text:
    The Pittsburgh, Fort Wayne and Chicago Railway Company v. Sarah A. Reno et al.

      Filed at Ottawa November 11, 1887.

    1. Reversal on the appeal of one of several defendants—whether a reversal as to all. Where a decree is jointly binding on several defendants, so that each is liable for the whole, a reversal on the appeal of one defendant vacates the same as to all the defendants; but when the decree, in form, is joint, but is several in its effect, it may be reversed as to a part of the defendants.
    2. So where a decree for the specific performance of a contract finds that the defendants are all bound by the contract, and requires one of the defendants to specifically perform the contract, and the other two defendants to permit its execution, and it appears that it is impossible for any one of the defendants alone to execute the contract without the co-operation of the others, a reversal of the decree on the appeal of any one of the defendants will operate a§ a reversal as to all, and such reversal can not be invoked as a defence to an action at law by the complainants against one of the defendants not joining in the appeal.
    3. Contract—as to continuing switch connections with certain premises by a railway company—contract construed. The owners of real estate sold a part thereof to a railway company, in consideration of a sum of money to be paid, and of the covenants in the contract expressed, that the purchaser should restore the switch connections then existing between the parties, and continue the same to the vendors the same as theretofore. At the date of the contract the railway company had switch connections with its road in a street and coal yards of the vendors, over which freights were ■carried free of charge by the purchasing company and other roads using its tracks and switches. In an action for a breach of the contract in refusing to continue such connections, it was claimed, that as the connections before were a mere matter of favor, depending on the will of the defendant company, they might, under the contract, be at any time discontinued, as before, there being no agreement as to the time such free use of the switches and connections should be had: Held, that such construction of the covenant was not admissible, and that the agreement was to continue to the vendors the use of the switch connections, without any limit as to time. The words, “as heretofore,” in the clause, “and continue to them the use of the same hereafter as heretofore,” relate to the mode of the use, and have no reference to the time of the use.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    This is an appeal from a judgment of the Appellate Court for the First District, affirming a judgment of the Superior Court of Cook county, recovered by the appellees, against appellant, for damages for the non-performance of a certain contract in writing, dated July 28, 1880.
    In 1856, Abner Beeves purchased all that part of block 63, school section addition to Chicago, bounded on the north by Forquer street, on the east by Beach street, on the south by Taylor street, and on the west by an alley, ten feet wide, running north and south through the block, and one hundred feet-east of the east line of Canal street. The part thus purchased, included lots numbered from 26 to 46, both inclusive, in said block. Lots 32 to 40, both inclusive, comprised the whole frontage on Beach street, and extended west one hundred feet-to a second north and south alley, ten feet in width, running through said block. The whole premises, from the time of Beeve’s purchase, were occupied for coal and lumber yards, or coal yards alone, until the sale of the lots from 32 to 40, fronting on Beach street, to appellant, in 1880. During most of this time; the main track or tracks of the appellant were-located in Beach street, which were also used by the Chicago- and Alton Bailroad Company, and switches were in use leading from these tracks to said premises, at or near their south-east, corner^ and connecting with private tracks laid down upon the premises for the convenience of the occupants, on which switching was done, by both the ■ appellant and the Chicago- and Alton company, of the cars consigned to the occupants of said premises over their respective roads, free of charge. Prior to the year 1880, Mrs. Beño and Mrs. Little, two of the heirs of Abner Beeves, and two of the appellees, had acquired the title to the whole of these premises, and from about the year 1878 their husbands, under the firm name of B-eno & Little, had been in the occupancy of the north part of the premises as a coal yard, as tenants of their wives.
    On July 28, 1880, a written agreement was entered into, and signed by both parties, whereby Mrs. Reno, Mrs. Little, and their husbands, Charles A. Reno and Jacob H. Little, agreed to sell the entire frontage of the premises upon Beach street,—viz., lots 32 to 40, inclusive, of said block 63,—to the appellant, the Pittsburgh, Fort Wayne and Chicago Railway Company. The contract “witnesseth, that the party of the first part, in consideration of the money to be paid, and the covenants as hereinafter expressed, * * * hereby agree to sell,” etc. The contract contains the following: “And it is further so agreed between the parties hereto, that said second party shall, on taking possession of the premises so hereinbefore described, restore all the switch connections now existing between said second party and said first party, or any of them, and continue to them the use of the same, as heretofore.” It is for' the breach of this provision of the contract that this suit was brought.
    A deed of the lots numbered from 32 to 40 was made by the party of the first part to the contract, on or prior to November 23, 1880, at which date the following memorandum was signed by the parties to the contract, and indorsed thereon “It is agreed, this 23d day of November, 1880, that the parties of the first part to the above agreement have made, at the request of the party of the second part to said agreement, a deed of this date for said premises to James D. Layng,” and said agreement has been performed to that extent. In the year 1881, Layng sold the west seventy feet of these lots to the Chicago, Burlington and Quincy Railroad Company, and on the 19th day of August, 1881, that company destroyed the existing switch connections between appellant’s tracks and the premises of the appellees and laid down seven parallel north and south tracks on the seventy feet so conveyed to it. The Fort Wayne switch connections have never since been restored.

      A bill in chancery for a specific performance of this same covenant had before been brought by these appellees against this appellant, and the Chicago and Alton and the Chicago, Burlington and Quincy Bailroad Companies, and specific performance decreed by the lower court against the three companies. On appeal to this court, by the Chicago, Burlington and Quincy company, the decree was reversed, on the ground that, under the circumstances of the case, such a decree involved such disastrous consequences, both private and public, that, in the exercise of the sound discretion of the court, specific performance should not be granted, and the cause was remanded. (Chicago, Burlington and Quincy Railroad Co. v. Reno et al. 113 Ill. 39.) The lower court afterward ordered that the bill be dismissed, but without prejudice to any remedies or actions at law which the complainants might have concerning the matters mentioned in the bill.
    Messrs. Willard & Driggs, for the appellant:
    It is true, no plea of res judicata was interposed, but the absence of such a plea will not operate to deprive a party of the benefit of such defence when a former recovery is given in evidence. 1 Greenleaf on Evidence, sec. 531.
    A party not joining in the appeal can not take any benefit from a reversal of the decree, but it will stand as to him. 1 Barb. Ch. Pr. 395; Rees v. Chicago, 38 Ill. 332; Enos v. Capps, 12 id. 255; Morse v. Capps, 4 Gilm. 315.
    It becomes important to know how the use of the switch connection was continued to the appellees before the date of the contract. It was customary to make no switching charge for freight coming over the roads to appellees’ yards. The custom was a mere matter of favor, and not one of right, founded on contract, and it could not, by mere continuance, ripen into a fixed obligation. An implication that the custom had its origin in an agreement, can not be favored. Insurance Co. v. Morrison, 62 Ill. 242.

      There being no time fixed for the termination of the free use of the switch, either party might terminate it at will. Coal Co. v. Liddell, 69 Ill. 639; Lintner v. Milliken, 47 id. 178.
    At the date of the contract, appellees were receiving the use of the switches free as to charges, and the time of such use was during the will and pleasure of the companies. The words, to “continue hereafter as heretofore,” mean that the use shall remain free during the like will and pleasure of the companies, and not that it shall remain free forever.
    Mr. John N. Jewett, and Mr. C. G. Clabke, for the appellees:
    It is contended, that appellant was not bound by the covenant to restore the connections, and continue their use for any specified length of time. The words, “as heretofore,” mean that the use of the connections were to be free of charge, as enjoyed before, and the word “hereafter” means in all time to come, and the word “forever” was unnecessary. The parties, by this covenant, intended to secure the free use of the connections by contract in the future. It was thereafter not dependent on the will of the company.
    Counsel claim that the decree in the chancery suit‘is still in full force and effect as to appellant, and is a bar to this suit. Where the decree is joint, against several defendants, it can only be reversed in toto. Rees v. Chicago, 38 Ill. 333; Enos v. Capps, 12 id. 255.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

There are only two grounds upon which the reversal of the judgment is urged in this court, viz., first, that the questions involved in this record were, so far as the appellant is concerned, res judicata at the time of the institution of this suit; second, that this record contains no evidence in support of the alleged non-performance by appellant of the contract in question.

The former adjudication which is insisted upon, is the decree in the chancery suit against the appellant for specific performance. As the Chicago, Burlington and Quincy company alone appealed from that decree, it is contended that the reversal of the decree obtained on that appeal did not affect this appellant, and that, notwithstanding such reversal, the decree still remains in full force against this appellant. The doctrine relied upon is, that a defendant who does not join in an appeal can not have the benefit thereof, even though the result of it may show that the decree was erroneous, as well against him as the appellant, and that an appellate court can not reverse a decree against a party who has not appealed, even though the court below had no jurisdiction to make the decree against him, as laid down in 1 Barb. Ch. Pr. 395, and recognized by this court. in Enos v. Capps, 12 Ill. 255, and Rees v. City of Chicago, 38 id. 322. But the rule was further declared, in the two latter cases, that a decree jointly binding on several defendants, so that each is liable for the whole, if reversed at all, must be reversed as to all; but where a decree in form is joint, but is several in its effect, it may be reversed as to a part of the defendants.

In the decree for specific performance, the court found that the defendants, the Chicago, Burlington - and Quincy Bailroad Company and the Chicago and Alton Bailroad Company, were and are, in equity, bound together with said Pittsburgh, Fort Wayne and Chicago Bailway Company, by said clause of said agreement providing for said switch connections and their use, as aforesaid. “And the court further finds that the defendants failed and refused to restore said switch connections. * * * And the court therefore finds that the complainants are entitled to a specific performance, by the defendants, of the aforesaid clause or provision of said agreement in reference to said switch connections and their said use.” And it was thereupon decreed that the Fort Wayne company make a switch connection between its tracks and the premises of the «complainants, and that the other defendants suffer and permit said connection to be made, and that the defendants shall allow, when so made, the use of said switch connection to the complainants, etc. It would be impossible for either of the companies, of itself, to restore the switch connection as it -was at the time of the contract, as it would necessarily have to cross the tracks of all the companies. We think the decree was of such a joint character as to bring it within that class ■of joint decrees where a reversal, if any, should be as to all the defendants. It was the entire decree which was reversed by this court, and not merely the decree against the Burlington company. We are of opinion that the chancery suit, and the decree for specific performance entered therein, do not offer .any impediment to the maintenance of this suit.

