text:
    C. H. McCormick, Jr. et al. V. Augustus Bauer et al.

      Filed at Ottawa November 11, 1887.

    1. Stare decisis—as to decisions in the Supreme Court. The decision of a question by this court, when involved in a subsequent case in which the parties are not identical with those in the former case, can not be treated as res judicata; yet, on the principle of stare decisis, the holding is just as binding on this court as any of its decisious, and will govern it, unless some imperative reason appears for departing from it.
    2. Prior and junior incumbrancers—adjustment of equities between them—and when priority of right is lost. A junior incumbrancer, acting in his own interest, and to accomplish a purpose of his own by doing something to make his own security available,—as, in defeating the lien of a prior deed of trust on the same property,—will not thereby be entitled to any superior equity over another incumbrancer whose lien was subject to that so defeated, but prior to the contesting creditor, or be entitled to be reimbursed for the expenses in defeating the first lien, when the intervening creditor, who is thereby benefited, has not requested or induced the junior creditor to do so. If the latter had discharged the prior lien by payment, in order to save himself, a different rule would apply.
    3. Where a mortgagee transfers the notes secured, and makes a written assignment of the mortgage, which assignment is not recorded until after the mortgagor makes a conveyance of the mortgaged premises to the mortgagee, and the latter executes another mortgage of the same, which deed and subsequent mortgage are first recorded, the last mortgage will take precedence of the first; but another mortgage or deed of trust executed by 0him after the recording of the assignment of the first mortgage, will be subject thereto.
    4. Attacking judgment cobdateraddy—for mere error. A judgment foreclosing a mortgage by scire facias, and the sale of the mortgaged premises thereunder, can not be defeated by errors and irregularities in the proceeding not affecting the jurisdiction of the court.
    Appeal from the Circuit Court of Cook county; the Hon, M. F. Tuuey, Judge, presiding.
    Mr. W. T. Burgess, for the appellants s
    The sale under the judgment of foreclosure by scire facias was void, for the reasons, first, the description of the land is ■uncertain on its face; second, when applied to the subject matter, is uncertain; and third, the land was sold subject to . an incumbrance, when none existed.
    As to the description being void for uncertainty, see Jackson v. Rosevette, 13 Johns. 102; Jackson v. Striker, 1 Johns. Cas. 284; Tallman v. White, 2 Com. 72; Mason v. White, 11 Barb. 185; Peck v. Mallams, 10 N. Y. 530; Haven v. Cram, 1 N. H. 94; Marmaduke v. Tennant, 4 B. Mon. 210; Fenwick v. Floyd, 1 H. & G. 000; Thomas v. Turvey, id. 435; Stout v. Cook, 37 Ill. 283; Hughes v. Streater, 24 id. 650; Shackleford v. Bailey, 35 id. 391; Laflin v. Harrington, 16 id. 304.
    The sale subject to incumbrances, when none existed, was-void. Bullard v. Hinckly, 9 Greenlf. 289; Dougherty v. Linthicum, 8 Dana, 194.
    Messrs. Jenkins & Harkness, for the appellant McCormick r
    For contesting the first decree of the court, securing the reversal thereof, and a final reduction of the debt of Greenbaum & Foreman from $201,657.70 to $64,893.13, appellants, who-were the real active parties to such contest, are entitled to the benefits resulting from such prior incumbrance. Harper v. Ely, 70 Ill. 581; Arnolds v. Foot, 7 B. Mon. 66; McCormick v. Knox, 15 Otto, 122.
    Appellants are entitled to hold lots 9 to 14 as the fruits of their diligence and activity in removing the prior incumbrance; of Greenbaum & Foreman, upon the principle that the diligent creditor is entitled to the fruits of his diligence. Whalen v. Bishop, 58 Ill. 162; Lyon v. Robbins, 46 id. 276; McNary v. Southworth, 58 id. 473; Smith v. Lind, 29 id. 24; McDermott v. Strong, 4 Johns. 687; Miller v. Sherry, 2 Wall. 237; Gordon v. Lowell, 21 Maine, 251; Coring v. White, 2 Paige, 567; Hayden v. Bucklin, 9 id. 512; Edmiston v. Hyde, 1 id. 637; International Bank v. Rappleye, 93 Ill. 396.
    "When a prior lien has been removed by a junior lien holder,, he is always protected as against an intervening incumbrance.
      Young v. Morgan. 89 Ill. 199; Redmond v. Burroughs, 63 N. C. 242; Page v. Foster, 7 N. H. 392; Arnold v. Foot, 7 B. Mon. 66; Cottrell’s Appeal, 23 Pa. St. 294; Ellsworth v. Lockwood, 42 N. Y. 89; Tyrrell v. Tyrell 102 Ill. 29.
    When a son having a prior mortgage, voluntarily and without payment released it to his mother, who owned the lot, it was held that such release was for her benefit only, and not for that of a junior mortgagee. Spaulding v. Crane, 46 Vt. 292.
    The debt may be paid and extinguished, but the lien of it will not be thereby discharged, if to protect the equities of all parties the lien should be kept alive. Flagg v. Geltmacher, 98 Ill. 293; Shaver v. Williams, 87 id. 469.
    The scire facias proceedings were ineffectual to confer title upon appellees, because the sale was made under a second pluries special writ of fieri facias, which was issued without authority of law.
    The scire facias foreclosure was ineffectual to confer title upon appellees, because the property sold was not that described in the mortgage. Marshall v. Maury, 1 Scam. 231; Russell v. Brown, 41 Ill. 143.
    Messrs. Smith & Pence, for the appellees:
    The indebtedness secured to Greenbaum & Foreman under Rogers’ trust deed having been paid before sale of the premises conveyed thereby under Greenbaum decree, the Honoré mortgage, under which appellees claim title, became the first lien.
    All persons taking the Walker title after the record of the assignment of the Honoré mortgage to Wilshire, after November 19, 1872, took subject to that mortgage. International Bank v. Wilshire, 108 Ill. 143.
    The doctrine of superior diligence only applies to the pursuit and subjection of equitable assets,—that is, assets upon which there is no legal claim, and which can only be reached through the aid of the chancellor. Silk v. Prime, 2 Lead. Cas. in Eq. (Am. notes,) 381, 388, 389, 390; 1 Story’s Eq. Jur. sec. 553;
      Atlas Bank v. Nahant Bank, 3 Metc. 581; Purdy v. Doyle, 1 Paige, 559; Codwise v. Getston, 10 Johns. 522.
    The sheriff’s sale under the judgment in Wilshire v. Honoré is not void for irregularity or uncertainty of description. Judgment does not become dormant for seven years. The Wilshire v. Honore mortgage was not barred by limitation.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Augustus Bauer, on the 22d day of January, 1886, exhibited his bill in the circuit court of Cook county, against the appellants, Cyrus H. McCormick, Jr., and others, praying for the partition of certain real estate, being all, or some portions of, lots 9, 10, 11, 12, 13 and 14, block 10, in Samuel J. Walker’s dock addition to Chicago, and described in the bill as follows: “Beginning at the north-east corner of said lot 9, running thence south, on the east line of said lots, 440 feet, to a point 40 feet south of the north-east corner of said lot 13; thence south-westerly 266 feet, more or less, to a point on the west line of said lot 14, 72 feet south of the north-west corner thereof; thence north on the west line of said lots 9, 10, 11, 12, 13 and 14, 572 feet, more or less, to the north-west corner of said lot 9; thence east on the north line of said lot 9, 240 feet, to the place of beginning.”

It is averred in the bill, that the complainant, and defendants C. Edward Schoellkopf, International Bank of Chicago and Berthold Loewenthal, are, respectively, seized in fee of an undivided equitable estate in said premises, in the following proportions,—that is to say, that complainant is entitled to jkoVo parts thereof, Schoellkopf to x1^°oV parts, International Bank to xYroV parts, and Loewenthal to xWoU parts; that said Loewenthal holds the legal title to the whole of said premises, for the use of himself and co-tenants, in the proportions stated. It is further charged in the bill, that the defendants McCormick, the Third National Bank of Chicago, Huntington W. Jackson, Alpheus C. Badger, and others, by virtue of certain deeds and legal proceedings particularly set forth in the bill, claim to have some interest in the premises, which deeds, etc., complainant asks to have set aside as a cloud upon the title •of himself and co-tenants. Defendants Loewenthal, Schoellkopf and the International Bank answered, admitting the averments in the bill, and also filed a cross-bill, setting up the same facts charged in the original bill, and asking like relief. The other defendants answered, denying the equities of the bill and cross-bill, and setting up various matters not important to be particularly noted in the view we take of the case. The cause was heard upon the pleadings and proofs, resulting in a decree in conformity with the prayer of the bill and cross-bill. From that decree this appeal is prosecuted.

It appears from the record that Samuel J. Walker, being the owner in fee of blocks 1, 2, 20, 21, 22, 23 and 24, Canal-port addition to Chicago, by warranty deed, bearing date October 29, 1865, conveyed the same to Henry H. Honoré; that the latter thereupon executed to Walker a mortgage upon the purchased premises, to secure Honore’s notes to Walker, for the sum of $36,000, payable in one and two years, with interest at eight per cent per annum. The deed and mortgage were both recorded December 30, 1865. These notes were negotiated by Walker to Wilshire & Co. before maturity, in due course of business, and for a valuable consideration. Walker also made a written assignment of the mortgage. This transaction is claimed by appellees to have taken place in 1866, though the assignment of the mortgage was not placed on record till the 19th of November, 1872. A judgment of foreclosure of this mortgage was obtained, in a proceeding by scire facias, on the 3d of September, 1877. On the 14th of August, 1884, the mortgaged premises were sold by the sheriff to the International Bank, under a pluries special execution issued upon said judgment, for $73,095,54, the amount of the judgment. The International Bank assigned the certificate of purchase to Loewenthal, who, on the 18th of November, 1885, received a sheriff’s deed for the property in question. The appellees claim through this deed. It appears, however, that before the recording of the assignment of the Honore-Wilshire mortgage,—to-wit, on the 25th of January, 1871,—Honoré, by quitclaim deed, reconveyed the premises, by the same description, to Walker; This deed was recorded on the 25th of March following. On the application of Walker, the city council of the city of Chicago, on the 12th of May, 1871, passed an ordinance vacating the said Canalport addition to the city, and Walker, in pursuance of the vacating ordinance, made a new subdivision of the whole tract, called Walker’s dock addition, above referred to, the plat whereof was recorded November 18, 1871. It is claimed by appellees,'—and we think the evidence sustains the claim,—that blocks 20, 21, 22 and 23, Canalport addition, including one-half of the abutting streets, are embraced within lots 9, 10, 11, 12, 13 and 14, block 10, Walker’s dock addition.

