author: Mr. Chief Justice Scholfield

text:
    James S. Perry et al. v. George W. Burton et al.

      Filed at Ottawa September 27, 1884.

      Evidence — proof of contents of lost deed. After the fact of the execution and loss of a deed was cléarly shown, the substance of the contents of the deed was proved by oral evidence: Held, that the proof was sufficiently full. All that witnesses in such cases can be expected to remember, is that a deed was made, to whom and about what time, for what considera- . tion, whether warranty or quitclaim, and for what property. To require more would render such proof almost impracticable.
    2. Limitation — act of 1839 — what is color of title. To constitute color of title, the deed must purport to convey title to the land of which it is claimed to be color of title.
    3. Same — color of title as to an undivided interest — as to the identity of such interest. If it be conceded a tax deed for the undivided half of a tract of land may be color of title as to one of the undivided halves, a party holding such color of title must show that sale of the land was for the half interest against which it is sought to be used. The burden of proof is on him to show that the sale was not made for the other half interest not assailed by him.
    4. . Where an administrator, under decree of court, sold and conveyed an undivided half of a tract of land in September, 1843, of which his intestate died seized, to one Judd, who, in November, 1843, conveyed the same interest to Cook, who, in November, .1842, had bought at tax sale the" undivided half of the same tract for the tax of 1841, and received a sheriff’s deed December 9, 1844, on his tax purchase, and claimed that he thereby obtained title to both undivided halves, or title to one and color of title to the other: Held, that in the absence of satisfactory evidence as to the fact the tax sale was of a different undivided half than that sold at the administrator’s sale, he could not claim title to the whole, and prevent a partition.
    5. Same — evidence as to payment of taxes. The proof of the pajunent of all taxes on land -under color of title, in order to defeat the paramount title, must be clear and convincing. Such a title should not be overcome by loose and uncertain testimony, or upon mere conjecture or violent presumptions.
    Appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.

      Mr. Edmund S. Holbrook, for the appellants.
    Messrs. Moore & Browning, for the appellees.
    Messrs. G. & W. Garnett, for the Louisville Banking Company.
   Mr. Chief Justice Scholfield

delivered the opinion of the Court:

This was a bill for the partition, as first drawn, of a tract of eighty acres of land in Cook county, and to quiet the title thereto. By an amendment to the bill, the north forty acres of the tract were taken out of the controversy, and the allegations and prayer of the bill were limited to the south forty acres.

The tract was entered by Isaac Cook on the 30th of November, 1835, and he conveyed the undivided half thereof to Asa M. Chambers and Sheldon Benedict, by warranty deed, on the 7th of February, 1836. In November, 1848, Benedict conveyed his interest in the tract to Chambers, and on the 10th of November, 1871, Chambers conveyed his interest in the tract to the appellants, James S. Perry and John N. Henderson. No question is made as to any of these conveyances, except that by Benedict to Chambers. The deed effecting that conveyance was lost, and its execution and contents were proved by oral evidence only, and counsel for appellees insist that such evidence was not sufficiently full and satisfactory. We can not concur in this view. The facts that the deed was executed and was afterwards lost were clearly proved. If the witness is credible, there can be no doubt in either of these respects. He stands unimpeached by any of the modes of impeachment known to the law. There is nothing incredible in his evidence, and so far as the record discloses, there was nothing in his manner to discredit him. His testimony as to the contents of the deed, we think, is sufficiently- full. A witness testifying to the contents of a lost deed is not to be expected to be able to repeat it verbatim from memory. Indeed, if he were to do so, that circumstance would, in itself, be so suspicious as to call for an explanation. All that parties, in such cases, can be expected to remember, is, that they made a deed, to whom, and about what time, for what consideration, whether warranty or quitclaim, and for what property. To require more would, in most instances, practically amount to an exclusion of oral evidence in the case of a lost or destroyed deed. The evidence here meets the requirements suggested, and in the absence of contradiction or impeachment, was sufficient to authorize the court to decree upon the faith of it.

Appellees’ title arises thus: On the 2Sth of October, 1837, Cook conveyed the other undivided half of the tract, by warranty deed, to John G. Gibson, leaving himself then divested of all title. It appears that Gibson died intestate on the 27th of January, 1840, and letters of administration .were issued upon his estate to Margaret Gibson, as administratrix, on the 6th of February, 1840. On the 28th of November, 1842, the undivided half of the tract was sold for the delinquent taxes of 1841, and purchased by Cook. At the March term, 1843, of the Cook circuit court, the administratrix of the estate of Gibson was empowered, by decree, to sell the interest in the tract owned by Gibson at the time of his death, for the purpose of paying debts, and on the 11th of September, 1843, she, in pursuance thereof, sold and conveyed the same to Norman B. Judd, and on the 10th of November, 1843, Judd conveyed his interest in the tract to Cook. On the 9th of December, 1844, the sheriff of Cook county executed a tax deed to Cook for the undivided half of the tract. On the 6th of July, 1857, Cook sold and assumed to convey the whole tract to Finnell & Wintersmith, and all claims on behalf of appellees are through that conveyance. That deed, of course, as a conveyance of title, depends upon the regularity of the title in Cook at the time it was executed, and it is not sought to be used as mere color of title, because there has been no successive seven years’ payment of taxes under it. But it is contended on behalf of appellees that the deed of Judd, and the sheriff’s tax deed to Cook, constituted color of title in him, obtained in good faith, and that the evidence shows that he paid taxes thereunder for seven successive years. Appellants deny both that those deeds constituted color of title in Cook and that the evidence shows that he paid taxes thereunder for any period of seven years successively. To constitute color of title the deed must purport to convey title to the land of which it is claimed to be color of title. Bride v. Watt, 23 Ill. 507; Busch v. Huston, 75 id. 343; Sedgwick & Wait on Trial of Titles to Land, sec. 768.

This tract of land was not subject to taxation until 1841. (Act of Congress, April 18, 1818, 4th div. of sec. 6, — Bev. Stat. 1874, p. 29; Ordinance of August 26, 1818, sec. 4,— Bev. Stat. 1874, p. 30.) At that time the title to one undivided half was in the heirs at law of John Gibson, deceased, and the title to the other undivided half was in Chambers and Benedict. If it be conceded that a tax title could, under the law then in force, be acquired to an undivided interest in a tract of land, it is obvious there being default in the payment of taxes on either undivided half would have justified the description of the land as it was described in the tax sale and the tax deed. The difficult question is to ascertain whether that undivided half was that held by Chambers and Benedict, or that held by the heirs at law of Gibson. The burden is upon appellees to show that it was that held by Chambers and Benedict. Have they done so ? We think not.. There is no proof of any payment of taxes either by the heirs of Gibson or by Chambers and Benedict, or of delinquency in either in that regard, prior to the delinquency for which was this tax sale. It is true that Chambers says he never paid any taxes on this land, nor did Benedict, that he knows of,— still it does not appear that Benedict might not have paid them without his knowledge, or that they might not have been paid by some one else. The presumption, if we were to indulge in presumptions alone, would seem, from the circumstances in evidence, to be stronger that the delinquency was that of Gibson’s heirs than that it was that of Chambers and Benedict. The delinquency occurred after the death of Gibson, and before the settlement of his estate. The administratrix was not authorized to pay the taxes, and the heirs at law do not seem to have had an adequate motive to do so, because the land is ■ shown to have been charged with the payment of debts against the estate to the extent of the value of their interest in the land.

But the evidence of Cook, as we understand it, shows that he paid taxes on the undivided half belonging to Chambers and Benedict, under a claim and belief of ownership, and consequently that the delinquency must have been that of Gibson’s heirs at law. He says: “After I received that deed I paid taxes. I paid on the whole, or both undivided halves. I paid taxes on it before I purchased it for taxes. Yes, sir; on the whole of it, I think.” Question 14: “And was certain you paid on your own individual half ?” Answer: “Yes, sir.” We have seen that there could have been taxes paid only for the year 1841 before the sale, the sale for delinquency being for that year, and so the witness must have been mistaken in saying that he had paid taxes on the whole tract before the sale. But it is charitable and reasonable to assume that he paid before that time on what he called his half, and it is only as to this half that the question and answer make him speak quite positively." What that half was, he explains further along in his re-direct examination. He there says: “I claimed the land in this way: There was an indebtedness due me by Chambers and Benedict. I thought, in case it was not paid that gave me a right to the property. The matter had not been settled up from the time they got the property. I always waited for them to come up to perform - their promise, but they never returned. I supposed they were dead. ” The mere fact that subsequent to his purchase at the tax sale, Cook bought and took a deed from Judd for an undivided half of the tract, and that he subsequently thereto took a deed from the sheriff for an undivided half of the tract by virtue of his tax sale, does not necessarily prove that he was trying by each to obtain a deed to a separate undivided half. The proceedings under which the administratrix sold may have been irregular, or have been feared to be so, and the tax sale may have been distrusted as a source of title, and so the party have been anxious to prop up and bolster his title to that undivided half as 'best he could; but having, as it would seem, already a belief that he had the undivided half which he had conveyed to Chambers and Benedict, however erroneous the belief, he would not feel prompted to do any act to give him that title. In any view we can take, we are unable to say that it is made here to appear, by the evidence, that the tax sale was of a different undivided half than that which was sold at the sale of the administratrix.