The second point, that the record contains no evidence in •support of the alleged non-performance of the contract, is based upon the construction which appellant’s counsel would place upon the contract, which is, that the continuance of the switch ■connection was to be only at the will of appellant.

The evidence shows that the appellant, after taking possession of the premises and putting in its two additional tracks, ■did restore the switch connections, and continue to the appellees the use thereof until the Burlington company took theirs up, in 1881, since when such use has not been continued, and, as appellant contends, it was not required to be, by the terms •of the agreement. Such reading of the contract is attained in this way: As to the use of the switch before the date of the 'contract, it is said the evidence shows no more than that it was the custom of the Fort Wayne and Alton companies to make no switching charge for freight coming over either of their roads, consigned to appellees’ coal yard; that there being thus no agreement upon the subject, and therefore no time fixed 'for the termination of the free use of the switch, either party anight terminate it at will. And the language of the contract being, that the use of the switch shall continue hereafter as heretofore,—as the free use of the switch might have been rightfully discontinued at any time before the contract,—a continuance of the free use of the switch afterwards was subject to the same right of discontinuance. This we regard as a strained, and not the natural, construction. The switching privilege was a valuable one, and formed, no doubt, an important part of the consideration for the sale of the land. The agreement for the sale, in which this covenant appears, states it to be “in consideration of the money to be paid and the covenants as hereinafter expressed.” Of very little worth would have been the covenant for the continuance of the free use of the switch if appellant might, at any time, discontinue the use. Evidently, such was not the understanding of the parties. The agreement was to continue to appellees the use of the switch connections, without any limit as to time. The words, “as heretofore,” in the clause, “and continue to them the use of the same hereafter as heretofore,” as we read them, relate to the mode of the use of the switch connections, and have no reference to the time of the use.

The judgment of the Appellate Court must be affirmed.

Judgment affirmed„


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    Rose Keegan et al. v. Hannah Kinnare, Admx.

      Filed at Ottawa November 11, 1887.

    1. Recoupment—as to what matters allowable—generally. It is am indispensable element in the doctrine of recoupment, that the demand sued for and that sought to be recouped shall arise out of the same subject matter.
    2. Itis essential that the wrong of which the defendant complains, should in some way impair the consideration of his contract. In other words, it must appear that the express or implied contract broken by the plaintiff was the consideration for the defendant’s contract or undertaking.

      3. Same—property of tenant withheld—whether it may he recouped as against rents. In an action upon an appeal bond given on appeal from a judgment for possession of premises in an action of forcible detainer, the defendants offered evidence, on the trial, that when the writ of possession was executed, the principal in the bond, who was the tenant, was prevented from removing from the demised premises a house thereon, belonging to her, for the purpose of recouping the damages thus sustained from the rents, etc., recoverable on the bond: Held, that the evidence was properly excluded, as such damages could not be recouped.
    4. Landlord and tenant—tenant holding over—measure of his liability—election to treat him as a trespasser. Where a tenant for a year or years holds over after his term expires or is terminated by notice, without any new agreement with his landlord, the latter, at his election, may treat him as a trespasser, or as a tenant for another year upon the same terms as in the original lease. But this right of election does not belong to the tenant.
    5. Where the landlord elects to treat a tenant holding over without his consent, as a trespasser, the former rental will not fix the measure of the tenant’s liability, but he will be liable to the landlord for the value of the use of the premises.
    6. A tenancy from year to year was terminated by notice from the landlord, and the tenant holding over was sued in forcible detainer, and a judgment for restitution recovered in the circuit court, from which the tenant appealed to the Appellate Court, where the judgment was affirmed. The landlord died, and suit was brought by his administrator on the appeal bond: Held, that the measure of the recovery was the value of the use of the property from the termination of the term to the death of the landlord.
    7. Amendments and jeoeails—defective pleading cwred after verdict. Where there is any defect, imperfection or omission in any pleading, either in substance or in form, fatal on demurrer, if the issue joined be such as necessarily to require, on the trial, proof of the facts so defectively stated or omitted, and without which it is not to be presumed the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection or omission will be cured by the verdict.
    8. Instruction—to disrega/rd matters of defence ruled out. Where the court has excluded all the evidence offered to show a ground of defence, an instruction that such defence could not be considered, while unnecessary, is not an error of which the defendants can complain.
    9. Same—an instruction construed—as to measure of recovery in action on appeal bond in forcible detainer against a tenant. In an action upon an appeal bond given on an appeal by a defendant from a judgment in a forcible detainer suit, in which the condition of the bond was, that the defendant should pay all rent then due and that might become due before the final determination of the suit, as required by the statute, the court instructed the jury that they should determine, from the evidence, the fair rental value of the premises from the end of the term, and what, if any, damages or loss the evidence showed the landlord had sustained, and it was contended' that the damages and loss should have been limited to such as accrued after the giving of the bond. There was no evidence of any damages or loss other than of the rent or use of the land: Held, that the jury could not have considered they were to allow any damage or loss other than the rental of the property withheld, and hence the instruction was not misleading.
    10. Judgment—on penal bond—its form as to damages. A judgment in an action on an appeal bond read: “Therefore, it is considered by the court that the plaintiff do have and recover of and from the defendants herein, her said debt of §3000, and also the said sum of $1760, (which was the damages found, less a reínittitnr,) together with her costs,” etc. It was objected that there was no judgment for damages: Held, that the objection was hypercritical, it being evident that the $1760 was for the damages.
    Appeal from the'Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    This is an action of debt, by Hannah Kinnare, administratrix of the estate of Frank Kinnare, deceased, against Rose Keegan, John Keegan and John M. Smyth, on the following bond, namely:

      “Know all men by these presents, That we, Rose Keegan and John Keegan, as principals, and John M. Smyth, as surety, all of the city of Chicago, in the county of Cook and State of Illinois, are held and firmly bound unto Frank Kinnare, also of the same county and State of Rlinois, in the penal sum of three thousand dollars, ($3000,) lawful money of the United States, for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly, severally and firmly, by these presents.
    “Witness our hands and seals this twenty-third day of May,. A. D. 1884.
    “The condition of the above obligation is such, that whereas the said Frank Kinnare did, on the fourteenth (14) day of May, A. D. 1884, in the circuit court of Cook county, in the State aforesaid, and of the April term thereof, A. D. 1884, recover a judgment against the above bounden Rose Keegan and John Keegan, for the restitution of the possession of certain premises in said county and State, to-wit: Sub-lot number nine (9,) of lot four (4,) in block fifty (50,) in the school section addition to Chicago, besides costs of suit,—from which said judgment of the said circuit court of Cook county the said Bose Keegan and John Keegan have prayed for and obtained an appeal to the Appellate Court within and for the First District of said State.
    “Now, therefore, if the said Bose'Keegan and John Keegan shall duly prosecute their said appeal with effect, and, moreover, pay the amount of the judgment for costs rendered and to be rendered against, and pay all rent now due and that may become due before the final determination of the suit, and all damages and loss which the said plaintiff may sustain by reason of the withholding of the premises in controversy, and by reason of any injury done thereto "during such withholding, together with all costs, until the restitution of the possession thereof to the plaintiff, in case the said judgment shall be affirmed in said Appellate Court, then the above obligation to be void, otherwise to remain in full force and virtue.
    Bose A. Keegan, (Seal.)
    his
    John X Keegan, (Seal.)
    mark.
    John M. Smyth. (Seal.)”
    To which is added the approval of the court on the 23d day of May, A. D. 1884.
    It is alleged that at the March term of the Appellate Court, on the 28th day of April, A. D. 1885, the judgment of the circuit court appealed from was affirmed, and that said Frank Kinnare then recovered judgment against said Bose A. Keegan and John Keegan for the restitution of the possession of the premises described in the bond, besides costs of suit. And the breach of the bond alleged is the non-payment of costs and non-payment of rent and damages, and loss sustained by reason of the withholding of the premises in controversy, etc.

      Certain pleas were filed, upon which issue was j oined. Plaintiffs recovered judgment. Defendants appealed to the Appellate Court for the First District, and' that court affirmed the judgment.
    Messrs. M. A. Borke & Son, for the appellants :
    A surety may recoup for damages, and co-lessees are sureties for each other. Myer v. Stookey, 3 Bradw. 336; Tully v. Iron Works, 115 Ill. 554.
    Becoupment, in its strict common law sense, is a mere reduction of the damages claimed by the plaintiff, by proof, under the general issue, of mitigating- circumstances connected with or growing out of the transaction upon which the plaintiff’s claim is based, showing thai it would be contrary to equity and good conscience to suffer the plaintiff to recover the full amount of her claim.' 5 Robinson’s Practice, p. 265; Wadhams v. Swan, 109 Ill. 46.
    A defendant may recoup damages in a suit for rent. Pepper v. Rowley, 73 Ill. 262; Evans v. Hughes, 76 id. 115; Hubbard v. Rodgers, 64 id. 434.
    Becoupment by a tenant is permitted. Lindley v. Miller, 67 Ill. 244; Ringhouse v. Keener, 63 id. 230; Himrod v. Baugh, 85 id. 435.
    In this case, it was stipulated, by agreement of the parties and by order of court, that under the only plea of the defendants allowed to stand, regarded by the court as a plea of general issue in debt, all defences pleaded might be admitted in evidence. Hence, by the recent decision of the Supreme Court the defendant should have been allowed to recoup the value of the house against plaintiff’s claim under the general issue. Tully v. Iron Works, 115 Ill. 544.
    A tenant holding over is bound to pay the same rent as in his lease. Otto v. Jackson, 35 Ill. 349; McKinney v. Peck, 28 id. 174; Prickett v. Ritter, 16 id. 96; Stevens v. Coffeen, 39 id. 148; Wire Cloth Co. v. Gardner, 99 id. 151.

