text:
    Edwin Litsey v. Floyd K. Whittemore.

      Filed at Springfield September 27, 1884.

      1. Specific! performance — laches. Where the purchaser of land was to pay $600 in cash when the deed and abstract were ready, and assume an existing mortgage of $3000 on the premises, the vendor and wife to make him a good and sufficient warranty deed, no time of performance being fixed, and the purchaser, within four months from the date of the contract, tendered the vendor $600, and presented him a deed to be executed, in which the purchaser assumed to pay the mortgage debt, and, on the refusal of the vendor to perform the contract on his part, immediately thereafter filed his bill for specific performance, it was held, that the delay was not unreasonable, under the circumstances. Until the deed and abstract were prepared the purchaser was not bound to pay.
    2. Same — want of title in vendor, and refusal of his wife to join in the deed — whether availing as a defence. The fact that a vendor of land is unable to give a warranty deed, so as to 'give a good title, and that his wife refuses to join in a deed for the land, is no defence to a bill by the vendee to enforce a specific performance. And when the decree requires the master in chancery to make a conveyance to the vendee, this will amount only to a quitclaim deed by the vendor alone, and the latter can not complain of the decree on that account.
    3. Contract — for sale of land, construed — condition precedent as to making cash payment. A contract recited “that A has this day bargained and sold to B, for the consideration of $600 cash when deed and abstract are ready, and the further consideration that B assume an existing $3000 mortgage now on the land, and hereby agrees to execute and deliver a good and sufficient warranty deed ther'efor, signed and acknowledged by himself and wife, to the following land,” etc.: Held, that the $600 was not to be paid presently, but only when the deed and abstract were ready, and that B was not required to pay the mortgage immediately, or when he received his deed.
    Writ of Error to the Appellate Court for the Third District ; — heard in that court on writ of error to the Circuit Court of Vermilion county; the Hon. J. W, Wilkin, Judge, presiding.

      Mr. Chables Wheaton, for the plaintiff in error:
    A decree will he reversed when the bill is insufficient to suppdrt the findings. Waugh v. Robbins, 33 Ill. 181.
    Where a bill is bad on demurrer, the court will not grant relief upon the hearing, even though the defendant answers. Ryan v. Duncan, 88 Ill. 144.
    A party can not compel a specific performance unless he has fully performed on his part, or can give a good excuse for not performing. Scott v. Shephard, 3 Gilm. 483; Heckard v. Sayre, 34 Ill. 142; Stow v. Russell, 36 id. 18; Supervisors v. Henneberry, 46 id. 180; Warren v. Richmond, 53 id. 52.
    No time of payment being expressed, the law makes the money payable immediately. Thompson v. Ketchum, 8 Johns. 190; Mason v. Owens, 56 Ill. 259.
    Delay in paying or offering to perform in proper time is fatal to the relief. Roby v. Cossitt, 78 Ill. 638; Mix v. Balduc, id. 215; Marshall v. Perry, 90 id. 299; Hungate v. Rankin, 20 id. 639; Bourland v. Sickles, 26 id. 493; Lyon v. Culbertson, 83 id. 33; Knickerbocker Ins. Co. v. Seeleman, id. 446; Hoyt v. Tuxbury, 70 id. 331.
    The assumption of the ihortgage means its payment, so as to relieve the mortgagor from any liability thereon, and that has not been done. 1 Jones on Mortgages, sec. 769.
    When the vendor is kept subject to a debt from which the vendee agreed to relieve him, it is a continuing injury. Brewer v. Worthington, 10 Allen, 329; Gaffney v. Hicks, 124 Mass. 301; Gregory v. Hartley, 6 Neb. 356; Wilson v. Stillwell, 9 Ohio St. 467; Stout v. Folger, 34 Iowa, 71.
    If the vendor has not a good title, a decree for complete performance can not be made; and if both parties knew of the state of the title, no decree for specific performance can be had. Mills v. Van Voorhies, 20 N. Y. 412.

      Messrs. Mann, Calhoun" & Frazier, for the defendant in error:
    The default admits that defendant made the contract, and that the complainant has always been ready and willing to comply on his' part, and that defendant has refused. Laird v. Allen, 82 Ill. 44.
    The cash payment was to be made only when the deed and abstract were ready.
    The assumption of a debt is an agreement to pay it at some future but reasonable time. Under the clause in the deed, the defendant can compel complainant to pay the assumed debt. Dean v. Walker, 107 Ill. 540.
    Complainant was, not bound to pay the mortgage before it was due. He had a right to, and did, waive the giving of an abstract of title; and also the procurement of the signature of the defendant’s wife, and also the right to a warranty deed. Of this the defendant can have no just cause of complaint.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Floyd K. Whittemore, the defendant in error, on the 5th day of May, 1883, filed in the "Vermilion circuit court a bill in chancery, against the plaintiff in error, Edwin Litsey, to enforce the specific performance of the following contract:

“This memorandum of agreement, made this 17th day of January, 1883, between Edwin Litsey, of Kendall county, Illinois, first party, and F. K. Whittemore, of Sangamon county, Illinois, second party, witnesseth, that the said first party has this day bargained and sold to the second party, for the consideration of $600 cash, when deed and abstract are ready, and the further consideration that the second party assume an existing $3000 mortgage now on the land, and hereby agrees to execute and deliver a good and sufficient warranty deed therefor, signed and acknowledged by himself and wife, to the following described lands, to-wit: the southeast quarter of section 12, township 23, range 13, west, situated in "Vermilion county, Illinois.
(Signed)
Bdtin Litsey’
F. K. Whittemobe.’

The bill, after setting out the contract1, avers that the complainant has always been ready and willing to comply with its terms, on his part; “that complainant, on May 4, 1883, tendered to Edwin Litsey the said sum of $600, and also presented him a deed, to be executed • by him, in which, as a part of the consideration of said premises, complainant assumed and agreed to pay the $3000 mortgage mentioned in said agreement, and complainant then demanded that said Litsey and his wife should execute said deed, and the said Litsey then and there refused to execute said deed.” The answer admits the making of the agreement, but alleges that it was made without consideration, “and without a full knowledge of the facts and circumstances which resulted in defendant’s signing such agreement; that at the time stated, Whittemore claimed to be the owner of the north eighty acres of the land in the said south-east quarter of section 12, with a title superior and paramount to that of the defendant, and defendant was induced, by continued importunity and solicitation of complainant, * * * to enter into and sign the so-called agreement; that before signing said so-called agreement, defendant repeatedly asked complainant, if he (defendant) should consent to convey to complainant the land described in complainant’s bill, by Avarranty deed, whether by doing so he (defendant) would be conveying away his right of action against his immediate predecessor in interest, upon his covenants of warranty in his deed to defendant, and at each time complainant positively assured, defendant he would not; * * * that relying upon such statements of complainant, and not otherwise, defendant signed said pretended agreement. ” The answer then charges, in substance, that in a few days after signing the agreement, upon consultation with an attorney, he learned that a conveyance of the land by him to complainant would operate as an extinguishment of his right of action against his grantor, and that he thereupon notified complainant he considered the agreement rescinded and annulled. It is further stated in the answer, that at, the time of making the agreement, defendant was and still is unable, in truth and in fact, to make a warranty deed of the land described in the bill, and that complainant well knew and still knows that fact; that defendant is unable to obtain the signature and acknowledgment of his wife to any conveyanee of the land, etc.

The court sustained exceptions to the answer, and the defendant declining to answer further, a decree pro confesso was entered against him, in conformity with the prayer of the bill, to reverse which the defendant has brought this writ of error.

We agree with counsel for plaintiff in error, that if the case made by the bill does not, as matter of law, entitle the complainant to relief, a decree directing a specific performance of the contract would be erroneous, although the matters set up in the answer might clearly present no defence to a bill confessedly good on its face; but we do not agree with counsel that the bill in this case is so totally defective that it would be held bad on demurrer. Its sufficiency is chiefly assailed on the ground the complainant was guilty of laches in not filing it at an earlier day. We do not think a delay of some four months in bringing suit, under the circumstances shown by the bill, warrants the charge of laches or unreasonable delay on the part of complainant. By reference to the contract it will be observed the* $600 was not to be paid presently, as is assumed by counsel for plaintiff in error. On the contrary, his undertaking was to pay when the deed and abstract were ready. It was clearly the duty of Litsey, under the contract, to prepare and execute the deed, and to also furnish the complainant an abstract of title, and until this was done the latter was under no obligation to pay the money, and as this was not done at all by Litsey, it follows defendant in error can not properly be said to have been guilty of laches. This view of the matter, of course, is based exclusively upon what appears on the face of the bill, and is intended merely as an answer to the claim the bill is bad on its face. As to the answer, we are of opinion it presents no substantial defence to the bill.

The contention of plaintiff in error that the defendant in error should have paid, or offered to pay, the incumbrance of $3000 on the land, as well as the $600, in order to entitle him to a conveyance, we do not- think is a fair construction of the agreement. Had such been the intention of the parties, the agreement would doubtless have so provided; but this it does not do. The words of the instrument are, “and the further consideration that the second party assume an existing $3000 mortgage now on the land.” An agreement to assume a debt does not, either in law or in a popular sense, imply an undertaking to make immediate payment of the debt, but rather the contrary. If this debt was to be paid immediately, or upon the making of the deed and furnishing the abstract, it -is but reasonable to suppose the agreement would have so stated,'just as it does respecting the $600; but this was not done.

As to the objection plaintiff in error was not, at the time of making the contract, and has not since been, able to make a warranty deed to the premises, as well as to the further objection that his wife refuses to join in the deed, they are both fully obviated (conceding there was anything originally in them, of which we express no opinion,) by the decree rendered in the cause, which simply directs the master to convey the property in question to the defendant in error upon his complying with the terms of the agreement on his part, the effect of which will, of course, be nothing more than a mere quitclaim deed by Litsey alone, and if Whittemore is willing to accept such a conveyance, surely Litsey has no right to complain.

There is no pretence or claim there has been any fraud practiced on plaintiff in' error, and he should, in equity and good conscience, be held to the performance of his agreement.