On the 20th of March, 1872, Samuel J. Walker executed to John G-. Bogers a trust deed upon the premises in question, by the description last mentioned, which was recorded on the following day, to secure an accommodation note of H. H. Walker, for $30,000, This note and trust deed, upon their execution, were negotiated and delivered by Samuel J. Walker to Greenbaum & Foreman, as collateral security for certain indebtedness due from him to them. On May 7, 1873, S. J. Walker executed to A. D. Bich another trust deed upon lots 11 to 20, being part of the same premises, to secure certain indebtedness from Walker to the Union Trust Company. On January 21, .1874, Walker, by quitclaim deed, conveyed the property to J. Irving Pearce. This conveyance, though absolute in form, was, in fact, as is conceded, a mortgage to secure indebtedness from Walker to the Third National Bank. Pearce, on the 1st of August, 1874, with the concurrence of Walker and the bank, conveyed said lots, from 9 to 14, in-elusive, to Alpheus C. Badger, in trust that he would execute certain trust deeds upon the premises, to secure Walker’s said indebtedness to the bank, and also certain other claims held against him by A. D; Hunt and others. These trust deeds were accordingly executed by Badger.

Appellants claim, under the foregoing conveyances, and certain legal proceedings based thereon, not only superior equities to the appellees, but also the better legal title. We do not think this claim is well founded in either respect. As we understand the case, this court has already substantially passed upon the controlling questions in it. It is true, the parties to the litigation in which these questions arose, were not precisely the same as those now before the court, and, consequently, their determination can not be treated as res judicata between the present parties. Yet, on the principle of stare decisis, they are just as binding upon this court as any of its decisions, and they must control, unless some imperative reason is perceived for departing from them. As already seen, the Honoré mortgage was foreclosed by scire facias, in September, 1877, and this court, on the appeal of Honoré, at its January term, 1884, affirmed the judgment, thus establishing its validity and conclusiveness between the parties to it. Honore v. Wilshire, 109 Ill. 103.

On the 24th of February, 1874, Samuel J. Walker filed a bill in the circuit court of Cook county, to enjoin Bich from selling under the trust deed made to him to secure Walker’s indebtedness to the Union Trust Company. The trust company answered, and also filed a cross-bill, making Greenbaum & Foreman, and others, defendants. Greenbaum & Foreman, the Union Trust Company, and the Third National Bank and Hunt, filed cross-bills, impleading Walker and each other, and praying a foreclosure of the trust deeds to Bogers, Bich and Pearce, under which they respectively claimed. Walker, the Union Trust Company and the Third National Bank contested the claim of. Greenbaum & Foreman, on the ground of usury, and insisted that they had sufficient collaterals in their hands to satisfy and discharge all that was due them from Walker, secured hy the Bogers trust deed, and asked that these collaterals should be first exhausted before the sale of any of the lots. The defence thus made against the Greenbaum & Foreman claim, under the Bogers trust deed, was ultimately successful. The court, upon the first hearing, overruled the defence of usury, and, by its decree, fixed the amount of Walker’s indebtedness to Greenbaum & Foreman at $201,657.70. The decree in the case was subsequently reversed, on the ground that the court erred in overruling the defence of usury. This defence being successfully interposed on the second hearing, the amount of the first decree was reduced to $64,893.19, which sum was wholly paid out of the proceeds of the collaterals in Greenbaum & Foreman’s hands, belonging to Walker, and the lots in question were sold under the decree, to satisfy the indebtedness of those claiming under the Bich and Pearce trust deeds. By an arrangement between the beneficiaries under these deeds, the property was bid off by McCormick. The contention of appellants now is, that by their superior diligence, and the expenditure of large sums of money in contesting the claim of Greenbaum & Foreman, they succeeded in greatly reducing the amount, and in defeating it altogether so far as the lots are concerned, and that because of this, they are, upon some principle of equity not very clearly defined, entitled to be reimbursed for such expenditures, and compensated for their superior diligence, out of these lots. We are aware of no legal principle upon which this contention can be sustained.

It is not claimed or pretended that this litigation was instituted, or that the expenses thereof were incurred, at the instance of appellees, or either of them. Nor is there any ground for the claim that appellants have, with their own means, discharged any lien or incumbrance upon the lots which stood in the way of appellees’ title; and, as already seen, no part of the proceeds of the lots was applied to the payment of Greenbaum & Foreman’s claim, which was the only one of all of them that affected appellees’ title, and it had become an incumbrance on the property, as already seen, by reason of Wilshire’s neglecting to have the assignment of the Honoré mortgage recorded until after the execution and recording of the Bogers trust deed. The other trust deeds were all executed after the assignment was recorded, hence, all claiming under them are chargeable with notice of the rights of Wilshire and his assignees. International Bank et al. v. Wilshire, 108 Ill. 143.

Had appellants, with their own means, discharged the Bogers trust deed, or any part of it, they would clearly have -been entitled to be subrogated to the rights of Greenbaum & Foreman, and to the amount of such payment the appellants would have had an equitable hen upon the property. But no such a case is presented by this record. The one before us is, shortly, this: Four incumbrances were placed by Walker upon the lots in question, in the following order, namely, the Honoré mortgage, the 'Bogers, Bich and Pearce trust deeds. By the laches of Wilshire, as already shown, the Honoré mortgage became subordinated to the Bogers trust deed, so that the latter became the first instead of the second in the series of securities. Wilshire’s loss of priority in neglecting to have the assignment of the Honoré mortgage recorded, was a matter of no consequence to appellánts, as that occurred before their title accrued, and even if it had not occurred at all, both of those incumbrances would have stood, as they do now, in the way of the Bich and Pearce trust deeds, through which appellants claim. While such were the relations of the parties with respect to the property, the appellants, by then- respective cross-bills, sought to enforce their junior liens against the lots. To do this effectually, they were bound to either pay or in some manner defeat the Bogers trust deed and Honoré mortgage, both of which stood in their way. This, as we have already seen, they attempted to do, and successfully, too, so far as the Rogers trust deed or the first lien is concerned. But strange to say, no attempt seems to have been made to get rid of the Honoré mortgage, or to have settled the rights of those claiming under it. And now because, while appellants, acting in their own interest, and to accomplish a purpose of their own by doing something they were compelled to do in order to make the trust deeds under which they claim available, they have incidentally benefited appellees, it is insisted that the latter shall lose their interest in the property altogether, or at least shall reimburse appellants the expenses of the litigation. Such a position as this certainly finds no sanction in the law. The result of the litigation, it will be noted, shows that, as against the. lots, (the only thing here in dispute,) the claim of Greenbaum & Foreman was an invalid one; that they had funds in their hands belonging to Walker sufficient to pay, and which did pay, all that was justly due under the Rogers trust deed. Had appellees been brought into court, as they should have been, they would have had the same right that appellants had to have the collaterals in Greenbaum & Foreman’s hands applied, as they were applied, to the discharge of their claim, without resorting to the lots; but as they were not made parties to that litigation, it was sufficient for them to exercise this right when Greenbaum & Foreman undertook to enforce their claim upon the lots, as against appellees. We regard the present situation of the parties with respect to the property, the same as if Walker, pending the suit, had voluntarily paid the Greenbaum & Foreman claim out of his own pocket. The effect in that case w'ould have been simply to extinguish the first lien upon the property, .without at all affecting the priorities or equities between the other lien holders.

This view of the matter substantially disposes of the case adversely to appellants. It would therefore be an unprofitable consumption of time and fruitless labor to enter upon an examination of the remaining subordinate questions discussed in the briefs.

A number of objections are urged against the judgment of foreclosure of the Honoré mortgage, and the subsequent proceedings thereunder. While it may be admitted these objections are not groundless, yet we do not think any of the errors and irregularities complained of are of so serious a character as to justify us in holding the whole proceeding void in a collateral proceeding, as this is. Such of the objections as go to the jurisdiction of the court in that proceeding we think are not well founded, and it is clear mere errors and irregularities -can be of no avail here. The claim that appellees are barred by the Statute of Limitations we regard as equally untenable.

Without going into'-further detail, we think, -upon the whole case, the decree below is right, and it will therefore be affirmed.

Decree affirmed.

Mr. Justice Magruder took no part in the decision of this case.


source: Caselaw Access Project

author: Mr. Justice Craig

license: Public Domain

text:
    Edwin D. Tucker v. The People of the State of Illinois.

      Filed at Ottawa November 11, 1887.