      The court erred in singling out the surety, and directing attention to him alone. Munford v. Miller, 7 Bradw. 62; Coal Co. v. Conlan, 101 Ill. 93.
    The instruction authorized the jury not only to give the fair rental value of the property, but also the damage and loss. The lease fixed the measure of damages at $15 a month.
    The court erred in overruling the motion in arrest of judgment. The judgment is not in form. The word “damages” nowhere occurs in it, and this is essential. Matheson v. Stephens, 9 Bradw. 436.
    As showing that this judgment is erroneous in point, form, and under some of the cases cited in substance, and that the word “damages” is essential, we refer the court to Parrisher v. Waldo, 72 Ill. 71; Matheson v. Stephens, 9 Bradw. 436; Toles v. Cole, 11 Ill. 562; Eggleston v. Buck, 31 id. 254; Austin v. People, 11 id. 452; Frazier v. Laughlin, 1 Gilm. 347; Knox v. Breed, 12 Ill. 61.
    Messrs. Hynes, English & Dunne, for the appellee:
    As to the right to recoup damages, see Scammon v. Kimball, 92 U. S. 362; Hilliard v. Walker, 11 Ill. 644; Ryan v. Barger, 16 id. 28; Stenson v. Gould, 74 id. 80; Hubbard v. Rogers, 64 id. 434; Evans v. Hughey, 76 id. 115; Tully v. Iron Works, 115 id. 544.
    And even in case of recoupment, the following decisions have held that one defendant can not recoup an individual claim against a joint claim made by the plaintiff against two or more defendants.
    A cross-claim of defendant and others against the plaintiff and others, by way of recoupment, must be between the same parties. King v. Wise, 43 Cal. 629; Cummings v. Morris, 25 N. Y. 625; Boyd v. Foot, 5 Bos. 110; 1 Sutherland on Damages, 275.
    A defendant can not be allowed to recoup damages on account of a misrepresentation of one of several plaintiffs, for which the others were not responsible. Sears v. Wingate, 3 Allen, 109.
   Mr. Justice Scholfield

delivered the opinion of the Court :•

The several grounds urged for a reversal of the judgment below will be considered in the order of their presentation in the printed argument of appellants’ counsel.

First—Appellants’ counsel offered evidence upon the trial, which was rejected by the court, to the effect that when the writ of possession was executed, Kose Keegan was prevented from removing from the demised premises a house thereon, belonging to her. The damages thus sustained, it is contended, may be recouped from the damages that are recoverable for rent, etc., on the bond.

■ It is an indispensable element in the doctrine of recoupment, that the demand sued for and that recouped shall arise out of the same subject matter. (Stow v. Yarwood et al. 14 Ill. 424; Streeter v. Streeter, 43 id. 155; Waterman v. Clark et al. 76 id. 428.) Freeman, in his notes to Van Epps v. Harrison, 40 Am. Dec. 323, says, (and we quote because, we think, accurately): “In its modern application, the foundation of recoupment is failure of consideration. The defendant, in effect, admits his failure to perform the contract upon which he is sued, and seeks to extenuate his default by showing that the plaintiff has failed, in some particular, to do that which was the consideration of the defendant’s promise, and to that extent, therefore, the plaintiff has no right to hold the defendant liable, hence it is essential that the wrong of winch the defendant complains should, in some way, impair the consideration of his contract, —in other words, it must appear that the express or implied promise broken by the plaintiff was the consideration for the defendant’s promise.” See, also, Christy v. Ogle’s Exrs. 33 Ill. 295.

Illustrative of the principle, it has been held that in an action by a laborer for his wages, the employer can not recoup damages for an injury done by the plaintiff outside the scope of his employment. (Nashville Railroad Co. v. Chumley, 6 Heisk. 327.) In an action by a landlord to recover rent, the tenant can not recoup damages for a trespass committed by the landlord which does not amount to a breach of the covenant of quiet enjoyment. (Cram v. Dresser, 2 Sandf. 120; Edgerton v. Page, 20 N. Y. 281; Bartlett v. Farrington, 120 Mass. 284; Huline v. Brown, 3 Heisk. 679.) In an action by a vendor of land for the purchase money, the purchaser can not recoup the damages sustained by him by reason of the vendor’s subsequently entering and taking the crops. (Slayback v. Jones, 9 Ind. 470.) Damages for maliciously suing out an attachment in a suit have been held not to be subject to recoupment in the same suit, because the wrong was in no way connected with the consideration of the contract sued on, but was an independent tort. (Nolle v. Thompson, 3 Metc. 121; Freeman’s note, supra.) And so in Evans v. Hughey, 76 Ill. 115, where the plaintiff sold land for the defendant, agreeing to take security for the first payment of $3000 on other land of the value of $6000, and afterwards the defendant sold to the same purchaser certain personal property for the sum of $2500, and directed the plaintiff to take a mortgage on the purchaser’s farm, then valued at $11,200, for both payments, and record the same, and the plaintiff did take such mortgage, but, through his neglect, it was not recorded until after liens to the extent of $1179.50 had attached to the mortgaged premises, which the defendant, after foreclosure of his mortgage, was compelled to discharge by payment, we held, in a suit by the plaintiff to recover the compensation agreed upon for making the sale, that the defendant could not recoup the damages sustained by him in consequence of the neglect to record the mortgage, as the same did not arise out of the contract sought to be enforced by the plaintiff, but that his remedy should be sought in a distinct suit.

What possible connection is there here between the conduct of the officer, or the heir-at-law, (Frank Kinnare being then dead) in executing the writ of possession, and the subject matter of this bond? The subject matter of this bond is the prosecution of an appeal from the judgment of the Superior Court to the Appellate Court. It does not look beyond the affirmance or the reversal of that judgment. It is to secure the appellee against loss by reason of the prosecution of that appeal, and liability was fixed by the judgment of affirmance. The liability on it, moreover, is to the administratrix, who had and has no interest in the rents accruing from the real estate after the death of Frank Kinnare. Clearly, if the heir-at-law, or the officer executing the writ, or both, did a wrong, resulting in legal injury to Kose A. Keegan, they alone are liable to her therefor. No principle of law can fasten such liability upon the estate of Frank Kinnare; much less can it be recouped in this action.

Second—Counsel for appellee were permitted, over the objection of counsel for appellants, to prove the rental value of the property from May 1, 1888, to January 5, 1885,—the date of Kinnare’s death. The evidence shows that appellants went into possession under a written lease of the property described in the bond, from the 1st day of October, A. D. 1878, until the 1st day of May, A. D. 1880, at a stipulated rent of $15 per month; and the contention of counsel for appellants is, that appellants are liable for rent only at that rate. But notice was given terminating that tenancy on the 1st day of May, A. D. 1883, which was held sufficient in the suit in which the bond was given. Instead of being tenants after the 1st day of May, A. D. 1883, appellants were expressly adjudged to be trespassers; and the case cited by counsel for appellants, (Clinton Wire Cloth Co. v. Gardner et ad. 99 Ill. 151,) only holds, that where a tenant for a year, or years, holds over after the expiration of his lease, without having made any new arrangement with his landlord under which such holding over takes place, the landlord, at his election, may treat the tenant as a trespasser, or as a tenant for another year upon the same terms as in the original lease. But this right of election does not belong to the tenant,—it is the landlord alone who may thus elect. (Wood on Landlord and Tenant, p. 22, and authorities cited in note 4.) Here the landlord has elected to treat the tenants as trespassers, and they must, •consequently, be liable to the administratrix of the landlord for the value of the premises for the length of time they have withheld them from him,—namely, from the 1st day of May, A. D. 1883, until the date of his death, January 3, A. D. 1885. 2 Waterman on Trespass, sec. 96.

Third—The court, of its own motion, instructed the jury as follows:

“The court instructs the jury, that the plaintiff in this case can not recover double rent, under the provisions of the statute referred to, for the premises in question; neither can the plaintiff recover any rent for the house situated on the lot, as it is •admitted that the house was the property of Bose Keegan, one of the defendants to the suit, on the 30th day of April, 1883. And the court is of thé opinion that the surety on the bond in ■question, and one of the defendants to this suit, can not be held liable, under the terms of the bond, for any rent, as such, save rent of the lot itself, without the building, the lot being, in fact, the premises for the possession of which the said Frank Kinnare, deceased, recovered judgment in the circuit court, and from which the appeal, on account of which the bond was executed, was taken. The court further instructs you, that the defendants can not set off or recoup any damages Bose Keegan, one of the defendants, may have sustained, if any, by reason of the house in question being retained on the premises. But the principal question for the jury to determine from the ■evidence is, what was the fair rental value of the lot in question, without the building, from the 1st day of May, 1883, to the 3d day of January, 1885, the day of the death of Frank Kinnare, and what, if any, damages or loss does the evidence show the said Frank Kinnare sustained during said time hy reason of the withholding of the lot in question. And the court further instructs the jury, that the fair rental value of the premises is not necessarily determined hy the amount of rent that was being paid for the same prior to or at the recovery of the judgment for possession by the said Kinnare, but the jury are to determine, from all the evidence, what was the fair rental value of the same during the time.”