The evidence of the payment of taxes for seven successive years is confined to Cook’s statements. In his direct examination he is quite full and positive as to the payment, but in his cross-examination he shows that in fact he knows nothing about it. All that he proves is that he instructed his agent to pay, not these particular taxes, but all his taxes. Thus, he is asked: “Do you remember it” (i. e., the payment of taxes on this property,) “clearly ?” And he answers: “Well, I judge so from the fact that if it had been sold I would have had to redeem it, as I paid taxes right along. ” Then1 he is asked: “So your remembrance is one of inference?” To which he replies: “Well, yes. It is a good many years ago. I can’t swear to any particular point. That is my general idea of it, to the best of my recollection. ” He was then asked: “Can you swear positively that you paid any one certain year — say 1850?” He answered: “Well, my impression is that the taxes were paid every year, except by some mishap my agent did not pay it. He was authorized and directed to pay the taxes on my property. ” Again he says: “Well, I know they were paid, as I had an agent to pay my taxes. I could not say my agent paid every year. It was his business to do it. ” And again: “I presume it was paid every year. And still again, in speaking of their payment, he says: “It is the presumption. I would not swear positively to anything. ”

We said in Hurlbut v. Bradford, 109 Ill. 397, where the same kind of question was before us: “Inasmuch as the payment of taxes under color of title operates to defeat the paramount and all other titles, when relied on, the proof must be clear and convincing. Such titles should not be overcome by loose and uncertain testimony, or upon mere conjecture or violent presumptions. ” This evidence utterly fails to come up to this standard.

For the reasons given, the decree below is reversed and the cause remanded.

Decree reversed. ■

Mr. Justice Scott, dissenting.


source: Caselaw Access Project

author: Mr. Justice Scott

license: Public Domain

text:
    Matthew Marvin et al. v. John Ledwith et al.

      Filed at Ottawa September 27, 1884.

    Estate in .remainder — whether vested or contingent — effect of a defeat of an intervening life estate. A vested remainder is where the estate is fixed to remain to a determinate person after the particular prior estate is spent or comes to an end. A contingent remainder is where the estate in remainder is limited to take effect either to a dubious and uncertain person or upon a dubious and uncertain event, so that the particular estate may chance to be determined and the remainder never take effect. An estate may vest in one, liable to be divested, for the benefit of another.
    2. A devise which was as follows, “I give and bequeath to my wife, M., during her natural life, and after her death to J. L., all those tracts, ’’etc., describing the lands, vests a life estate immediately upon the testator’s death in his widow, and the remainder in fee in J. L. The fact that the widow might renounce the will and take under the statute, did not render the remainder to J. L. contingent.
    3. Will — renunciation by widow — effect on residue of devise. Where land is devised, a life estate to the testator’s widow, with remainder to a devisee named, it can not be rendered intestate property merely by the renunciation of the will by the widow. That will lessen the quantity of the estate devised, to the extent of the estate which the law gives the widow, but otherwise the property must pass by the will.
    Writ of Error to the Circuit Court of Stephenson county; the Hon. William Brown, Judge, presiding.
    The bill in this case was brought by Matthew Marvin and Mary Brown, against John Ledwith, Delia Biehl and Mary Franey, and was for the partition of the lands of which Robert Franey died seized. The facts all appear by admission on demurrer to the bill. It appears that Robert Franey, through whom the parties claim the land in question, died on the 12th day of June, 1877; that he left surviving him his widow, Mary Franey, but no children or descendants of any child, and that his only heir at law was his sister, Mary Brown, one of complainants. Afterwards, Mary Brown conveyed one-half of the interest she claimed in the land, to her co-complainant, Matthew Marvin, and it is in that way complainants claim one-half of the land of which decedent died seized. No question is made as to the other half of the land. That is conceded to be in one of defendants.
    On the day of his death, Robert Franey made and published his last will and testament, which was afterwards duly admitted to probate. As to the validity of the will and the regularity of the- probate no question is made. Omitting the formal part, the following is a copy of the will:

      “First — I give and" bequeath to my wife, Mary Franey, during her natural life, and after her death to John Ledwith, all those tracts or parcels of land situate in the county of Stephenson, and State of Illinois, to-wit: the north-west quarter of the south-west quarter, and the south-east quarter of the south-west quarter, and the west half of the south-west quarter, all being in section number twenty-seven (27), in township number twenty-seven (27,) range six (6), east of the fourth principal meridian, excepting about four acres previously sold. And lastly,.! give and bequeath all my personal property, of every name and nature, to my wife, Mary Franey, to be owned, used and possessed by her during her natural life; and all such personal property remaining after her death I give and bequeath to John Ledwith.”
    Afterwards, on the 20th day of July, 1877, the widow of the testator renounced, in due form of law, all benefit of the provisions made in the will for her, and elected to take her legal share of the estate of her late husband.
    To the bill alleging these principal facts, with others of less importance, the court sustained the demurrer and dismissed the bill; and complainants bring the case to this court on error.
    Mr. M. Marvin, for the plaintiffs in error,
    claimed that the estate created in the will was a contingent remainder, and that the life estate to the widow and the remainder to Led-with constituted but one estate, in law. 2 Blackstone’s Com. 168; 4 Kent’s Com. (6th ed.) 234; 1 Fearne on Contingent Bemainder, 307; 2 Washburn on Beal Prop. 224.
    The remainder was contingent.- .The. preceding life estate upon-which it depended-was liable to terminate before the death of the widow. 4 Kent’s Com. 206; 1 Fearne on Contingent Eemainder, 4, 368; Purefoy v. Rogers, 2 Saund. 382; Doe v. Morgan, 3 T. R. 765.
    In construing the will of Eobert Franey, chapter 41 of the Eevised Statutes of 1874 (sec. 12, p. 424, title “Dower,”) enters into and becomes a part of his will, and when he says, “I give and bequeath to my wife, Mary Franey, and after her death to John Ledwith, ” the statute inserts this contingency: provided the widow does not renounce the provisions made for her in the will. If she does, that will destroy the estate as it is created in said will, and the heirs will take the inheritance in fee simple. Green v. Birch, 2 Bradw. 532; Matthias v. Cook, 31 Ill. 87; 1 Fearne on Contingent Eemainder, 363; 2 Washburn on Real Prop. 548; Purefoy v. Rogers, 2 Saund. 385; Lessee of Thompson v. Hoop, 6 Ohio St. 481.
    The difference between a remainder and an executory devise is, that the first may be barred at the pleasure of the tenant of the preceding estate, (unless it may be a mere term,) but he who holds by force of an executory devise has an estate above and beyond the power and control of the first taker, who can not alienate or change or prevent its taking effect, according to the terms of the will, upon the happening of the contingency upon which it is limited. It does not depend upon the particular estate, but it operates by way of determination of the first estate limited, and the substitution of another in its place. Fearne on Contingent Eemainder, 419, note b; Nightingale v. Burrell, 15 Pick. 110.
    The remainder must be so limited as to await the natural determination of the particular estate, and not to take effect in possession upon an event which prematurely determines it. This is the true characteristic of a remainder, and the law will not allpw it to be limited to take effect on an event which goes to defeat, or abridge, or work the destruction of the particular estate, and if limited to commence on such a condition it is void. 4 Kent’s Com. 249; Cogan v. Cogan, Cro. Eliz. 360.

      Mr. Henry C. Hyde, for the defendant in error Ledwith:
    There can be no doubt that by the will a life estate is devised to the widow, Mary Franey, and the remainder in fee, after her death, to the defendant Ledwith. From the date of the probate of the will (June 26, 1877,) to the date of the filing of her renunciation, (July 20, 1877,) the widow had an undoubted life estate in the land, which she might have conveyed so as to pass an estate for her life to her grantee. Upon the determination of that life estate, no matter whether by her death or her inability or refusal to accept, the remainder created by the will would take effect in possession at once, — and that is the true definition of a vested remainder. 4 Kent’s Com. 202, 203 ; Nicoll v. Scott, 99 Ill. 529.
    Both the estate for life in the widow and the estate in remainder in John Ledwith were vested estates at the-decease of the.testator. 2 Redfield on Wills, 176, 215, 217; 2 Jar-man on Wills, (Band. & Tal.) 407.
    The widow’s renunciation can not destroy the will. The will remains, notwithstanding she has chosen to decline its provisions in her favor, and by no act of hers can it be annihilated and the estate of her husband converted into an intestate estate. McMurphy v. Boyles, 49 Ill. 110.
    By her renunciation of the will the widow determined her life estate in the whole land, and acquired, by virtue of the statute, an estate in fee to an undivided one-half of it, and by such determination of her life estate the remainder in fee to the defendant Ledwith in the other undivided half of the land was accelerated, and took effect in possession at once. 2 Jarman on Wills, (Rand. & Tal.) 159, 160; Blatchford v. Newberry, 99 Ill. 48.
    The statute gave the widow the power to defeat the testator’s intention as to one-half the land, and she exercised that power by abandoning the will; but as to the remaining half of the land she had no such power, and there can be no doubt that by her act the remainder was accelerated, and the defendant John Ledwith rightfully took possession at once, and that by the exchange of conveyances between him and the widow he was the owner in fee of the east half of said land.
   Mr. Justice Scott

delivered the opinion of the Court:

The bill in this ease is framed on the theory the lands of which Robert Franey died seized became intestate property on the filing of the renunciation of the benefit of his will by his widow, as was done, under the provisions of the statute, and that in consequence of such renunciation his widow would take one-half of the real estate absolutely, and the other half would go to his heirs at .law, of whom complainant Mary Brown alone sustained that relation to the testator. If this view is sustained, it Would exclude the devisee in the will from any interest whatever in the lands involved in this litigation.