    1. Mabeiage license—as to the capacity in which the elerh may sign it. As the county clerk is also the clerk of the county court, the fact that the -county clerk signs the marriage license as clerk of the county coiirt, will not affect its validity.
    2. Criminal law— bigamy—proof of a former marriage, of the mode. On a prosecution for bigamy, letters of the defendant written to his former wife while they were living together as husband and wife, showing that they were living together as such, and that she was acknowledged by him as his wife, are admissible in evidence to show the fact of the prior marriage.
    3. The statute relating to bigamy provides that it shall not be necessary to prove either marriage by the register or certificate thereof, or other record evidence, but the same may be proved by such other evidence as is admissible to prove a marriage in other cases. So it is competent to show the conversation and letters of the parties addressing each other as husband and wife, and the marriage may be shown by a certified copy from the records of the county clerk of the certificate of the person who performed the marriage ceremony, indorsed on the license.
    4. Same—record evidence in criminal cases—right of accused to meet the witnesses face to face. The constitutional provision that “in all criminal' prosecutions the accused shall have the right to meet the witnesses face to-face,” has no reference to record evidence which may, during the progress of a criminal trial, become necessary to establish some material fact to-secure a conviction. A record imports verity, and a cross-examination is foreign to and has no application to record evidence.
    5. Variance—middle initial in a name. An indictment for bigamy charged that the defendant was lawfully married to Mary I. Bennett, while the proof showed a marriage to Mary Bennett: Held, no variance, as the-letter “I” was no part of the name of the person named in the indictment.
    6. Practice—allowing further evidence after argu/ment has commenced, The admission of further evidence on the part of the prosecution in a criminal case, after the case is closed and before the jury retires, is a matter resting in the sound discretion of the court; and when that discretion is-not abused, the admission of such evidence can not be assigned for error.
    7. On a trial for bigamy, after the evidence was closed and the State’s attorney had opened the argument; to the jury, and defendant’s counsel had addressed the jury, the court took a recess. On the re-convening of the court, on motion of the State’s attorney, the court allowed him to read in evidence certain portions of the statute of another State, and offered to allow the defendant the privilege of introducing further evidence, and to-further argue the case to the jury: Held, no error.
    8. Same—time to object—certificate to transcript on change of venue_ Where a change of venue is granted in a criminal case on the application of the defendant, if the authentication of the record by the clerk of the-court from which the change is taken, is defective or informal, the objection thereto should be made by him to the court before the trial, or it will be considered as waived.
    9. Jurisdiction on constructive service—time of publication—in a Utah divorce case. The record of a decree of divorce in the probate court of Utah Territory showed service on the defendant by publication, the first insertion of which in the paper was only thirty-five days before the date of the decree, while the law of that territory given in evidence required that forty days should intervene: Held, that the decree was void for want of jurisdiction.
    10. Amendment oe record after the term—want of notice. Three years-after a decree of divorce in a Utah court, the record was amended so as to show jurisdiction of the defendant by due publication, which amendment v as made without notice to the defendant in the suit: Held, that the amendment was a nullity, and could not be shown to cure a defect in the record or decree of divorce.
    11. Eobmeb adjudication—as to sufficiency of indictment. Where this ■ court holds an indictment sufficient, but reverses a conviction under the same and remands the cause, the judgment of this court will be conclusive as to the sufficiency of the indictment, on a second writ of error.
    Wbit of Ebbob to the Circuit Court of Livingston county; the Hon. N. J. Pillsbuby, Judge, presiding.
    Mr. Bufus King, for the plaintiff in error:
    On writ of error to sustain his judgment, the party must show a good record. Sweeney v. People, 28 Ill. 210.
    The authentication of the record by the clerk of the Kankakee circuit court is defective, in failing to show a full transcript of the record and proceedings. The clerk can not certify to what transpired in his court. He can only make a true transcript of the record. Rev. Stat. chap. 146, sec. 38; 1 Greenleaf on Evidence, sec. 498; Marshall v. Adams, 11 Ill. 38; Cross v. Mill Co. 17 id. 54; City of Beardstown v. City of Virginia, 81 id. 541.
    The clerk can only certify to what he finds upon the files and records remaining in his office. Augustine v. Doud, 1 Bradw. 591; Oaks v. Hill, 14 Pick. 442; Robbins v. Townsend, 20 id. 345; Wayland v. Ware, 109 Mass. 248; Wharton on Crim. Ev. sec. 195.
    It will he claimed that section 35, chapter 146, of the Be-vised Statutes, covers all defects. By that, only irregularities are waived, not essential to the jurisdiction. Yates v. People, 38 Ill. 533; Rainey v. People, 3 Gilm. 11; Noecker v. People, 91 Ill. 494; Wight v. Kirkpatrick, 4 Scam. 339; Perteet v. People, 10 Ill. 186.
    The court erred in admitting the record of the marriage license and the certificate made and issued by the clerk of the county court, when the statute «requires it to be done by the county clerk. Bev. Stat. chap. 89, secs. 1, 12; chap. 46, see. 16; chap. 35, secs. 3, 4, 5; chap. 25, sec. 2; chap. 34, sec. 63; chap. 147, secs. 10, 11; Satterfield v. People, 104 Ill. 448; McCotta v. Harker, 8 N. Y. 504.
    As to variance in the name of the alleged former wife, see 1 Bishop on Marriage and Divorce, sec. 481; Wharton’s Crim. Pl. and Pr. sec. 116; Wharton on Crim. Ev. secs. 94, 100; Regina v. Gooding, 1 C. & M. 297; Price v. State, 19 Ohio, 423; State v. Hughes, 1 Swan. 261; Commonwealths v. Perkins, 1 Pick. 389; Commonwealth v. Hall, 40 Me. 438; Rex v. Duley, 4 C. & P. 579; State v. Horner, 3 Pick. 362; Davis v. People, 19 Ill. 77.
    The record evidence is in contravention of article 2, section 9, of the constitution, giving the accused the right to meet the witnesses face to face. Cooley on Const. 318; People v. Lambert, 5 Mich. 349; State v. Thomas, 64 N. C. 74; Weyrich v. People, 89 Ill. 90; Goodwin v. State, Meigs, 195.
    On indictment for bigamy, a marriage in fact must be shown in both cases, and reputation, conduct, cohabitation and mere confession of the accused can not accomplish this. Confessions are only authoritative when there is clear proof of the coipus delicti, which, in bigamy, is the alleged first marriage. Wharton on Crim. Law, (8th ed.) sec. 1696.
    It is settled that an admission, whether under oath or on examination, or otherwise, is not admissible to prove record facts. Wharton on Crim. Ev. secs. 153, 687; 2 Greenleaf on Evidence, (13th ed.) secs. 49, 461, 462; People v. Humphrey, 7 Johns. 314; State v. Roswell, 6 Conn. 446; Miner v. People, 58 Ill. 59; South v. People, 98 id. 261; Miller v. White, 80 id. 580.
    The court improperly opened the case after the argument had begun. Railroad Co. v. Jameson, 48 Ill. 281; White v. People, 90 id. 117; Tripp v. Cook, 26 Wend. 143; Railroad Co. v. Maroney, 95 Ill. 179; Mary v. State, 5 Mo. 80; Lewin’s Crown Cases, 151.

      Mr. Geobge Hunt, Attorney General, for the People:
    The certificate of the clerk of the circuit court of Kankakee county, that this is a copy, is in effect and substance that it is a transcript of the record. But this objection now comes too late. Rev. Stat. chap. 146, sec. 35; Perteet v. People, 70 Ill. 171; Gardner v. People, 3 Scam. 87; McBain v. Enloe, 13 Ill. 76; Hitt v. Allen, id. 592; Yates v. People, 38 id. 533; People v. Zane, 105 id. 667; Logston v. State, 3 Heisk. 414; Goodhue v. People, 94 Ill. 37.
    Cohabitation with Mary E. Markham in this State completes the offence, although the marriage with her was in another State. Hutchins v. Kimmel, 31 Mich. 128; Fleming v. People, 27 N. Y. 329; Wharton on Conflict of Laws, secs. 170-173.
    While the record evidence might, of itself, prove the marriage, the prosecution might properly produce other evidence of the fact. Hayes v. People, 25 N. Y. 396; Hutchins v. Kimmel, 31 Mich. 128.
    The words, “county clerk,” shall be held to include “clerk of the county court,” and vice versa. Rev. Stat. chap. 131, sec. 1, clause 8.
    Becord evidence of the marriage was competent. King v. Dale, 1 Scam. 513; Miller v. White, 80 Ill. 580; Conant v. Griffin, 48 id. 410; Jackson v. People, 2 Scam. 231.
    This court has already held that the indictment is sufficient. Tucker v. People, 117 Ill. 88.
    The Utah court had no jurisdiction to render the alleged decree of divorce, and such decree was wholly void.
    Mr. H. L. Bichakdson, State’s attorney, also for the People:
    The record of the divorce in Utah is void for fraud and want of jurisdiction. The jurisdiction may always be inquired into. Rose v. Hinly, 4 Cranch, 241; Elliott v. Piersoll, 1 Pet. 628; Harvey v. Tyler, 2 Wall. 340; Voorhees v. Bank, 10 id. 437; Hickey v. Stewart, 3 How. 750.

      The doctrine that to give jurisdiction in a divorce suit the plaintiff must be a resident of the State or territory where the divorce is obtained, is universal. Harrison v. Harrison, 19 Ala. 499; House v. House, 25 Ga. 423; Williamson v. Parisien, 1 Johns. Ch. 389; Hinds v. Hinds, 1 Iowa, 36; Kruse v. Kruse, 25 Mo. 68; Fellows v. Fellows, 8 N. H. 160; Winship v. Winship, N. J. Eq. 107; Dorsey v. Dorsey, 7 Watts, 349; Ditson v. Ditson, 4 R. I. 87; Fickle v. Fickle, 5 Yerg. 203.
    On the general doctrine of divorces fraudulently obtained in other States, see Hanover v. Turner, 14 Mass. 227; Am. Dec. 203, and note 206. Also, Burlein v. Shannon, 115 Mass. 447; Doughty v. Doughty, 27 N. J. Eq. 315; Maguire v. Maguire, 7 Dana, 181.
   Mr. Justice Craig

delivered the opinion of the Court:

The plaintiff in error, Edward D. Tucker, was indicted, at the April term, A. D. 1885, of the circuit court of Kankakee county, for bigamy, by the grand jury of that county. He was arrested, tried and convicted, hut the judgment was subsequently reversed in this court on writ of error, and the cause was remanded for a new trial. After the cause was remanded, the defendant obtained a change of venue from Kankakee to Livingston county. A transcript of the record and the papers in the ease were transmitted to the circuit court of Livingston county, where a second trial was had, and the defendant was again found guilty. To reverse the latter judgment the defendant sued out this writ of error.

- The first error relied upon is, that the circuit court of Livingston county had no jurisdiction of the cause; and this supposed error is predicated upon what is supposed to be a defective transcript transmitted from the circuit court of Kankakee county to the circuit court of Livingston county. The defect relied upon is, that the clerk has certified to what transpired in court, rather than to a true transcript of the record. The certificate is as follows:

“I, J. Frank Leonard, clerk of the circuit court in and for the said county, in the State aforesaid, do hereby certify that the foregoing is a true copy of the petition and affidavits; the organization of the grand jury; the return of the indictment against said defendant into open court; the plea of the defendant ; the order for change of venue herein; and that the papers numbered from one (1) to five (5), both inclusive, are all the papers now on file in my office, forming any part of the record in this case. I further certify that I am the custodian of the records and files of said court. In witness whereof,” etc.