The decree will be affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Dickey

license: Public Domain

text:
    The Chicago and Alton Railroad Company v. Hiram Goodwin et al.

      Filed at Ottawa September 27, 1884.

    1. Life estate — power of tenant for life over estate. A person having an estate for life in land may make or allow any use of it he sees fit during his life, provided no injury is done to the inheritance. The remainder-man, during the existence of the life estate, has the right only to prevent the commission of waste.
    2. Trespass — entry under license of tenant for life. The entry upon premises by a railway company, and the construction of a railroad over the same, which is no injury to the inheritance, under the verbal license of the tenant for life, is not a trespass or an unlawful entry. Such entry will not subject the party so entering to either an action of trespass or ejectment on the part of the remainder-man.
    3. Real and personal estate — buildings and structures — when real and when personal estate. It does not necessarily follow that structures, or even buildings, placed by one person on the land of another, become a part of the real estate. When they are trade fixtures they are regarded as personal property. So a house erected upon the land of another, under an agreement that it shall belong to the builder, is personal property.
    4. If, however, a person enters upon the land of another without permission, and places a building or other structure thereon permanently attached to the soil, he will be a trespasser, and the building or structure will become a part and parcel of the land, and will be the property of the land owner. In such case the builder acquires no right by his tortious act.
    5. Eminent domain — measure of damages — compensation for structures put on land by railroad company itself. Where a railway company, under license of the life tenant, enters upon land and constructs its road over the same, with costly embankments, and enjoys the use of the same without objection, on an application by the company, after the termination of the life estate, to condemn a strip of land on which such road and structures are built, for a right of way, the law will not require it to pay the owner of the land for the structures so placed upon the same at its own expense. The land owner will have no right to compensation for such structures, they not being his property.
    6. A railway company seeking a condemnation of land for a right of way already occupied by it, is not required by law to pay the land owner for structures placed upon the land at its own expense, with a view of subsequently acquiring the right of way, even though its original entry may have been without license, or tortious.
    7. So in a proceeding by a railroad company to condemn' a strip of land for right of way then and previously occupied by it, and upon which strip of land the company had before constructed its road, consisting of costly embankments and structures, the court instructed the jury that in estimating the compensation of the owner of the land they should consider the whole property, including all the structures upon it, as well as the soil to which they were affixed, and award such sum as compensation to the defendants as said property was reasonably worih for the purpose for which it was intended, although of no practical value to the defendants in connection with their farm: Held, that the instruction was erroneous, as requiring more than a just compensation.
    Appeal from the County Court of Will county; the Hon. C. B. Gabnsey, Judge, presiding.
    This was a proceeding instituted by the Chicago and Alton Bailroad Company, October 12, 1882, in the county court of Will county, against Hiram Goodwin, William Goodwin, and Sarah Althouse, guardian of Philip Goodwin, to condemn a strip of land for a right of way. In December, 1882, the defendants filed their cross-petition, in which they allege that they are the owners in fee of a farm of one hundred and sixty-three acres, therein described, as tenants in common; that such farm consists of valuable land; that the nearest market town is the city of Wilmington; that the only means of reaching the highway leading to Wilmington is to pass from this farm, along the tow-path of the Kankakee feeder, to a bridge across the lock at the head of the feeder; that they and their predecessors in ownership have always been permitted by the canal authorities to use the tow-path of such feeder as a roadway from their said farm to the highway; that some time in the year 1873 the Chicago and Illinois Eiver Eailroad Company, without any right, built a railroad track over that part of said farm described in the petition; that at first this track was raised upon trestle-work connecting the bridge over the feeder with the bridge over the river, and that afterwards this trestle-work was replaced with a solid embankment, with no openings admitting of communication between the two parts of the farm. In addition to the compensation for the land actually taken, they claimed damages, first, for the injury sustained by the cutting off from the body of the farm the small piece of land lying east of the railroad; and'kecond, for the injury to said farm by destroying its customary and only means of access to the public highway.
    On January 18, 1883, appellant filed its amended petition, and afterwards, on December 26, 1883, by leave of court, filed an amendment to its amended petition, alleging that prior to the commencement of this suit, and some time in the spring of 1873, the Chicago and Illinois Eiver Eailroad Company, a corporation created and existing under the laws of this State, and authorized and empowered to exercise the power of eminent domain, by and with the consent of the party then in possession of said real estate and authorized to grant such consent and license, entered upon said real estate, and constructed thereon, under such consent and license, a railroad track, and that appellant entered into the possession and occupancy of said real estate and railroad track situate thereon, under the Chicago and Illinois Eiver Eailroad Company, and under and through said last named corporation became the owner of said railroad track, and has ever since said time maintained, and now maintains, the same, as owner thereof, and in so doing constructed the embankment now situate thereon, without objection from any person, and now is the owner thereof, and without any objection has ever since maintained said track.
    It was admitted, on the trial, that in 1863 the mother of appellees acquired the title to the land in question; that she died in 1869, leaving William Goodwin, her husband, and the appellees, her heirs at law; that William Goodwin, as tenant by the curtesy, entered into the possession and use of said land, and was so in the use and possession thereof during the year 1873. It was also shown that some -time in, the fall of 1872 or spring of 1873, the Chicago and Illinois Eiver Eailroad Company obtained from.said William Goodwin a verbal license to enter upon the land described in the petition, and construct its road across' the same, provided said company left an opening under the track sufficient for a roadway. Acting under this license, that corporation entered upon the land, and built its road across the same, leaving the roadway under the track. In 1875, appellant, as lessee, entered into the possession, use and operation of the road constructed by the lessor corporation, and in 1879 appellant became, by purchase, the-owner of Said r'ailróad, and in the year 18,82 -constructed the embankment in lieu of the trestle-work. ■ It also appeared that appellees never made any objection, at any time, to any acts done • by appellant or the company under which it claims.
    The petitioner asked the court to give the following among other instructions, which the court refused
    “4, The jury are instructed that if they shall believe, from the evidence, that the Chicago and Illinois Eiver Eailroad Company, under a parol license from William Goodwin, for the purpose of constructing a railroad track, entered upon the land in the petition described, and under such license constructed a railroad track and operated the same; and if the jury shall further believe, from the evidence, that the petitioner entered upon said land under the said Chicago and Illinois Eiver Eailroad Compahy, and was in such possession at the time of the filing of the petition herein, and since and now continues in such possession, and since its entry into possession, as aforesaid, has maintained said railroad track at its own cost and charge, then the defendants in this suit are not entitled to recover, as damages to be awarded in this proceeding, the value of the said railroad track, embankment and abutment. ”
    The court also, at the request of the defendants, gave the jury the following among other instructions:
    “2. If, from the evidence, the jury find that the Chicago and Alton Eailroad Company, or the Chicago and Illinois Eiver Eailroad Company, or any other railroad company under which the petitioner claims, did, without license or permission from the defendants, or from any one having legal power and authority to give such license or permission, enter upon the strip of land described in the petition in this case, and construct a railroad thereon, then such act was a mere trespass, and such structures were placed upon said land without right, and being in their nature fixed, permanent and irremovable, they were affixed to and became a part of the realty, and belong to said defendants, and compose and constitute a part of the property sought to be condemned, and for this improvement, as well as the land, just compensation is to be awarded by the jury in this case.
    “3. In estimating the compensation to he given for the strip of land sought to be condemned to the use of the Chicago and Alton railroad, the jury will consider the whole property as described in the preceding instruction No. 2, including all the structures upon it, as well as the soil to which they are affixed, and will award such sum as compensation to the defendants as said property is reasonably worth for the purpose for which it was intended, although of no practical value to the defendants in connection with their farm.
    “4. It being stipulated and agreed by and between the parties in this case, that William Goodwin has no other interest in the land in question except as tenant by the curtesy,' and the petitioner claiming no other license or permit from said Goodwin, the jury are instructed that said Goodwin, as such tenant by the curtesy, had no right, power or authority to grant such license, and neither the Chicago and Illinois River Railroad Company, nor the petitioner, as its grantee, acquired, by virtue of a license from him, if any such license in fact was given, any right to construct said railroad over the land of the defendants.
    “5. If, from the evidence, the jury believe that the Chicago and Illinois River Railroad Company, from which the petitioning corporation claims title to the improvements upon the land sought to be condemned, never obtained a license to place such improvements upon the land from any one authorized to grant such license, then in the building of such railroad said Chicago and Illinois River Railroad Company was a trespasser, and all structures of a permanent nature constructed by it became a part of the realty, and the property of the defendants, and in this proceeding they are entitled to receive just compensation for the whole property, — both the soil and the improvements.
    “6. If by reason of the fact that the Chicago and Illinois River Railroad Company obtained no license, valid in law, to build the piece of railroad in question, the entering upon the premises was a trespass, and the improvements became a part of the realty and the property of defendants by operation of law, then in the present proceeding the measure of compensation will be the same as if such improvements had been constructed by themselves, and at their own cost. ” To the ruling of the court in refusing the said instruction asked by the petitioner, and in giving each of those given for the defendants, the petitioner at the time excepted.
    Mr. Edwakd O. Akin, for the appellant:
    The true measure of damages is the value of the land actually taken, exclusive of the improvements placed thereon by appellant, or those under whom it claims.
    The appellant is not liable in this proceeding to pay for structures and improvements made on the right of way, never intended to be incorporated with the soil, except for purposes of attending the possession, and with a view of subsequently acquiring the right of way. Greve v. Railroad Co. 26 Minn. 66; Railroad Co. v. Dunlap, 47 Mich. 456; Lyon v. Railroad Co. 42 Wis. 538; Justice v. Railroad Co. 87 Pa. St. 28; Railroad Co. v. Armstrong, 46 Cal. 85; Austin v. Railroad Co. 45 Vt. 142; Mills on Eminent Domain, sec. 142.
    If appellees are permitted to recover the value of their improvements, it must be upon the theory that the original entry was a trespass. This would be to allow them to recover for a trespass, which can not be done in this proceeding. (Railroad Co. v. Winslow, 66 Ill. 219.) That they can not recover for such improvements, see Baker v. Railroad Co. 57 Mo. 65; Dietrich v. Murdock, 42 id. 79; Blesch v. Railroad Co. 43 Wis. 195; Railroad Co. v. Devaney, 42 Miss. 602; Robbins v. Railroad Co. 6 Wis. 636; Railroad Co. v. McComb, 60 Maine, 290; Railroad Co. v. Camp, 45 Ga. 180; Harvey v. Railroad Co. 47 Pa. St. 428; Railroad Co. v. Hottenstine, id. 28; Railroad Co. v. McClure, 29 Ind. 536; Railroad Co. v. Munnamaker, 4 Rich. L. 107; Raihoad Co. v. Dayton, 10 Abb. Pr. (N. S.) 182; State v. Railway Co. 3 Rob. (La.) 513; McAuley v. Raihoad Co. 33 Vt. 311.
    The true measure of damages is the market or cash value of the property. Railroad Co. v. Walsh, 106 Ill. 253.