It is assumed in support of this view of the case, the estate created by the will in the devisee was a contingent remainder, and was lost or was defeated when the life estate of the widow7 was terminated by the renunciation of the will. The argument in support of the position taken is, the life estate created by the will in the widow, and the remainder to John Ledwith, constituted but one estate, in law, and it is said, as the remainder depended upon the life estate for support, and by the act of the widow7, there was no precedent estate, — “the thing supported must fall to the ground if once its support be severed from it. ” The reasoning on this branch of the case is subtle in the extreme, and so in the books that treat of the definition of estates at common law, the lines of distinction between vested and contingent remainders are so nicely drawn they are sometimes difficult to trace, and it is said in some instances a vested remainder would seem to possess the essential qualities of a contingent estate. But divesting the subject of all technical learning, it is seen the simplest form of an estate vesting in succession at the same moment, is that of a fee simple devised to one for life, and after his decease to another in fee. The first is an estate in possession, and the latter is a vested remainder. A vested remainder is where the estate is fixed to remain to a determinate person after the particular estate is spent or comes to an end. A contingent remainder is where the estate in remainder is limited to take effect either to a dubious and uncertain person or upon a dubious and uncertain event, so that the particular estate may chance to be determined and the remainder never take effect. The principle is, the precedent particular estate and the remainder are one estate, in law, and hence the rule is, they must subsist and be in esse at one and the same time, either during the continuance of the first estate, or at the very instant when that is determined, so that no other estate can come between them. (2 Blackstone’s Com. 168.) It will be seen the will in this case creates a vested remainder in the devisee, within these common law definitions. The estate devised was a fee simple. A life estate was devised to the widow, and the fee to Led-with. On the death of the testator both estates became vested. The fee vested in the devisee during the continuance of the precedent particular estate, and that is all the law requires to make it a vested remainder. Had the widow never renounced the benefit of the will, it would not be insisted the fee did not pass to the devisee. It vested in him on the death of the testator and during the continuance of the particular estate which supported it. That was the condition for some time after the death of • the testator. It is true that as to one-half of the estate it was- subject to be divested at the election of the widow, which was done. That is consistent with law. An estate may vest in one, liable to be divested, for the benefit of another. This construction of the will finds support in the doctrine of Nicoll v. Scott, 99 Ill. 529.

- But the whole bill rests upon a mistaken theory. It is, that after the widow renounced the benefit of the will the estate devised was intestate property. Such is not the law. It is still testate property, and the statute has provided for equalizing bequests and legacies in cases where the widow renounces the will. That is a legislative construction of the statute, under which the will may stand. This is not a new question in this court. In McMurphy v. Boyles, 49 Ill. 110, a question closely allied to the one involved in this case was considered. The testator left considerable personal estate, and provided by his will the income of one-half of it should be paid to his wife during her life, and disposed of the other half. The widow in that case, as in this, renounced the benefit of the will. There were no children or descendants of any child; and the widow claimed the entire estate on the ground it was intestate property. It was held the will remained, notwithstanding the widow chose to decline its provisions in her favor, and that by no act of hers could it be annihilated and the estate of her husband be converted into intestate property. That is precisely the case here. Notwithstanding the widow declined the provisions of the will of her husband made for her benefit, his will must stand. The effect may be, and doubtless is, that the quantity of the estate devised may be lessened, but that does not prevent the remainder from passing to the devisee. It is still testate property, and is not subject to distribution among the heirs of the decedent, as is intestate property. In no view that can be taken could the property be divided among the heirs, and complainants’ bill was therefore properly dismissed.

The decree of the circuit court must be affirmed.

Decree affirmed*.


author: Mr. Justice Dickey

text:
    Charles M. Linington v. George H. Strong et al.

      Filed at Ottawa September 27, 1884.

    !• Bes judicata — judgment of Appellate Court reversing and remanding. A decision or holding by the Appellate Court in reversing a judgment and remanding,the cause, not being a final judgment, from which either party appeal, can not be regarded as res judicata on a second appeal. One party can not be concluded by the judgment and the other not.
    2. Bbaud — false representations. At law an intent to deceive must exist to constitute actual fraud. . Bepresentations, though untrue, if not made with a knowledge of their falsity, can not be said to constitute fraud, when the contracting parties occupy no fiduciary relation or position of confidence or trust toward each other.
    3. Same — negligence in signing a contract without reading it. In an action upon a written contract, which the defendant sought to avoid on the ground of an alleged fraudulent statement that it was a copy of an original draft except in a matter which did not concern him, the court, at the instance of the plaintiff, instructed the jury that a party executing a written contract should exercise reasonable care and prudence to learn its nature and contents before signing it, by reading the same, if capable of reading, and that he would not be excused for his want of care and prudence in signing without so reading the same, unless induced to do so by willfully false statements of the party procuring his signature: Held, that the use of the word “willfully,” in the connection it was employed, did not render the instruction erroneous.
    4. What is negligence in signing a contract without reading the same, is not a question of law, but one of fact for the jury, to be judged of from the peculiar facts and circumstances of each case. In such a case it is not proper to select certain of the facts, and tell the jury in an instruction thatthey afford no evidence of negligence or a want of proper and reasonable care.
    5. Contract — ■royalty on a specified amount of product — evidence as to a less amount. Where the contract sued on provided that the defendant should pay the plaintiff $1.44 per gross on at least 2500 dozen of pincers each year which the defendant was to manufacture and sell, whether he made and sold that many or not, it was held, in a suit on the contract, that evidence on the part of the defendant that he had made only 9135 pincers, and that he ceased to manufacture them after a certain time, was irrelevant, as he was bound to pay for the 2500 dozen at all events, and that was all for which a recovery was sought.

