing the president of the club on the subject, he directed the latter to confer with appellant’s tenant as to the location of the walk, which the president did, and the walk was moved near to the canal,—as near as could be with safety,—and placed to the satisfaction of the tenant, where it afterward remained without objection. These acts of the parties, and .their acquiescence in the use of the walk, would seem to evince their understanding that the lease included this path on the bank, and to be a construction of the lease by the parties themselves, which is entitled to regard in considering what was their intention in the making of the lease. Leavers v. Cleary, 75 Ill. 349.

The further objection made is, that the circuit court had no jurisdiction over the subject matter of the action because the land was in another State. Appellant resided within the jurisdiction of the court, and was personally served with process. The object of the bill was to obtain an injunction to prevent appellant from interfering with a right of way claimed by complainant over lands situated in the State of Indiana, under a lease, "the controversy invgkving the construction of the lease. ( The jurisdiction of equity by way of injunction is strictly in personam, f It is well settled that courts of equity may decree the specific performance of contracts respecting land situated beyond the jurisdiction of the State where the suit is brought. The ground of this jurisdiction, as said by Story, is, that courts of equity have authority to act upon the person; and although they can not bind the land itself by their decree, yet they can bind the conscience of the party in regard to the land, and compel him to perform his agreement according to conscience and good faith. (2 Story’s Eq. Jur. sec. 743.) And in the section following he thus state's the rule:. “The proposition may, therefore, be laid down in the most general form, that to entitle a court of equity to maintain a bill for specific performance of a contract respecting land, it is not necessary that the land should be situated within the jurisdiction of the State or county where the suit is brought. It is sufficient that the parties to be affected and bound by the decree are resident within the State or county where the suit is brought, for in all suits in equity the primary decree is in personam, and not in rem. ” And in Massie v. Watts, 6 Cranch, 148, Chief Justice Marshall delivering the opinion of the court, it is laid down, “that in a case of fraud, of trust, or of contract, the jurisdiction of a court of chancery is sustainable wherever the person 'be found, although lands not within the jurisdiction of that court may be affected by the decree.” ■ In cases of injunction, it is'laid down as a general rule that “the court may. exercise jurisdiction independently of the locality of the act to be done, provided the person against whom relief is sought is within the reach and amenable to the process of the court. ” (Kerr on Injunctions, 9.) And in treating of the subject of the jurisdiction of courts of equity to restrain proceedings in the courts of a foreign country, it is laid down in High on Injunctions, sec. 59: “The fact that the property which is the subject matter of the controversy is located in a foreign country will not prevent the court from exercising jurisdiction, where all' the parties to the transaction are within .its jurisdiction, and. amenable to its process.”

We are of opinion that the circuit court had jurisdiction, of the subject matter of the suit. The judgment of the Appellate Court will be affirmed. . •

Judgment affirmed.

Mr. Justice Walker:

I neither concur in the reasoning nor conclusion of. the majority of the court in this case. .


text:
    Margaret Ennis v. Lawrence M. Ennis.

      Filed at Ottawa May 19, 1884.

    1. Certiorari at common law•—whether the appropriate remedy. The common law writ of certiorari will only lie .to inferior tribunals or jurisdictions in cases where they proceed illegally, and no appeal or other mode of directly reviewing their proceedings is provided by law..
    2. This proceeding does not lie to review and set aside an order of the probate court dividing and apportioning the widow’s award between her and the minor children of her deceased husband by a former wife, as that court has general jurisdiction in all matters touching the settlement of the estates of deceased persons, and orders concerning the widow’s award come under that general jurisdiction. The proper remedy for a party aggrieved by such an order is an appeal to the circuit court.
    3; Assignment of error— when necessary. Where an appellant fails in this court to make an assignment of error as to an order awarding costs on the dismissal of a petition for a common law writ of certiorari, as made in the Appellate Court, such order will not be considered in this court. In such case the point made in the Appellate Court will be treated as waived in - this court.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.
    Messrs. M. A. Rorke & Son, for the plaintiff in error:
    . The rights of the parties are to he determined upon an inspection of the record contained in the return to the writ, and not on a mere motion to "quash the writ and to dismiss the petition made by a person who is merely named in the petition for the writ, and to whom the writ of certiorari was not. directed. McManus v. McDonough et al. 4 Bradw. 180; Savage v. Board of Commissioners, 10 id. 204; Donahue v. Will County, 100 Ill. 94.
    In a proceeding of this kind it is erroneous to render a judgment for costs. Arnold v. Thorpe, 9 Bradw. 357; Smith v. McLaughlin, 77 Ill. 596.
    It is now the settled rule of law in this State that the common law writ of certiorari lies in two classes of cases: First, whenever it is shown that the inferior court or jurisdiction has exceeded its jurisdiction; and second, whenever it is shown that the inferior court or jurisdiction has proceeded illegally, and no appeal or writ of error will lie. Hyslop et al. v. Finch, 99 Ill. 171; Savage v. Board of Commissioners, 10 Bradw. 204; Porter v. Board of Trustees, id. 343; People v. Wilkinson, 13 Ill. 660; Gerdes v. Champion, 108 id. 137.