Section 28, chapter 146, of the Bevised Statutes, relating to change of venue, provides: “In all cases of change of venue, the clerk of the court from which the change is granted shall immediately make a full transcript of the record and proceedings in the case, and of the petition and affidavits, and order for the change of venue, and transmit the same, together with all papers filed in the case, including the indictment and recognizances of the defendant and all witnesses, to the proper court.”

It is true that the certificate does not, in terms, state that the foregoing is a true copy of the record and proceedings, as required by the statute, and yet such is the substance of, and what was intended by, the certificate. But as we understand the law which must control the question, it will not be necessary to determine whether the certificate is technically accurate or not. The venue in this case was changed at the request and upon the application of the defendant. The record and papers upon which the defendant was tried were transmitted to Livingston county, upon his request. If the certificate of the clerk was irregular or defective, or if the record was otherwise defective, it was the duty of the defendant, before the trial began, to point out the defects, in order that such defects might be cured; but no objection was made by the defendant to the record, or any part thereof, as certified by the clerk of the circuit court of Kankakee county. Under such circumstances, can he now be heard to complain that the circuit court of Livingston county had no right to proceed with the trial of the cause ? We think section 35 of chapter 146, supra, furnishes the answer. That section is as follows: “All questions concerning the regularity of proceedings in obtaining changes of venue, and the right of the court to which the change is made to try the cause and execute the judgment, shall be considered as waived after trial and verdict.”

In Gardner v. The People, 3 Scam. 83, where a change of venue had been taken from the circuit court of Scott to the circuit court of Morgan county, after a conviction, on writ of error it was objected, as here, that the circuit court of Morgan county had no right to try the prisoner, because the record of the proceedings in Scott county was not properly certified by the clerk, as required by the statute. In deciding the point ii,: '(>d, it is there said: “No objection was made in the court

below, before or after verdict, to the regularity of the proceedings in Scott county, or to the authentication of the same when changed to Morgan county. If the authentication of the record was defective, the prisoner should have availed himself of it in the circuit court before trial. Not having done so, the irregularity, if in fact any existed, is cured by the statute (citing it,) as above.” The same rule was laid down in Perteet v. The People, 70 Ill. 172, and the doctrine has been approved in other cases, but it Will not be necessary to cite them. If the transcript from Kankakee county, or the certificate thereto, was defective or irregular, it was the duty of the defendant to interpose the objection before the trial. As he failed to speak when duly required, the objection now made for the first time comes too late.

The fourth count of the indictment charges that Edward D. Tucker, on the 15th day of April, 1872, in the county of Cook, Illinois, married Mary I. Bennett, and afterwards, while so married to said Mary, to-wit, on the 19th day of September, 1883, at, to-wit, the county of Kankakee, feloniously and unlawfully did marry Mary B. Markham, alias Mary B. Rommel, (said Mary, Ms former wife, bemg then alive,) contrary to the form of the statute, etc. For the purpose of proving the marriage between the defendant and Mary I. Bennett, a certified copy of a license, and return thereon, were read in evidence. The license was signed by George W. Wheeler, clerk of the county court, and it is insisted that such license was invalid, because the statute only authorized the county clerk to issue a license. Under our statute, the county clerk is clerk of the county court,—one and the same person is county clerk and clerk of the county court; and the fact that George W. Wheeler, who was county clerk and clerk of the county court, signed the license as clerk of the county court, did not affect its validity. This question is fully met by section 1, chapter 131, of the Revised Statutes of 1874, which declares that the words “county clerk” shall be held to include “clerk of the county court,” and the words, “clerk of the county court,” to include “county clerk.”

It is also said that there was a variance between the charge in the indictment and- the proof. The averment in the indictment is, that defendant was lawfully married to Mary I. Bennett, while the proof showed a marriage to Mary Bennett. We do not regard the alleged variance of any importance. The letter “I”-was no part of the name of the person mentioned in the indictment, and the evidence of a marriage to Mary Bennett was sufficient proof of the fact as laid in the indictment.

Complaint is also made that the court permitted certain letters of the defendant, written to his former wife, Mary Bennett, to be read in evidence. These letters were written while the defendant and Mary Bennett were livmg together as husband and wife. They were addressed to her as Ms wife, and contained admissions that she was Ms wife. They also show that the parties were living together as husband and wife, and that she was acknowledged" and treated by Mm as his wife. In a prosecution for bigamy, section 29, chapter 38, of the Revised Statutes of 1874, provides: “It shall not be necessary to prove either of the marriages by the register or certificate thereof, or other record evidence; but the same may be proved by such evidence as is admissible to prove a marriage in other cases.” In civil cases, Greenleaf, (vol. 2, see. 462,) says: “Marriage may be proved by reputation, declarations and conduct of the parties, and other circumstances usually accompanying that relation. * * * In regard to the language and conduct of the parties, it is competent to show their conversation and letters addressing each other as man and wife.” Under the rule indicated, there can be no doubt in regard to the competency of the evidence. Whether the marriage, in a prosecution of this character, might be established solely by such evidence, it will not be necessary, here, to determine. The evidence tended to prove the marriage, and, as such, it was competent, in connection with the other evidence bearing upon the question.

It is also urged, that under the constitutional guaranty of the statute, the defendant had the right to meet the witnesses face to face, and that the record proof of marriage, consisting of a certified copy, from the records of the county clerk, of the certificate of the person who performed the marriage ceremony indorsed on the back of the license, was and is a violation of that right. In other words, the argument is, that record evidence of marriage is not admissible, but the law required the prosecution to produce the person who solemnized the marriage, as a witness, in order that the defendant might meet him face to face, and exercise the right of cross-examination.

Section 9, of chapter 89, of the Revised Statutes of 1874, provides that the minister, judge or justice of the peace shall, within thirty days after a marriage is solemnized, make a certificate thereof, and return the same, together with the license, to the clerk of the county in which the marriage occurred. Section 11 provides that the county clerk, upon receiving such certificate, shall make a registry thereof in a book to be kept in his office for that purpose. He shall also indorse on such certificate the time when the same is registered, and shall number and carefully preserve the same. Section 12 declares that such certificate, or a copy of the same, or of the entry of such registry, certified by the county clerk under the seal of the county, shall be received as evidence of the marriage of the parties as therein stated.

In Jackson v. The People, 2 Scam. 231, which was a prose-' cution for bigamy, the record evidence of marriage was held admissible. In that case, however, the constitutional question does not seem to have been raised, but if it had been raised .and relied upon, we do not think the result would have been different. Under the constitutional guaranty the depositions of witnesses can not be taken and read in evidence in a criminal prosecution, as is done in a civil case, because this would be a direct denial of the right to meet the witnesses face to face. But the provision, “in all criminal prosecutions the accused shall have the right to meet the witnesses face to face,” in our judgment has no reference to record evidence which may, during the progress of a criminal trial, become necessary to establish some material fact, to secure a conviction. The offered transcript consisted of a public record, which is declared by the law to be evidence. The record imports verity, and a cross-examination is foreign to and has no application to this character of evidence.

After the evidence had been closed by both People and defendant, the attorney for the People made an argument to the jury, and he was followed by an argument in favor of the defendant. At the conclusion of the argument in behalf of defendant the court took a recess for dinner. When the court met after recess, the counsel for the People entered a motion for leave to introduce in evidence certain portions of the statute of Minnesota. This motion was allowed, and the statute was read in evidence, and the ruling of the court is relied upon as error. It appears from the bill of exceptions, that the court, upon allowing the evidence to he introduced, offered to allow the defendant the right to introduce further evidence in his-behalf, if he desired, and to further argue his case to the jury. The admission of further evidence after the case had been closed, and before the jury had retired, was a matter resting in the sound discretion of the court, and as it does not appear that the discretion was abused, we do not think the court erred. The failure on the part of the attorney for the People to read, in evidence the statute of Minnesota, was a mere oversight, and it was but just that he should be allowed to introduce the-evidence, as the defendant was in no manner injured, the court having allowed him the right to rebut the evidence if he wished, and to argue its force and effect to the jury.

As a defence to the indictment, the defendant introduced in-evidence the statutes of the territory of Utah, showing authority-in the probate courts to grant divorces. Also, exemplification of record of proceedings in the probate court of the county of Salt Lake, wherein plaintiff in error was complainant, and Mary I. Bennett, defendant, and a decree of divorce granted the-complainant therein on May 23,1883. The service, as appears from the record in the divorce proceeding, was had by publication in a newspaper. The statute read in evidence required the notice to be published four times consecutively in a newspaper having a general circulation in the territory, the first insertion to be at least forty days before the commencement, of the term of court. The notice was published for one month in a weekly newspaper, first insertion of date April 18, 1883, last, May 9, 1883. The decree was rendered on the 23d day of May, but thirty-five days from the date of the first publica-tion. From the facts appearing on the face of the record, it is manifest that the court in Utah, where the decree was rendered, had no jurisdiction of the person of the defendant in the divorce proceeding, and having no jurisdiction, the decree was void.

The defendant attempted to introduce an amendment of the record, made nearly three years after the divorce was granted, to cure the defect appearing in the record; hut this amendment was made without notice to the defendant in the proceeding, and was, as the circuit court properly held, a nullity. What authority the court in Utah had to amend the record in a matter of substance almost three years after a final decree was rendered, does not appear, but if it had such authority, it could only be exercised on full notice to the party interested.

Objection is made to the indictment, but when the case was here before, the indictment was held to be sufficient, and that decision must be held to tie conclusive as to its sufficiency.

Some of the instructions given for the People have been criticised, and the decision of the court in modifying some of the defendant’s instructions, is objected to; but upon an examination of all the instructions, we find no substantial error. Indeed, we find no error in the record which will authorize a reversal of the judgment.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Shope

text:
    The Chicago, Burlington and Northern Railroad Company v. Alice Bowman et al.

      Filed at Ottawa November 11, 1887.