      Appeal from the Appellate Court for the First District; — ■ heard in that court on appeal from the Superior Court of Cook county; the Hon. Rollin S. Williamson, Judge, presiding.
    This was an action of assumpsit, brought by George H. Strong and John Young, against Charles M. Linington, to recover the second and third years’ royalty, under a contract dated April 1, 1876. The declaration contained three special and the common counts. The first special count avers the making of the written contract, by which the plaintiffs guaranteed to the defendant, for the period of five years from the date thereof, the exclusive right to make and sell certain improved pincers, mentioned in letters patent from the United States to said Strong, in consideration for which the defendant was to pay the plaintiffs a royalty of $1.44 for each gross of said pincers made and sold by him during that time, payment to be made quarterly. The contract, which was set out in hmc verba, contained this clause: “And said party of the second part hereby agrees to keep an accurate book account of the number of said pincers made and sold by him, and render a true statement therefrom to the first party at the end of each quarter, such statement of account to be verified by affidavit by the party of the second part; and also agrees to pay the royalty on at least 2500 dozen of said pincers each year, and in default thereof this contract may, at the option of said party of the first part, be declared null and void. ” It further provided that one-half of the royalty on the 2500 dozen should be paid to each of the parties of the first part, and all in excess of that should be paid, sixty per cent to Strong, and forty per-cent to Young. The count concluded by alleging that on April 1, 1880, there became due from the defendant to plaintiffs, $1000, under the terms of said contract. The second count states that plaintiffs had granted the defendant the privilege of making and selling, said invention; that he had agreed to pay them a royalty of $1.44 on each gross made and sold, and that he had made and sold to the, amount of $100,000, and owed plaintiffs therefor. $1000. The third count alleges that on April 1, 1876, plaintiffs had granted defendant the said exclusive right, etc., for five years, and that in consideration thereof he had agreed to pay them each year a royalty on 30,000, at $1.44 per gross, and that by virtue of such agreement he owed them $1000 on April 1, 1880.
    During the trial the defendant offered to prove that he had only made 9135 pincers, and to rebut any inference of a ratification of the contract he offered to show when he quit making such pincers, which, on objection, the court refused to admit, and the defendant excepted.
    There was.evidence that one of the plaintiffs took the draft of the contract- to add thereto what share of the payments each was to have, as between the plaintiffs, and to have three copies thereof prepared for execution, and that such plaintiff told the defendant -that the copies produced were copies of the original, except as to such addition, and that defendant thereupon signed such copies without reading the same through. From the original draft introduced in evidence it appeared that the contract, as executed, was not a copy thereof, as stated. The plaintiffs denied that any such representations were made to induce the defendant to sign the contract.
    On behalf of the plaintiffs the court instructed the jury as follows:
    “The court .instructs the jury that the law requires of every person the exercise of reasonable prudence and caution in the affairs of life, and the law requires that before relieving a party from a contract on the ground of fraud in obtaining its execution, it should appear, from the evidence, that on entering into such contract he exercised reasonable care and prudence to learn its nature and contents before he signed it; and thé jury are further instructed that if they find, from the evidence, that the defendant could read at the time he signed the contract sued on, then it was the duty of the defendant to read such contract for himself before he signed it, unless the jury believe, from the evidence, that he was induced not to do so, without the want of reasonable prudence and caution on his part, by willfully false statements of the plaintiffs, or one of them, that it was a true copy of the draft made by the defendant’s attorney, except as to the division of a portion of the royalty; and if the jury find, from the evidence, that the defendant was able and had full opportunity to read such written contract before he signed, and was not induced to forego reading it by willfully false statements of the plaintiffs, or either of them, or that defendant, under all the facts and circumstances shown by the evidence, did not exercise reasonable prudence and caution in not reading such written contract for himself before he signed it, then the court instructs the jury that the defendant can not now be permitted to say that he did not know what was contained in said contract when he signed it, and the jury should find that, when made, said contract became binding on the defendant. ”
    —To the giving of which instruction the defendant excepted, and asked the court to instruct the jury as follows, without the words in brackets:
    “1. The jury are instructed, that as between the parties fraud vitiates all contracts; and if the jury believe, from the evidence, that the defendant and plaintiffs made an agreement in regard to the matters in issue; that after the terms of said agreement were settled defendant caused a draft of said agreement to be made and submitted to plaintiffs, and they approved it, but asked to add a clause concerning a division of payments between themselves; that defendant consented, and plaintiffs took the draft away, agreeing to copy it with the addition above named only, and returned with papers which .they represented to defendant were such copies, with that addition only; that defendant [in good faith relied upon said .representations, and] was deceived by such representations, and thereby induced to and did sign said papers without reading them, [and was not himself guilty of the want of reasonable prudence and caution in not reading such papers;] and if the jury further believe, from the evidence, that such representations were false, and that plaintiffs had put into such alleged copies conditions not in the said •draft, and not known or consented to by the defendant, and that the contract sued on [in this ease] is one of the papers to which the defendant’s signature was so obtained, then the jury should find for the defend’ant.
    “2. The court further instructs the jury that the provision in the contract sued on, requiring the defendant to verify his quarterly statements by affidavits, and the clause, ‘and also agrees to pay the royalty on at least 2500 dozen of said pincers each year,’ are material conditions not in the draft offered in evidence [by the defendant;] and the jury are instructed that the question of the materiality of these conditions is for the court, and not for the jury, and the jury must, on this point, be governed by the instructions of the court; and if they believe, [from the evidence,] that the signature of defendant to the contract sued on was obtained in the manner set forth in the first instruction for the defendant, they should find for the defendant, even though they should be of the opinion that there was no material difference between the contract sued on and the draft offered in evidence by defendant.
    “3. The jury are instructed, as a matter of law, that when two parties have agreed to the terms of a contract between them, and it has been reduced to writing, if one of the parties undertakes to make copies of the contract for the signatures of the parties, he is bound to do it truly; and if he presents to the other papers which he assures that other are copies of such contract, it is not negligence in that other to sign without reading.
    “4. The jury are further instructed that if they believe, from the evidence, that the signature of the defendant was obtained to the contract sued on in the manner set forth in the first instruction given on behalf of the defendant, and a judgment was rendered against him for one or more installments due thereon before he discovered the fraud, such judgment is no bar to his raising the defence of fraud to suits brought for subsequent installments.
    “5. The jury are further instructed that if they believe, from the evidence, that plaintiffs made the representations described in the first instruction given on behalf of defendant, and that said representations were in fact untrue, then it makes no difference whether they knew of the falsity of such representations, or not. ”
    The court refused to give the third, fourth and fifth instructions so asked by the- defendant, and refused to give the first and second instructions as asked, but modified them by addings the words in brackets, and gave them (the first and second) as modified, to which ruling of the court the defendant at the time excepted. And thereupon the jury returned a verdict for the plaintiffs for §744. The defendant moved for a new trial, which motion was denied, and final judgment entered on the verdict. The Appellate Court for the First District, on appeal, affirmed the judgment of the Superior Court, and the defendant brings the case to this court by a further appeal.
    Mr. F. Q. Ball, for the appellant:
    When this case was first before the Appellate Court, that court decided that there were two material variations between the contract sued on and the original draft. This became res judicata, and was no longer open to discussion in this case. Ward v. Johnson, 5 Bradw. 30; Oldershaw v. Knowles, 6 id. 330.
    It is not indispensable to the right to rescind a contract that the party making the representations knew they were false, provided they are material, and the other party had a right to rely upon them, and did, and was deceived. Allen v. Hart, 72 Ill. 105.
    If one party is trusted to reduce the contract to writing, he is bound to do it truly, and any variation from it materially affecting the other party, if not known to him, is a clear fraud. Botsford v. McLean, 45 Barb. 487.
    Messrs. Smith & Bubgett, for the appellees;
    The' rejected’ evidence was wholly irrelevant. Appellees did not contend that appellant had even made one pincer,— they asked only for the minimum royalty fixed by the contract.
    To authorize the setting aside of a written instrument on the ground that the character or contents of it were unknown to a party when he signed it, and that he was deceived and misled into executing it, the rule is, that the facts must be established beyond controversy, and not simply by a preponderance of evidence. Railroad Co. v. Shay, 82 Pa. St. 198; Edmunds’ Appeal, 59 id. 220; Martin v. Berens, 67 id. 460; Tufts v. Larned, 27 Iowa, 330; Vary v. Shay, 36 Mich. 388; Ranney v. McMullen, 5 Abb. (N. C.) 246; Wilson v. Deen, 74 N. Y. 531; Albany City Bank v. Martin, 56 How. Pr: 500; Savings Inst. v. Burdick, 20 Hun, 104; Moran v. McLarty, 75 N. Y. 25 ; McClellan v. Sanford, 26 Wis. 595; Kercheval v. Doty, 31 id. 476; Lavassar v. Washburne, 50 id. 200; Wiles v. Harshaw, 8 Ired. Eq. 308; McMahon v. Spangler, 4 Rand. 51; Adams v. Robertson, 37 Ill., 45; Stampofski v. Hooper, 86 id. 321; Faucett v. Currier, 115 Mass. 20; 109 id. 79; 2 Wharton on Evidence, sees. 934, 1243; 80 Ill. 28; 78 id. 342.
   Mr. Justice Dickey

delivered the opinion of the Court:

This case has been twice tried in the Superior Court of Cook county, the first trial resulting in a judgment in favor of the defendant, which was reversed by the Appellate Court for the First District, and the cause remanded. (Strong et al. v. Linington, 8 Bradw. 436.) On the cause being remanded another trial was had, resulting in a verdict and judgment in favor of the plaintiffs, and this last judgment has been affirmed by the Appellate Court.

It is contended by the appellant, that the Appellate Court, by its judgment when this case was first before it, decided that there were two material variations between the contract sued on and the original draft thereof, and that the question of the materiality of these variations became res judicata, and was no longer open to discussion either in the Superior or in this court. The judgment of the Appellate Court can have no such effect in this case, for the reason that it was not final. The defendant below (appellant here) could not have maintained an appeal or writ of error to review that judgment of the Appellate Court, and the appellees here could not have their own judgment reversed, and it not being final as to one party, could not be so held as to the other. If one party is concluded by a judgment, the other must be equally concluded.

On the trial the defendant offered to prove that he only made 9135 pincers, and that he ceased to manufacture them after a certain time, which, on objection, the court refused to allow. Under the contract upon which the suit was brought the defendant was bound to pay to the plaintiffs a royalty of $1.44 per gross on at least 2500 dozen of pincers each year, whether he made and sold that many or not, and consequently the proposed and rejected evidence, as the ease was presented to the court, was wholly irrelevant, and there -was no error in refusing to hear the same.

The appellant also urges that the Appellate Court erred in not reversing the judgment of the Superior Court for error in respect to the instructions' given and refused. Complaint is made as to the first instruction given for the plaintiffs, which is to the effect that a party executing a written contract should exercise reasonable care and prudence to learn its nature and contents before signing it, by reading the same, if capable of reading, and that he would not be excused for his want of care ■and prudence in signing a contract without reading it, unless he was induced to do so by willfully false statements of the party procuring his signature. It is evident that the defendant here was seeking to avoid his contract for fraud on the part of the plaintiffs, or one of them. This is quite apparent from the defendant’s first instruction, to the effect that fraud vitiates all contracts. At law an intent to deceive must exist to constitute actual fraud. Representations, though untrue, if not made with a knowledge of their falsity, can not be said to constitute fraud where the contracting parties occupy no ^fiduciary relation or position of confidence or trust towards each other. (Sims v. Klein, Breese, 234, *302; White v. Watkins, 23 Ill. 480; Allen v. Hart, 72 id. 104; Fauntleroy et al. v. Wilcox et al. 80 id. 477; Merwin v. Arbuckle, 81 id. 501 ; • Tone v. Wilson et al. id. 529 ; Wharf v. Roberts, 88 id. 426 ; St. Louis and Southeastern Ry. Co. v. Rice, 85 id. 406.) The use of the word “willfully, ” in relation to the statements relied on in this case as constituting fraud, can not vitiate the instruction. The statements to which this word is applied were claimed to have been, that the triplicates presented for execution were correct copies of the original draft of the contract, except as to a matter not affecting the defendant’s interest in the least, and if they were false, the party making them must have known their falsity.

No error is perceived in the modification of the appellant’s first and second instructions, nor in refusing the others. What has been said in regard to the plaintiffs’ first instruction applies to the defendant’s fifth instruction. What is negligence in signing a contract without reading the same, is not a question of law, but one of fact for the jury, to be judged of from the peculiar facts and circumstances of each case. In such a case it is hardly proper to select certain facts, and tell the jury that they afford no evidence of negligence or want of proper and reasonable care.

Without noticing every point, it is sufficient to say that we find no error in the record calling for a reversal, and the judgment of the Appellate Court will therefore be affirmed.

Judgment affirmed.


author: Mr. Justice Sheldon

text:
    Sarah M. Palmer v. Thomas Snell.

      Filed at Springfield September 27, 1884.

    1. Purchaser from mortgagor — whether he can avail of a promise by the mortgagee to the mortgagor to malee a release. A verbal promise by the mortgagee to the mortgagor, to release one of several mortgaged tracts in the event of a sale of the same by the latter, can not be enforced by a purchaser of such tract under execution, who, after his purchase, receives a deed from the mortgagor without an}' consideration, where the land is not purchased in reliance on such promise, and the purchaser in no way altered his condition in expectation of such release.
    2. Decree — as against one not a party. On the foreclosure of a mortgage a purchaser from the mortgagor of one of several mortgaged tracts is not entitled to a decree requiring a purchaser of the other tracts, who assumed payment of the mortgage, to pay the same, when the latter is not made a party to the suit. A decree can not be rendered against one not made a party to the suit either by the original bill or by cross-bill.
    3. Marshaling assets — compelling mortgagee to first exhaust a particular security. The rule of equity which compels a resort to a particular one of two funds for a creditor’s benefit, in favor of another who can reach but one of them, will not be enforced when it trenches upon the rights or operates to the prejudice of the party entitled to the double fund.

