text:
    John Spellman et al., Pltffs in Error, v. Alfred G. Curtenius, Deft in Error.
    ERROR TO PEORIA.
    A regular tax deed, founded upon a valid precept and judgment, is prima facie evidence of every fact necessary to authorize a recovery upon it. Some of the facts evidenced by such a deed shall only be controverted, by a person who first shows, that he or the person under whom be claims title, had title to the land at the time it was sold for taxes, or that title was obtained from the United States, or this State, after it was sold, or that all taxes due, have been paid.
    Other facts of which the deed is prima facie evidence may be controverted by any person.
    If the judgment, describing the lands to be sold for taxes, against which it is entered, shows the year for which the taxes are due, it is sufficient ; it need not show the name of the patentee, or present owner, nor the va'ualion, nor the county in which it lies.
    The statute, requiring each tract of land to be listed and valued separately, does not require that such listing shall be upon the smallest legal subdivisions of land, but that two or more disconnected tracts, shall not be listed and valued together.
    To give the Court jurisdiction, the collector should make a report and give notice of the application for judgment, substantially as required; if either of these is defective, the prima facie case made by the deed is rebutted.
    The amount of costs on a tax sale, cannot be made a question, when the judgment comes collaterally in issue.
    The land sold for taxes, is to be taken off the east side of the entire tract as it was sold.
    The intention of the law is, that when less than the whole tract is sold for taxes, that the quantity sold, shall be taken from the eastern part of the tract, and a line is to be drawn, due north and south, far enough west of the most eastern point of the tract, to make the requisite quantity.
    Limitation of twenty years' possession, will not commence running, until after the land is purchased from the United States.
    A certificate, showing that a party proved himself entitled to a pre-emption, does not constitute such a title or claim, or color of title, as can be made the foundation of a seven years position, as against a party who subsequently entered the land under another pre-emption. ’
    This action of ejectment was tried at the March term, 1850, of the Peoria Circuit Court, before Kellogg, Judge, and a jury, and resulted in a verdict and judgment for the plaintiff below.
    The defendants below, sued out this writ of error. The lot sought to be recovered, was number four, in block fifty, of Bigelow and Underhill’s Addition to Peoria.
    The judgment against the land for taxes is in the following form.
    “ Whereas Julius A. Johnson, collector of said county, returned to the Circuit Court of said county, on the 28th day of May, A. D. 1845, the following tracts or parts of tracts of land as having been assessed by the assessor of the said county of Peoria, for the year 1843, and that the taxes thereon remain due and unpaid, on the day of the date of the said collector’s return, and that the respective owner or owners, have no goods or chattels, within this county, on which the said collector can levy for the taxes, interest and costs due on the following described lands, to wit: DESCRIPTION. | Ho. of acres. | Tax. | Costs. S. W. & S. EToTT. 8 N., 8 E. J 150 | $21,00 | ,40
    And whereas due notice has been given of the intended application for a judgment against said lands, for the taxes, interest, and costs due and unpaid thereon, for the year herein set forth ; therefore, it is considered by the Court, that a judgment be, and is hereby entered against the aforesaid tracts of land, and parts of tracts, in the name of the State of Illinois, for the sum annexed to each tract or parcel of land, being the amount of taxes, interest, and costs due severally thereon; and it is ordered by the Court, that the said several tracts of land, or so much thereof as shall be sufficient of each of them to satisfy the amount of taxes, interest, and costs annexed to them, severally be sold as the law directs.”
    All other facts necessary to a full understanding of this case, are contained in the opinion of the Court.
    C. Ballance, for Pltffs in Error.
    N. H. Purple & E. N. Powell, for Befts in Error.
   Trumbull, J.

This was an action of ejectment brought to recover the possession of lot number four, in block number fifty-one, In Bigelow and Underhill’s Addition to the Town of Peoria.

Curtenius, who was plaintiff in the Court below, gave in evidence, a certificate of the register of the land office at Quincy, showing the entry by John L. Bogardus, on the fifteenth of November, 1837, of the south-east fractional quarter of section number nine, in township number eight north, of range number eight east of the fourth principal meridian, proved the laying off of said fractional quarter into town lots, that the defendants were in possession of the premises sued for at the commencement of the suit, and traced title thereto by a regular chain of conveyances from Bogardus to himself.