    1. Costs—witness fees to be taxed—limiting member of witnesses—in proceedings under Eminent Domain act. The general Cost act applies to proceedings to condemn land under the Eminent Domain act, and under it the court may, after the conclusion of the evidence, limit the number of witnesses whose fees are to be taxed against any party, not less than two, as may appear to have been necessary.
    2. Same—time of application to limit number of witnesses whose fees may be taxed—and, hou> far discretionary. A motion to limit the number of witnesses called by a defendant, whose fees are to be taxed against the plaintiff, made before the defendant has examined his witnesses, is premature, and therefore properly overruled.
    3. There is no inhibition upon parties calling as many witnesses as they may desire; but every party must assume the risk of having taxed against him the fees of all such witnesses as the court may find were unnecessary, being not less than two. A motion to restrict a party to a certain number of witnesses whose fees may be taxed as costs, is addressed to the discretion of the trial court, and its decision is not subject to review, except where the discretion is abused.
    4. Eminent domain—measure of damiages—as to land taken. The fair market value of land proposed to be taken for public use under the Eminent Domain act, having proper regard to the location and advantages as to situation and the purposes for which it was designed and used, is the proper measure of compensation to be awarded.
    5. Where a part is taken, and that part has a greater value, in connection with the whole, than as a separate parcel, the measure of damages will be the fair cash value of the part taken, as a part of the whole.
    6. Same—measure of damages—as to part not taken. Where a cross-petition is filed for damages to land not sought to be taken, but a part of that sought to be condemned, the jury should award to the owner such damages, in cash, as his lands not taken will sustain, if any, by reason of the construction of the proposed railroad, and its continued use and operation, through his farm. In such case it is proper for the jury to give damages for all actual and appreciable injuries resulting from the construction and operation of the proposed railroad.
    7. If the lands not taken will be depreciate-1 in value by the construction and operation of the proposed railroad, the measure of damages will be the difference in their market value before the construction of the road- and after its construction. In determining this, the jury may consider the injury to the land arising from inconveniences actually brought about by the construction of the proposed railroad, or incidentally produced by dividing the land as to water, pastures and improvements, although such injiu-y may not be susceptible of definite ascertainment, and also for such incidental injury as would result from the perpetual use of the track for moving trains, or from danger of killing stock, or injury to pasturing stock, or escape of fire, and generally for such damages as are reasonably pi obable to. ensue from the construction and operation of the proposed road.
    8. The physical condition of land over which a right of way is sought to be condemned for a railroad, whether affected by another railroad, a watercourse, or other natural or artificial object, must be considered in the proceeding,—not in respect to the damage or depreciation caused by such other railroad, water-course, etc., but for the purpose of determining the damages ■occasioned to the owner by the proposed improvement.

      9. Same—proximate and remote damages. While it is true that only real, tangible and proximate damages are recoverable, yet it is all such damages as are reasonably probable, as distinguished from possible, speculative or remote damages, that form the proper basis of recovery.
    10. Same—of am instruction—whether permitting remote or speculative damages. An instruction that the land owner is entitled to just compensation for the land taken, and for all “reasonable and probable damage” to the balance of his land not taken, caused by taking the strip condemned for the uses and purposes of the proposed railroad, is not obnoxious to the objection that it opens the door to let in remote, conjectural and speculative damages.
    11. Bniii op exceptions—when necessary. Affidavits filed in a cause do not become a part of the record sent up on appeal or error, unless made so by being incorporated into a bill of exceptions.
    Appeal from the County Court of Carroll county; the Hon. B. L. Patch, Judge, presiding.
    Mr. James Shaw, and Mr. D. S. Berry, for the appellant:
    The court should have sustained appellant’s motion to limit appellee’s witnesses. Appellant examined only eight witnesses, while appellee examined nineteen, and kept in attendance nine more. The court should have required appellee to pay a part of the costs.
    The court may limit the fees to be taxed when the privilege of calling witnesses has been abused, and when the trial court fails to exercise its discretion this court may compel it. Stock Yards Co. v. Moore, 5 Am. and Eng. Ry. Cas. 351; Firman v. Firman, 109 Ill. 63.
    In estimating compensation and damages in railroad condemnation cases, it is improper to consider imaginary or speculative damages, or remote and improbable consequential damages, which may or may not happen in the future, or such damages as result from future wrongful acts, which afford proper causes of action when they occur. Of this kind of damages are supposed dangers of future fires; frightening stock in pastures, or Trilling them on the track; flooding meadows, or serious interference with the after-flow of surface waters; noises and smoke in the running of trains over remote farm lands, and inconveniences suffered from other railroads being operated over the same land; or to build fences or farm crossings. Stone v. Railroad Co. 68 Ill. 394; Jones v. Railroad Co. id. 380; Railroad Co. v. Burket, 46 Ala. (N. S.) 569; 1 Redfield on Railways, 358, par. 11; McReynolds v. Railroad Co. 106 Ill. 152; Railroad Co. v. Francis, 70 id. 238; Mills on Eminent Domain, 193.
    As to the rule of assessing damages where one railroad is upon the farm, or where one railroad runs along the side of another, see Mills on Eminent Domain, 167; 17 Minn. 322; 13 N. Y. 149.
    The unwillingness of the owner to part with his property, nor the necessities of the condemning corporation, nor the adaptation of the land to the purposes of the railroad, nor what the land would be worth to the witnesses in the shape taken, are proper elements for the consideration of the jury. Pierce on Railways, 213 ; Mills on Eminent Domain, 168.
    The court erred in instructing that the jury might allow all probable damages. Railroad Co. v. Railroad Co. 105 Ill. 110; Reynolds v. Railway Co. 106 id. 152; Jones v. Railroad Co. 68 id. 380.
    Mr. J. M. Hunter, for the appellees, argued the case at some length on the evidence.
   Mr. Justice Shope

delivered the opinion of the Court:

This was a proceeding by the appellant company, in the county court of Carroll county, to condemn the right of way across the land of three separate owners. Three separate trials were awarded,—the cause arising on the petition and the cross-petition of appellee Alice Bowman being first tried. Appellant called eight witnesses, and on its application the jury were sent to view the premises, and appellant then rested. Before appellee had offered any evidence, appellant moved the ■court to limit the number of witnesses called and in attendance upon behalf of appellee, whose fees were to be taxed against appellant, to such number,—not less than two,—as should appear to the court to be necessary for the proper trial of the issues involved, which motion the court overruled. This ruling is assigned for error.

The act under which this proceeding is conducted makes no provision respecting costs, and the general Cost act applies. Section 15 of the chapter on costs reads: “The court may limit the number of witnesses whose fees are to be taxed against any party, to such number, not less than two, as shall appear to the court to have been necessary.” There is no inhibition upon parties calling as many witnesses as they may desire, but every party must assume the risk of having taxed against him the fees of all such witnesses as the court may find were unnecessary. This court so held under a former statute limiting the number of taxable witnesses to four, unless the court certified that a greater number were necessary. White v. Hermann, 51 Ill. 243.

The question here presented relates more particularly, however, to the time when such application should be made, and when the court can properly be called upon to act. Holding the affirmative, appellant’s witnesses were heard first, and this hearing ran into the fourth day of the trial, and appellee, with her witnesses, must perforce wait till appellant concluded. Before a single witness of appellee had been or could have been heard, appellant made this motion. How the court, in advance, could exercise its discretionary power of determining what witnesses were or were not necessary to the maintenance of appellee’s case, is not apparent. At the conclusion of the trial the court could act upon such a motion intelligently and fairly, but surely it could not do so before it had heard the witnesses. The motion was premature, and was therefore properly denied. But if this motion had been made or renewed at the conclusion of the testimony, its allowance or disallowance, resting in the sound discretion of the trial judge, would not be the subject of review unless such discretion had been abused. The facts of this ease were complicated, and the twenty-one witnesses called by appellee were, as it seems to us, fairly distributed, upon the several inquiries properly made, and under the circumstances of this case we are unable to say there was any abuse of discretion in denying the motion.

It is also contended that appellee kept in attendance eight witnesses who were not sworn, and that the fees of these witnesses were wrongfully taxed against appellant. There is in the record a conditional judgment against appellant for $3950 and “the costs of this proceeding, ” but the record does not show the amount of costs taxed, nor the items going to make up the bill of costs. We can not know, therefore, whether fees of attending witnesses not sworn have been taxed or not. There are a number of affidavits of witnesses claiming attendance, but they form, no part of the record properly certified to Ibis court. If appellant desired to make them a part of the record it should have procured them to be incorporated into the bill of exceptions, for in this way, only, can affidavits filed in a case become a part of the record.

It is further contended that the damages found by the jury were excessive and unjust, and largely made up of improper elements. In reaching their determination it was competent for the jury to award appellee compensation, in dollars and cents, for the fair market value of the land proposed to be taken, having proper regard to the location and advantages as to situation, and the purposes for which it was designed and used. Jacksonville and Southeastern Railway Co. v. Walsh, 106 Ill. 253; Chicago and Northwestern Railway Co. v. Chicago and Evanston Railroad Co. 112 id. 589; Dupuis v. Chicago and North Wisconsin Railway Co. 115 id. 97; Chicago and Evanston Railroad Co v. Jacobs, 110 id. 414; DeBuol v. Freeport and Mississippi River Railroad Co. 111 id. 499. And where but a part is taken, and the part taken is of greater valúe, in connection with the whole, than as a separate parcel, the measure of damages will he the fair cash value of the part taken, as a part of the whole. (Chicago and Evanston Railroad Co. v. Blake, 116 Ill. 163.) Under appellee’s cross-petition it was the duty of the jury to award to appellee such damages, in dollars and cents, as her lands not taken would sustain, if any, by reason of the construction of the proposed railroad, and its continued use and operation through her farm. It was competent for the jury to consider and give compensation for all actual and appreciable injuries resulting from the construction and operation of the proposed railroad. (Alton and Sangamon Railroad Co. v. Carpenter, 14 Ill. 190.) And if the lands not taken would be depreciated in value by the construction and operation of the proposed railroad, the measure of damages would be the difference in their market value before the construction of the road and after its construction. Chicago and Pacific Railroad Co. v. Francis, 70 Ill. 238; Page v. Chicago, Milwaukee and St. Paul Railway Co. id. 324; Eberhart v. Chicago, Milwaukee and St. Paul Railway Co. id. 347; Chicago, Milwaukee and St. Paul Railway Co. v. Hall, 90 id. 42; Dupuis v. Chicago and North Wisconsin Railway Co. supra. In determining this, the jury would be justified in considering the injury to her land arising from inconveniences actually brought about and occasioned by the construction of the proposed railroad, or incidentally produced by dividing her land as to water, pastures and improvements, although such injury and damage might not be susceptible of definite ascertainment. Jones v. Chicago and Iowa Railroad Co. 68 Ill. 380; Rockford, Rock Island and St.Louis Railroad Co. v. McKinley, 64 id. 338; McReynolds v. Burlington and Ohio River Railway Co. 106 id. 152; Chicago and Iowa Railroad Co. v. Hopkins, 90 id. 316. And for such incidental injury as would result from the perpetual use of the track for moving trains, or from danger of killing stock, or injury to pasturing stock, or escape of fire, and generally for such, damages as are reasonably probable to ensue from the construction and operation of the proposed road. St. Louis and Southeastern Railway Co. v. Teters, 68 Ill. 144; McReynolds v. Burlington and Ohio River Railway Co. supra; Rockford, Rock Island and St.Louis Railroad Co. v. McKinley, supra; Chicago and Iowa Railway Co. v. Hopkins, supra.