      4. A mortgagee’s right to a prompt foreclosure of his mortgage will not be impeded or delayed by compelling him to first resort to a personal remedy he may have against a purchaser of a portion of the mortgaged premises from the mortgagor, who assumes payment of the mortgage debt. The most that the subsequent purchaser of the remaining portion of the land can ask, is to have the mortgaged premises sold in the inverse order of alienation.
    5. Limitation — act of 1839 — as between holder of equity of redemption and mortgagee. A purchaser of the equity of redemption from a mortgagor can not invoke the Limitation act of 1839 to defeat a foreclosure of the mortgage. That statute does not apply to such a case.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of DeWitt county; the Hon. Lyman Lacey, Judge, presiding.
    Messrs. T. F. Tipton & Son, for the appellant:
    The court erred in not releasing the ten acres, as asked. Where one person enters into a simple contract with another for the benefit of a third person, the latter may maintain an action for a breach of such contract, and such contract is not within the Statute of Frauds. Brown v. Short, 19 Ill. 88; Beasley v. Webster, 64 id. 465; Rabbermann v. Wiskamp, 54 id. 179; Steele v. Clark, 77 id. 473; Eddy v. Roberts, 17 id. 505; Bunn v. Strait, 19 id. 89; Bristow v. Lane, 21 id. 194.
    Where a person takes a conveyance of land from a mortgagor, containing a provision that he is to assume and pay the mortgage debt, the holder of the mortgage debt may enforce payment of him personally. Hayward v. Gunn, 82 Ill. 390; Irvin v. Wood, 37 id. 512; Cumberland v. Codrington, 3 Johns. Ch. 254; Dow v. Peters, 3 Edw. Ch. 140; Burr v. Beers, 24 N. Y. 178.
    Where the owner of land mortgages it, and afterwards sells and conveys it subject to the mortgage, and the purchaser assumes the mortgage as a part of the purchase money, the latter becomes personally liable for the payment of the debt of the former to the holder of the mortgage. Hartley v. Harrison, 24 N. Y. 170; Russell v. Pister, 3 Seld. 171; Halsey v. Read, 9 Paige, 446; Marsh v. Pike, 10 id. 595; Cornell v.
      Prescott, 2 Barb. 16; Blyer v. Munholland, 2 Sandf. Ch. 478; Ferris v. Crawford, 2 Denio, 595.
    A decree for a deficiency may also be had over against a-grantee from the mortgagee. Halsey v. Read, 9 Paige, 446; Curtis v. Tyler, id. 432; King v. Whitely, 10 id. 465; Vail v. Foster, 4 Comst. 312; Belmont v. Cornan, 22 N. Y. 438.
    The undertaking of the grantee to pay the incumbrance is a collateral security acquired by the mortgagor, which inures, by equitable subrogation, to the mortgagee. Burr v. Beers, 24 N. Y. 178 ; Trotter v. Hughes, 12 id. 74; 1 Jones on Mortgages, sec. 755; Thompson v. Thompson, 4 Ohio, 333; Van Meters v. Van Meters, 3 Gratt. 148; Schlake v. Greaud, 19 La. Ann. 125; Klapworth v. Dressler, 2 Beasley, 62.
    Where a purchaser from a mortgagor assumes the debt as-a part of the purchase money, the law implies a promise on his part to indemnify the grantee against the mortgage debt. Sheeler v. Hardin, 25 Ind. 286; Gale v. Wilson, 5 Rep. 667; Jewett v. Draper, 6 Allen, 434; Braman v. Dawes, 12 Cush. 227; Townsend v. Ward, 27 Conn. 610.
    A creditor having two funds to which he may resort for payment, may be required to first exhaust the one in which he has an exclusive interest. Ladd v. Griswold, 4 Gilm. 25; Wise v. Shepherd, 13 Ill. 41; Hunter v. Whitfield, 89 id. 229; Bispham’s Eq. 398, see. 340.
    Mr. R. A. Lemon, for the appellee:
    Adams and Kitchen are not parties to this suit, and were not necessary parties, for the reason they had no interest.
    The mortgagor can make no disposition of the mortgaged premises which can in any manner interfere with or impair the mortgagee’s right to a prompt foreclosure. Meacham v. Steele, 93 Ill. 135.
    The rule for marshaling assets is never enforced where it trenches upon the rights or operates to the prejudice of the party holding the double fund, or works injustice. (Sweet v.
      Bedhead, 76 Ill. 374.) This rule has been fully recognized 9.nd applied by requiring the sale of mortgaged premises in the inverse, order of alienation. . Matteson v. Thomas, 41 Ill. 110; Iglehart v. Crane, 42 id. 261; Baird v. Jackson, 98 id. 78; Warner v. DeWitt Nat. Bank, 4 Bradw. 305.
    The proposition to release was a mere gratuitous offer, not acted on. Bush v. Sherman, 80 Ill. 160; Bigelow on Estoppel, 480, 560.
   Mr. Justice Sheldon

delivered the opinion of the Court:

Thomas Snell filed his bill in equity, in the circuit court of DeWitt county, to foreclose a mortgage upon three small tracts óf land. The mortgage was originally given by one Smith Taylor and wife, to one William B. Smith, to secure a debt of $4500. The mortgagee sold and assigned the mortgage notes to one George Dietrich, and the latter sold and assigned them to Snell. All the defendants were duly served, and the bill taken for confessed against them, except Sarah M. Palmer, who appeared and answered the bill, and filed a cross-bill, admitting the execution of the notes and mortgage, and the assignments, as alleged, and setting forth that her late husband, Ezekiel H. Palmer, in his lifetime, and after the execution of the mortgage, purchased from the mortgagor the ten-acre tract of land described in the mortgage, and that there was a verbal agreement between the mortgagor and mortgagee for the release of that ten acres from the mortgage upon payment óf a certain portion of the mortgage debt; that the mortgagor did make that payment, as agreed, but that the release was never made; that Ezekiel H. Palmer afterward died testate, leaving said Sarah M. Palmer his widow, who is his executrix and sole devisee. The circuit court, on hearing, entered a¡. decree of foreclosure as to all the mortgaged premises except said ten acres, and as to that granted the prayer of the cross-bill, cancelling the mortgage as to that tract. This decree was reversed by the Appellate Court for the Third District, and upon the cause being remanded to the circuit court, a hearing was again had, and a decree of foreclosure ordering sale in the inverse order of their alienation as to all the mortgaged premises was entered. This second decree was affirmed by the Appellate Court, and the present appeal taken by Sarah M. Palmer to this court.

The alleged agreement for a release of the ten acres from the mortgage was of too vague and indefinite a character to entitle it to be relied upon. All the testimony respecting it is that of Taylor, the mortgagor, who states that at a conversation with Smith, the mortgagee, the latter agreed to release the ten acres if he (Taylor) had a chance to sell it, and would pay a certain amount of the debt; that he had sold it to one Colliver, but when they came to close the trade “Paliher'came in with a judgment and stopped the sale;” that he paid the money to Smith he agreed to pay; that he told Palmer of the agreement with Smith for a release, and Palmer said he would get the release from Smith. Taylor made a deed of the ten acres to Palmer, but received no consideration for it. The deed was made June IS, 1868. The sheriff’s deed to Palmer of the land, made under execution sale against Taylor, bears date June 9, 1868, — so that it appears Taylor did not sell the land to Palmer, but the sheriff sold it to him, under an execution in favor of Palmer, against Taylor, and that after the title had become vested in Palmer by the making of the sheriff’s'deed, Taylor made a deed for the land to Palmer, receiving nothing therefor. Palmer, then, did not purchase the land in reliance upon any agreement to release. His purchase under execution did not at all come within the purview of the alleged agreement to release. The alleged agreement was to release the ten acres if the mortgagor found an opportunity to sell it, — the mortgagee evidently being willing, in such a" case, to aid the mortgagor, and may be benefit himself, in enabling the mortgagor to realize upon some of the property. To release upon an execation sale against the mortgagor would not come within the contemplation of such an agreement, and a purchaser at such a sale would have no right to rely upon an agreement of that kind. Palmer paid nothing upon the expectation of such a release to be made, — did no act and in no way altered his condition upon such expectation, more than to gratuitously accept a deed for land to which he already had the title. We perceive no equity which entitles appellant to call for a release of the ten acres from the mortgage.