To meet this prima facie case, the defendants below, who were tenants of Charles Ballance, sought to set up an outstanding title in their landlord, derived from a sale of the premises in question, for the taxes of 1843. In support of this title they offered in evidence, a judgment of the Circuit Court of Peoria csunty, rendered at the May term, 1845, against the following tract of land, for the taxes of 1843, to wit:

~‘U)ESMSPTÍOSf I No. of acre-:. | Tax. | Costal S. W. & S. E. 9, T. 8 K, 8 Ji. ¡ 150 | $21 00 | .40”

Also a precept in the usual form in which the land is described in the same manner as in the judgment, and a tax deed conveying to said Ballance “ one acre of land off of the east side of the south-west and south-east fractional quarters of section number nine, of township eight north, in range eight east, situated in the county of Peoria.”

The Court excluded this deed from the jury, and the plaintiff had judgment for the premises in question.

A regular tax deed, founded upon a valid judgment and precept, is made by the statute prima facie evidence of every fact necessary to authorize a recovery upon it; but as it is only prima facie evidence, it follows, that there must be some way of contesting the case made by the deed, else it would be conclusive of those facts of which the statute expressly declares it shall be prima facie evidence merely. The law provides that some facts, of which the deed is prima facie evidence, shall only be controverted by a person who first shows that he or the person under whom he claims title, had title to the land at the time it was sold for taxes, or that the title was obtained from the United States, or this State, after the sale, and that all taxes due upon the land have been paid. Other facts of which the deed is merely prima facie evidence, may be controverted by any one. The plaintiff below, did not put himself in a position to defeat the tax title, by proof of any one of those facts which the owner of the land who shows that all taxes upon it have been paid, is alone permitted to establish, for although he showed title in himself at the time of the sale, he did not show that no taxes were due from the land at the time of the trial. Curry v. Hinman, 11 Ills., 429. The facts which he attempted to prove, viz., that the lot was not subject to taxation, as land, and that the taxes upon it, for the year for which it was sold, had been paid, he was not in a condition to show, and it is therefore unnecessary to determine what effect that evidence might otherwise have had upon the case.

The only objections to the tax title, which it is important to notice, are such as any and all persons claiming adversely thereto are permitted to make. These objections, are either on account of some defect apparent upon the face of the judgment, precept, or collector’s deed; or they may arise from the want of such a report and notice, as would give the Court jurisdiction to enter the judgment, or from showing, either that the land was not advertised for sale as required by law, that it was not sold for taxes as stated in the deed, that the grantee in the deed was not the purchaser, or that the sale was not conducted according to law, either of which facts, any person is at liberty to show, for the purpose of excluding the deed from the jury, without first showing that he owned the land at the time of the sale, and that no taxes were due upon it.

The objections taken to the judgment are, that it does not state either the name of the patentee or present owner of the land, its valuation, the county in which it lies, nor the year for which the taxes were due. It is admitted that neither of these facts appears in that part of the judgment, describing the lands against which it is entered, but the preceding part of the order shows the year for which the taxes were due, and the law does not require either of the other omitted facts to be stated in the judgment.