It will subserve no good purpose to enter into an extended discussion of the evidence. It is sufficient to say, that the most careful examination of the evidence discloses that every element of damage shown, fell clearly within the rules thus repeatedly announced by this court, as to the proper elements to be considered by the jury in arriving at what is just compensation to the owner of the land, in proceedings of this character. So far as we can perceive, no single element of damage was included in the evidence admitted to the jury, not warranted by the decisions of this court above referred to.

Our attention has been directed to a number of detached sentences and expressions of witnesses, showing, as is contended, that the damages done by the location and operation, through the farm of appellee, of the Chicago, Milwaukee and St. Paul railroad, were included in the witnesses’ estimate of appellee’s damages, and therefore presumably in the verdict of the jury.' The expressions, as quoted by counsel, of the witness Bailey, are as follows: “This estimate of $2300 damages is made in reference to the fact that there is another railroad,—the Chicago, Milwaukee & St. Paul railway,—across the land, farther north. If there were no other railroad across the farm, $100 per acre for the land (eighteen acres taken) would be a very big price. I embrace all the elements of damage in my answer.” As to this witness, he was placed on the stand by appellant, and his answer complained of was called out upon his examination in chief, and went to the jury without objection. If it was exceptionable, objection should have been then made, and the court at the proper time asked io instruct the jury to disregard it.

But if this excerpt be taken in connection with what preceded and followed it, it is not perceived that the testimony is open to the objection made. The witness estimates the damage of appellee at $2300, including the value of the land "taken. This estimate is made up of the land taken and the ■depreciation of the strip cut off south of appellant’s road, which he says would be depreciated one-half in value, and then adds: “I put on the extra damage above the $1000 because the new railroad runs along as close as it does to the •other railroad.” The same may be said with entire accuracy in respect to the statements complained of, made by other witnesses,—that when the whole testimony of the witness is considered it will be found that it was the damage to appellee’s land, by reason of the construction and operation of appellant’s xoad, alone, that entered into the estimate of damage by the witness. As a matter of course, the damages occasioned by the construction of the old road could form no element for recovery in this case, but we are not prepared to say, as a matter •of law, that in considering the compensation to be allowed an ■owner for the construction and operation of a railroad across his farm, the fact that the land is already crossed by one road may not be taken into consideration by the jury in determining the damages by reason of the construction of the new line of road,—not that the damages occasioned by the old road, if .■any, can be recovered, but as a physical fact affecting the value ■of the farm, as a whole. We can well comprehend how the ■damages an owner would sustain by the construction of a railxoad through his farm might he augmented by the fact that "the farm had already been cut into two parts by another railxoad, and it might well be that, if the value of the farm had been depreciated by the road formerly constructed over the same, the damages occasioned by the construction of the proposed road might he less than they otherwise would be.' The physical condition of the land,—whether affected by another railroad, a water-course, or other natural or artificial object,— ■must be considered, not in respect of the damage or depreciation caused by such other railroad or water-course, etc., but for the purpose of determining the damages occasioned to the owner by the proposed improvement.

We are satisfied that the statements of witnesses referred to by counsel, taken with their testimony as a whole, are not open to the objection made; but if it were otherwise, it does not-follow that the verdict of the jury is tainted with the false elements suggested. The jury were specially instructed upon this, very point by appellant’s eleventh instruction, as follows :

“The court instructs the jury, that in estimating the just compensation and damages to which the owners of the land in this case are entitled for the land taken and, damages for contiguous lands, the jury should confine themselves to damages done by the petitioning railroad company alone. In this case the Chicago, Burlington and Northern Bailroad Company should only pay for the land taken by it, and the damage it alone does to contiguous property,—damaged, but not taken. 'No damages done by any other railroad company to the lands in question should be regarded or estimated by the jury.”

No reason has been suggested or is perceived for supposing that the jury disregarded the instruction.

But it is said, as before stated, that the verdict is excessive and unjust. This objection calls in question the justness of the conclusion drawn by the jury from the evidence, not only of the witnesses who testified, but of the evidence presented to' the jury by and through their personal view and inspection of the premises. In this case the jury viewed the premises, and as said by this court in Mitchell v. Illinois and St. Louis Railroad and Coal Co. 85 Ill. 566, “the jury had a right to draw their own conclusions from such observations, as well as from other testimony offered in the case.” What conclusions the jury drew in this case from the observation of appellee’s premises, in connection with the purpose of appellant to take a portion of these premises for the purposes proposed, can be known only as wre find it expressed in the sum of money awarded to appellee by their verdict.

There was great conflict in the evidence as to the damages. Appellant’s own witnesses differed materially as to the value of the farm as an entirety,—two placing its value as low as $40 per acre, three at $50, and two at from $50 to $60,— and when these witnesses came to estimate the whole damage appellee would sustain, their estimate ranged from $2000 to $2500. The witnesses of appellee,—farm-owners and persons familiar with the value of farm lands in that vicinity,—valued the farm as an entirety at from $60 to $70 per acre, eleven of them placing the figure at $65; and when these witnesses came to estimate the whole damage appellee would sustain, it ranged from $3600 to $5000, sixteen of them estimating the damage at $4000 or more. It is thus seen that this verdict, if we exclude any conclusion the jury may have drawn from their personal inspection and view, is sustained by a clear preponderance of the evidence. It would seem, therefore, that the verdict was the result of deliberation and consideration, and not of passion and prejudice, and as the candid judgment of an unprejudiced jury in a case where the facts were not free from complication and the evidence conflicting. Under such circumstances the .court would not be warranted in disturbing the verdict of the jury, especially as, in view of all the circumstances of the case, it seems to us that substantial justice has been done.

It is urged that the court erred in giving appellee’s fifth, sixth and seventh instructions. The vice of these several instructions is said to be in that the jury were thereby told that the land owner was entitled to just compensation for the land taken, and for all “reasonable and probable damage” to the balance of her land not taken, caused by taking the strip condemned, for the uses and purposes of the proposed railroad. It is said that by the use of the words, “reasonable and probable-damage,” the door was opened to let in remote, conjectural and speculative damages. We do not think so. While it is true that only real, tangible and proximate damages are recoverable, (Peoria and Pekin Union Railway Co. v. Peoria and Farmington Railway Co. 105 Ill. 110,) yet it is, as said in McReynolds v. Burlington and Ohio River Railway Co. (106 Ill. 153,) all such damages as are reasonably probable, as distinguished from possible, speculative or remote damages, that, form the proper basis of recovery. The jury were fully and fairly instructed as to the elements proper to be considered by them, and in considering such elements, these instructions-told them they were to give such damages as, in judgment and reason, probably or naturally would result to appellee’s land not taken, by reason of the taking of the strip condemned, and its use and occupation for the purposes designed by appellant. The jury could not have understood that by the use of the-term, “reasonable and probable damage,” any new element of damage was permitted or intended to be considered, but that-in fixing the amount for the damages resulting, they would be justified in giving such sum as would reasonably compensateappellee for probable injury. But if this was not so, in view of the evidence, it is manifest appellant was not prejudiced by : the instructions complained of.

! Finding no error in the record, the judgment of the county court of Carroll county is affirmed.

Jud,gment affirmed.


author: Mr. Justice Magruder

text:
    Jonathan G. Vallette v. John H. Tedens et al.

      Filed at Ottawa November 11, 1887.