Appellant makes a claim, which is manifestly without foundation, that there should first have been resort to other holders of the equity of redemption as having assumed the payment of the mortgage debt, or that she should have been subrogated to the mortgagee’s claim of personal liability against them. Taylor, the mortgagor, sold and conveyed a part of the mortgaged premises to Parker S. Adams, the deed containing a covenant that the grantee assumed to pay the mortgage debt, and Adams afterward conveyed the same lands to John Kitchen, with a similar covenant in the deed, and Kitchen still afterward conveyed to James T. Snell, but without any such covenant in the deed, and no agreement of any kind to that effect. Adams and Kitchen are not parties to this suit, and of course there could be no decree against them. The witness John Kitchen, in his deposition, does say something about James T. Snell assuming the mortgage debt, but his testimony is very loose and carelessly given, and, taken altogether, shows quite clearly that there was no assumption by Snell of payment of the .mortgage debt, — nothing more than buying the land subject to the incumbrance. But even had James T. Snell assumed the payment of the mortgage debt, so as to have given a right of resort to him, personally, to the mortgagee for the mortgage debt, the rule here invoked, which compels a first resort to a particular one of two funds for a creditor’s benefit, who can reach but one of them, would not be applied in such a case as this, so as to require, first, the exhaustion of the personal remedy against Snell. This rule will not be enforced whenever it will trench upon the rights or operate to the prejudice of the party entitled to the double fund. (Sweet v. Redhead, 76 Ill. 374.) The mort-gagee’s right to a prompt foreclosure of his mortgage is not' to be impeded by compelling a first resort to any personal remedy the mortgagee may have. Further, the cross-bill does not claim any such affirmative relief as that which we have just considered, neither are any facts set forth in the cross-bill, or in the answer, upon which any such relief could be predicated. The rule for the marshaling of assets has been applied in the decree in this case, which directs that the tract in which appellant has an interest be offered for sale last and the other tracts first. This is all to which appellant is entitled.

There is evidently nothing in the case entitling appellant, the holder of the equity of redemption, to set up seven years’ possession and payment of taxes upon the land, in bar of the foreclosure of the mortgage. The Limitation law of 1839 has no application to such a case. Hagan v. Parsons, 67 Ill. 170.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    Daniel Davidson v. John Reed et al.

      Filed at Springfield September 27, 1884.

    1. Dedication — how made to appear. A dedication of land to the public for any public use may be shown by grant, by user, or by the acts and declarations of the owner, coupled with evidence of acceptance by the public. But to be availing, there must be evidence of an intent to dedicate. No particular form or ceremony is necessary. All that is required is the assent of the owner of the land, and the fact of its being used for the public purposes intended by the person claimed to have made the dedication.

      2. Same — dedication of ground for burial purposes — whether established. Where the owner of a quarter section of land as early as 1844 buried a child in a" corner thereof, since which time the same has always been used • by the people of the neighborhood as a public burying place, and the declarations of such owner showed an intent to devote the land to such use, and the subsequent owners of the quarter section of land made no objection to such use, but recognized the same as a public burial place, it was held, that these' facts were sufficient to show a dedication of the land so used, to the public, for a place for the interment of the dead.
    3. Injunction — to prevent defacing and meddling with graves. A court of equity will enjoin the owner of land from defacing and meddling with graves on land dedicated to the public for burial purposes, at the suit of any parties having deceased relatives or friends buried therein.
    4. Parties — on bill to protect burying ground. Two persons, residents in the neighborhood of a public burying ground, having friends buried there, filed a bill to enjoin the party owning the tract of land on which it was located from defacing the graves, and to preserve the ground for the public use for burial purposes: Held, that they could maintain -the bill .in .their names, for the benefit of themselves, as well as if all others directly interested had joined.
    Writ of Error to the Circuit Court of Cumberland county; the Hon. William C. Jones, Judge, presiding.
    Messrs. Clark & Clark, for the plaintiff in error.
    Messrs. Craig & Craig, for the defendants in error.
   Mr. Justice Craig

delivered the opinion of the Court :

This was a bill in ¡equity, brought to enjoin Daniel Davidson, the defendant, from defacing or meddling with certain graves in an alleged grave yard in Cumberland county, on land belonging to the defendant. The bill also prayed for a decree declaring that the burying ground had been dedicated to the public. Upon a hearing on the bill, answer, replication and evidence, the court rendered a decree as prayed for in the bill, and the defendant sued out this writ of error.

It is contended by the defendant that the evidence was not sufficient to establish the fact that the land in question had been dedicated to the public for a burying ground. What shall constitute a dedication of land to the public has been considered and determined by this court in several cases. In Marcy v. Taylor, 19 Ill.’ 635, it was held that dedication of a highway may be proven in variqus ways, — by grant, by user, or by the acts and declarations of the owner, — and that no particular time is necessary for evidence of dedication, but to be availing there must be an intent to dedicate. In Rees v. City of Chicago, 38 Ill. 327, it was also held that a dedication is to be proved, not alone by a deed, but by matter in pais, consisting of the acts and accompanying declarations of the owners of the land alleged to be dedicated. Such acts, coupled with evidence of acceptance by the public, may make a case of dedication. In City of Cincinnati v. White’s Lessee, 6 Pet. 431, it is declared that no particular form or ceremony is necessary in the dedication of land to public use. All that is required is the assent of the- owner of the land, and the fact of its being used for the public purposes intended by the appropriation. In Hunter v. Trustees of Sandy Hill, 6 Hill, 407, it was held that “dedication * * * is the act of devoting or giving property for some proper object, and in such manner as to conclude the owner. ” It was also held that lands may be dedicated to persons and charitable purposes, as well as for public ways, commons, and other easements in the nature of ways, so as to conclude the owner who makes the dedication. In Godfrey v. City of Alton, 12 Ill. 29, in the discussion of the question of dedication, it was held that the Statute of Frauds does not apply to the dedication of ground to the public. A dedication may be made by grant or written instrument. It may be evidenced by acts and declarations, without writing. No particular form is required to establish its validity, it being a question of intention. ■

Tested by the principles announced in the authorities cited, it only remains to be seen whether the evidence authorized the decree that the land in question had been dedicated to the public, to be used as a place for the burial of the dead.

James McKnight originally owned the south-west quarter of section 21, township 10, north, range 10, east, in Cumberland county. The burying ground is located near the southeast corner of the land. As early as 1844 McKnight buried a child on the land in question, and since that time it has been known as the “McKnight grave yard, ” and has been used by the neighborhood as a burying ground. While McKnight owned the land he buried a wife and two children there. Reed testified that McKnight told him “he expected the neighbors would want to bury there, as we had commenced it.” He also testified that he and McKnight talked of staking off and fencing the ground, but they neglected to do it. McKnight sold the land to Rhodes, and while Rhodes owned the land the dead were buried there, as before. He sold to Scott, and Scott to Collins,- aiid Collins sold to the-defendant. Collins, ■while he owned the land, buried a child in the grave yard. Indeed, from 1844 the land in question has been known, used and recognized by the different owners and the public as a public burying ground. While Collins owned the land he said if the people in the neighborhood would clear and fence it, he would give them a half acre. Rhodes also, as he testified, offered to give the grave yard if the people would fence it. It was also proven that the defendant offered to give the land occupied by the graves if the people would fence it.

The only conclusion to. be reached from all the evidence is, that McKnight, when he owned the land, established a grave yard, and intended to dedicate to the public the particular tract in question, to be used as a place for the burial of the dead. It is true that when he sold the land no reservation was made in the deed, but the subsequent purchasers all had notice of the existence of the burying ground, and purchased subject to the rights the public had acquired in and to the property. In the case of City of Cincinnati v. White’s Lessee, supra, it is .said that all that is required is the assent of the owner of the land, and the fact of its being used for the public purposes intended by the appropriation. The assent of the owner, McKnight, that the land should be appropriated for the burial of the dead, is clear and manifest. That the public accepted and used the land for the public purpose for which it was designated by the owner, is also beyond dispute.

It has been suggested that the bill can not be maintained in the names of the two complainants. The complainants were residents of the neighborhood. They had friends buried in the burying ground, and were thus interested in preserving, for themselves and the public, the burying ground as it had been established, and we are of opinion that they had the right to sue in behalf of themselves and others having a like interest. (Beatty & Ritchey v. Kintz, 2 Pet. 585.) The bill was brought, and in our judgment properly, for the protection of the rights of the people in that particular locality, and we perceive no reason why it may not be maintained in the names of a part for the benefit of all, as well as if all directly interested had. joined in the bill.

The decree of the circuit court will be affirmed.

Decree affirmed.


author: Mr. Justice Walker

text:
    The People ex rel. R. B. Brewster et al. v. Board of Trustees of Schools.

      Filed, at Springfield September 27, 1884.

    1. Corporation — legality of its existence — in what proceeding it may be questioned. Where the legality of the existence of a corporation is intended to be questioned, it must be done by a direct proceeding against it in the nature of a quo warranto or scire facias. Such question can not be tried in a mandamus proceeding.
    2. So in a proceeding by mandamus to compel the school trustees of a township to appoint appraisers to value school property preparatory to a division between an old and a new school district, the court has no jurisdiction to inquire into the legality of the organization of the new distiict.

      Appeal from the Appellate Court for the Third District;— heard in that court on appeal.from the Circuit Court of Macoupin county; the Hon. Wm. B. Welch, Judge, presiding.
    Messrs. Corn & Shirley, Messrs. Binaker & Binaker, and Mr. A. H. Bell, State’s Attorney, for the appellants.
    Messrs. Palmer, Chapman & Corn, for the appellees.
   Mr. Justice Walker

delivered the opinion of the Court:

This was an application for a writ of mandamus, to compel school trustees in a township in Macoupin county to appoint appraisers to value school. property- between an old and new school district. Defendants demurred to the petition, and the circuit court held it insufficient, and dismissed the application.

The petition alleged that the school district was formed of portions of two townships, — one in Montgomery county and the other in Macoupin county; that all steps necessary for the organization of the district had been observed, under the 33d section of the School law, as amended in 1881, (Sess. Laws, 140;) that directors had been elected, and other steps taken to complete the organization; that the petition for the new district was presented to the several boards of trustees of schools of each township in which a portion of the new district lay, at their regular annual meetings, and the application was heard, and all the boards of trustees, except that of township 10,- north, range 6, west, concurred in granting the prayer of the petitioners; that they appealed from their decision to the county superintendent of Macoupin county; that he decided the best interests of the district required the establishment of the new district, and established the same; that his order establishing the district was recorded by the several boards of school trustees, and an election was called, by proper notices, and a board of directors was elected in and for the new district, and they organized as a board of school directors; that there was property in the districts in township 10, north, range 3, west, to which the new district was entitled, and it was the duty of the board of school trustees of that town to appoint appraisers to value the same preparatory to a division; that they, on a proper request, had refused, and a writ of peremptory mandamus was prayed.