      It is the loss to the owner for which compensation must be made. Railroad Co. v. Railroad Co. 105 Ill. 120.
    Trade fixtures are personal property, and may be removed. Elwes v. Mauve, 3 East, 38; Van Ness v. Pacard, 2 Pet. 37; Holmes v. Tremper, 21 Johns. 29; White's appeal, 10 Barr, 252.
    The same doctrine applies to railroads built in the interest of the public and trade or commerce.
    Mr. G. D. A. Parks, for the appellees:
    The appellees were legally entitled to compensation for the real estate proposed to be condemned, which is not only the soil, but also the improvements affixed to the soil. Improvements placed upon land by a trespasser belong to the owner of the fee. Dooley v. Crist, 25 Ill. 551; Mather v. Dobschuetz, 72 id. 441; First Parish v. Jones, 8 Cush. 184.
    The Chicago and Illinois Biver Bailroad Company entered upon the premises without license from any one authorized to give it, and was a trespasser.
    That the measure of damages adopted by the court below was correct, see South Park Commissioners v. Dunlevy, 91 Ill. 57; Railway Co. v. Railroad Co. 100 id. 33; Railroad Co. v. Kirby, 104 id. 345; Stinson v. Railroad Co. 2 Minn. 314.
   Mr. Justice Dickey

delivered the opinion of the Court:

We think that the instructions given do not properly state the law applicable to the facts of this case. William Goodwin, as tenant for life of this land, might make or allow any use of it he saw fit, during his life, provided no injury was done to the inheritance. Appellees, as remainder-men, dur-. ing the existence of the life estate had the right only to prevent the commission of waste. The evidence showing that the railroad track, as originally constructed, did no injury to the premises, appellees had no lawful power to prevent the construction of the road under the license of the tenant for life. The original entry, as to them, could not have been a trespass, for the reason they then had not even a right to possession. As has been said: “An original entry by the consent of the tenant for life, is lawful, and will not subject the party entering, to an action of ejectment on the part of the remainder-man, although damages have not been paid. Other remedies must be sought. ” Mills on Eminent Domain, sec. 142; Austin v. Rutland R. R. Co. 45 Vt. 142.

By instruction No. 2, the jury are told that if the entry upon the land was made without any license from the defendants, or from one having legal power and authority to give such license or permission, such entry, etc., was a trespass, and that the structures, placed upon the land became a part of the realty, and inseparable from it. By instruction No. 4, the jury were told that the life tenant had no power or authority to give such license. These instructions should not have been given in a ease like the present. It does not necessarily and invariably follow that structures, or even buildings, placed by one person on the land of another become a part of the real estate. When they are trade fixtures, they are regarded as personal property. So a house erectéd upon the land of another, under an agreement that it shall belong to the builder, is personal property. (Matzon v. Griffin, 78 Ill. 477; Curtiss v. Hoyt, 19 Conn. 165; Wells v. Bannister, 4 Mass. 514; 2 Am. Leading Cases, 747.) If a man erects a house upon the land of another with his consent, it will, if "the builder has no title to the land, be the personal property of the builder. 1 Washburn on Real Prop. p. 2, sec. 4; Aldrich v. Parsons, 6 N. H. 555; Dame v. Dame, 38 id. 439; Osgood v. Howard, 6 Greenlf. 452; Ashmun v. Williams, 8 Pick. 462; Doty v. Gorham, 5 id. 487; Rogers v. Woodbury, 15 id. 156; Mott v. Palmer, 1 Conn. 571; Hinckley v. Baxter, 13 Allen, 139. And it will so remain, though the land owner convey the land, and the owner of the building convey that, if to different persons. Ham v. Kendall, 111 Mass. 298.

If a person enters the land of another without permission, and places a building or other structure thereon, permanently attached to the soil, he will be a trespasser, and the building or structure will become part and parcel of the land, and will be the property of the land owner. In such case, the builder acquires no rights by his tortious acts. But here there was no trespass, because the entry upon the land was with the express consent of one having the right to give it, and all the subsequent acts were done without objection, and before any steps were taken to dispossess the plaintiff or the corporation which it succeeded. Even if the entry had been without license or permission of any one authorized to grant the same, so that it was a trespass at the time, the law would not require the railroad company, in seeking a condemnation of the land so entered upon for a right of way, to pay the owner of the land for structures placed upon it at its own expense, with a view of subsequently acquiring the right of ivay. As sustaining these views, see Greve v. First Division St. Paul and Pacific R. R. Co. 26 Minn. 66; Morgan’s Appeal, 89 Mich. 675; Toledo, Ann Arbor and Grand Trunk R. R. Co. v. Dunlap et al. 47 id. 456; Lyon et ux. v. Green Bay Ry. Co. 42 Wis. 538; Justice v. Nesquehoning Valley R. R. Co. 87 Pa. St. 28; California P. R. R. Co. v. Armstrong, 46 Cal. 85.

In a proceeding of this kind, to Condemn land for a right of way, the land owner can not recover damages for a prior trespass by entering upon his premises. Lafayette, Bloomington and Mississippi R. R. Co. v. Winslow, 66 Ill. 219.

That the land owner whose land is condemned can not recover, in addition to the value of the land taken, the value of improvements put upon the same by the party seeking a condemnation, reference has been made to the following other cases: Baker v. Chicago, Rock Island and Pacific R. R. Co. 57 Mo. 265 ; Dietrich v. Murdock, 42 id. 279; Blesch v. Chicago R. R. Co. 43 Wis. 195; Mississippi R. R. Co. v. Devaney, 42 Miss. 602; Robbins v. Milwaukee R. R. Co. 60 Maine, 290; Sema R. and D. R. R. Co. v. Camp, 45 Ga. 180; Harvey v. Lackawanna and B. R. R. Co. 47 Pa. St. 428; East Pennsylvania R. R. Co. v. Hottenstine, id. 28 ; White Water Valley R. R. Co. v. McClure, 29 Ind. 536; Greenville R. R. Co. v. Munnamaker, 4 Rich. L. 107 ; McAuley v. Western Vermont R. R. Co. 33 Vt. 311; State v. Gulf Ry. Co. 3 Rob. (La.) 513. The “just compensation” required to be given, is for that which is taken from the owner, and which is of value to him, and not for something he never owned.

The third instruction given for the defendants is further erroneous in directing the jury to allow the defendants, as compensation for the structures placed upon the land, what such property was reasonably worth for the purpose for which it was intended, although of no practical value to defendants in connection with their farm. The compensation which the law requires to be made is that which is “just.” This means that the sum allowed and paid the owner whose property is taken, shall be equivalent to the value of that of which he has been deprived. It would be unjust to allow him more than will compensate his loss. It would seem, at first blush, to be highly inequitable to allow him for a railroad track over his land, not built by him, including embankments, at its cost or value to a railway company owning a franchise to use the same for railroad purposes, when to him it is of no practical value.

For the reasons indicated, the judgment of the county court of Will county is reversed, and the cause remanded for further proceedings according to law.

Judgment reversed.


author: Mr. Chief Justice Scholfield

text:
    The Supreme Council of Royal Templars of Temperance v. Amanda A. Curd.

      Filed at Springfield September 27, 1884.

    1. Practice — when objection to evidence should be specific. Objections to evidence, or questions propounded, which might have been obviated, must be specifically made on the trial, or they can not be urged on appeal or error.
    2. Contract — rule of construction — talcing words used, in their ordinary sense. In seeking the intention of the parties to a written contract, the courts are not authorized to construe the words used otherwise than in accordance, with their plain, natural and obvious meaning, unless, from a consideration of the entire evidence, it shall appear that -the parties did not intend to so use them.
    3. Life insurance — application as part of contract, construed. An application, by a member of a temperance order for a beneficiary certificate in the nature of a life insurance policy, contained this clause: “I further agree, that should I, at any time, violate my pledge of total abstinence, or be suspended or expelled for a violation of any of the laws of the order, or for non-payment of dues, etc., then all rights which either myself, the person or persons named in certificate, my heirs, etc., may have upon the beneficiary fund of the order, shall be forfeited:” Held, that the application was a part of the contract of insurance, and obligatory upon the beneficiary named in the certificate, to whom payment was promised on the death of the member, and that the language was in the alternative, making either or any one of the causes named, a ground of forfeiture of all right of recovery upon the certificate.
    4. Same — certificate construed, as to conditions. A beneficiary certificate given to a member of an order, witnessed that the member was entitled to certain rights and privileges of the order, and the same was issued upon the express condition that he should, while a member of the order, faithfully maintain his pledge of- total abstinence, and comply with all the laws, rules, regulations and requirements of the order, otherwise it to be of no effect; and that in case he should die in good standing, the beneficiary named should be entitled to one dollar from each active member in good standing, not exceeding two thousand: Held, that as the requirements in the condition are used conjunctively, a compliance with all of them was necessary to. a recovery, and that a violation of the .pledge of total abstinence, alone, would bar a recovery by the beneficiary.
    5. So the words, “in case he is in good standing at the time of his decease, then the person or persons hereinafter named shall be entitled,” etc., are not equivalent to saying that if he is not tried or convicted of violating his pledge, etc. Good standing in a society not only implies that the party is a member thereof, but also that he has a good reputation therein. In such case, a violation of the pledge of total abstinence, even without a trial and conviction, forfeits the right of the beneficiary to recover the sum promised.
    6. Parol evidence — of breach of condition of a contract of insurance. In an action upon a contract of a temperance .order or society to pay a certain sum to the beneficiary therein named, upon the decease of the member entering into the same, upon the express condition that he should faithfully keep his pledge of total abstinence, it is error to exclude parol evidence of his having violated such pledge before his death. In such case his trial and conviction by the order for such violation need not be shown in order to defeat a recovery.
    Writ of Error to the Appellate Court for the Third District ; — heard in that court on writ of error to the Circuit Court of Coles county; the Hon. J. W. Wilkin, Jddge, presiding.
    This was-a suit brought by Amanda A. Curd, against the Supreme Council of Boyal Templars of Temperance, to recover upon a certificate, in the nature of a policy of life insurance, issued by that order to the plaintiff’s husband, and in which she was named as the beneficiary.
    Mr. G. A. Kellar, for the plaintiff in error.
    Mr. James A. Connolly, and Messrs. Dunn & Connolly, for the defendant in error.
   Mr. Chief Justice Scholfield

delivered the opinion of the Court:

Daniel Curd, on the 26th of November, 1881, presented to the Supreme Council of Boyal Templars of Temperance, the following:

“To the Supreme Council B. T. of T.:
“I, Daniel Curd, having made application for Membership in Veritas Council No. 2, Boyal Templars of Temperance, do hereby agree that compliance on my part with all the laws, regulations and requirements which are or may be hereafter enacted by said order, is the express condition .upon which I am to be entitled to participate in the beneficiary fund of the order, and have and enjoy all the other privileges of said order. I certify that the answers made by me to the questions propounded by the medical examiner of this council, which are attached to this application and form a part thereof, are true. I further agree, that should I, at any time, violate my pledge of total abstinence, or be suspended or expelled for a violation of any of the laws of the order, or for non-payment of dues or beneficial assessments, or should I die in consequence of a duel, or by the hands of justice, or should I die by my own hand within one year from the date of my initiation, whether sane or insane, then all rights which either myself, the person or persons named in certificate, my heirs or legal representatives may have upon the beneficiary fund of the order, shall be forfeited. And I further agree to abide by the decision of the supreme medical examiner in his acceptance or rejection of this application.
“Dated at Charleston, county of Coles, State of Illinois, this 26th day of November, 1881.
(Signed.)
Daniel Curd, Applicant .”

Curd was admitted to membership, as asked, and thereupon, afterwards, on the 10th day of December, 1881, the Supreme Council of Royal Templars of Temperance issued and delivered to him the following, to-wit:

“ROYAL TEMPLARS OE TEMPERANCE.
Hope, Love and Truth.
In God we trust.
BENEFICIARY CERTIFICATE.
“This certificate, issued by the authority of the Supreme Council Royal Templars of Temperance, witnesseth, that Bro. Daniel Curd, a member of Veritas Council No. 2, of Illinois, is entitled to all the rights and privileges guaranteed to active members of the order by our constitution and laws, and issued upon the express condition that he shall, while a member of said order, faithfully maintain his pledge of total abstinence, and comply with all the laws, rules, regulations and requirements of said order, — otherwise it shall be of no effect. And in case he is in good standing at the time of his decease, then the person or persons hereinafter named shall be entitled to one dollar from each and every active member in good standing, not exceeding two thousand; or should he become totally disabled for life while a member of the order in good standing, so as to prevent his following his own or any other avocation, provided such disability did not arise from intemperance or any immoral conduct on his part, then, upon satisfactory proof of such total disability, he shall be entitled to one-half of the above mentioned amount, the remaining onelialf to be paid at the time of his decease; and he now directs, that in case of his decease it be paid to Amanda A. Curd.
P A Boss
Supreme Councilor.
Supreme Secretary.
J. I. Brown, R. Sec’y.
S. M. McNutt, S. C.”

On the 26th of June, 1882, charges were preferred against Curd, as follows:

“Charleston, III., June 26, 1882.
“To Veritas Council No. 2, R. T. of T.:
“I, C. U. Dunbar, a member of Veritas Council No. 2, hereby charge Bro. Daniel Curd with violation of article 2, as more fully appears in the annexed specifications, — by being drunk on June 19-20; and I ask that a committee to investigate said charges be appointed.
^ ^ Dunbar ”

The consideration of this by the council was indefinitely suspended, and on the 5th of July next following, before any action was taken by the council on the charge, Curd died.

The circuit court, on the ■ trial, refused to allow questions to be answered, the effect of which would have been to prove. that Curd had drank spirituous liquors in violation of his pledge. It is true, counsel now insist those questions were liable to certain specific objections, — some of them, in that they submitted a matter involving opinion as well as fact, to the jury, and others, in that the inquiry was not limited to liquors drank as a beverage. The record shows the objections to the questions were only general, specifying no particular ground, and the ruling of the court, we must assume, was on the objections as they were made. It is evident these specific objections could have been obviated by a change in the form of the question, and they should, therefore, to be availed of now, have been urged when the questions were propounded. . It is quite apparent the contest on the trial was, whether the fact that Curd had drank spirituous liquors in violation of his pledge, as a beverage, was a complete defence to the cause of action, he having never been tried and convicted, and expelled. from the order, or suspended from its privileges therefor, and the court, both in refusing questions to be answered, and in refusing to instruct the jury, ruled that it was not, — and this, in our opinion, is the only question that need now be considered.

The question here, as in other cases of contract, is to arrive at the intention of the parties, and we are not authorized, in striving to do so, to construe words otherwise than as conveying their plain, natural and obvious meaning, unless, from a consideration of the entire evidence, it shall appear this could not have been intended.

The first part of this contract, — the part obligatory upon the beneficiary, — is the application of Daniel Curd. It is plain and simple in its language, and can not be misunderstood. It contains this : “I further agree, that should I, at any time, violate my pledge of total abstinence, or be suspended or expelled, * * * then all rights which either myself, the person or persons named in certificate, my heirs or legal representatives may have upon the beneficiary fund of the order, shall be forfeited.” The language is in the alternative, — either the one or the other of the causes specified shall forfeit all right of recovery upon the certificate. The certificate is the second part of the contract, — the part obligatory upon the council,— and it is thereby bound to pay to the beneficiary one dollar from each and every active member of the order in good standing, not exceeding two thousand,» upon the express condition that Daniel Curd shall, while a member of said order, faithfully maintain his pledge of total abstinence, and comply with all laws, rules, regulations and requirements of said order, and that otherwise it shall be of no effect. Stopping here, there can not be the slightest ground for pretending that a violation of the pledge of total abstinence does not, of itself, forfeit all right of recovery upon the- certificate. The words, “shall faithfully maintain his pledge of total abstinence, and comply with all the laws, rules, regulations and requirements of said order, ” are used conjunctively, and all these requirements are necessary to be observed to entitle the beneficiary to recover upon the certificate, and so it must follow the omission of either will bar a recovery. But the certificate proceeds, after the language quoted: “And in case he is in good standing at the time of his decease, then the person or persons hereinafter named shall be entitled, ” etc., and the argument upon behalf of defendant in error assumes that these words are equivalent to saying that if he is not tried and convicted of violating his pledge, etc. This assumption, we think, is not well founded. Good standing in a society not only implies that a party is a member of the society, but that he has a good reputation therein. In the present instance the words are to be construed with reference to the language of the application and the preceding language of the certificate, and when this is done they manifestly mean not only good reputation, but good conduct, — i. e., freedom from a violation of the pledge of total abstinence, etc. Had it been designed to make trial and conviction a condition precedent to forfeiture, we must presume that it would have been so said; but nowhere is language used that can fairly be construed to mean this. The pledge contains this language: “I promise that I will not make,.buy, sell, use, or give to others, as a beverage, any spirituous, fermented or distilled liquors, wine or cider, ” etc. -The violation of this pledge is cause for expulsion .or suspension as a member, and it — not. the expulsion or suspension, but the violation of the pledge, — is also a cause for forfeiture of rights and benefits under the certificate. It is true, one of the clauses of the constitution of the order provides, that “if suspended, he forfeits all rights to the beneficiary fund; ” but this is evidently inserted to repel a presumption that otherwise might arise from the peculiar language, that suspension, which is allowable instead of expulsion, as an act of grace, would condone the cause of forfeiture in respect of the beneficiary fund.

Construing this contract as the parties made it, we 'think the court below erred in excluding evidence to prove that Curd drank liquors in violation of his pledge, notwithstanding that he had not been tried and convicted therefor. For this error the judgment is reversed and the cause remanded.

Judgment reversed.


text:
    David Launder v. The City of Chicago.

      Filed at Ottawa September 27, 1884.