Four objections are urged,—first, because the jury are told, in the second paragraph, that the surety on the bond can not be held liable, under the terms of the bond, for any rent save-only the rent of the lot itself, without the building; second, because the jury are told that they can not recoup damages-Bose Keegan sustained by reason of her house being retained on the premises; third, because the jury are told that they are to determine, from the evidence, what was the fair rental value of the lot from the 1st day of May, A. D. 1883, to the 3d day of January, A. D. 1885; fourth, because the jury are told that the fair rental value of the premises is not necessarily determined by the amount of rent that was being paid for the lot prior to or at the recovery of the judgment for possession by said Kinnare. •

The first of these objections, even if well taken, plainly, can afford no ground for reversing the judgment. The argument is, that appellants are, by implication, put upon a different ground than that of the surety. The verdict finds damages against all jointly, and-thus demonstrates that the jury were not misled in that regard.

The second objection we have heretofore held untenable, but counsel say, that inasmuch as the court ruled out all evidence of damages sustained by Bose Keegan, it was misleading to instruct the jury in that regard. Undoubtedly, the instruction, in view of the previous ruling of the court upon the evidence, was unnecessary; but how could it possibly prejudice appellants ? Its effect could be no more than to cause the jury to disregard the consideration of any defence of that kind, and that was their duty. It could affect no other question.

Counsel contend, under the third objection, that damages and loss should have been limited to such as accrued after the giving of the bond, on May 23, A. D. 1884. But section 19, chapter 57, of the Revised Statutes of 1874, provides, that where judgment is rendered for the plaintiff in an action of forcible entry and detainer, “if the defendant appeal, the condition of the bond shall be that he will prosecute such appeal with effect, and pay all rent then due, or that may become due before the final determination of the suit,” etc.,—and the bond was in the exact language of this section. When it was executed, it was, therefore, with the intention that this liability should be incurred. The words, “loss or damage,” are broad enough, undoubtedly, to cover loss or damage from whatever source. But words are necessarily limited by the subject matter to which they are applied; and since there is no evidence in the record of loss or damage to the landlord because of anything other than rent, the jury could not have understood they were to take into consideration, in the formation of their verdiet, any other loss or damage than that caused by withholding the possession of the property,—that is, the rent of that property. Under the facts before the jury, therefore, the language could not have misled, and was sufficiently accurate.

The argument in support of the fourth objection has been sufficiently answered by showing that the lease does not fix the amount to be recovered as rent. There is evidence showing, or at least tending to show, that the actual value of the rent was equal to the amount of the judgment.

Fourth—It is objected that the court erred in not giving certain instructions, as asked by the appellants. We think the ruling in that respect was right. Those instructions were not in harmony with the views we have expressed on the preceding question, and therefore need no further consideration..

Fifth—A motion in arrest of judgment was made, because, under the allegations in the declaration of a breach of the condition of the bond, the defendants might have complied with all the conditions but one, and it is not certain which one. The objection is clearly one which is cured by verdict. The rule is, “where there is any defect, imperfection or omission in any pleading, whether in substance ox form, which would have been a fatal objection upon demurrer, yet, if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection or omission is cmed by the verdict.” 1 Chitty’s Pleading, (7th Am. ed.) 711, 712, *712. It was essential, here, to any recovery, that proof he made of specific breaches of the bond. That proof was made, and there was no ground for, or pretense of, surprise in that respect.

Sixth—The jury returned the following verdict: “We, the jury, find the issues for the plaintiff. We find the debt to be $3000, and we assess the damages at the sum of $1840.” Appellee remitted $80 of the amount of the verdict. The judgment then reads thus: “Therefore, it is considered by the court that the pdaintiff do have and recover of and from the defendants her said debt of $3000, and also the said sum of $1760, together with her costs and charges in this behalf expended, and have execution therefor. It is further ordered, that said .debt be discharged upon the payment of the said sum of $1760, interest thereon and costs of suit.” The objection is that there is no judgment for damages. This is hypercritical. It is as clear as anything can be, that the amount of $1760, for which judgment is given, is for the damages assessed by the jury, less the $80 remitted. The third section of chapter 7, of the Eevised Statutes of 1874, provides: “No judgment shall be reversed in the Supreme Court for mere error in form, if the judgment be for the true amount of indebtedness or damages.”

This judgment is for the true amount of debt and damages, and therefore sufficient. The judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Magruder

text:
    Nancy A. Suver et al. v. The Chicago, Santa Fe and California Railway Company.

      Filed at Ottawa November 11, 1887.

    1. Eminent domain—of the petition—its requisites, as showing the particular use intended. It is not necessary to state, in a petition for the condemnation of land for railroad purposes, the particular manner in which the land is to be used. To show that, the petitioner may give in evidence its plans and specifications, and the defendant may have them produced, on motion.
    2. Same—sufficiency of petition as to purpose of condemnation. A petition by a railway company for the condemnation of land, after stating that the company had located its line of road over certain tracts of land specifically described, averred “that a part of each of said lands is necessary to petitioner for its right of way, side-tracks, depot and depot grounds, freight yards, shops, and appurtenances for the construction and operation of its said line of railroad:” Held, that this averment was a sufficient statement of the purposes for which the property was sought to be taken.
    3. Same—defects in petition, how reached. If a petition for the condemnation of land is defective in stating the purpose of the taking, and the manner in which the land is to be used, the proper manner of taking advantage of the defect is by demurrer.
    4. Same—description of land taken—in the verdict and judgment. A petition for the condemnation of land by a railway company for a right of way, etc., described the land over which the right was sought, as “lot 1, of N. W. \ of sec. 34, containing one hundred and six acres.” The part to be taken was described as “a strip of land * * * two hundred feet wide, for a distance of eleven hundred and fifty-one feet across the tract fifthly above described, commencing at a point where the line of said railway, as now located and staked out, enters said tract, coming from the east and going toward the west, and one hundred feet in width across the balance of said tract, * * * said strips of land being fifty feet and one hundred feet in width on each side of the center line of said railway, as now surveyed, located and staked out across,” etc. The verdict and judgment describe the land taken as “the land taken for right of way across the one hundred and six acres, as described in the petition:” Held, that the description of the land taken was sufficiently certain by reference to the petition.
    5. Same—of the verdict, where there are several owners. Where separate tracts of land are alleged in the petition to belong to separate persons, respectively, the jury must find the compensation due each owner for the particular tract belonging to him. But when the petition avers that a particular tract is owned by several persons, they will be presumed to be tenants in common, in the absence of proof to the contrary; and in such case the verdict may find a gross amount to be paid to the defendants.
    6. Same —presumption in support of verdict. In the absence of a bill of exceptions showing the evidence before the jury, a verdict awarding a gross sum for compensation for the land taken, and damages to the part not taken, will not be held erroneous, on appeal or writ of error. It will be presumed the evidence justified such a finding.
    Writ of Error to the Circuit Court of Warren county; the Hon. John J. Glenn, Judge, presiding.
    Messrs. Kirkpatrick & Alexander, and Mr. W. C. Norcross, for the plaintiffs in error;
    The petition should state the purpose for which each tract is taken. Rev. Stat. chap. 47, sec. 2.
    The verdict and judgment are erroneous, because each gives a gross amount of compensation and damages to the three defendants, instead of each person interested. Bowman v. Railway Co. 102 Ill. 465; Railroad Co. v. Bryant, 57 id. 473; Mills on Eminent Domain, sec. 267.
    The land condemned should be described with reasonable certainty. This should be done in the petition and followed in the judgment. Railroad Co. v. Turner, 68 Ill. 187.
    The jury should have made a verdict in which should have been given the value of the land taken, and also the amount of damages, and a description of the land taken, and the judgment shduld have conformed thereto. Railroad Co. v. Bryant, 57 Ill. 478.

      The verdict and judgment are erroneous, in that they do not separate the amount of compensation for the land taken jrom the damages to that not taken. Railroad Co. v. Bryant, 57 Ill. 473; Hays v. Railroad Co. 54 id. 373.
    Mr. E. J. Grieb, for the defendant in error:
    The purpose for which the land is sought is set out in the petition. If the particular manner in which it is to be used is not set out, the petitioner has the right to introduce its plans and specifications in evidence, and the defendants have the right to compel their production, on motion, each of which was done.
    In the absence of a bill of exceptions, this court will indulge -every reasonable and legal presumption for the purpose of sustaining the judgment.
    That the evidence was sufficient to justify the judgment, see Grout v. Grout, 72 Ill. 456; Davis v. Taylor, 41 id. 405; Clark v. Willis, 16 id. 61; McCormick v. Gray, id. 138.
    That the judgment was authorized by the facts before the court, see Choate v. Hathaway, 73 Ill. 518; People v. Green, 54 id. 280; Howell v. Morton, 78 id. 162; Cunningham v. Craig, 53 id. 252; Railroad Co. v. Miller, 62 id. 468.
    The petition sets out as to this one hundred and six acre tract in dispute, that plaintiffs in error “are the owners, or have or claim some interest in said above described tract of land, as appears by the records of said Warren county,” in accordance with the statutes.
    In aid of the judgment, then, and without precedent, we should argue that the court would presume them to be tenants in common of the land, (which they in fact are,) no evidence -to the contrary being in the record. But this question has been expressly decided in Grayville and Mattoon Railroad Co. v. Christy, 92 Ill. 337. And the court will notice that that case decides several of the questions arising in the one at bar, as what we quote will show.

      Being, then, tenants in common, under this record, they had a right to require that their compensation should be assessed in a gross sum, if they think it to their advantage. Bowman v. Railway Co. 102 Ill. 465.
    The court will not presume damages to the land not taken* and in the absence of a bill of exceptions it will be presumed the verdict was right.
    We shall consider the third and fifth points made by plaintiffs in error, together. These both refer to the description of the strip of land sought to be taken. The law requires that the lands shall be described with reasonable certainty. Railroad Co. v. Turner, 68 Ill. 187.
    It is sufficient if a surveyor could readily find and locate the land. Village of Byron v. Blount, 97 Ill. 62.
   Mr. Justice Magruder

delivered the opinion of the Court t

This is a condemnation proceeding instituted by the defendant in error, the Chicago, Santa Ee and California Bailway Company, against the plaintiffs in error, Nancy A. Suver* Leonidas Gr. Suver, Margaret S. Walker and William J. Walker, her husband, and others, in the circuit court of Warren county. •

First, it is objected, that the petition is insufficient as failing to state the purpose for which the land is sought to be condemned.