It is provided by section 33, that if on the day of the regular meeting of the trustees the provisions of the section shall have been complied with, they shall hear the same, and grant or refuse the prayer of the petition. “But the petitioners, or the legal voters who have appeared before the trustees at the meeting when the petition was considered and opposed, shall have the right to appeal to the county superintendent of schools, provided 'the -party- appealing files with the clerk of the trustees a written notice of appeal within ten days after final action upon the petition by the trustees. ” This provision giving the appeal is very indefinite as to the course to be adopted on a hearing on the appeal. Nothing is prescribed as to his action or as to the hearing before him.

Various objections are urged against the legality of the organization of the district. It is urged that a number of essential acts to the organization of a legal corporation are wanting. It is claimed that inasmuch as the trustees in township 10, north, range 6, west, rejected the petition for the new district, its organization was defeated; that the 33d section of the School law, as amended in 1881, (Sess. Laws, 140,) relates alone to the organization of school districts from territory which is all situated in the same county, and has no reference to the organization of districts of territory partly situated in several counties; that it confers no such power, and if it does, there are other irregularities that should defeat the organization. Under the long, well established and uniform practice of this court, the objections urged can not be considered in this collateral proceeding. When the legality,1 or, rather, the existence, of a corporation is intended to be questioned, it must be done by a direct proceeding in the nature of a quo warranto or scire facias. In the case of President and Trustees v. Thompson, 20 Ill. 197, it was said: “It is also a general rule, that a corporation, acting as such, can not be questioned collaterally, on the ground that it has not complied with its charter. ’’ In the case of Rice v. Rock Island and Alton R. R. Co. 21 Ill. 93, it was said: “The party ought not to be permitted, in this collateral way, to question the regularity of the organization of the company. If it has assumed to exercise corporate functions before it had a right, by law, to do so, — if it has usurped franchises not granted by the statute, — that should be more properly inquired into by a direct proceeding to seize the franchises to the people and dissolve the corporation. If in every suit which the company may bring to enforce its rights it must come prepared, over and over again, to show that its organization was formal and proper, it would lead to embarrassments and inconveniences the most intolerable. ” • Again, in Tarbell v. Page, 24 Ill. 46, it was held, that “whilst it may be true that a failure to file this certificate in the Secretary of State’s office may be such a non-compliance with the law as would authdrize the people to sustain a writ of quo warranto or scire facias, and to oust the corporators from the exercise of their franchiseSj it does not necessarily follow that it is not, as to third persons, a corporation, ” — and the case of Rice v. Rock Island and Alton R. R. Co. supra, was referred to as announcing the rule that the regularity of the organization of a corporation can not be questioned in a collateral proceeding. Again, in the case of Renwick v. Hall, 84 Ill. 162, it was held that chancery has no jurisdiction when any association or number of persons shall, within the State, act as a corporation without being legally incorporated, to determine the question whether such an association is legally incorporated or not. That question, it is there said, may be tried by quo warranto, which is the proper remedy. That was a case like this, where an effort had been made to form a new school district from territory, in two townships. The new district had elected, as in this case, a board of directors. The owners of real estate in the old district filed their bill in equity, alleging the proceedings in the formation of the new district were irregular and illegal, and in contemplation of law no new district had been formed. The injunction was dissolved and the bill dismissed on a hearing, and that decree was affirmed by this court, on the ground that equity had no jurisdiction to investigate the question. In the case of McCarthy v. Lavasche, 89 Ill. 270, it was also held that the legality of a corporation can not be attacked in a collateral proceeding, and a stockholder, when sued, can not be heard to insist the law under which the corporation was organized was unconstitutional, or the body illegally organized.

Other cases might be quoted as recognizing the rule, but those referred to are amply sufficient. As early as in 1844, this court, in the case of Wilmans v. Bank of Illinois, 1 Gilm. 667, announced the same doctrine, nor has it ever been overruled or modified, but has. been constantly adhered to until the present time, and the doctrine must govern this case. A proceeding in mandamus is of no more comprehensive jurisdiction than a court of equity, and is as powerless to declare a corporation is illegally organized. That proceeding was inaugurated for wholly different purposes. We are aware of no case which holds that in mandamus the court can exercise any jurisdiction belonging to the proceeding by quo warranto, nor if one could be found could we, in view of the numerous decisions of this court, be expected to yield to it as authority. The view we have taken of the case was not presented in the Appellate Court or in this court; but the doctrines of the cases to which reference has been made so clearly govern this case, that we feel constrained to give them application.

The corporation acting as such, and exercising the franchises of a school district, and its organization being incapable of attack in this proceeding, the circuit court had no power to investigate that question, and it erred in sustaining the demurrer to the petition, and the Appellate Court erred in affirming the judgment of the circuit court, and the judgment of the' Appellate Court must be reversed.

Judgment reversed.


text:
    The Chicago Building Society et al. v. Elizabeth Haas et al.

      Filed at Ottawa September 27, 1884.

    Y and client — betrayal of his clients interests by the attorney — remedy. An attorney at law, when acting in good faith and his client makes no objection to his management of the cause, has the power to waive or withdraw a defence and consent to judgment, but not to fraudulently sell out his client’s interests to the opposite party; and the courts will protect suitors from the treachery of their solicitors, as far as possible. 1. Attorney
    2. Same — impeaching decree for fraudulent collusion between one’s attorney and the adverse party. A litigant’s solicitor, for money received from the adverse party, entered into a stipulation for the entry of a decree against his client for a much larger sum than was due, without the knowledge or consent of the client, and withdrew a meritorious defence, and allowed a decree to be entered according to the corrupt agreement. The other party had notice of the solicitor’s want of authority and of his want of fidelity, before taking the decree: Held, that the decree should be set aside for fraud in procuring the same.
    3. Limitation — bill of review. A party has the same time in which to file a bill of review to set aside a decree as he has to prosecute a writ of error, unless there be special facts requiring more prompt action.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.

      On July 11, 1874, Elizabeth Haas filed her original bill in the circuit court of Cook county, against the Chicago Building Society and one Luther L. Greenleaf, seeking to enjoin the sale of her two certain lots under two deeds of trust given by her and her husband to Greenleaf. The bill charged fraud and usury in the several loans and in the notes and deeds of trust. After stating two loans, (one for $6000, on eight per cent per annum interest, and the other for $4000, on like interest,) and the failure of the society to give her the full face of the loans, and the giving of notes for much larger sums than the sums pretended to have been in fact loaned, the bill alleged that on or about May 14, 1873, she made arrangements with the secretary and treasurer of the society for a further loan of $4000. She and her husband were required to execute new notes and trust deeds for the amount of all the loans, when she was informed that the society held to her credit $3745.89, from which she drew, in checks and cash, from May 15, 1873, up to July 3, 1873, $2048.07, and no more. The new papers consisted of two promissory notes, each dated May 14, 1873, payable to the order of the society, and for the sum of $12,381.60, making in all $24,763.20 for the three loans, and each in installments of $103.18, maturing monthly, for one hundred and nineteen months, with ten per cent per annum interest on each installment after due. These two notes were secured by two deeds of trust, given by Mrs. Haas and her husband on two of her lots in the city of Chicago. The bill further alleged that complainant, by May 14,1873, paid back to the society $6198, and that from September 1, 1872, to the middle of July, 1873, she received from the society the total sum of $8748.70, and no more, of which she paid back $2070.40. The bill was filed to have an account taken of the sum she actually owed the society for the money actually advanced to her, with lawful interest, after allowing her credits for all payments, and for leave to redeem the lots by the payment of such sum, and to enjoin a threatened sale by Greenleaf, the trustee.
    On August 1, 1874, the defendants answered, denying all the material allegations of the bill, and on the 11th day of the same month the society filed its cross-bill, making Valentine Haas, the husband of Elizabeth Haas, a defendant, seeking a foreclosure of the two trust deeds. Mrs. Haas and her husband answered the cross-bill, and the cause was referred to the master to take proofs. On December 14, 1874, the circuit court entered a decree in the cases, dismissing the original bill, and finding under the cross-bill that there was due from Mrs. Haas and her husband the sum of $24,785.56 to the society under the notes and trust deeds, and directed payment by a short day, and ordered a sale of the lots if such payment was not made. From this decree Elizabeth Haas and Valentine Haas appealed to this court, which affirmed the same in all things except that part of it which provided for ten per cent interest after its entry. The decree of the circuit court was affirmed on the ground of the stipulation of D. J. Leary, the solicitor of Mrs. Haas and her husband, consenting to a decree for the amount it was rendered. Thereupon Elizabeth and Valentine Haas, on January 16, 1878, filed this their bill of review against the Chicago Building Society and Greenleaf, to impeach and set aside the decree upon the original and cross-bills, on the ground that it was obtained by fraud and collusion with their said solicitor, Leary. This bill, after setting out all the facts of the case and the previous proceedings, alleged the retainer by complainants of said Leary to prosecute the original bill and defend in the cross-bill, and that he, on or about the 24th day of November, 1874, while pretending to act as complainants’ solicitor, without their knowledge, consent or atithority entered into a corrupt agreement with the society and its officers that it might take a decree on its cross-bill for $24,785.56, in pursuance of which the decree sought to be impeached was made, when in fact complainants did not at that time owe the society more than $7150, and that the excess above that sum was composed of illegal and usurious interest charged by the society against complainants; and that on October 17, 1876, the mortgaged lots were sold under such decree by the master in chancery, to the society, for $19,000. Beside the general prayer for relief, an account was asked to be taken of the sum actually due from complainants to said society, counting the interest at six per cent, which was offered to be paid when ascertained, and that on payment the deeds of trust and the decree and master’s sale be cancelled and set aside.
    On the hearing, the circuit court found, specially, the facts showing that the original decree was the result of a corrupt and fraudulent agreement of the complainants’ solicitor with the building society that such a decree should be rendered, made without authority, and in violation of his duty as a solicitor, and that his stipulation to give away his clients’ rights was a fraud upon them, and also finding that all the material allegations of the bill, as amended, and the supplemental bill to which the oro tenus demurrers were not sustained, were true, as stated. The decree then provided as follows:
    “It is therefore decreed that the decree entered in this court December 14, 1874, in the cause wherein said Elizabeth Haas was complainant, and the cross-bills described, and the order modifying said decree, entered in this court September 18,1876; the sale made to said society October 17, 1876, by‘ the master, of said lots'2 and 7, and the report of such- sale, filed in this court October 21, 1876; the order confirming such report, November 23, 1876; the order of December 12, 1876, appointing a receiver, and the order of December'23, 1876, confirming such appointment, and the other orders and proceedings under and by virtue of said decree or consequent thereon, made either before or since the bill in this cause was filed, be and the same are hereby annulled, set aside and for naught esteemed; and it is ordered that such further proceedings be had in said cause wherein said decree was rendered upon said original bill filed by said Elizabeth Haas, and the cross-bill and the supplemental cross-bill filed by said building society, and upon the matters of supplement contained in the original and supplemental bills filed in this cause by said Elizabeth Haas and Valentine Haas, as to justice shall appertain. And thereupon it is ordered that the said stipulation, filed November 24,1874, be and the same is hereby stricken from the files of the court) as given without authority, and a fraud upon the said Elizabeth Haas and Valentine Haas. And it appearing that the said society is in possession of the land described in said bills, and that until the matter of the state of the account between said society and said Elizabeth Haas is taken, the possession of said society of said lands and said premises should not be disturbed. It is therefore further ordered, that said reports of the master in chancery, George Willard, be and the same are hereby set aside and vacated, and that the taking of the account in the premises between the said building society and the said Elizabeth Haas, on just and equitable principles, from the commencement of their dealings down to the present time, should be referred to a master in chancery of this court. It is ordered that it be referred to Horatio L. Waite, one of the masters, to take and state said account; that in taking said account the master allow the said building society all sums of money loaned by it to said Elizabeth Haas, and all advances made by it to purchase incumbrances, with interest thereon at six per cent per annum, and for all other proper charges, and for taxes and for tax liens, tax deeds and insurance, and interest thereon; and that he charge it with all payments made by her to it, all rents, issues and profits of the real estate which it has received or by the use of ordinary diligence it might have received, making rests for rents in.said account every six months, and following the rule adopted for calculating interest on partial payments.”