It is also objected that the judgment is against two separate and distinct tracts of land, and therefore void. This objection arises from a misapprehension in point of fact. The judgment is not, as has been supposed, against two separate parcels of land, but against one entire tract including within its boundaries, it is true, what might very conveniently have been described in two separate parcels. Such also is the case, when a quarter section is listed as one tract, and judgment pronounced against it as such, and yet who ever supposed a judgment against an entire quarter section void, because it embraced within its boundaries, what might have been described, by legal subdivisions,, as four tracts ? If one hundred and sixty acres can be assessed and sold for taxes, as one tract, cannot one hundred and fifty, or one hundred and twenty acres? In describing the last mentioned quantity, by legal subdivisions, it would be impossible to avoid what, if taken separately, would be a forty and an eighty acre tract, yet if the description included three-fourths of the same quarter section, the quantity of which was given as one entire tract, the whole one hundred and twenty acres, would no more constitute two separate tracts of land, than it would if described by metes and bounds. The statute requiring each tract of land to be listed and valued separately, does not mean that an entire tract must be subdivided into the smallest legal subdivisions of which it is susceptible, but simply that two or more tracts disconnected from each other, so as not to be embraced within the same general description, shall not be valued together. In this case, had the hundred and fifty acres been described by metes and bounds, or as the south fractional half of section nine, no one would have thought the judgment void, because within the description of the land, two fractional quarters were embraced. In the judgment, and all the previous proceedings, the whole one hundred and fifty acres is treated as one entire tract. The quantity of land in both quarters is stated together, and there are no means of ascertaining, from the record, the number of acres which each fractional quarter separately contains. It was just as proper, to enter judgment against the south-east and southwest fractional quarters of section nine, embracing one hundred and fifty acres, as it would be to enter judgment against an entire quarter section.

No objections were made to the precept, except such as have already been noticed, as applying to the judgment, nor was any attempt made in the Court below, to show either that the land was not advertised for sale, as required by law, that it was not sold for taxes, as stated in the deed, that Ballance was not the purchaser, or that the sale was not conducted according to law. If, therefore, the Court had jurisdiction to render the judgment, and the deed was regular upon its face, it was improperly excluded from the jury.

To give the Court jurisdiction, it is essential that the collector should make a report, and give notice of the application for judgment, substantially, as required by the statute. The repiort and notice, are the foundation of the whole proceeding, and without them, the Court would have no authority to enter judgment; and although the deed is itself prima fade evidence, that the proper notice was given and report made, yet when the party, as was done in this case, gives the notice and report, in evidence, the prima fade case, made by the deed, will be destroyed, if either is essentially defective.

LTo exceptions have been taken to the notice, and the report, though not in the precise form required by the statute, contains all that is essential to give the Court jurisdiction. It is headed: “List of lands, and other real estate, situated in the county of Peoria, and State of Illinois, on which taxes remain due and unpaid for the year 1843.” Then follows a description of the land, with the amount of tax due upon it, the same as in the judgment, and at the foot of the report, is a statement that the costs upon each tract of land and town lot then accrued, was ten cents. When the Court has before it a collector’s report, properly headed, giving a description of the land, the amount of tax due upon it, and for what year, a case is presented authorizing the Court to act, if the proper notice has been given. All these facts were before the Court which rendered the judgment under consideration. Some objection was made, that the amount of costs was not correctly stated in the report and judgment. This is immaterial, as it does not go to the jurisdiction of the Court to enter a judgment. It might be cause for reversing it on a direct proceeding by appeal or writ of error, but cannot be made a question, when the judgment comes collaterally in issue.

It is undoubtedly the duty of all officers charged with the execution of the revenue law, to follow the forms prescribed, and a failure to do so, might often be fatal to a judgment in a direct proceeding to reverse it, but it ivas held in the case of Chesnut v. Marsh, ante 173, that a failure to follow the forms prescribed, was not fatal to a judgment in a suit for taxes, coming collaterally in question, provided the Court had jurisdiction of the case.

Some objections have been taken to the tax deed, which it is proper to notice. The law is, that a person offering to pay the taxes and costs upon a tract of land exposed at a sale for taxes, for the least quantity, shall be the purchaser of such quantity, which shall be taken off of the east side of such tract, and it has been supposed that, inasmuch as the deed to Ballance is for one acre, off of the east side of the south-west and south-east fractional quarters of section nine, that the acre must be taken from two tracts, and is therefore void. This objection is of the same character as one which was made to the judgment, and must receive the same answer.

It is founded upon a misapprehension in fact, upon the mistaken idea, that one hundred and fifty acres of land cannot he described as one tract. That the description adopted, was intended to, and does in fact, include the whole quantity in one entire tract, has already been shown, and it is not to be subdivided for the purpose of giving the tax purchaser a part of his acre off of the east side of each subdivision, but the whole acre is to be taken off of the cast side of the entire tract as it was sold.