Section 2 of the Eminent Domain act (Rev. Stat. chap. 47} requires, that the petition shall set forth “the purpose for which said property is sought to be taken or damaged.” The requirement of the statute is complied with, if the petition shows that the land is needed for railroad purposes. (Chicago, Rock Island and Pacific Railway Co. v. Smith, 111 Ill. 363.) In the case at bar, the petitioning railroad, after stating that it has located, its line of road over certain tracts of land, specifically described* avers “that a part of each of said lands is necessary to petitioner for its right of way, side-tracks, depot and depot grounds* freight yards, shops and appurtenances for the construction and operation of its said line of railroad.” We think this averment is a sufficient statement of the purposes for which the property is sought to be taken. As to the particular manner in which the land was to be used, the petitioner had the right to introduce its plans and specifications in evidence, and the defendants had the right to have them produced on motion. It was not necessary to set them out in the petition. Even if the petition was defective in the respect here suggested, the proper mode of taking advantage of the defect was by demurrer. Defendants did not demur.

Second, the verdict and judgment are claimed to be erroneous, on the ground that each gives a gross amount of compensation and damages to the three defendants, and not to each person interested the particular amount to which such person is entitled.

The ninth section of the Eminent Domain act requires the verdict to “clearly set forth and show the compensation ascertained to each person thereto entitled, and the said verdict shall thereupon be recorded.” The verdict in this case is as follows;

“We, the jury, find the amount to be paid to Nancy A. Suver, Leonidas CL Suver and Margaret S. Walker, as compensation for the land taken for right of way across the one hundred and six acres, as described in the petition, and for the damages to the portions of said one hundred and six acres not taken, is nineteen hundred and twenty-five dollars ($1925.)”

The averments of the petition as to ownership by the plaintiffs in error are as follows: “Tour petitioner further shows that it has located its line of road over and upon the following described property, to-wit: * * * 5. Lot 1 of N. W. J of section 34, containing one hundred and six acres. * * * Tour petitioner further shows that the following persons are the owners or have or claim some interest in said above described tracts of land of some of them, as appears by the records of said Warren county, as follows: * * * In the tract fifthly above described Nancy Suver, Leonidas G-. Suver, Margaret S. Walker and William J. Walker, her husband.”

Where separate tracts of land are alleged in the petition to belong to separate persons respectively, the jury must find the compensation due each owner for the particular tract belonging to such owner. But where the petition avers that a particular tract is owned by several persons, such persons will be presumed to be tenants in common in the absence of proof to the contrary, and, in such case, the verdict may find a gross amount to be paid to the defendants, so presumed to be tenants in common. G. and M. Railroad Co. v. Christy et al. 92 Ill. 337.

In the case at bar, we find no bill of exceptions in the record. It-does not appear from the record that any proof was introduced showing the nature of the interests owned by plaintiffs in error in the tract of one hundred and six acres. There is nothing to indicate that their interests were other than those of tenants in common. It follows, that, under the allegations of the petition, as above quoted, the plaintiffs in error were rightly presumed to be the owners of the one hundred and six acres, as tenants in common, and the verdict was not erroneous in finding a gross sum to be paid them for their compensation. Moreover, it nowhere appears, that the plaintiffs in error made any objection to the form of the verdict in the court below, or took any exception whatever to the fact that a separate amount was not awarded to each one of them.

Third, it is further objected that no proper description of the land is contained in either the verdict or judgment. We do not think that this objection is well taken. The verdict and judgment speak of “the land taken for right of way across the one hundred and six acres as described in the petition.” The one hundred and six acres is the tract fifthly described in the petition and is there described as “lot 1 of N. W. J of sec. 34, containing one hundred and six acres.” The part to be taken out of the one hundred and six acres is described in the petition as “a strip of land * * * two hundred feet wide for a distance of eleven hundred and fifty-one feet across the tract fifthly above described, commencing at the point where the line of said railway as now located and staked out enters said tract, coming from the east and going towards the west, and one hundred feet in width across the balance of said tract fifthly above described, * * * the said strips of land being respectively fifty feet and one hundred feet in width on each side of the center line of said railway as now surveyed, located and staked out across each of said tracts of land respectively.”

The descriptions in the petition of the land taken and of the tract out of which it was to be taken were reasonably certain, and it was sufficient, that the verdict and judgment referred to the descriptions, as contained in the petition.

Fourth, it is further objected, that the verdict does not find the amount of damage to the land not taken separately from the amount of compensation for the land taken. In reply to this it is sufficient to say, that, as there is no bill of exceptions, it does not appear, that the land not taken was proven to have been damaged. It is not shown that, if there was any damage to the land not taken, the amount of such damage was shown separately from the value of the land taken. The verdict finds the amount to be paid, as compensation for the strip taken and as damages for the part not taken, to be $1925. We can not say, that the verdict does not correspond with the proof. It may be that the proof designated $1925 as the amount, to which plaintiffs in error were entitled both for the value of the land taken and for damages to the land not taken, without distinguishing what part of the $1925 represented compensation and what part represented damages.

We find no material error in the record. The judgment of .the circuit court is affirmed.

Judgment affirmed.


author: Per Curiam :

text:
    The Hutchinson Furnace and Smoke Consuming Company v. Will H. Lyford.

      Filed at Ottawa November 11, 1887.

    1. Fraud and deceit—misrepresentations by a vendor. In an action by the purchaser of shares of stock in a corporation, to recover damages, on the ground of fraudulent representations by the president of the company, the alleged misrepresentations must be proved, and the party making them must have been the duly authorized agent of the defendant company, and he must have known the representations to have been false when made, and they must have been such that a man of ordinary prudence would have relied on them, and the plaintiff must have, in fact, relied on them, and been thereby induced to make the purchase.
    2. In such a case, an instruction asked by the defendant, to the effect that a vendor has the right to exalt the value of his own property to as high a point as his purchaser’s credulity will bear, and mere boastful assertions, or even highly exaggerated descriptions, do not amount to fraudulent representations or deceit in such case, which is not applicable to the facts, may properly be refused.
    3. Instruction— copying from language of cov/rt in its opinion. It is not a wise practice, on the trial of a case, to select some expression of this court in some other case, and formulate it into an instruction; nor is it error to refuse such an instruction when it is apparent that its language is not applicable to the facts of the case being tried.
    Appeal from the Appellate Court for the First District;—• heard in that court on appeal from the Superior Court of Cook county; the Hon. E. S. Williamson,- Judge, presiding.
    Mr. John M. Gartside, for the appellant.
    Mr. William Armstrong, for the appellee.
   Per Curiam :

• This was an action on the case, brought by Will H. Lyford, in the Superior Court of Cook county, against the Hutchinson Furnace and Smoke Consuming Company, to recover damages for fraud in the sale of certain shares of stock by the defendant to Lyford, the purchase of which was induced, as claimed, by false and fraudulent representations made by the president of the defendant corporation. On the trial in the Superior Court the plaintiff recovered a verdict and judgment for $2350, the amount paid for the stock, with interest at the rate of six per cent from the date of payment. The judgment, on appeal, was affirmed in the Appellate Court, and the defendant not being satisfied with the decision, appealed to this court.

Much of the argument is devoted to a discussion of the questions of fact, which was proper enough in the Appellate Court, where the facts might be reviewed; but that branch of the argument has no place here, as, under the statute, we are not at liberty to review controverted questions of fact.

In the argument it is said that there was no evidence that the stock purchased by the plaintiff was tendered back, and the court erred in permitting plaintiff to re-assign the certificates and tender them on the trial. The evidence of appellee on this question has doubtless escaped the attention of counsel, as he testified that he offered to return the stock several times before the commencement of the suit.

No complaint is made in regard to the instructions given by the court on behalf of the plaintiff, but it is claimed that the court erred in refusing defendant’s fourth instruction, to the effect that the “vendor has the right to exalt the value of his own property to as high a point as his purchaser’s credulity will bear, and mere boastful assertions, or even highly exaggerated descriptions, do not amount to fraudulent representations or deceit in such case.” It is true that the language of the instruction may be found in the opinion of the court in Tuck v. Downing, 76 Ill. 92; but it is not a wise practice, on the trial of a cause, to select some expression of the court from an opinion in a case, and formulate such expression into an instruction to the jury; nor is it error to refuse such an instruction, where it is apparent, as it was here, that the language of the instruction was not applicable to the facts of the case. The court gave several instructions, at the request of the defendant, which fully informed the jury as to the law involved in the case, on the facts as established by the evidence.

In reference to the real controverted point in the case, (the charge of fraud and misrepresentation,) the jury were fully instructed by defendant’s third instruction, in the following language:

“As regards the allegations of fraud and misrepresentations charged in this ease by the plaintiff, in his declaration filed in this cause, the court instructs the jury, that to entitle the plaintiff to recover damages in this ease the jury must believe, from all the evidence, that the alleged misrepresentations were, in fact, made by the defendant, or some of its duly authorized officers, that such representations were false when made, and that such person or persons making them knew them to be false when made; and further, the jury must believe, from the evidence, that they were such representations as a man of ordinary prudence would rely upon, and that the plaintiff did, in fact, rely upon such statements, and was induced thereby to purchase the stock in question in this suit, and to execute the contract complained of in this case, and has thereby been damaged, otherwise your verdict must be for the defendant.”