    1. Licenses — granted upon conditions. Where a person takes out a license to engage in a business he otherwise would have no right to carry on, he takes a privilege subject to the restrictions and burdens imposed by the ordinance under which, alone, it can issue, — and this is a recognition of the validity of the ordinance.
    2. Same — licenses to pawn-brokers — power to attach conditions.- Under the grant of power by the general law (Rev. Stat. chap! 24, sec. 62, sub. 41,) to cities and villages, it is purely discretionary whether the ‘authorities will license and regulate the business of pawn-brokers, or wholly prohibit and suppress business by them. In such case, if a city grants a license, it may impose such conditions and burdens as it may see fit.
    3. Same — ordinance relating to pawn-brokers — whether unreasonable. An ordinance of the city of Chicago requiring every licensed pawn-broker to make out and deliver to the superintendent of police, every day, before the hour of twelve o’clock 11., a legible and correct copy from a book to be kept by him, of all personal property and other valuable things received on deposit or purchased during the preceding day, together with the time (meaning the hour) when received or purchased, and a description of the person or persons by whom left in pledge or from whom purchased, is not unreasonable, but is a reasonable means to keep the pawn-broker business free from great abuse by thieves, and for the prevention arid detection of crime. Nor is such ordinance tyrannical and oppressive, because no one is bound to bring himself within its provisions.
    4. Such an ordinance is not open to the objection that it makes the licensee guilty of an offence for not making a public disclosure of his business transactions. Giving the required information to a public officer of the law, does not give publicity to his business. It is not to be presumed that the chief of police will make an improper use of the information he thus receives, but the contrary. It would be a breach of official duty for him to do so, or to make his information public except when necessary in the detection and punishment of crime.
    5. Same — reasonableness of ordinance- — opinions of witnesses. The reasonableness and legality of an ordinance do not depend upon the opinions of witnesses as to the possible and probable effect it may have upon a party’s business. Hence, in a prosecution of a pawn-broker for not giving information of his business transactions to the chief of police, as required by an ordinance, testimony of witnesses as to the probably injurious effect such disclosure would have on his business, is properly excluded. '
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Criminal Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    This was a prosecution by the city of Chicago, against David Launder, for a violation of section 1713 of the municipal code or ordinances of the city, originally brought before a justice of the peace, and taken by appeal of the city to the Criminal Court of Cook county, where a trial was had resulting in a judgment in favor of the city, inflicting a fine of $10 and costs. This judgment, on appeal of the defendant, was affirmed by the Appellate Court for the First District, and the defendant again appeals, and brings the case to this court.
    On the trial, as appears from the bill of exceptions, the plaintiff introduced in evidence section 1713 of the city ordinances, upon which this action was brought, which reads as follows:
    “1713. It shall be the duty of every licensed person aforesaid, to make out and deliver to the superintendent of police; every day, before ’the hour of 12 M., a legible and correct copy from the book required in section 1708 hereof, of all personal property and other valuable things received on deposit or purchased during the preceding day, together with the time (meaning the hour) when received or purchased, and a description of the person or persons by whom left in pledge or from whom the same were purchased. ”
    The plaintiff next read in evidence the section of the ordinance referred to in the preceding section, which reads as follows: t

    “1708. Every pawn-broker and loan-broker, or keeper of a loan office, shall keep a book, in which shall be fairly written in ink, at the time of each loan, an accurate account and description, in the English language, of the goods, article or thing pawned or pledged, the amount of money loaned thereon, the time of pledging the same, the rate of interest to be paid on such loan, and the name and residence of the person pawning or pledging the said goods, article or thing. No entry made in such book shall be erased, obliterated or defaced. ”
    It was admitted by the defendant that at and previous to the time of bringing this suit he was a licensed pawn-broker, and that he refused to make the report required by said section 1713.
    Appellant testified that he has been engaged in the pawnbroker. business for the last eighteen years, and has always had license from the city; that he loans money on pledges of property, notes, bonds, secured paper, etc.; that he has an established business and a regular line of patrons; that his dealings are with reputable people only; that he does not do business with strangers before being satisfied of their respectability; that he carries on his business as a banker; that he keeps a book, as required by section 1708 of the ordinances, in which he causes to be entered an accurate account, as required by that section, of all loans and pledges received by him, and that in the keeping of said book he complies with said section 1708; that said book has always been open to the inspection of the mayor or any member of the police force, as is provided by section 1710 of the ordinances, and that to make the report required would be ruinous to his business. He then introduced in evidence section 1710, as follows:
    “1710. The said book, as well as every article or other thing of value pawned or pledged, shall, at all times, be open to the inspection of the mayor or any member of the police force.”
    Appellant also introduced other evidence, similar to his own testimony, all of which was received subject to the objections made, and at the conclusion of the case this evidence of the defendant was excluded by the court.
    Messrs. Monroe & Leddy, for the appellant:
    Among the rights secured to the citizen of this State are immunity and protection in his house and business from the prying eyes of government, — protection in his person, house, papers and effects against unreasonable searches. Const. 1870, art. 2, sec. 6; Cooley’s Const. Lim. (5th ed.) 365, 366; Sullivan v. City of Oneida, 61 Ill. 248; City of Clinton v. Phillips, 58 id. 102.
    The books and papers of appellant, and their contents, are his private property, and he is entitled to their exclusive use. Any law or ordinance which violates this principle is void. Cooley’s Const. Lim. 367; City of Clinton v. Phillips, supra.

    Property consists of certain rights in certain things secured by law. These rights are defined to be, the right of user, the right of exclusion, and the right of disposition. 3 Bentham’s works, 221; Rigney v. City of Chicago, 102 Ill. 77.
    It was error to exclude evidence showing the ordinance was unreasonable. Classon v. City of Milwaukee, 30 Wis. 316.
    All ordinances must be reasonable, and not inconsistent with the laws of the State. 2 Kyd on Corporations, 107; Dillon on Mun. Corp. sec. 319; Kip v. City of Patterson, 2 Dutch. 298; Cooley’s Const. Lim. 200, 201.
    It is the noxious use, only, that can call forth the power of police regulation. To so regulate, and only so, is the extent and limit to which any law-making power may interfere in any private business lawful in itself. Dillon on Mun. Corp. secs. 141, 142.
    Mr. M. R. M. Wallace, for the appellee:
    The legislature has conferred the power to license, tax, regulate, suppress and prohibit pawn-brokers, etc. Rev. Stat. chap. 24, sec. 62, sub. 41.

      In such case, the city may grant license on any conditions it sees fit. Schwuchow v. City of Chicago, 68 Ill. 444; Wiggins v. City of Chicago, id. 373.
    Appellant having taken license under the conditions of the ordinance, is estopped from objecting to the requirements. Schwuchow v. City of Chicago, 68 Ill. 444.
    The case of City of Clinton v. Phillips, 58 Ill. 102, is not in point, as there the city had no power to suppress and prohibit, as here. In matters pertaining to the internal peace and well being of the State, its police powers are plenary. When these are concerned, the only limitations imposed are that such regulations must have reference to the common safety, comfort and welfare of society. Anything that endangers the public peace and welfare may be suppressed, and what does this, must be left to the wisdom of the legislative department. Dunne v. The People, 94 Ill. 120; Lake View v. Rose Hill Cemetery Co. 70 id. 191.
    The State has determined that the business of the pawnbroker will endanger the public security, as it has delegated the power to cities and villages to “license, tax, regulate, suppress and prohibit pawn-brokers.” Rev. Stat. chap. 24, sec. 62, sub. 41.
   Mr. Justice Dickey

delivered the opinion of the Court:

The decision in this case depends upon the validity of section 1713 of the revised ordinances of the city, relating to pawn-brokers. That ordinance is claimed to be unreasonable, unjust and oppressive, and without authority of law.

The first inquiry is, whether the legislature has conferred the power on the city council to pass the ordinance. The legislature has given the city council in cities, and the president and trustees in villages, the power “to license, tax, regulate, suppress and prohibit hawkers, peddlers, pawn-brokers, * * * and to revoke such license at pleasure. ” (Rev. Stat. chap. 24, sec. 62, sub. 41.) Under this grant of power it is a matter purely discretionary with the city authorities ■whether they will license and regulate the business of pawnbrokers, or wholly prohibit and suppress business by them within the city. In such case, if the city grants a license, it may impose such conditions and burdens as it may see fit. This latitude of power grows out of the fact that it is discretionary to prohibit the business, or license it on such terms as the city may choose. Schwuchow v. City of Chicago, 68 Ill. 444; Wiggins v. City of Chicago, id. 373.

The case of City of Clinton v. Phillips, 58 Ill. 102, is referred to as an authority to show the ordinance before us is invalid, for want of power to enact it. The city of Clinton had no power given it to regulate, suppress or prohibit the sale of liquors, for certain specified purposes, by druggists. The charter of that city, under which its ordinance was passed, is as follows: “To restrain, prohibit and suppress tippling houses, dram-shops, gambling houses, bawdy houses and disorderly houses, ” (1 Private* Laws, 1867, p. 779,) and not druggists. If that city had conferred upon it the power to license, tax, regulate, suppress and prohibit druggists, etc., them the decision referred to would have been in point here. As it is, the ruling in that case is to be applied to cases where only the same rights and .powers are conferred, and it can not be invoked to show that the legislature may not give the power to pass the very ordinance there held invalid. In this ease, without a license the appellant had no right to engage in the business of a pawn-broker within the city. He sought for and obtained the city’s license to transact such business, and took the privilege his license conferred, subject to the restrictions and burdens imposed by the ordinance under which, alone, it could issue. This was an unmistakable recognition and admission of the validity and binding force of the ordinance. By taking such license he secured immunity from prosecution for engaging in his vocation, if he conformed to the terms on which it was given him. The ordinance certainly did not invade any right of property or other right, but it conferred a right. Appellant having profited by taking a license, with full knowledge of the conditions imposed, can not refuse to carry out such conditions.

We do not regard the ordinance as being “unjust, unreasonable, tyrannical and oppressive.” The requirements objected to are but reasonable means to keep the pawn-brokers’ business free from great abuse by thieves disposing of stolen goods in their shops. They are all made in the interest of the public, and are intended for the detection and prevention of crime. The ordinance is not tyrannical and oppressive, as the appellant was not bound to bring himself within its provisions. Before taking out license, appellant knew he had to keep a book containing an account and description of goods pawned, amount of money loaned thereon, the time of pledge, rate of interest, and the names of pledgors, and that such book must be kept open for the inspection of the mayor and any member of the police, and no objection seems to have been urged to these requirements, and it appears that appellant has always complied with them. If the city council had the power to pass section 1708, no good reason is perceived why it could not pass section 1713.

Appellant makes the point that this last section makes him guilty of a penal offence for not making a public disclosure of the business already done by him. We do not regard this section as requiring a public disclosure of the appellant’s business. Giving the required information to the chief of police, —a public officer of the law, — does not give publicity to his business, — at least not so much as keeping his books open to the inspection of the mayor and any member of the police. It is not to be presumed that the chief of police will make an improper use of the information he receives under this section. On the contrary, it would be a breach of official duty for him to do so, or to make his information public except when necessary in the detection and punishment of crime.