    1. Tbust—when a trust will arise—abuse of trust amd confidence by an agent. Where a confidential agent is employed to examine title to land, with a view of correcting defects therein, and to assist his employer in acquiring title to adjacent land, and, as such agent, is intrusted with his principal’s abstracts of title, and receives information to aid him in procuring the title, if he, while so acting, acquires the title in his own name, in violation of his duty, he will, in equity, be held to hold such title in trust for his principal.
    2. Persons engaged in the business of making abstracts of title, occupy t a relation of confidence toward those employing them, second, only, in the 1 sacredness of its nature, to that between an attorney and his client, and should be held to a strict responsibility in the exercise of the trust and confidence reposed in them. Any abuse of such trust and confidence should receive an emphatic rebuke.
    3. Statute op Fbauds—abuse of trust amd confidence by an agent. If an agent employed by another to look up the title to a tract of land, and purchase the same, conceals information acquired by him, and takes the title in his own name, denying his agency and employment, a court of equity will compel him to convey the land to his principal, although he may plead the Statute of Frauds in defence.
    Appeal from the Circuit Court of DuPage county; the Hon. C. W. Upton, Judge, presiding.
    Mr. Henry Decker, for the appellant:
    Where .a man merely employs another, by parol, as an agent to buy an estate, and the agent buys it, using his own money, and denies the trust, the agent can not be compelled to convey unless there is an agreement in writing to that effect. In such a case there is no resulting trust, and no such fraud, accompanied with injury, as, would bring the case within the exceptions of the statute. 2 Story’s Eq. Jur. sec. 1201; Perry on Trusts, sec. 135; 2 Sugden on Vendors, 911; Bartell v. Pickergill, 21 East, 577; Hill v. Smith, 4 Johns. 240; Davis v. Wetherell, 11 Allen, 19; Parsons v. Phelan, 134 Mass. 109; Boyd v. McLean, 1 Johns. Ch. 582; Stein v. Stein, 5 id. 19; Smith v. Burnham, 3 Sumner, 464; Pastel v. Hutchinson, 1 Dickens, 44; Dorsey v. Clarke, 4 Harr. & Johns. 550; Jackman v. Ruyland, 4 W. & S. 149; Pinnock v. Clough, 16 Vt. 500; Lemos v. Bailey, 2 Vern. 627; Atkins v. Rowe, Mosley, 39, cited and commented on in 3 Sugden on Vendors, (6th Am. ed.) 171; Remington v. Campbell, 60 Ill. 516; Sheldon v. Harding, 44 id. 68; Holmes v. Holmes, id. 168 ; Bruce v. Roney, 18 id. 67; Loomis v. Loomis, 28 id. 454; Williams v. Brown, 14 id. 200.
    A resulting trust, within the exception of the statute, can only arise when the purchase money, or some aliquot part thereof, has been paid by the party seeking to enforce it. Pinock v. Clough, 16 Vt. 503; Perry v. McHenry, 13 Ill. 227; Lloyd v. Spillett, 2 Atk. 150; Sayre v. Townsend, 15 Wend. 650; Heacock v. Coalsworth, Clarke’s Ch. 83; Botsford v. Burr, 2 Johns. Ch. 405 ; Fickett v. Durham, 109 Mass. 419; Barnard v. Jewett, 97 id. 88; Kendall v. Mann, 11 Allen, 17.
    Where there are no resulting trusts, the exceptions are confined to eases of fraud in the execution of the trust, where confidential relations exist, or of fraud accompanied with injury, or where fraudulent advantage has been taken by an agent through his knowledge of the affairs of his principal, and to the substantial injury of the principal. Clarkson v. Richardson, 69 Ill. 137; Cramer v. House, 93 id. 503; Perry v. McHenry, 13 id. 227; Sweet v. Jacocks, 6 Paige, 355; Lees v. Nuttall, 1 R. & M. 53; Sheriffs v. Neal, 6 Watts, 534; Watson v. Erb, 33 Ohio St. 35; Burden v. Sheridan, 36 Iowa, 125; Arnold v. Cord, 16 Ind. 177; Lillard v. Casey, 2 Bibb, 459; Combs v. Little, 3 Green Ch. 314; Healy v. Lorain, 1 Dev. & Bat. 626; Collins v. Sillivan, 135 Mass. 461; Davis v. Hamlin, 108 Ill. 39.
    In this case there was neither payment of purchase money nor a violation of duty in taking the conveyances, (there were several from different heirs,) to appellant, nor did appellees have any interest in the lands, legal, equitable or honorary, whereby they suffered any injury in failing to acquire the lands in controversy.
    On the showing of appellees, there were no circumstances of special confidence between the parties.
    Messrs. Comstock & Hess, for the appellees:
    The Statute of Frauds was intended to suppress frauds, and -courts of equity will always interpose to prevent its being used as a shield to protect fraud. Ryan v. Nevins, 34 N. Y. 307; Jenkins v. Eldridge, 3 Story, 181; Manning v. Hayden, 5 Sawyer, 360; 1 Perry on Trusts, sec. 85.

      A trustee will not be permitted to purchase property with reference to which he is placed in a situation of trust and confidence. 1 Story’s Eq. Jur. see. 323.
    If an agent employed to purchase for another, purchases for himself, he will be considered as a trustee for his employer. Terry v. Bank of New Orleans, 9 Paige, 649; Van Epps v. Van Epps, 9 id. 237; Parkist v. Alexander, 1 Johns. Ch. 394; Banks v. Dudale, 8 Conn. 145; Johnson v. Blackman, 11 id. 342; Church v. Sterling, 16 id. 388; Day v. Roth, 18 N. Y. 448; Safford v. Hynds, 39 Barb. 625; Baker v. Whiting, 3 Sumner, 476; Reitz v. Reitz, 80 N. Y. 538; Bartholomew v. Leech, 7 Watts, 472; Ringo v. Binns, 10 Pet. 269.
    But it is not necessary, in order to bring the defendant within the rule laid down, that he should have made any actual agreement to secure the property for the complainants. It is sufficient if he was placed in such a position of confidence with reference to the premises, that any purchase by him would be inconsistent with his duty to the complainants. Davis v. Hamlin, 108 Ill. 39.
    Wherever one person is placed in such relation to another by the act or consent of that other, or the act of a third person, or of the law, that he becomes interested for him or interested with him in any subject of property or business, he is prohibited from acquiring rights in that subject antagonistic to the person with whose interests he has become associated. Merryman v. David, 31 Ill. 404; McDonald v. Fithian, 1 Gilm. 269; Dennis v. McCagg, 32 Ill. 429; Kloch v. Walter, 70 id. 417; Hughes v. Washington, 72 id. 85.
   Mr. Justice Magruder

delivered the opinion of the Court:

In the fall of 1884 and winter of 1884 and 1885 the appellees were merchants, engaged in business under the firm name of Tedens & Co. in the town of Lemont in Cook county. One Walker had become largely indebted to them and had given them a mortgage upon certain lands owned by him in DuPage county. This mortgage they had foreclosed and had acquired title to the lands embraced in it through the foreclosure sale. In addition to this, they also had judgments against Walker, which they were desirous of making out of whatever lands or interests in lands he might own that were not included in the mortgage.

At this time appellant was the county surveyor of DuPage county. He was also engaged in the business of examining titles and making abstracts of titles, and had an office, where he carried on such business, in Wheaton, Du Page county. On November 18, 1884, appellees wrote to appellant the following letter:

“Lemont, Ill., November 18, 1881.

“County Surveyor, Wheaton, Ill.:

“Dear Sir—When can you come and make survey of the land known as the ‘Walker tract,’ in DuPage county? We now own it, and wish to fence and rent; therefore a survey is very necessary. Hoping you will favor us with an early reply, and that you will come soon, now while the weather is so fine and good for such work, we are

Yours, etc.,

J. H. Tedens & Co.

Pursuant to the notice contained in this letter appellant went to Lemont on December 1, 1884, and was there engaged for four days in making surveys for appellees and in consulting with them about titles to property, in which Walker was supposed to have an interest. The land or a part of the land, to which appellees had acquired title by the foreclosure proceeding, consisted of about one hundred acres in that part of the north-east quarter of section 16 lying north of the north channel of the Des Plaines river, there being an island at this point, around which the river flows in two channels, one to the north and the other to the south of the island. The land in controversy in this suit is a tract of forty-five acres, situated on the island in question in the south-east corner of the northeast quarter of section 15, south of the north channel of the river, and opposite the one hundred acres above mentioned.

Appellees had supposed until after the foreclosure, that the forty-five acres were included in their trust deed; this, however, did not prove to be the case. They had also supposed that the forty-five acres belonged to Walker. Walker had been in possession of it at 'one period for some twelve years or longer, and was reputed to have acquired his title from a widow named Warden, who had also owned the balance of section 15. While appellant was in Lemont during the first four days of December, 1884, he also shared the belief that Walker had title to the forty-five acres, although both he and appellees were aware at this time that the land was not taxed. While engaged in this survey for appellees, appellant learned from them the location and surroundings of the forty-five acres. Both the appellees swear, that, on December 2 or 3, they employed appellant, as an examiner of titles, to search the records and look up the title to the forty-five acres and to assist them in acquiring such title. They are confirmed in their statements by the testimony of one Graves. At the same time they gave appellant a list of other lands in sections 14, 15 and 16, in which Walker was supposed to be interested, and employed him to ascertain the condition of the title to these lands with a view of subjecting them to the payment of their judgments.

On the evening of December 4, when appellant left Lemont, appellees placed in his hands their own abstract of title to the lands they had obtained from Walker, and requested him to examine the title, so that, if there were any defects, they might be remedied." At their request he made a map of the lands lying in sections 14, IS and 16 and left it with them.

Appellant procured the title to the forty-five acres in question for himself, denying the existence of any agreement to obtain it for appellees, and pleading the Statute of Frauds. The object of this bill is to compel him to convey the land to appellees, on the ground that he holds it as their agent and trustee.

After leaving Lemont appellant made examinations in the records and tax books of DuPage county and in the books of certain abstract makers in Chicago, and on December 8,1884, wrote the following letter:

“Wheaton, Ill., December 8, 1884.

“J. H. Tedens & Co., Lemont, Ill.:

“Gents—I have looked up the 5.07 aeres N. Frac. N. W. J Sec. 14, 37.11, and find that it was entered June, 1835, by Philip C. Latham, and conveyed by him to Thomas Haughan June 5, 1842. I don’t think it has been conveyed since by the owner. As to the 45 or any Island Frac. N. j- Sec. 15, 37.11, the title is in either the canal trustees or to whom they sold it. There is no deed or record of the tract to any persons. Island Frac, of Sec. 16, is still in the State of Illinois, for use of, etc., of T. 37.11. If you wish me to go and see the records in canal commissioners’ office, I can do so as soon as you send to me. I don’t find that Boebuck has any title on Sec. 14, S. of river, or on the island. Please give inclosed to Tagerstrum. I have not yet been through examination of the abstract as to your title, but I think I will have time this week.

Yours, J. G. Vallette.”

This letter amounts to a written statement by the defendant, that he was acting as the agent of the appellees in looking up the titles to various pieces of land including the forty-five acres, and also that he was acting as their attorney in examining for them the title which they already had. He states the result of his investigations as to the forty-five acres, and proposes to make further investigations at the office of the canal commissioners, if appellees shall send to him to do so. The appellee, Tedens, swears that he answered the letter of December 8, telling appellant to go ahead and visit the canal office and “look up the title there,” and that he would be paid for his services. His testimony as to the contents of the answer was given after appellant’s failure to produce it upon being notified to do so. Appellant denies that he received any reply to the letter of December 8.