Other instructions given on behalf of the defendant were equally clear and explicit. Indeed, the jury were so fully instructed on behalf of the defendant, on each issue in the ease, that no necessity whatever existed for the giving of his fourth instruction, conceding, as we may, that it contained a correct proposition of law.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    Sallie A. Young et al. v. Susan C. Wittenmyre, Admx.

      Filed at Ottawa January 19, 1888.

    1. Admxnistbation of estates—sale of land to pay debts—when allowable. In this State the personal property left by a decedent is the primary fund for the payment of all debts against his estate, and it must appear that the personal estate is insufficient to pay the debts, before real estate can be sold for that purpose.
    2. A person died having his domicile in this State, and personal property in Iowa, and letters of administration in this State were granted to his widow. The appraisers fixed her specific allowance at §2080. She also took out letters of administration in the State of Iowa, and collected money enough to pay all the debts of the estate, including her specific allowance and the costs of administration, but instead of paying her award, she paid §1900 to the heirs, of her own accord, and not by the procurement of the other heirs, leaving the sum due her on the award of $1500, without any personal property remaining with which to satisfy the same; and then filed a petition in this State to sell real estate to pay the debts of the estate: Be Id, that as the personal estate was more than sufficient to'have paid all the debts of the estate, if properly applied, she was not entitled to an order for the sale of real estate.
    3. Same—of the general administration, and that which is ancillary—• administration in different States. The administration granted in the State of a decedent’s domicile at the time of his death, is the principal administration, and that granted in another State is but ancillary to the other.
    4. Where the principal administration of an estate is had in this State, and ancillary in another State, it will be the duty of the administrator in such other State to collect all debts due the estate .there, and convert all assets within that juridiction into money, pay all debts established against the estate there, and, after all such debts are satisfied, to pay the balance to the administrator in this State, so that'it may be disposed of and distributed under the authority of the county court of this State.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Probate Court of Cook county; the Hon. J. C. Knickebbockeb, Judge, presiding.

      Mr. Fillmore WYhgley, and Mr. Egbert L. Lyons, for the appellants:
    When an administrator has control over assets sufficient to pay debts and costs of administration, he can not sell land for that purpose, the personal estate being the primary fund. Hollman v. Bennett, 44 Miss. 322.
    The administration in Iowa was ancillary to the administration here, and after the payment of all debts established in Iowa, the administratrix should have paid the debts here, before any distribution. Record v. Howard, 58 Me. 275; Fay v. Havre, 3 Metc. 109; Jennison v. Hapgood, 10 Pick. 77; Clark v. Blackington, 110 Mass. 369.
    The probate court erred in decreeing a sale without first requiring the petitioner to make an inventory of and account for all the personal estate which had come into her hands, in this State or elsewhere. Rev. Stat. chap. 3, sec. 51; Estate of Butler, 1 Tucker, 87.
    The statute prescribing what facts must be set forth in the petition are clearly mandatory, and unless the petition shows a state of facts contemplated by the statute to authorize a sale, and such facts are sustained by proof, no decree of sale can be made. Walker v. Diehl, 79 Ill. 473; Lynch v. Hickey, 13 Bradw. 139.
    Messrs. Montgomery & Smith, for the appellee:
    The heirs can not object to the order of distribution in Iowa, as they took and still retain the same. In the absence of any tender to make good what they took from the estate, the probate court could do nothing else than find the deficiency and decree as' it did.
    An estate can be settled and distributed by the court having the ancillary administration. Mackey v. Cox, 18 How. 100; Carmichael v. Ray, 5 Ired. Eq. 365; 3 Redfield on Wills, 27; 3 Williams on Executors, 1767, note m.

      Real and personal estate being without the State, need not be inventoried. Jones & Cunningham’s Pr. 37; Sherman v. Page, 85 N. Y. 123; Judy v. Kelly, 11 Ill. 211; Shultz v. Pulver, 11 Wend. 363.
    The rule undoubtedly is, that where there are two administrations of a single estate,—one in the place of the domicile of the testator or intestate, and the other in a foreign jurisdiction,—whether the courts of the latter will decree distribution of the assets collected under the ancillary administration, or remit them to the jurisdiction of the domicile, is not a question of jurisdiction, but of judicial discretion, depending upon the circumstances of the particular case. Despart v. Churchill, 53 N. Y. 192; Parsons v. Lyman, 20 id. 103; Harvey v. Richards, 1 Mason, 380; In re Hughes, 95 id. 55; Mackey v. Cox, 18 How. 100; Carmichael v. Ray, 5 Ired. Eq. 365; Wright v. Phillips, 56 Ala. 69; 3 Redfield on Wills, 27; 3 Williams on Executors, 1767, note m.
   Mr. Justice Craig

delivered the opinion of the Court:

This is an appeal from a decree of the probate court of Cook county, which ordered the sale of certain real estate to pay the debts of the estate of William Wittenmyre, deceased.

William Wittenmyre was a resident of Cook county, and died intestate, in Cook county, January 4, Í879, leaving a Widow, Susan C. Wittenmyre, appellee here, and two children by a former wife, Sallie A. Young and Charles A. Wittenmyre, his only heirs-at-law. On the 14th day of January, 1879, the widow, on her petition, was appointed administratrix of the estate by the probate court of Cook county. Wittenmyre, prior to his death, had been engaged in business in Appanoose county, Iowa, and at the time of his death was possessed of a large amount of personal property in that county, consisting mainly of a stock of goods in a general store. In the month of February, 1879, the widow was appointed, by the circuit court of Appanoose county, Iowa, administratrix, to administer upon the assets in that State. This appointment was made under a section of the statute of Iowa, which reads as follows: “If the administration of the estate of a deceased non-resident has been granted in accordance with the laws of the State or country where he resided at the time of his death, the person to whom it has been committed may, upon his application, and upon qualifying himself in the same manner as is required of other executors, he appointed to administer upon the property of the deceased in this State, unless another has been previously appointed.” McLain’s Stat. 1882, sec. 2368, p. 642.

On the 1st day of July, 1879, the administratrix filed, in the probate court of Cook county, an inventory, in which she inventoried the lands described in the petition. The inventory then stated “that no other property had come to the possession or knowledge of the administratrix.” On the same date, the appraisers made a return to the court that no property belonging to the estate, subject to appraisement, had come to their sight or knowledge. They also reported that they had estimated the widow’s award at $2080; The allowance seems to have been approved by the court. No report of the assets in Iowa.was ever made to the probate court in Cook county, and, so far as appears, after the filing of the inventory and appraisement bill containing the widow’s allowance, as heretofore stated, no further steps were taken in the probate court of Cook county in the settlement of the estate, until this petition to sell real estate was filed. The administratrix, however, proceeded to settle up the estate in Iowa. August 15,1879, she filed a report, which w7as approved on December' 8 following. January 27,1880, she filed another report, in which she showed that she had distributed $2850 of the personal estate in Iowa, —$950 to herself, as widow, and $950 to Sallie A. Young, and $950 to Charles A. Wittenmyre, as heirs. This report was approved. On the 25th day of January, 1881, the administratrix made a final report, and was discharged. On the 11th day of March, 1881, this petition was filed to sell real estate in Cook county to pay the widow’s award, and a claim of $75 which had been allowed, and also the costs of administration, estimated at $250. On the hearing, it turned out that the claim of $75 had been paid from the assets in Iowa, and the administratrix had been allowed a credit for the amount. The widow’s award was reduced to $1500, and the court found the deficiency of personal estate to be $1030, and decreed a sale of real estate to pay such deficiency.

It is not claimed that there are any debts against the estate remaining unpaid, except the widow’s allowance, and it is also an undisputed fact that the administratrix had in her hands an amount arising from the assets in Iowa, after the payment of all debts in that State, much larger than her specific allowanee, which she of her own accord distributed between herself, as widow, and the two heirs. Under such circumstances, has she the right to obtain a decree to sell real estate to pay her specific allowance? In this State, the personal property is the primary fund for the payment of all debts against an estate, and under the terms of section 97 of chapter 3 of the Revised Statutes of 1874, it must appear that the personal estate of a decedent is insufficient to pay the debts before the real estate can be sold for that purpose. Here, if the personal assets in Iowa are to be taken into consideration, personal property which passed into the hands of the administratrix was ample to fully pay all just claims against the estate, and no satisfactory reason was shown, on the trial in the probate court, why the personal assets were not appropriated to the payment of debts until the debts were satisfied,—before a distribution was made between the heirs. As Cook county, in this State, was the residence of William Wittenmyre at the time of his death, the administration granted here was the principal administration, and the letters granted in Iowa were but an ancillary administration. (Stevens v. Gaylord, 11 Mass. 262.) It was no doubt the duty of the administratrix in Iowa to collect all debts due the estate there, and convert all assets within that jurisdiction into money, and from the money pay all debts established against the estate in that jurisdiction; but after the debts in Iowa had all been paid, and a large balance was left in the hands of the administratrix, she had no right whatever to distribute such balance among the heirs in Iowa, but, on the other hand, it was her duty to bring the balance into this State, in order that it might be disposed of under the authority of the court within whose jurisdiction the deceased had his domicile. The balance, whatever it was, should have been returned to the principal administration.

This doctrine is well stated in Jennison v. Hapgood, 10 Pick. 11, as follows: “The question of domicile being thus determined, we find little difficulty in settling the question of jurisdiction. It has been settled in this court that the lex domicilii, and not the lex loci rei sitce, must govern in the distribution of the personal estate of a deceased person among his heirs or legatees, whether he dies testate or intestate. And this distribution is to be made under the authority of the court within whose jurisdiction the deceased held his domicile, it not being competent for a court granting an auxiliary administration to order a distribution of the estate among the heirs and legatees. (Dawes v. Boylston, 9 Mass. 358.) Whether, in such case, a distribution may not be made among creditors when the estate is insolvent, we are not called upon now to decide. In the present case it is clear that the final settlement of the estate must be made within this jurisdiction.”