Another difficulty has been suggested, that the south-east and south-west fractional quarters run to a point on the east, and have no eastern side. The intention of the law is, when less than the whole tract is sold for taxes, that the quantity sold should be taken from the eastern part of the tract, and a line is to be drawn due north and south, far enough west of the most eastern point of the tract of land sold, to make the requisite quantity. The law must have a practical effect, and because a tract of land does not happen to be in a form, so as to have, strictly speaking, an east side, it is not to be presumed that the legislature intended such tract to be exempt from this general provision of the revenue law. To give it such a construction, would be emphatically sticking in the hark.

Some other questions were raised, in this case, which it is proper to notice, as they would again arise upon another trial.

The defendants attempted to ¡Drove twenty years’ possession of the premises in question, also sevei years’ possession under claim of title, and, as the foundation of title, proposed to give in evidence, various certificates, showing that different persons had proved a right of pre-emption to the land in dispute, before it was entered by Bogardus, also, that an award had at one time been made in reference to the land by which the lot in question, through mistake, was allotted to the parties through whom the plaintiff derived title, when in fact, it was designed by the arbitrators to have been awarded to said Ballanee. All this mass of evidence was properly rejected by the Court.

The defendants could not rely upon a possession of twenty years, because the record shows that the land was not purchased of the United States, till 1837; till then, therefore, the statute would not begin to run, and since that time, twenty years have not elapsed.

A certificate of a land officer, showing that a party, at one time, proved himself entitled to a pre-emption, when the record shows that the same land was subsequently entered by another individual, under a different pre-emption claim, does not constitute such a title, or claim, or color of title, as can be made the foundation of a' seven years’ possession, under the statute.

The award, offered in evidence, showed no shadow of title in Ballance, and the attempt to reform it by parol evidence, on the trial of an action of ejectment, so as to make it the foundation of an equitable title upon which to base a seven years’ possession, was wholly inadmissible.

The judgment must be reversed, for the reason that the Court below excluded the tax title deed from the consideration of the-jury. Judgment reversed and cause remanded.

J\idcjment reversed.


source: Caselaw Access Project

author: Trumbull, J.

license: Public Domain

text:
    Charles Ballance, Pltff in Error, v. Alfred G. Curtenius et al., Defts in Error.
    ERROR TO PEORIA.
    The ruling of the Court in the case of Spellman v. Curtenius, ante 409, reaffirmed.
    This cause was heard before Kellogg, Judge, and a jury, at May term, 1851, of the Peoria Circuit Court, verdict and judgment for the defendants in the Court below.
    Plaintiff below, brings the cause to this Court.
    C. Ballance, pro se.

    E. 1ST. Powell, for Defts in Error.
   Trumbull, J.

The plaintiff sued the defendants in ejectment, to recover one acre of land off of the east side of the south west and south-east fractional quarters of section nine, in township eight, north of range eight east, situated in the county of Peoria, and State of Illinois.

Plea, not guilty. Jury trial and verdict for the defendants.

The plaintiff, to support the issue on his part, proved the defendants in possession of part of the premises sued for at the commencement of the action, and offered in evidence, the same tax title which has already been passed upon in the case of Spellman v. Curtenius, ante, 409.

The Court excluded the tax deed from the consideration of the jury, and in so doing committed an error, as has been already decided in the case alluded to. No objections were made to the tax title in this case, which were not urged in that, and reference is made to the opinion in that case, for the reasons of our decision in this.

Judgment reversed, and cause remanded.

Judgment reversed.


author: Treat, C. J.

text:
    Peter Schuttler, Appellant, v. William Piatt, Appellee.
    APPEAL FROM COOK COUNTY COURT OF COMMON PLEAS.
    If a note and assignment are made in this State, the rights and liabilities of the parties, must be governed by the laws of the State.
    An assignor of a note is liable, if the assignee uses due diligence in prosecuting the maker to insolvency, or if the institution of a suit against him would have been unavailing, and if the maker of the note has absconded or left the State when the note falls due.
    If the maker of a note is beyond the limits of the State when the note matures, so that he cannot be subjected to our jurisdiction, the liability of the assignor becomes fixed.
    The assignee of a note is not bound to pursue the debtor into a foreign jurisdiction, but he may at once resort to his assignor for payment; the fact that the maker of the note resided in another State, when he gave the note, though known to the assignee, does not vary the liability.
    This was aa action of assumpsit in the Cook County Court of Common Pleas, brought by Schuttler against Piatt, to recover from the latter the amount of a promissory note given by one Armstrong, to him or order, and endorsed by Piatt to Schuttler. At February term, 1851, of the Court, Spring, Judge, presiding, the cause was submitted to him, without the intervention of a jury, and a verdict and judgment was entered for the defendant. Schuttler thereupon appealed to this Court. The bill of exceptions, shows that Schuttler introduced the following note, which was read in evidence.