      From this decree the Chicago Building Society, the defendants, appealed to the Appellate. Court for the First District, and that court having affirmed the decree, the defendants, by a further appeal, bring the case to this court, and assign various errors. The other material facts are stated in the opinion of the court.
    Mr. Wolford N. Low, Mr. Edward Body, and Messrs. Moore & Browning, for the appellants.
    Mr. W. T. Burgess, for the appellees.
   Mr. Justice Dickey

delivered the opinion of the Court:

This is a bill to impeach a decree between the same parties,-for fraud in procuring the same. The grounds relied on to establish the fraud are, that Leary, the solicitor of the complainants in this ease, for the sum of $356 paid him by the building society, sold out his clients, and entered into a stipulation that a decree should be entered against them for the sum of $24,785.56, (a sum much greater than they owed,) without their knowledge or consent, and that the society had notice, before taking its decree for the sum agreed upon by the solicitor, that he had no authority to make such stipulation. There can be no question as to the treachery of the solicitor to his clients, and it may be that he imposed upon the officers of the building society, and obtained money from them by false pretences or representations; but if they were ignorant, at the time, of the falsity of his representations, there was enough to cause them to suspect his fidelity to his clients. At any rate, before filing the stipulation and taking their decree they had knowledge of the solicitor’s want of authority to make the stipulation.

Charles B. Brooke, secretary of the society, testifies that about October 23, 1874, Leary came to the office of the society and proposed a settlement of the litigation, stating that Mrs. Haas had no further defence in the matter; that she had given him a quitclaim deed of the property, in order to assure him that he would he right in all he did, so that he acted not only in that capacity, but also as her attorney; that a large loan had been made some time previous, in anticipation of a settlement, and it was lying in bank at his credit, and that if the society would come to an agreement as to figures, he would bring a certified check; that on the next day Leary came again, and went over the figures, and agreed to them; that about two days later Leary called and said there was some interest or commission due upon the loan, and that he could not handle the money until that was paid; that this amount was $356, and neither he nor Mrs. Haas had the money just then to advance, and asked that the society advance this sum for a few days; that by the direction of some of the directors this sum was advanced to Leary, who gave his note therefor, and executed and delivered the following stipulation:

“D. J. Leary, as attorney for the above named defendants, and for himself, hereby stipulates and agrees with the Chicago Building Society that he holds a good and sufficient authority from Elizabeth and Valentine Haas, the aforesaid defendants, to make the following stipulation and agreements: It is hereby stipulated and agreed by Elizabeth Haas and Valentine Haas, that a decree of the said court be entered as of record in favor of the Chicago Building Society, for the amount of $24,785.56, due October 15, 1874, as soon as such decree can be drawn. And it is hereby further stipulated and agreed, that the said Elizabeth Haas and Valentine Haas, or D. J. Leary, as their attorney, will pay or cause to be paid .to the Chicago Building Society the sum of $30,000, on or before the 31st day of October, A. D. 1874, in which case the said building society hereby stipulates and agrees to control and procure three other trust deeds, securing an aggregate sum of $5000, together with a certain judgment obtained against the said defendants by the Chicago Building Society, and as soon as said decree can be confirmed by the court, to give the said defendants, or said Leary, as their attorney, a full and entire release of all claims now held by said society against the property involved in this suit, and all other property owned or possessed by the said defendants.
D. James Least,
Solicitor for Haas.”

This stipulation bears no date, but the proof shows it was executed and delivered October 27, 1874, though not filed until November 24, 1874. With this stipulation, if made rightfully and by authority of the parties, the further taking of evidence before the master was unnecessary. That, alone, would settle the rights of the parties. Notwithstanding this, we find that on October 29, 1874, two days after this stipulation was given, Brooke, the secretary, appeared before the master, and was sworn to his deposition. At the close of Brooke’s deposition, the master entered a memorandum that the parties, “by their attorneys, announced that they did not desire to offer any further testimony.” Mrs. Haas had not then been examined, and this stipulation was not filed with the master, who filed his report October 30, 1874. On the same day a second stipulation was filed, agreeing that the evidence and master’s report then on file might be withdrawn, for the purpose of taking additional evidence before the master. It seems strange that the solicitor for the building society, with the first named stipulation in his hands controlling and settling the whole case, should consent to a re-reference of the case to take further evidence, if the stipulation was believed to have been given with the consent or authority of the adverse parties. The parties again went before the master, and on November 6, 1874, Brotike was recalled, and cross-examined at great length by Leary. On the same day Mrs. Haas testified in her own behalf, and was cross-examined fully upon the question at issue by the pleadings, but her attention was not called to this stipulation. From the facts stated in Brooke’s affidavit, made December 22, 1874, to procure the arrest of Leary, and his testimony in this cause, it is evident that the stipulation would never •have been obtained unless Leary had got the $356.

It is said that the decree in the original case was not made upon this stipulation. There is no direct proof as to this, but the fact that the decree is for precisely the sum named in the stipulation on file at the time of the hearing, makes it evident that the court did not overlook the same. It was before the court, and the court decreed in accordance with it; and this court, when the cause was before us, (80 Ill. 248,) held that the decree entered was entered by consent.

There is no doubt but that the Haas had a meritorious defence to the cross-bill. It seems to be conceded that the notes and trust deeds contained usurious interest; but it is contended that it is competent for an attorney to waive such a defence for his client. This the attorney may do when his client makes no objection, and he acts in good faith; but no court can ever sanction the doctrine that an attorney has the power fraudulently -to barter away any of his client’s rights to the opposite party. On the contrary, it is the duty of the courts to protect suitors from the fraud and treachery of their attorneys or solicitors, so far as possible; and a party having knowledge of an attorney’s. fraudulent purpose or want of authority, can not profit from his acts to the injury of his client. In this case we hold, with the circuit court, that the stipulation from Leary was the result of fraud and collusion between the appellees’ solicitor and the officers of the appellant, and that the filing of the same in the cause without the knowledge or consent of appellees, was a fraud, not only upon appellees, but also upon the circuit court and upon this court when the case was presented for consideration.

It is also objected that the appellees were barred of relief by laches in bringing their bill and bringing it to a hearing. A party has, by law, the same time in which to file a bill of review to set aside a decree as he has to prosecute a writ of error, unless there be special facts requiring more prompt action.

Perceiving no substan~ia1 error in the record, the judgment of the Appellate Court will be a~ffirmed.

Jztdgrnent ctlirmecl.