In Fay v. Haven, 3 Metc. 109, where letters of administration had been taken out in the State of Louisiana, (the domicile of the deceased,) and also in the State of Massachusetts, where assets were left, it is said: “The administration granted in Massachusetts was merely auxiliary, and the only duty devolving upon such administrator would be to collect the assets here, and appropriate so much of the avails of the same to the payment of debts due to our citizens as would be authorized by the general solvency or insolvency of the estate of the deceased, and remit the balance to the place of principal administration. (Davis v. Esty, 8 Pick. 475.) It has been, I apprehend, the uniform doctrine of this court, that any other administration than that granted where the deceased had his domicile, must be considered as an auxiliary administration. (Stevens v. Gaylord, 11 Mass. 256.) * * * The rule seems to have been very generally sanctioned, that as to the property in the hands of the executor or administrator, acquired without the jurisdiction of the principal administration, he is to be held accountable for its proper application only to the legal tribunals of the State in which the principal administration was taken.” The same doctrine is announced in Probate Court v. Kimball, 42 Vt. 320.

But it is said that the heirs (appellants here,) “were parties to the accounting in Iowa, and having accepted their distributive shares there, can not now be heard to say that this was all wrong.” There is some force in the position of appellee on this question, and if the heirs had been instrumental in requiring appellee to make distribution in Iowa, knowing that there remained a debt here, unpaid, it may be that they might be estopped from insisting upon the defence here interposed, in opposition to a sale of property to pay the debt. But such Was not the case. They did not require appellee to make a distribution of the assets in Iowa. Her action there was of her own free will. Nor does it appear that appellants knew that appellee held a claim in this State unpaid. On the other-hand, appellee, knowing that she held a claim in this State, without being required to make a distribution in Iowa by the heirs or the court, voluntarily paid over money to the hems which she ought to have retained, in payment of debts. Having done this, she is the one in the wrong, and she having had in her hands sufficient personal assets to pay all claims against the estate, both in Iowa and here, and having paid out such assets wrongfully, she can not now obtain a decree to sell real property to pay debts which might and ought to have been paid from the personal assets.

The judgment of the probate court will be reversed, and the cause remanded for further proceedings consistent with this opinion.

Judgment reversed.


author: Mr. Justice Scott Mr. Justice Mulkey:

text:
    Robert Smyth v. Peter Neff.

      Filed at Mt. Vernon January 20, 1888.

    l. Res judicata—in the Supreme Court—what may be considered on a second appeal. Where a case is brought to this court and considered, its judgment as to all the points and questions presented and decided will forever conclude the parties, and if the case is again brought before it for review, such questions can not be reconsidered, and they will not be open for discussion.
    2. A second appeal in a case, when the first decision covers the merits of the controversy in all its bearings, brings up only the subsequent proceedings had after the mandate of the court of last resort was sent down.
    3. So when this court passes upon a tax deed, and holds that the objections made to it are not sufficient to invalidate it, and that it should have been held good, and the case is again brought before it for review, no objections to the validity of the deed that were before made or might have been made on the record can be entertained. In such case the rule of stare decisis must be observed.
    4. Taxation and tax titles — right of redemption from tax sale. Section 5, of article 9, of the constitution of 1870, which declares that “the right of redemption from all sales of real estate for the non-payment of taxes * * * shall exist in favor of owners and persons interested in such real estate, for a period of not less than two years from such sales thereof,” confers a right upon “persons interested in such real estate,” whoever they may be, of which they can not be deprived by any action or non-action on the part of the legislature.
    5. Same—notice of tax sale and time for redemption—to whom, etc. The constitutional provision that the “General Assembly shall provide, by law, for reasonable notice to be given to the owners or persons interested, by publication or otherwise, of the fact of the sale, * * * and when the time of redemption will expire,” etc., means that the legislature shall provide, by law, that reasonable notice shall be given to the owner, or to any other person that has a specific or other interest in the property, as shall be deemed proper, in legislative discretion.
    6. The General Assembly has provided, by law, for reasonable notice to the owner, but has designated no other persons who may be directly or remotely interested in the property upon whom the notice shall be served. (Sec. 216 of the Bevenue law.) The statute must be regarded as meaning precisely the same as if the words, “or parties interested,” were omitted.
    7. The legislature having failed to"designate who are the “persons interested” in land sold for taxes other than the owner or person in possession, or in whose name the land is taxed, the tax purchaser is not required to serve any notice of his purchase upon a person holding a mortgage or other lien upon the land, in order to entitle himself to a tax deed.
    Appeal from the Circuit Court of Alexander county; the Hon. David J. Baker, Judge, presiding.
    Mr. John Ml Lansden, and Mr. Angus Leek, for the appellant :
    The affidavits of appellee filed with the county clerk, and upon which his tax deed was issued, were wholly insufficient. They fail to show a sufficient service of the notices. Price v. England, 109 Ill. 394; Ball v. Shattuck, 16 id. 299; Maher v. Bull, 26 id. 348; Botsford v. O’Connor, 57 id. 72; Cooley on Taxation, 337; Davis v. Gossnell, 113 Ill. 121; Wallahan v. Ingersoll, 117 id. 123; Wisner v. Chamberlin, id. 568; Gage v. Mayer, id. 632; Wiley v. Autlman, 53 Wis. 560; Miller v. Railway Co. 58 id. 310; Ellsworth v. Van Ost, 67 Iowa, 222.

    Michael Hoar, who held a mortgage on lot 12, and who was an owner, and interested at the time of the alleged service, was served with no notice whatever, although a resident of the county. Const. 1870, art. 9, see. 5.
    That a mortgagee is an owner, see Cooley on Taxation, 538; Alter v. Shepherd, 27 La. Ann. 207; Oldham v. Pfleger, 84 Ill. 102; Johnson v. Watson, 87 id. 535.
    The tax judgment of May, 1879, under which the lots were sold, was null and void, because it included in the amount for which it was.rendered, a couhty tax levied in excess of seventy-five cents on the $100. Cooley on Taxation, 295; Burroughs on Taxation, 301; Blackwell on Tax Titles, 192; Riverside Co. v. Howell, 113 Ill. 256.
    The authorities are to the effect that when a part of the tax for which a sale of real estate is made, is illegal, the sale is void. McLaughlin v. Thompson, 55 Ill. 249; Gamble v. Witty, 55 Miss. 26; Kemper v. McClelland’s Lessee, 19 Ohio, 308; Cooley on Taxation, 295; Hardenburgh v. Kidd, 10 Cal. 402.
    Messrs. Green & Gilbert, for the appellee:
    The appellant can not raise the same points decided by this court on the former appeal. Those matters are conclusively settled by the former judgment of this court. Meserve v. Delaney, 112 Ill. 355; Reichert v. McClure, 23 id. 517.
    Even if the decision was of doubtful propriety, the principle of stare decisis should govern. Meserve v. Delaney, 112 Ill. 355, and authorities above cited.
    We think, however, Neff v. Smyth was correctly decided. It has been cited by this court with approbation, and its principles re-affirmed, in Warren v. Cook, 116 Ill. 199; Chambers v. People, 113 id. 528; People v. Reat, 107 id. 581; Stamposki v. Stanley, 109 id. 217.
    The affidavits showing service of the notices are sufficient. The constitution does not require any affidavit of service. This is a statutory requisition.
    It was not essential that Hoar, the mortgagee, should be served at all with notice. The constitution gives a right of redemption to “owners and parties interested,” and there authorizes the legislature to “provide, by law, for reasonable notice to be given to the owners or parties interested,” etc. The mortgagee was entitled to redeem, but not to notice. It was not intended that both owners and parties interested should be .served with notice, but only “owners or parties interested.”

      There are no additional facts shown in this record which should vary the decision already made in Neff v. Smyth. Wisner v. Chamberlin, 117 Ill. 575; Weckler v. Chicago, 61 id. 148.
   Mr. Justice Scott

delivered the opinion of the Court:

This case was before this court.at a former term, and is reported as Neff v. Smyth, 111 Ill. 100. A sufficient statement of the facts appears in the opinion of the court then delivered, and no re-statement is now necessary.

It appears from the bill of exceptions in this case, the evidence in the present record is precisely the same as in the former record, except in two particulars: First, there is now some parol testimony concerning the service of the notice as to the expiration of the time of redemption of the lots from the tax sale, not contained in the former record; and second, there was introduced, on the trial, a mortgage, made by defendant, Smyth, to Michael Hoar, on one of the lots involved, that was not contained in the record when the case was before this court on the former hearing. Upon all other questions in the case the evidence is exactly the same, and as to them the former decision is conclusive. Concerning the points considered by the court in its former opinion, the discussion must now be regarded as forever closed, and the decision adverse to the defendant must stand. All those matters are now res judicata, and this court has neither rightful authority nor any inclination to reconsider them. The rule on this subject is so well settled it is not necessary to do more than to cite a few of the cases in this court where it is declared: Rising v. Carr, 70 Ill. 596; Newberry v. Blatchford, 106 id. 584.