But it is sufficient to say that we regard the ordinance in question as but a reasonable and proper exercise of the police power of the State, and as aimed at the detection and prevention of crime. It. is well known that in our great cities thieves and the receivers of stolen property often dispose of the fruits of their crime by sale to second-hand dealers, or by pledge or sale to pawn-brokers, who may be perfectly free from any intention or disposition to aid such criminals. Such an ordinance also has a tendency to protect even such dealers and brokers from imposition and loss.

The evidence as to the probable effect of complying with the ordinance, on the business of the appellant, was properly excluded. The reasonableness and legality of an ordinance do not depend upon the testimony of witnesses as to its possible or probable effect.

Perceiving no error in the record, the judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Mulket

text:
    Henry O. McDaid v. Francis M. Call.

      Filed at Mt. Vernon September 27, 1884.

    1. Purchaser — protected against secret trust or equities of a former owner. The owner of a leasehold estate conveyed the same to a party as trustee, but the conveyances in every other respect were absolute deeds in form, yet in fact they were mortgages to secure the payment of money borrowed. The grantee negotiated a sale of the property, and the grantor, when called on by the trustee and purchaser, disclaimed any interest in the property, and agreed to make a quitclaim deed. The purchaser transferred his purchase to another, and the trustee made him a warranty deed for the premises, and the former owner then made the trustee a quitclaim deed, and this latter purchaser sold and conveyed the property to another, who had no notice of any equities in favor of the original owner: Held, that the last grantee took the title unaffected by any equities the original owner might have had, or the party of whom he borrowed the money, and for whose benefit the first deeds were made.
    2. A person taking a conveyance of a leasehold estate from one having a perfect title of record, without notice, and for a full consideration, will be protected from any secret equities in favor of a former owner and those claiming under him, and will not be held responsible for acts of bad faith on the part of those from whom he acquires the title.
    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. Moban, Judge, presiding.
    Mr. H. O. McDaid, pro se:

    Hoyne and Call had constructive notice that the deeds from appellant to Gibbs, trustee, were mortgages. Whatever is sufficient to put a party upon inquiry, is notice. Doyle v. Teas, 4 Scam. 202; Alwood v. Mansfield, 59 Ill. 496; Redden v. Miller, 95 id. 336; Shepardson v. Stevens, 71 id. 646; Æna Life Ins. Co. v. Ford, 89 id. 252; Cox v. Milner, 23 id. 476; Smith v. Ayer, 101 U. S. 320.
    A purchaser is bound to take notice from the recitals in the deeds constituting’ the chain of title. Spaids v. Insurance Co. 99 Ill. 249; Railroad Co. v. Kennedy, 70 id. 350; Blaisdell v. Stevens, 16 Vt. 479; Dudley v. Warner, 46 Ala. 664; Rupert v. Marks, 15 Ill. 540; Morrison v. Kelly, 22 id. 610; Morris v. Hogle, 37 id. 150; McConnell v. Read, 4 Scam. 117; Stumpf v. Osterhage, 94 Ill. 115.
    The words “trustee,” and “as trustee,” after the name of the grantee, were notice of the grantor’s equities. Sturtevant v. Jaques, 14 Allen, 523; Shaw v. Spencer, 100 Mass. 382.
    Independent of the registry laws, a party can not convey any greater title than he has. Lee v. Getty, 26 Ill. 76; Purdy v. Huntington, 42 N. Y. 334; Delano v. Bennett, 90 Ill. 533.
    A deed of a mortgagor to a mortgagee always provokes inquiry. Enner v. Thompson, 46 Ill. 222; Sutphen v. Cushman, 35 id. 197; Jones on Mortgages, sec. 872.

      Before a purchaser can he protected he must have paid the whole consideration. Brown v. Welch, 18 Ill. 343; Keys v. Test, 33 id. 316.
    No estoppel by deed, so-called, can be successfully urged against redeeming from an absolute deed, if it is, in fact, a mortgage. Sutphen v. Cushman, 35 Ill. 197; Enner v. Thompson, 46 id. 222.
    It can not be said that this unrecorded quitclaim deed, which this record shows has been decreed to have been a mortgage, only, constitutes a link in the chain of title. Lee v. Getty, 26 Ill. 76; 3 Washburn on Real Prop. 352.
    Mr. James B. Mann, for the appellee:
    The word “trustee, ” attached to a name, is merely descriptive, and does not limit liability or authority, and is not notice of a trust. Powers v. Briggs, 79 Ill. 493; Allen v. Woodruff, 96 id. 24.
    Parties have a right to treat a deed given as a security, as an absolute deed. Carpenter v. Carpenter, 70 Ill. 462; Brown v. Gaffney, 28 id. 155; Fay v. Valentine, 12 Pick. 40.
    Huey was entitled to believe the whole information received from Gibbs, and to believe that part stating that McDaid’s interest had ceased. Buttrick v. Holden, 13 Metc. 355; Calais Steamboat Co. v. Van Pelt’s Admr. 2 Black. 377.
    The fact that knowledge that an absolute conveyance was intended as a secret mortgage was brought home to a subsequent purchaser, should be plainly proven, and the burden is on the party seeking to redeem. Maxfield v. Patchen, 29 Ill. 42.
    The question is not whether the subsequent purchaser might not have learned the facts, but whether his failure to do so was an act of gross or culpable negligence. Grundies v. Reid, 107 Ill. 304; Jones v. Smith, 1 Hare’s Ch. 55; Ware v. Lord Egmont, 4 DeG. M. & G. 473; Hamilton v. Marks, 63 Mo. 167; Story’s Eq. Jur. (12th ed.) 382.
   Mr. Justice Mulket

delivered the opinion of the Court:

This is a controversy about the title to a leasehold estate in a lot of ground on State street, in the city of Chicago, and referred to in the record, by witnesses, as. the “State street property.” In 1874, Marcus C. Stearns, being the owner in fee of the property, executed a lease thereon to Charles C. Fisher, for the term of ninety-nine years, which subsequently came to the appellant, Henry O. McDaid, by assignment, who, in April, 1879, was the owner thereof, subject to certain incumbrances not necessary to mention. Being thus owner, on the 21st of April, 1879, McDaid conveyed the property, by special warranty deed, to George A. Gibbs, and on May 10th of the following month, McDaid executed to him another special warranty deed for the saíne property. The first of these deeds is made to “George A. Gibbs, trustee,” and the last one is made to George A. Gibbs, “as trustee, ” and its operation is expressly limited to the leasehold interest. Both the deeds, though absolute in form, were, as between the immediate parties, in legal effect mortgages only. The first was given to secure a loan of $1000, evidenced by McDaid’s note to Benjamin F. Crosby and George A. Gibbs, bearing date April 22, 1879, and payable at sixty days. The second deed was executed to secure a loan of $2355.55, evidenced by McDaid’s note of same date to Calista M. King,, payable ninety days after date. Both deeds were recorded on the 12th day of May, 1879. To each of the above notes was attached an instrument or memorandum, showing that McDaid had deposited with the payee, as security for its payment, among other things, “a deed of the said McDaid, under a certain lease, between Marcus C. Stearns and Charles C. Fisher, dated August 20, 1874,” of the property in question, and to each was-also attached a power of attorney, executed by the maker, authorizing the confession of a judgment thereon. On the 4th of June, 1879, Crosby and Gibbs borrowed of James Grow $2000, for which they gave their note, at ninety days, to secure the payment of which they turned over to Crow the two notes of McDaid, above mentioned, with the memoranda thereto, attached, each being indorsed' in blank, and Crosby swears he told Crow, at the time, these deeds of McDaid were mortgages on the property. Upon the execution of the above mentioned conveyances by McDaid to Gibbs, the latter assumed exclusive control of the property, and treated it in every respect as if he were the absolute owner. In May, 1881, negotiations were instituted between Gibbs and the appellee, Francis M. Call, for the purchase by the latter of the leasehold interest in the property, which resulted in a proposition from Gibbs to sell the same for $11,500. This proposition was accepted, subject to the condition the title was satisfactory, and Call made a deposit of $500, under the agreement. Shortly afterwards, Gibbs, under the directions of Call, delivered to J. S. Huey, (Call’s attorney,) the abstract of title to the property, for examination. Huey, on discovering the word “trustee” after Gibbs’ name, in the deeds from McDaid, called on Gibbs for ah explanation, which being given, Huey informed him it would be necessary to obtain a quitclaim deed from McDaid and releases from his creditors, and for this purpose ■ Huey and Gibbs together called on McDaid, and according to the testimony of Huey, McDaid, in their presence, disclaimed having any interest in the property, and expressed a.willingness to execute a quitclaim deed. There is some conflict, however, between the witnesses, both as to when this interview took place and also as to what passed between the parties. However this may be, and without expressing any opinion as to whose recollection is correct in the matter, it is sufficient for the purposes of a decision of the case, the title of the property was being investigated with a view of purchase, and that McDaid subsequently made a conveyance of it to-Hoyne. Gibbs, on his part, proceeded to obtain releases from McDaid’s judgment creditors, and succeeded in getting them from all except one. Pending these matters, Michael A. Hoyne, being desirous of purchasing the lease in question, proposed to pay Call a bonus of $500 for his contract with Gibbs. Call accepted the proposition, and by mutual consent of all parties concerned, Hoyne became the purchaser of the property instead of Call, and received from Gibbs, “trustee,” a warranty deed therefor, bearing date June 1, 1881, which was duly recorded on the 21st of the same month. McDaid, by quitclaim deed bearing date June 16, 1881, conveyed the premises to George A. Gibbs, which was recorded on the 2éth of July, 1882. Of course whatever interest, if any, passed by this deed, inured to Hoyne, by virtue of Gibbs’ warranty deed of June 1, 1881. Michael A. Hoyne, by deed bearing date June 27,1881, re-sold and conveyed the property in controversy to Francis M. Call, the deed being duly recorded on the 30th of the same month.