      “Fifty days after date, I promise to pay William Piatt, or order one hundred dollars for value received.
    John Armstrong, Jr.
    Chicago, 19 Oct., 1848.”
    Endorsed, “ Pay Peter Schuttler, or order. Wm. Piatt.”
    Two other notes of a like character.were also introduced by Schuttler. A witness was sworn, who stated that the notes were given for a buggy and a pair of horses that Piatt sold Armstrong, that a few days afterwards, Armstrong left for his home, in Wisconsin. That Piatt lived in Indiana, and before his return home, sold the notes to Schuttler for some wagons. That Schuttler asked the witness if the notes were good, witness replied that Piatt was good if Armstrong was not. And that when the notes were endorsed, it was stated by Piatt and others, that Armstrong lived in the State of Wisconsin, up in the pinery. That, soon after the trade, Armstrong took the horses and buggy, and left for Wisconsin, since when, witness had not seen him, nor has Armstrong, to the knowledge of witness, been in Chicago since. That the notes were endorsed within two weeks after they were given. That it was understood by all the parties, that Armstrong lived in Wisconsin.
    Another witness stated, that he had known Armstrong since 1842, and that he did not know of his having any property since 1844 or 1845.
    Judd & Wilson, for Appellant.
    J. H. Collins, for Appellee.
   Treat, C. J.

This was an action of assumpsit, brought by Schuttler, the assignee of certain promissory notes, against Piatt, the payee and assignor. The declaration contained two classes of counts; the one alleging the insolvency of the maker, the other his departure from the State, before the maturity of the notes. It appeared, in evidence, that the notes were made in Chicago, and were there assigned in the usual form, before they became due. The maker resided in Wisconsin, and returned home shortly after the execution of the notes, and had not since been within this State. The plaintiff was informed of his residence, when he received the notes. The payee was a resident of Indiana. Some evidence was given, tending to show the sol-vency of the maker, but in the view we are inclined to take of the case, it need not be further noticed. The Court rendered judgment for the defendant.

The note and assignment having been made in this State, the rights and liabilities of the parties must be governed and determined by our laws. The statute, after providing that the assignor shall be liable to the assignee, if the latter shall use due diligence by suit against the maker, proceeds as follows: “ Provided, that if the institution of such suit would have been unavailing, or the maker or makers had absconded, or left the State, when such assigned note, bond, bill or other instrument in writing became due, such assignee or assignees, or his or her executors or administrators, may recover against the assignor or assignors, or against his or their heirs, executors or administrators, as if due diligence by suit had been used.” There are three contingencies in which the assignor may be made liable. First, where the assignee, by the exercise of due diligence, prosecutes the matter to insolvency. Second, where the institution of a suit would be unavailing. Third, where the maker has absconded or left the state, when the note falls due. The assignor, by a general indorsement of the note, binds himself to pay it on the happening of either of these contingencies. The provisions of the statute enter into and form a part of the contract of the parties. - If the maker is beyond the limits of the state when the note matures, so that he cannot be subjected to our jurisdiction, • the liability of the assignor becomes fixed. The assignee is not bound to pursue the debtor into a foreign jurisdiction, but he may at once resort to his assignor for payment. The circumstance that the maker resided in another state, and that this was known to the plaintiff when he received the notes, does not vary the liability of the defendant. His indorsement was general, and he must abide the consequences of a statutory assignment. If the parties had intended otherwise, the indorsement would have been special, restricting the responsibility of the assignor.

The ruling of the Circuit Court was clearly erroneous, and its judgment must be reversed, and the cause remanded.