Appellant sent to the canal office for information and obtained therefrom a paper, dated December 14, 1884, showing that the north fraction of the north-east quarter had been sold by the canal trustees to John B. Witt and that the certificate of purchase had been assigned to Peter Warden, and also showing that the forty-five acres had been sold by the trustees on September 11, 1848, to John B. Witt. Witt had died, and, in order to get title, it became necessary to obtain conveyances from his -heirs.

On January 3, 1885, appellant again went to Lemont and continued the survey for appellees, which he had not finished in December. Appellee, Tedens, swears that, during this visit in January, appellant spoke of some of the heirs as being in Iowa and of some as living in Kansas, and expressed his intention of going to Kansas, as soon as he finished the survey, he was then engaged in making. Appellant swears, that at this time in January he had no conversation whatever with either of the appellees about the forty-five acres, except that, when he and Thormalilen were at the land, he asked Thormahlen what it was worth and was told that its value was $50 or $75 per acre. If the statement of appellee, Tedens, as to what took place when appellant was in Lemont on January 3, 1885, is true, then appellant led the appellees to believe that he was trying to obtain the title of the Witt heirs for them and not for himself. If his own statement is true, then he acted unfairly towards the appellees in concealing from them what he had learned from the canal commissioners on December 14, namely, that the title to the forty-five acres was not in Walker, but in John B. Witt or his heirs. That information was procured by him while acting as their agent and in pursuance of their employment, and should have been communicated to them. Instead of making them acquainted with the real condition of affairs, he went to work to procure the title for himself, while engaged in their service.

On January 5, according to his own evidence, he opened negotiations with the heirs "for the purchase of their interest, and, by the second day of February, had procured conveyances from them to himself. On January 9, 1885, he sent the following letter to appellees:

“Wheaton, Ill., January 9, 1885.

‘‘J. H. Tedens & Co.:

“Gents—Do you want me to make abstract of lot 13, School Trustees Sub. of Sec. 16, 37.11? " I think you had better only show title acquired by Edwin Walker, and it may be better to have full abstract made new, and show the full proceedings followed by your deeds, so as "to show your full title in the whole business. I think it will pay you. Also, what will you give for the forty-five acres on the island, if I can get a title for you ? p

Yours very truly, J. G. Vallette.”

It is here apparent that appellant was acting as agent and adviser of the appellees, and was still holding out to them the idea that the title to the forty-five acres was to be obtained for them. They replied to his letter "as follows:

“Lemont, Ill., January 17, 1885.

“t7. G. Vallette, Esq., County Surveyor, Wheaton, Ill.:

“Dead, Sib—Our Mr. Tedens will call on you next Tuesday or "Wednesday in regards examination abstracts and tracts and adjoinings you have surveyed for us. If not convenient for you to meet him on them days, please so inform us.

Tours, etc., J. H. Tedens & Co.”

Appellee, Tedens, swears, that, on January 21, 1885, he met the appellant at the office of Haddock, Vallette & Rickords in Chicago, and it was there agreed between them that appellant should acquire the title to the forty-five acres for the appellees, and that appellees should pay him for his services and disbursements in that behalf the sum of $1000; that he, 'Tedens, then and there paid appellant $50 upon the agreement .so made. Appellant admits that he met Tedens at the office named on January 21 and had a conversation with him about the forty-five acres; that Tedens asked him how much he wanted for getting the title for them to the forty-five acres, .and he replied: “I didn’t know how much it was going to cost, but proposed to make $1000 clear.” Appellant also admits that he received the $50, but claims that it was paid on account of the abstract he was going to make of the other lands, and not upon any agreement in reference to the forty-five acres; he says: “I told him (Tedens) I wanted $50 to apply on it (the abstract), as I was going to spend considerable money— ■as I was going out to see the Witts I wanted some money.”

The conveyances from the Witt heirs to the appellant bear date February 2, 1885. After this in the month of February appellant had one conversation with Tedens in which he said: “I am still fighting for you,” and another in which he said, in regard to the forty-five acres, that “he hadn’t it ready yet,” that “he hadn’t it finished up yet,” “it may take a suit yet to get it.” Tedens states in regard to the latter interview: “I could not get much out of him at that time.”

On February 24,1885, appellant had another interview with appellees at Lemont, and they there paid him $30 and took the following receipt:

“Lemont, Ill., Feb. 24, 1885.

“Rec’d from J. H. Tedens & Co., Lemont, 111., thirty dollars-for balance abstract making.

$30.00. J. G. Vallette.”

This payment of $30 was made in the store of appellees at Lemont and the above receipt with the exception of the word,, “balance,” and the signature, was written by a clerk of appellees; who was directed to draw it up by appellee Tedens. As-at first drawn, it read: “Rec’d'from J. H. Tedens & Co., etc., thirty dollars for abstract making.” After the receipt was-written, appellant inserted the word “balance” in such a way that its insertion was not noticed by Tedens. The purpose of putting in the word “balance” was evidently to confirm the theory, that the $50, paid on January 21, had been paid for abstract making and not upon an agreement to obtain the forty-five acres.

Upon his direct examination appellant’s testimony in regard. t.o this receipt is as follows: “This is the receipt for the $30, that was given me at their office for the last cash balance on. abstract. Is that receipt just exactly as it was as you made it, as you signed it ? Tes sir. And was it made there in Mr.. Tedens’ presence? It was. Who wrote it? Their clerk. That is all his uniting is it? All except my signature.” Upon his cross-examination appellant testifies as follows: “Do you say that Mr. Tedens was present when you received $30 from his clerk ? Tes sir, because he went to the clerk himself and told him to pay it to me. Was he present when that receipt, was signed for the $30 ? I don’t know whether he was or not. Did you direct that word ? I put that word in after it was written, that ‘balance.’ After the receipt was written you wrote that word ‘balance’ there yourself? Tes sir, before I signed it. Tou do not know whether Mr. Tedens saw it or not ? * * * I don’t know whether he saw it or not. * * * You put the word ‘balance’ in- there after it was written out and signed? I did,” etc.

On February 28, 1885, the following letter was written to-the appellant by the appellees:

“J. G. Vallette, Esq. “Lemont, Inn., Feb. 28, 1886.

“Yours at hand, and in reply can say that Peter Warden’s address is Osburn City, Osburn Co., Kansas. He lives within three miles of Osburn City, on a farm.

“I will be in Chicago next Tuesday; would like to have the abstract there then, at Mr. Comstock’s office.

Yours respectfully, J. H. Tedens.”

The evidence tends to show what has already been stated that Walker had obtained his title to the one hundred acres, north of the channel, in the north-east quarter of section 15, from one of the Wardens, and it was supposed that he had also obtained from the same source the title to the forty-five acres in the north-east quarter of section 15 that lay south of the channel. The widow, Warden, was selling the timber upon the forty-five acres as far back as 1866, and, at that time, Tedens himself had drawn a contract between her and some other party in reference to the sale of such timber. .

The letter of February 28 shows, that on that day appellant was still acting for the appellees in reference to the matter of title. It also shows, that, having already obtained the interests of the Witt heirs in the forty-five acres, he was preparing to get whatever interest the Wardens might have. At this time appellees were ignorant that he had obtained for himself the title of the Witt heirs and supposed that he was working to secure that title for them. He was not only concealing from them the fact that he had procured the Witt interest, but he was making use of them, so as to obtain from them such information as would enable him to get hold of the Warden interest. They did not learn until they were so informed in April, 1885, by the county clerk of DuPage county, that the appellant had caused the conveyances of the forty-five acres to be made to himself, that he “had that property in his own name on record.”

We forbear to refer further to the evidence. It is quite evident, that appellant acted unfairly towards the appellees while sustaining to them a confidential relation. The facts in this case bring it within the rule laid down in Davis v. Hamlin, 108 Ill. 39.

Appellant was the county surveyor of DuPage county, elected to that office by the people. Appellees extended to him a confidence, which they would not have felt but for his official position. By virtue of that position he came in contact with them and, while engaged in surveying their land, learned its situation and value, and became acquainted with their relations to the surrounding lands.

As a man, experienced in the examination of titles and engaged in the business of making abstracts of title, he was intrusted with their valuable papers and employed to ascertain whether there were any defects in their title. He undertook to help them collect then* judgments by finding out what lands then* judgment debtor owned and what sort of title he had to the same. Persons engaged in the business of making abstracts of title occupy a relation of confidence towards those employing them, which is second only, in the sacredness of its nature, to the relation which a lawyer sustains to his client. Such persons consult the evidences of ownership and become familiar with the chains and histories of title. They handle private title papers and become aware of whatever weaknesses or defects may exist in the legal proceedings, through which the ownership of real property is secured. They should be held to a strict responsibility in the exercise of the trust and confidence, which are necessarily reposed in them. Any abuse of such trust and confidence should be met with emphatic rebuke.

Although it was shown upon investigation, that Walker had no record title to the forty-five acres, yet he had been in possession of it for many years and had exercised acts of ownership over it; appellees supposed him to be owner and employed appellant to ascertain the nature of Walker’s interest, not with a view to speculation but for the purpose of subjecting that interest to the payment of honest debts. It was learned, that in' 1848 the canal trustees had sold the property to one Witt, who had died, and whose heirs had gone off and abandoned the land. Appellees desired and expected by the purchase of the Witt interest to realize something towards the payment of their judgments. Appellant undertook and agreed to act for them as their agent in obtaining that interest. But his employment in this regard grew out of and followed from his previous employment to examine the titles to this and other tracts and to act for appellees in surveying land, in making abstracts of title and in pointing out, with a view of correcting, defects in title. He was not simply an agent to purchase, as in Perry v. McHenry, 13 Ill. 227, but his agency to purchase was .part of a broader agency, that concerned other matters and involved greater confidence and a more delicate trust.

Appellant’s relations to appellees were of such a confidential character and his conduct towards them was marked by such unfairness, that we feel justified in regarding him, as a trustee holding the forty-five acres in question for their benefit. The circuit judge took this view and we think the decree he rendered was correct.

The decree of the circuit court is accordingly affirmed.

Decree affirmed.