The additional parol testimony found in the present record as to the service of the notice on defendant as to the time of redemption, is a matter of no consequence. It does not change the case in the slightest degree, in that respect, from what it was in the former record. Precisely the same error, if any, existed in the affidavit itself, and in the proof of service of notice in the former record, as now insisted upon. It does not appear, from the opinion of the court, that any objection was then taken, either to the sufficiency of the affidavit made to procure the deed, or to the proof of service of notice. The objection now urged goes to the validity of the deed, and if the same points were raised by the former argument of the case, they must have been decided adversely to defendant, for the court was of opinion the “objections made against the tax deed were not sufficient to invalidate it, and that it should have been held good.” So, in either event, whether objections were taken to the sufficiency of the affidavit made to procure the deed, or as to the proof of service of notice of redemption, such objections can not now be entertained. To permit that to be done would simply be to reconsider the case upon exactly the same record. That is not allowable under any practice that has ever obtained in this State. Should the errors now alleged to exist be held to be well assigned, it would place this court in the absurd position of holding the tax deed good at one term of court, and at a succeeding term holding it bad upon the same identical record. This court will not even enter upon the consideration of a case where such results might follow. In all such cases, the rule stare decisis should be observed. It is not necessary to look elsewhere than to decisions of this court for authorities declaring this doctrine. In Newberry v. Blatchford, 106 Ill. 584, it was ruled, the decision of a court of last resort, having jurisdiction of the parties and the subject matter of the litigation, definitive in its character, comprehending the whole merits of the controversy, under the known rule of law is obligatory upon and conclusive as to the same parties everywhere, in this court as well as in all other courts. This case follows closely other cases in this court, so that the doctrine is now as well settled as is any branch of the law. Hollowbush v. McConnel, 12 Ill. 203; Reed v. West, 70 id. 479; Smith v. Brittenham, 94 id. 624; Rising v. Carr, 70 id. 596.

The ease of Ogden v. Larrabee, 70 Ill. 510, is an authority exactly in point. On the second' appeal in that case the alleged error complained of was admitted to have existed in the first record brought up, but the attention of this court was not called to it, and it was contended it might be considered on the second appeal, because the court had expressed no opinion in regard to it. But the position taken was not sustained, and it was said, to consider the suggestion of error on the second appeal would introduce a pernicious practice not heretofore adopted in this State. The rule has its foundation in reason and the policy of the law, that there must be an end of litigation somewhere, and there would be none if parties were at liberty, after a case had received a final determination of a court of last resort, to litigate the same matter anew, and bring it again and again before the court for decision.

Another rule equally well settled is, that a second appeal, where the first decision covers the merits of the controversy in all its bearings, brings up only the subsequent proceedings had after the mandate of the court of last resort was sent down. This doctrine is fully declared in the cases ut supra. It is seen, the former decision in this case covered the whole merits of the controversy, for it declared the tax deed should “have been held good,” and that, of course, would be conclusive as to the rights of the litigants, as the case was then presented. The only thing that occurred after the mandate from this court was sent down, at all affecting the merits of the controversy, was the introduction of the mortgage made by defendant to Michael Hoar, which embraced one of the lots involved, and the effect of that evidence alone remains to be considered. The mortgage was made on the 27th day of June, 1874, to secure a note for $750, due in twelve months, with interest at the rate of ten per cent per annum. It was entered satisfied on the record, by the mortgagee, on the 23d day of April, 1881. That was after the service of the notices as to the expiration of the time for redemption, but before the time for redemption did in fact expire. The question made is, that notice as to the expiration of the time of redemption should have been given to the mortgagee as well as to the owner. There is no pretense the mortgagee was served with notice by the purchaser at the tax sale, either by himself or by his agent, and it is said the omission to give such notice is fatal to the validity of the tax deed.

It will be seen at once, the question made is important, and one of much seeming difficulty. Section 5, article 9, of the constitution of 1870, declares “the right of redemption from all sales of real estate for the non-payment of taxes * * * shall exist in favor of the owners and persons interested in such real estate, for a period of not less than two years from such sales thereof.” It is obvious, the owners, and whoever 'may be included within the phrase “persons interested in such real estate,” all come within this clause of the constitution, and shall have the right, at any time within two years, to redeem any real estate from a sale for taxes or special assessments,—a right of which such owners and parties interested can not be deprived by any action or non-action on the part of the legislature. It is not, however, germane to the present inquiry, who may be meant by “persons interested in such real estate,” as those terms are used in the constitution, for the reason no one is here seeking to redeem the real estate involved in this litigation from the sale for taxes.

It is further provided, in the same section of the same article of the constitution, the “General Assembly shall provide, by law, for reasonable notice to be given to the owners or parties interested, by publication or otherwise, of the fact of sale of the property for such taxes or special assessments, and when the time of redemption will expire, provided occupants shall in all cases be served with personal notice before the time of redemption expires.” Accordingly, the General Assembly has provided, bylaw, for what is deemed reasonable notice to owners of real estate sold for taxes or special assessments. Section 216 of the act of 1872, entitled “Revenue,” (Rev. Stat. 1874, as amended by the act of 1879, Sess. Laws, 1879, p. 256,) provides, every purchaser, or assignee of such purchaser, of any land, or town or city lot, for taxes or special assessments, shall serve, or cause to be served, a written or printed, or partly written or partly printed, notice of such purchase, on every person in actual possession or occupancy of such land or lot; also, the person in whose name the same was taxed or specially assessed, if, upon diligent inquiry, he or she can be found in the county; also, the owners of or parties interested in said land or lot, if they can, upon diligent inquiry, be found in the county, at least three months before the time of redemption expires. The affidavit filed to procure the tax deed in this case shows notices were served upon defendant Robert Smyth, who was alleged to be the owner and in possession of the lots for which a deed was asked, and the party in whose name the property was assessed, and upon other persons alleged to be in possession, in the manner and within the time prescribed by this section of the statute, which notices contained everything the law requires shall be stated as to the purchase of such property for taxes and as to the expiration of the time of redemption. It will be noticed, the affidavit makes no mention whatever of Michael Hoar as a party interested in such real estate, as mortgagee or otherwise. Conceding, as must be done, as the case now comes before this court, the affidavit in all other respects is sufficient, the question is squarely made, whether the omission to give the statutory notice to the mortgagee whose mortgage appeared on the record unsatisfied or discharged at the date notices should be served, or to show, by the affidavit for a deed, such facts as would excuse the giving of such personal notice, would render the tax deed invalid. The solution of the question involves a construction of the statute on this subject.

The expression, “or parties interested in said land or lots,” as used in the statute, is both obscure and indefinite. Exactly what it means is not understood, and who are intended to be included within its meaning is a matter of the merest conjecture. If it were the legislative intention, by its use, that persons that might be interested in the property sold, other than the owner, when he should be served with the notice required by the statute, should also have a like notice, it is to be regretted that intention was not more clearly manifested and more apt words used to designate such persons. Who may be said to be “interested” in real estate sold for taxes or special assessments? Most directly it would be the owner, or the holder of a certificate of purchase at a judicial sale, or any incumbrancer, such as a mortgagee, judgment or attachment creditor, or, more indirectly, mechanics or material-men having liens under the statute, or, still more remotely, in case of infants, or insane or feeble-minded persons, guardians or conservators. It would hardly he contended it was within the legislative intention, by the use of the words in the statute, that every person interested in real estate sold for taxes, directly or remotely, should have personal or constructive notice of the matters contained in this section. But who shall determine who is interested in the real estate sold, in the sense the term is used in the constitution, and who is not so interested ? That is evidently the duty of the General Assembly, under the injunction laid upon it by the constitution to provide, by law, for “reasonable notice to be given to owners or parties interested.” The present statute on that subject must have a reasonable construction, otherwise it would be incapable of observance. Let us inquire, then, whether a reasonable and fair construction of this expression in the statute makes it imperative, when the owner is himself served with the statutory notice, that other persons interested with him in the same property shall also have the same notice.

It will be noted, the words, “or parties interested,” are taken literally from the constitution. As used in that instrument they are appropriate and well selected. It has been seen the right of redemption from sales of real estate for taxes or special assessments was secured absolutely to “owners and persons interested in such real estate,” for a period of two years. Then follows that provision which enjoins upon the General Assembly the duty to provide, bylaw, for reasonable notice to “owners or parties interested,” as should be deemed best to advise the citizen that his interests in the property sold were about to be cut off. It was a direction to the legislature to provide for reasonable notice to the owner, or to any other person who might appear to be interested in such real estate, as the General Assembly might designate by law. Giving that meaning to the expression, “or persons interested,” as used in the constitution, the words are appropriately employed, and no other words could have been better selected to point out the duty of the legislature in that respect. The difficulty is, the General Assembly has provided, by law, for reasonable notice to the owner of property sold for taxes, but has gone’ no further. No other persons, as a class or as individuals, are designated who shall have the same statutory notice as the owner. As has been seen, the phrase, “or parties interested,” might include persons directly or remotely interested, and the number might be very large, and often it would be difficult, even if at all practicable, to ascertain every one that might be interested in the property sold. No doubt what the framers of the constitution meant was, the General Assembly should provide, by law, that reasonable notice should be given to the owner, or to any other person that had a specific or other interest in the property, as should be deemed proper, in legislative discretion. That is its clear meaning, and nothing more. The General Assembly has provided, by law, for reasonable notice to the owner, but has designated no other persons who might be directly or remotely interested in the property upon whom notice should be served.

It is therefore apparent, when the purchaser at tax sale has given the proper notice to the owner, he has complied with the statutory requirements in that respect, for no other “parties interested” are designated by law, either as a-class or as individuals,.upon whom he could serve notice. Had mortgagees or judgment creditors, or other persons having a lien on such property, of record, been designated, by name or as a class, such persons could have been readily ascertained by an examination of the public records. But as the statute now is, the purchaser can not know, from any direction given, to whom he is expected to give such notice as the statute requires, other than to the owner. In that respect the statute must be regarded as meaning precisely the same as it would mean if the words, “or parties interested,” had been omitted. In this ease the owner was served with the statutory notice within apt time, and that is deemed a sufficient compliance with the law in this respect.

The judgment of the circuit court must be affirmed.

Judgment affirmed.

Mr. Justice Mulkey:

I do not concur in this opinion, or the conclusion reached by the majority of the court. I think, when Smyth took a new trial, under the statute, the effect of it was to completely annul the judgment and proceedings in the case, and place the defendant in the same position as if no trial had ever occurred or judgment rendered, and that his rights in this respect are not at all affected by the fact that the former judgment was affirmed by this court.