Judgment reversed.


text:
    Charles Ballance, Appellant, v. John Rankin, Appellee.
    APPEAL PROM PEORIA.
    In an action of ejectment, the plaintiff is bound by his allegations in his declaration, and must recover according to the case made by it.
    He cannot recover a different estate, than That claimed by his declaration.
    But if he declares for the whole premises, he may recover a distinct part; or he may, if he declares for an undivided share, recover that share in any part of the premises.
    If he declares for the whole of certain premises, he cannot recover an undivided interest therein.
    This was an action of ejectment, brought in the Peoria Circuit Court, and tried before Kellogg, Judge, and a jury, at May term, 1851, of that Court. The jury found Ballance guilty of withholding possession of the undivided one-fourth of the lands and tenements described in the declaration, and that the title of the plaintiff to that undivided fourth part is a fee simple title. The The plaintiff, by his declaration, claimed title in fee to the entire tract and premises described in his declaration. On the trial, Ballance, the defendant, requested the Court to instruct the jury, “That the plaintiff having brought suit to recover the whole premises covered by the patent from the United States to the legal representatives of Simon Roi, and not shewing by his proof a right to recover more than the one-fourth part of said premises, and not claiming the property as a tenant in common with the defendant, but by a paramount title; he cannot in this action recover an undivided interest, the deed to plaintiff not being for a specific part of said premises, by metes and bounds.

      “ That the plaintiff having declared for the whole premises covered by the patent from the United States to the legal representatives of Simon Roi, as described in the declaration, and not for an undivided part of said premises; and only showing by his proof, a right to recover an undivided fourth part of the premises described in the declaration, he cannot recover such undivided part, where he claims the whole." Which the Court refused to do.
    Ballance appealed, and among other errors, assigns the refusal of the Court below to give the foregoing instructions.
    C. Ballance, for himseff.
    H. H. Purple, for Appellee.
   Treat, C. J.

This was an action of ejectment brought by Rankin against Ballance, for the recovery of a lot of ground in the city of Peoria, covered by French claim twenty-nine. The plaintiff in his declaration claimed the whole lot in fee. On the trial, the defendant asked the Court to charge the jury, that the plaintiff having declared for the whole premises, could not recover an undivided interest therein. The instruction was refused, and the defendant excepted. The plaintiff obtained a verdict and judgment, for one undivided fourth part of the premises claimed.

Did the Court err in refusing to charge the jury as requested? The answer must depend upon the construction to be given to the 86th chapter of the Revised Statutes. The 7th section, after prescribing the general form of the declaration in ejectment, declares: “If such plaintiff claims any undivided share or interest in any premises, he shall state the same particularly in such declaration.” The 8th section provides: “If the action be brought for the recovery of dower, the declaration shall state that the plaintiff was possessed of the one undivided third part of the premises, as her reasonable dower, as widow of her husband, naming him. In every other case the plaintiff shall state whether he claims in fee, or whether he claims for his own life, or the life of another, or for a term of years, specifying such life or the duration of such term.” It was evidently the design of the Legislature, to require the plaintiff in ejectment to set forth specially in his declaration, the nature and extent of the estate claimed to be recovered. The language of the statute is plain and explicit. It admits of but a single meaning. It is imperative, and not directory. These provisions were made for some substantial and practical purpose. And they are founded on very good reasons. The declaration apprises the defendant of the precise character of the estate sought to be recovered against him. If he finds that he cannot successfully resist the claim, he may let judgment pass by default, and thus save the expense and trouble of further litigation. Or, if he chooses to make a defense, he has only to come prepared to meet and resist a particular and not a general claim. But, if the statute is to be regarded as directory merely, and the plaintiff is not bound by the averments in his declaration, these provisions will become wholly inoperative, and cease to answer any useful or practical purpose. The plaintiff will declare generally in all cases, and a contest will be unavoidable, whenever he is not entitled to an estate in fee in the whole of the premises described in the declaration. We hold that the plaintiff is bound by his allegations. He must recover according to the case made in his declaration. He cannot recover a different estate than the one he claims. If he claims an estate in fee, he cannot recover a less estate. If he claims an estate for life, he cannot recover an estate in fee, or for years. If he claims an estate for years, he cannot recover an estate for life, or in fee. If he demands the whole of the premises, he cannot recover an undivided interest therein. If he demands an undivided share, he cannot recover a different share. But, if he declares for the whole premises, he may recover any distinct part or parcel thereof. And, if he declares for an undivided share, he may recover the same share in any part of the premises. This construction will give effect to all of the provisions of the statute, and, as we believe, carry out the clear intentions of the Legislature. Hor can any inconvenience or injustice result to the parties. The plaintiff may provide against any variance between the allegations and the proofs, by inserting several counts in his declaration. This is expressly authorized by the 9th section. He may thus anticipate any state of case likely to arise on the trial, and avoid the effects of a variance. And the defendant may put in issue one or all of the counts of the declaration.