Such being the condition of the title to the property, and of the relations of the parties heretofore mentioned with respect to it, James Crow, on the 10th day of March, 1882, filed in the circuit court of Cook county the original bill in this cause, for the purpose of foreclosing his alleged mortgage on the property, making Crosby, Gibbs, McDaid, Call and Hoyne, parties thereto. Hoyne answered, and disclaimed. Call answered that he was a purchaser for a valuable consideration, without notice. McDaid answered, and filed a cross-bill claiming to be the equitable owner of the property, subject to the alleged incumbrances heretofore mentioned. The court, on the hearing, dismissed the original bill as to Call and Hoyne, and also McDaid’s cross-bill as to all the defendants, and the decree, on appeal to the Appellate Court for the First District, was affirmed. McDaid alone appealed from the judgment of the Appellate Court, and the record is now before us for review.

In the view we take of this case we do not deem it necessary to pass upon the legal question, whether-, where one who claims through a cohveyance wherein the grantee is designated “trustee,” or where the conveyance is made to him “as trustee,” and the deed is otherwise absolute in form, and contains no limitation on the power of the grantee to convey, nor gives any intimation as to the character of the trust, assuming one to exist, as was the case here, will be bound by any latent equities that may exist between the grantee in such conveyance and some undisclosed beneficiary. .'‘Nor do we deem it necessary to determine whether either Hoyne or Call, prior to the conveyances made to them, respectively, had actual notice of the alleged equities of McDaid, for, admitting both these propositions must be answered in the affirmative, about which Ave express no opinion, we still think the decree in the case is clearly right.

Assuming, then, for the purposes of the argument, that Hoyne and Call both originally had notice of McDaid’s equities, 3'et when McDaid, pending these transactions, quit-claimed to Gibbs, this clearly operated, prima facie, as a release of the mortgage, and clothed Ho3rne with the apparent absolute title.

It is claimed, however, that this quitclaim deed was nothing more than an additional mortgage. Concede this to be true, and that it was so understood between the parties to it, still, there is not the slightest foundation for the claim that Call had any notice or knowledge of that fact. By reason of its execution, Hoyne was clothed with the apparent ownership of the property. He had a perfect title of record, and Call, in purchasing from.him, had a right to rely on it, as he did, and his title must be protected. If others have acted in bad faith with McDaid, as claimed, the consequences of it surely ought not to be visited upon Call, who is in no sense responsible for it.

The decree of the court below being in harmony Avith this Anew of the matter, the judgment of the Appellate Court is affirmed. . .

Judgment affirmed.


author: Mr. .Justice Scott

text:
    Asahel Gage v. Frances W. Hervey.

      Filed at Ottawa November 17, 1884.

    1. Tax title — affidavit as to notice of purchase. Unless the statute has been complied with in making the affidavit necessary to procure a tax deed on a tax purchase, the deed may be set aside on the application of the owner of the patent title, upon equitable terms.
    2. Same — of the notice to entitle purchaser to deed. Where the affidavit made to entitle the holder of a tax certificate of purchase to a deed, shows that the property was “taxed or specially assessed in the names of Bobert Hervey and Bobert Henry, ” and the allegation of service is that “he served said notice on said Bobert Hervey and Bobert Henry, by handing the same to and leaving the same with Bobert Hervey personally, ” it fails to show a sufficient service as to Bobert Henry, and will not authorize the making of a tax deed, and if made, it may be set aside as a cloud on the title, upon payment of the amount paid at the tax sale and for subsequent taxes, with six per cent interest.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.
    Mr. Augustus N. Gage, for the appellant:
    The bill is demurrable, and the demurrer filed by appellant should have been sustained.
    The proof does not sustain the allegations of irregularity in either of the tax deeds. It does not appear by the proof that the complainant was in possession of the property when the bill was filed, or that the property was vacant and unoccupied at that time; and the complainant has failed to show that any title to the property was in her, but has sufficiently shown that her interest had already been conveyed to O. L. Wheelock, who was therefore a necessary party to the bill.
    The decree is erroneous in not requiring the appellee to pay to appellant such penalties and costs as a minor or one under disability would be required to pay in order to redeem from a tax sale. Gage v. Busse, 102 Ill. 592.

      Messrs. J. P. &-T. E. Wilson, for the appellee:
    The affidavit of the service of notice of the time when the redemption expired, is insufficient to show a legal and proper service of notice. The statute requires the notice to state for what year taxed.
    The affidavits are defective in not showing that the lots were vacant at the time when the notice of the tax sale was published. Gage v. Bailey, 100 Ill. 530; Campbell v. McCahan, 41 id. 45.
    That it is a fatal defect in a notice to state that the time of redemption expires on the wrong date, has been frequently decided by this court. Gage v. Bailey, 100 Ill. 530; Wilson v. McKenna, 52 id. 43; Barnard v. Hoyt, 63 id; 341.
    It is well settled by the decisions of this court that possession is sufficient evidence of ownership in fee to entitle a party to recover in ejectment, or to maintain a bill to remove a cloud. Keith v. Keith, 104 Ill. 397; Brooks v. Bruyn, 18 id. 539, and 24 id., 372; Barger v. Hobbs, 67 id. 592; McLean v. Farden, 61 id. 106; Hubbard v. Kiddo, 87 id. 578.
    By the decisions of this court the rule has become well settled that the amount the court should require to be paid to the holder of a tax title, upon setting aside his tax deeds, is the amount paid out, with interest. Smith v. Hutchinson, 108 Ill. 662; Barnett v. Cline, 60 id. 205; Farwell v. Harding, 96 id. 32.
   Mr. .Justice Scott

delivered the opinion of the Court:

The bill in. this case was brought by Frances W. Hervey, against Asahel Gage, in the circuit court of Cook county. Complainant alleges she is the owner in fee simple of certain lots or parcels of land described in the bill, and that she was in possession of the same, and the object of the bill is to have two tax deeds made to defendant, purporting to convey the property to him, cancelled and set aside as void, and as a cloud upon her title. To the bill, alleging with sufficient fullness all the facts relied upon for relief, defendant filed a general demurrer, which was by the court overruled, and defendant then filed his answer to the bill, by which the material allegations of the bill were put at issue, and the same matters presented for decision as on the demurrer, and the same benefit claimed. Replication to the answer was filed, and on the hearing the court entered a decree giving relief substantially as sought by the bill, on condition complainant would refund to defendant the amount paid by him at the tax sales and in discharge of subsequent taxes, with interest at the rate of six per cent per annum, which amount was ascertained and stated in the decree.

It sufficiently appears that complainant was in possession of the property at the time she exhibited her bill, and had such interest in the property as would enable her to maintain it.

As respects the first tax deed, it is not very strenuously insisted it is valid. It appears from the certificate of sale, the property was sold by the city collector of the city of Chicago for the year 1871, and under the previous decisions of this court the sale was void, as being inhibited by a constitutional provision. Const. 1870, sec. 4, art. 4; Hills v. Chicago, 60 Ill. 86. But it is confidently insisted the second deed, which seems to have been made to defendant July 16, 1879, as. assignee of H. Combs, is valid, and constitutes paramount title in defendant. It is thought one objection taken to this deed is fatal to its validity, and justified the decree of the circuit court declaring it void, and removing it as a cloud upon complainant’s title to the property. It seems quite clear the affidavits made and filed for the purpose of procuring the tax deed, do not show a full compliance with the law, at least in one respect. Unless the statute has been complied with, the tax deed may be set aside, on the application of the owner of the patent title, upon terms that shall be deemed equitable.

Section 216 of the, Bevenue act, (Bev. Stat. 1874,) is imperative no purchaser or assignee of such purchaser of any real property, for taxes or special assessments due either to the State or to any municipality, shall he entitled to a deed for the property so purchased until the conditions stated in that section shall have been complied with. Among other conditions therein stated is one that such purchaser or assignee shall serve, or cause to be served, a written or printed, or partly written and partly printed, notice of such purchase on “the person in whose name the same was taxed or specially assessed, if, upon diligent inquiry, he can be found in the county, ” at least three months before the expiration of the time of redemption on such sale, in which notice he shall state when he purchased the land or lot, in whose name taxed, the description of the land or lot he has purchased, for what year taxed or specially assessed, and when the time of redemption will expire. Section 217 of the same act declares every such purchaser or assignee, by himself or agent, shall, before he shall be entitled to a deed, make an affidavit of his having complied with the conditions of section 216, stating particularly the facts relied on as such compliance. Affidavits were made and delivered to the person- authorized by law to execute such tax deed, for the purpose of showing a 'compliance'-with the law. In one respect the affidavits' appear to be- fatally defective, — that is, they do not show that notice of the purchase was served upon the persons in whose names the property was assessed, as the statute requires shall be done. Two affidavits were made, in both of which it is stated “the land was taxed or specially assessed in the names of Bobert Hervey and Bobert Henry, ” and the allegation as to the service of notice is, that “he served said notice on said Bobert Hervey and Bobert Henry, by handing the same to and leaving the same with Bobert Hervey personally. ” Obviously .this is not sufficient service of the notice upon Bobert Henry. Leaving a notice with Bobert Hervey is not serving it upon Robert Henry. Nor is there any allegation in either affidavit that Robert Henry could not be found in the county, so as to authorize publication as to him.

It is a sufficient answer to the suggestion that Robert Hervey and Robert Henry may be one and the same person, that the record contains no evidence such is the fact. The affidavits both declare the property was “taxed or specially assessed” in the names of Robert Hervey and Robert Henry. This would seem to imply Robert Henry is a real person other than Robert Hervey.

As there was no service of notice on the parties in whose names the property was taxed or specially assessed, the deed was therefore without warrant of law, and was properly set aside for that reason. Nor is there any just reason for any complaint as to the terms imposed by the court as a condition upon which the tax deed might be set aside. Without entering upon any extended consideration of that branch of the case, it may be said the terms imposed seem both just and reasonable.

The decree of the circuit court will be affirmed.

Decree affirmed.


text:
    The Chicago Sectional Electric Underground Company v. The Congdon Brake Shoe Manufacturing Company.

      Filed at Ottawa November 17, 1884.