      The orders in question' were not merely illegally or irregularly entered, but under the authority of the cases of Miller v. Miller, 82 Ill. 463, Marshall v. Rose, 86 id. 374, and the statute relating to administration of estates, (Hurd’s Stat. 1881, pp. 112, 113,) there was an entire want of power in the probate court, ab initio, to enter the orders sought to be quashed by appellant. Hence, as the probate court exceeded its power or jurisdiction, the writ lies, whether appellant could have taken an appeal from those orders of the probate court or not. Hyslop v. Finch, 99 Ill. 184; Monroe v. People, 102 id. 406.
    And where nothing has been done upon the assumed validity of the orders in question, and less than “five years ” or “three years ” have intervened between the entry of the orders sought to be quashed and the filing of the petition for the writ, a certiorari at common law will lie. Hyslop v. Finch, 99 Ill. 171; Miller v. Trustees, 88 id. 26.
    Messrs. Ennis & Walker, for the defendant in error:
    As to when a writ of certiorari at common law will lie, see ■ Waite’s Practice on Common Law Certiorari; People v. Hill, 53 N. Y. (8 Sick.) 547; People v. Andrews, 52 id. (7 Sick.) 445; People v. Stillwell, 19 id. (5 Smith,) 531; Trustees v. School Directors, 88 Ill. 100; Otten v. Lehr, 68 id. 64; Chicago and Rock Island R. R. Co. v. Fell, 22 id. 333.
    If the court, upon a hearing, is satisfied that the writ was improvidently issued, or that justice and-equity so require, it will dismiss the writ. Curtis v. Common Council of Utica, 45 How. 289; People v. Mayor of New York, 2 Hill, 9; Same v. Same, 5 Barb. 43.
    A common law writ of certiorari can issue to the inferior tribunals and jurisdictions when they exceed their jurisdiction, and in case where they proceed illegally, and there is no appeal or other mode of directly reviewing their proceedings. Hyslop v. Finch, 99 Ill. 171; People v. Williamson, 13 id. 160; Miller v. Trustees of Schools, 88 id. 26.
   Mr. Justice Scott

delivered the opinion of the Court:

The petition in this ease was presented by Margaret Ennis in the circuit court, and was for a common law writ of certiorari, to bring before that court certain proceedings had in the probate" court of Cook county, that the same, on inspection, might be quashed and held for naught. It appears from the allegations it contains, that petitioner was lawfully married to James Ennis, since deceased, who at the time of his death left him surviving petitioner, his widow, and nine children by a former marriage, and one child by his marriage with petitioner, all of whom were minors at the time of his death, except, perhaps, one or two of his first children, and who resided with him and constituted a part of his family ; that afterwards such proceedings were had in the probate court that letters of administration were granted to petitioner and Lawrence M. Ennis, and on appraisers being appointed, as the law directs, they set apart the “widow’s award, ” in value $1960. The grievance alleged is, that subsequently, on the 3d day of June, 1881, the probate court “divided” or “apportioned” the “widow’s award, ” giving to petitioner and her child by her marriage with James Ennis, since deceased, $750, and to the seven minor heirs of her deceased husband by his former marriage, $1210. It is that order of the probate court so entered that petitioner seeks to have quashed and held for naught in this proceeding. It is thought this can not be done on a common law writ of certiorari. The proper remedy for a party aggrieved in such case would be on appeal to the circuit court. Undoubtedly the probate court has general jurisdiction in all matters touching the settlement and administration of the estates of deceased persons, and orders concerning the “widow’s award” come within the scope of that general jurisdiction. It is not necessary now to consider whether the probate court proceeded irregularly in making the order complained of, as that question can not be adjudicated in this proceeding. The law is, a common law' writ of certiorari will only lie to inferior tribunals or jurisdictions in cases where they proceed illegally, as it is alleged the probate court did in this instance, where no appeal or other mode of directly reviewing their proceedings is provided or exists under the law. (Miller v. Trustees of Schools, 88 Ill. 26.) In cases like the one being considered, the statute has expressly given a remedy for any érror committed by the probate court, by an appeal to the circuit court, as this court has decided in Ennis v. Ennis, 103 Ill. 95. The writ of certiorari was therefore properly quashed, as was done by the circuit court.

The errors assigned in this court only call in question the decision of the Appellate Court in affirming the “final order and judgment of the said circuit court * * * quashing the common law writ of certiorari issued, and dismissing said appellant’s petition therefor. ” It will be perceived the errors assigned are not broad enough to embrace the question whether the circuit court erred in awarding costs against petitioner, and in favor of Lawrence M. Ennis, on the dismissal of her petition, and the correctness of that order, will not be considered in this court. Petitioner not having assigned it as error in this court, the point made in the Appellate Court as to costs may be deemed to have been waived in this court.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.