Our statute concerning ejectment is substantially a transcript of the Hew York statute on the same subject, which has been in force in that state for many years. It is a safe rule in the interpretation of statutes, that where one state adopts a statute of another state, which has already received a known and definite construction in its courts, it is presumed to adopt the construction thus given. It was contended on the argument, that this principle is strictly applicable to this statute. But the position is not sustainable. The Hew York statute has not as yet received any fixed and uniform construction. The opinions of her Courts on the question now under consideration, have been fluctuating and conflicting; and we are, therefore, left to settle the question upon the statute itself, without the aid of judicial exposition. This will be very apparent from a brief reference to the decisions in New York, bearing on this subject. In Harrison v. Stevens, 12 Wendell, 170, the Court held that the plaintiff might recover an undivided share, although in his declaration he claimed the whole of the premises. In Holmes v. Seeley, 17 Wendell, 75, the case of Harrison v. Stevens is questioned ; and the Court intimate the true rule to be, that where the plaintiff claims the whole premises, he cannot recover an undivided interest; and so where he claims an undivided half, he cannot recover an undivided third, or fourth, or the whole. In Hinman v. Booth, 21 Wendell, 267, the Court held, that where the declaration is for a moiety, and the verdict for a fourth, the plaintiff may amend his declaration to correspond with the proof. In Gillet v. Stanley, 1 Hill, 121, the Court lay down the rule that, under a declaration claiming the entire interest in certain premises, the plaintiff cannot recover an undivided share. In Cole v. Irvin, 6 Hill, 634, where the declaration was for an undivided half, and the proof showed that the plaintiff was entitled to but two-sevenths, it was considered a fatal variance. In Truare v. Thorn, 2 Barbour’s S. C. R., 156, the Court refused to set aside a verdict for the plaintiff for an undivided third part of premises, on a declaration claiming four undivided ninths. The cases seem to agree that, under the peculiar system of amendments in that state, the plaintiff may avoid the effects of a variance, by amending his declaration after verdict, so as to correspond with the proof on the trial. But the doctrine of amendments has never been carried to such an extent in this state. It is proper to add, that the point in question remains wholly undetermined by the highest tribunal in New York— the Court of Appeals.

The judgment is reversed, and the cause remanded.

Judgment reversed.


author: Caton, J.