    1. Contradicting sheriff’s return — by a plea in abatement. A defendant corporation may plead in abatement to the service of process, by contradicting the sheriff’s return; and where it tenders a material issue, and is properly verified, it is error to strike the plea from the files.
    2. Same — svfficieney of plea. A plea in abatement by a corporation to the jurisdiction over its person, showing its organization under the laws of this State, and its representation by its president, naming him; that at the time of the issuing and service of the summons the president was a resident of the county, and not absent from the same, and that the service was not made upon him, presents an immaterial issue, and is obnoxious to demurrer, in not putting in issue the return that the sheriff was unable to find the president in the county.
    3. Service of process — on corporation — sufficiency of return. A return to a summons against a private corporation was as follows: “Served this writ on the within named defendant, O. S. E. U. Go., by delivering a copy thereof to E. N. K., director and treasurer of said company, the president of said company not found in my county, the 23d day of November, 1883:” Held, that the return was good, filling the requirements of the statute.
    Appeal from the Appellate Court for the First District; — • heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Mr. Lynn Helm, and Mr. George A. Hawley, for the appellant:
    The officer’s return of service of summons is not conclusive. It may he shown to be untrue, either in the same proceeding or where attacked collaterally. Sibert v. Thorp, 77 Ill. 43; Owen v. Ranstead, 22 id. 162; Aldrich v. McKinney, 4 Conn. 380; Brown v. Brown, 59 Ill. 315; Hickey v. Stone, 60 id. 459; Ryan v. Lander, 89 id. 554.
    In order to controvert the facts recited in an officer’s return to service of original process, the facts therein recited must be put in issue by plea in abatement. This is the proper and only way to raise an issue of fact on the officer’s return. Railroad Co. v. Keep, 22 Ill. 9; Holloway v. Freeman, id. 197; Sibert v. Thorp, id. 43; Union National Bank v. First National Bank, 90 id. 56.
    The plea in abatement filed in this ease had all the requisites of a good plea in abatement, and was filed in proper time. Rev. Stat. chap. 1, sec. 1; 1 Chitty’s Pleading, 455-462; Cook v. Yarwood, 41 Ill. 115; Ryan v. Lander, 89 id. 554; Union National Bank v. First National Bank, 90 id. 56.
    The defendant did not need to file with its plea in abatement an affidavit of merits. Rev. Stat. chap. 110, sec. 37; Kassing v. Griffin, 86 Ill. 265.

      Being proper in form and properly filed, it was error in the court below to strike the plea in abatement from the files, even though the court below was of opinion that the service of the sheriff was a good service in law, and a sufficient compliance with the statute. Frink v. King, 3 Scam. 144; Orne v. Cook, 31 Ill. 358; Hareth v. Franklin Mill Co. 30 id. 151; King v. Haines, 33 id. 340.
    Though the return of the officer was a sufficient compliance with the statute, yet the facts therein recited could be put in issue and controverted by the defendant. Railroad Co. v. Keep, 22 Ill. 9; Holloway v. Freeman, id. 197; Sibert v. Thorp, 77 id. 43; Union National Bank v. First National Bank, 90 id. 56; Ryan v. Lander, 89 id. 554.
    The return of the officer was but an evasion of the statute, and not in sufficient compliance with it. Corporations have a right, for their protection, to have the officer serving process upon them serve their president, if, by any means, he can be found within the jurisdiction of the court. Rev. Stat. chap. 110, sec. 4; Railroad Co. v. Dorsey, 47 Ill. 289; Railroad Co. v. Dawson, 3 Bradw. 118.
    Mr. H. H. C. Miller, for the appellee:
    The service in this case was good, and the officer’s return to the writ in strict conformity with the statute. Railroad Co. v. Koehler, 79 Ill. 354; Railroad Co. v. Holbrook, 92 id. 297; Rev. Stat. chap. 110, sec. 5; chap. 7, sec. 6.
    The person shown by the officer’s return to have been served, was, in fact, a director of the defendant corporation. This the plea in abatement admits. It does not raise an issue with anything in the return.
    Appellant was not injured, nor its rights in any way affected or impaired, by the manner in which the plea in abatement was disposed of, and though it may have been irregular, yet, under the circumstances, it was not error for which this court will reverse. Addems v. Suver, 89 Ill. 482; Railroad Co. v.
      Rung, 104 id. 641; Lycoming Fire Ins. Co. v. Dunmore, 75 id. 14; Hartford Fire Ins. Co. v. Olcott, 97 id. 439; Atkins v. Byrnes, 71 id. 327; Lowry v. Coster, 91 id. 182; Railroad Co. v. Town of Lake View, 105 id. 207; Conklin v. Burdick, 6 Bradw. 153; Railroad Co. v. Cloud, id. 155.
    Appellant, by entering its motion in said cause to strike plaintiff’s affidavit of amount due from the files, and in moving the court in arrest of judgment, fully appeared in said cause for all purposes, and thereby waived all irregularity in the service of process, if any existed. Miles v. Goodwin, 35 Ill. 53; Abbott v. Semple, 25 id. 107; Flake v. Cowen, 33 id. 526; Easton v. Altum, 1 Scam. 250.
   Mr. Chief Justice Scholfield

delivered the opinion of the Court:

This is assumpsit, by appellee, against appellant. The return upon the summons is as follows:

“Served this writ on .the within named defendant, Chicago Sectional Electric Underground Company, by delivering a copy thereof to E. N. Koch, director and treasurer of said company, the president of said company not found in my county, the 23d day of November, 1883.
Seth F. Hanchett, Sheriff.
By D. W. Nickerson, Deputy.”

Appellant, on the 3d of December, 1883, filed a plea in abatement, which, omitting the caption, is as follows:

“And the said Chicago Sectional Electric Underground Company, by its attorneys, Tripp, Hawley & McMaster, comes and defends, etc., and says, at the time of issuing said writ, and at the time of service thereon on said defendant, and at all and every of said times aforesaid, said defendant was a corporation of the State of Illinois, legally and fully organized by the laws of the State of Illinois, and doing business under the same, with its principal office in said county of Cook, in the State aforesaid, and that it was fully represented, at all and every of said times aforesaid, by its president, Louis Wahl, who was, at the time of issuing and serving said writ against said defendant, a resident of said county of Cook and State of Illinois, and not absent from the same at said times aforesaid, but all and every of said times was present in said county, and that nevertheless the service of said writ of summons against said defendant, and of all process in said cause herein, was not made and had upon said Louis Wahl, president of said defendant, but upon another and different person, to-wit, a director of said corporation defendant, and that no service of any process or writ in said cause has been made on said president of said defendant, and this said defendant is ready to verify. Wherefore defendant prays judgment, if the court here will take cognizance of the action aforesaid. ”

Annexed to' the plea is the affidavit of the president that it “is true in substance and in fact. ”

On motion of appellee’s attorney, the court ordered the plea stricken from the files, on the ground that the appellant was properly served, and the return of the sheriff is in substantial compliance with the statute. The court then refused to enter judgment by default against appellee, but gave him until the next morning to plead or demur to.the declaration. Appellant, by its attorney, then moved to strike plaintiff’s affidavit of amount due, from the files, but the court overruled .the motion. On the day next following, appellant’s attorney not having demurred or plead to the declaration, appellee, .by its attorney, .moved ,the court to enter judgment by default against appellant, but the court overruled the motion, and gave appellant until the 10th of December, 1883, to plead or demur to the declaration, and on that day, appellant not having plead or demurred to the declaration, the court entered judgment by default against appellant, and assessed appellee’s damages at $2018. Exception was taken by appellant to the several rulings of the court adverse to it, and these rulings are now urged as error.

The plea in abatement, very clearly, ought not to have been stricken from the files. It was competent to raise an issue of fact upon the sheriff’s return, (Sibert v. Thorp, 77 Ill. 43, Mineral Point R. R. Co. v. Keep, 22 id. 9,) and the plea was properly verified. But we are of opinion the plea tendered an immaterial issue, and was therefore obnoxious to demurrer. The statute provides: “An incorporated company may be served with process by leaving a copy thereof with its president, if he can be found in the county in which the suit is brought; if he shall not be found in the county, then by leaving a copy of the process with any clerk, secretary, superintendent, general agent, cashier, principal director, engineer, conductor, station agent, or any agent of said company found in the county.” (Rev. Stat. 1874, p. 775, sec. 5.) The service here, in form, followed this requirement of the statute, and was, therefore, prima facie sufficient. Chicago and Pacific R. R. Co. v. Koehler, 79 Ill. 354. The language of this section is quite different from that under which St. Louis, Alton and Terre Haute R. R. Co. v. Dorsey, 47 Ill. 289, was decided. That was: “In all cases where suit has been or may hereafter be brought against any incorporated company, process shall be served upon the president of such company, if he reside in the county in which suit is brought; and if such president be absent from the county, or does not reside in the county, then the summons shall be served,” etc., (Gross’ Stat. 1869, p. 509, sec. 6,) and hence, to justify service on any one other than the president, it was essential to show either that he did not reside in the county, or that he was, at the time, absent from the county, while here, it will be observed, it is only necessary to show that he “can not be found in the county.” The change in phraseology is marked, and was evidently designed to authorize service on the other officers and agents named, whenever the president could not be found in the county, without regard to where he might actually be. The allegation in the plea does not put in issue the return that the sheriff was unable to find the president in the county, but is simply that he then resided and was in the county, — non constat, he may have been hid away where he could not be found by any reasonable effort, and that, too, for the express purpose of avoiding service.

The issue tendered, then, being immaterial, and the return, upon its face, sufficient, it is impossible that appellant can have been injured by the ruling in striking the plea from the files; and it is familiar doctrine in this court that a party can not have a cause reversed for an error which works him no injury.

No reason is assigned why the affidavit annexed to the declaration should have been stricken from the files, and we are unable to discover any error in that regard.

The only remaining error alleged is, that the court did not call a jury to assess damages; but it is only when one of the parties requires it, that, in case of default, damages are to be assessed by a jury. It does not here appear that either party asked to have damages assessed by a jury. Rev. Stat. 1874, p. 780, sec. 40.

We perceive no cause to disturb the judgment below. It is therefore affirmed.

Judgment affirmed.