text:
    Vivian B. Holmes, Pltff in Error, v. Amelia D. Field, by B. S. Prettyman, her next friend, Deft in Error.
    ERROR TO MAS OH.
    A., the testator, by his will, appointed his wife guardian to his infant daughter, “so long as she should remain his widow.” After his decease, his widow took out letters of guardianship for the daughter, from the Probate Court of the proper county.
    The widow subsequently married, and a payment on account of the estate of the ward, was then made to her husband. Held:
    That the appointment of the Probate Court was void, for want of jurisdiction.
    The authority of the father to name a guardian for his children, is greater than that conferred upon the Probate Court; and when the former has exercised the right, the latter cannot act.
    That the limitation in the will is strictly legal and must be enforced, and the guardianship of the widow was terminated by her marriage.
    That a person makes payments at his peril, and is bound to know whether the payee is authorized to receive his money. The true test as to the validity of the payment, is whether, or not, the payor could successfully resist a suit instituted by the payee.
    That the husband of a guardian has no right to possess or control the estate of the ward, and a payment to him on account of such estate is void, unless with the express sanction or direction of the guardian.
    That an infant is not always bound to appear in a Court of Chancery by a guardian, although one may be in existence. The bill may be filed by her next friend, and if objection is made in proper time, it rests in the sound discretion of the Court, whether the suit shall so proceed, or in the name of the guardian.
    This was a bill in chancery, filed in the Mason Circuit Court by defendant in error, and alleges in substance, that in the year 1835, Drury S. Field, father of complainant, then residing in Fayette County, Tennessee, entered into an agreement with Holmes, the plaintiff in error, to famish him with $12,500.00, to be expended in entering land in Hlinois; Holmes to enter the lands, and bear Ms own expenses; and after the entering thereof, the lands to be divided—one-fourth to go to Holmes, and the other tMree-fourths to Field. That Holmes, in pursuance of this agreement, did enter in Field’s name ten thousand acres of land. That in 1836, Field loaned Holmes eight hundred and seventy dollars, for which he took notes. That a part of the lands entered were divided between Field and Holmes; but that Field held a part of the lands undivided, as security for the money loaned.
    That Field died in April, 1839, leaving as survivors Ms widow Amelia E. Field and children. That Field made his will, appointing Albert J. Field his executor; by which will he divided his property between his wife and cMldren, giving to his “very and much beloved wife, Amelia E. Field, during the time she shall

      remain my lawful widow, and during her natural life, the mansion house in which we now dwell, with four hundred acres of land, with all my stock of horses, cattle, farming utensils, &c. And further, that my executor, during the time of her widowhood, should annually pay over to her one hundred and fifty dollars; but should she marry and become the wife of another, she shall immediately forfeit her dower of every description, and have no further claim upon my estate; the land and other things which I have given her, to be in that event given to my infant daughter, Amelia D. Field, ” &c. Makes Albert D. Field guardian of several of his children named in the will, &c.; and then, by the will, it is declared: “And I further appoint my beloved wife, Amelia E. Field, guardian for my infant daughter, Amelia D. Field, so long as she remains my widow.”

    Holmes, by his answer, admits generally the allegations in the bill. Alleges, that Amelia E. Field was duly appointed guardian for her daughter, Amelia D. Field, by the probate court of Sangamon county. That said Court had complete power and authority to make said appointment. That after-wards said Amelia E. Field married Shapley Lester; and that he [Holmes] did in October, 1840, pay to Lester, in the presence of his wife, for her use as guardian of the comjfiainant, the sum of $430.12, which was endorsed on the note, &c. That he paid said money in good faith, while the letters of guardianship were in full force, &c. That Mrs. Lester had possession of the note at the time of payment as guardian, and threatened to sue. That the ward was living from home at the time, and needed the money; and the payment was urged for this reason. Denies’ any knowledge that Mrs. Lester had no authority, &c., and of' the contents of the will.
    The other defendants disclaim, &c. There was no replication to the answer, nor any proof taken.
    At May term, 1851, Minshall, Judge, entered a deceee against Holmes, refusing to allow him the $430.12 paid to Mrs. Lester.
    By consent, the writ of error was returned to the Court held m the Third Division. The question raised was the validity of " the payment by Holmes to Lester.,
    R. S. Blackwell, for Pltff in Error.

      The payment made by Holmes to Lester and wife, on the 9th October, 1840, was valid, and operates pro tanto to discharge his indebtedness to the complainant. 1. Because Mrs. Lester was the guardian of the complainant, under and by virtue of the will of her former husband, notwithstanding the condition in the will, that her guardianship should cease upon marriage. This condition being in restraint of marriage, and there being no disposition over of. the custody of the ward, is to be regarded as in terrorem merely. 1 Story’s Eq., sec. 287; Parsons v. Winslow, 6 Mass. Rep., 170; Marples v. Brain, 1 & 2 Madd. Ch. R., 317. 2. Because she was guardian by appointment of the probate court; and as long as those letters of guardianship remain in full force, a payment to her on account of her ward, is valid. Allen v. Dundas, 3 T. R., 125; Moore v. Tanner, 5 Munroe, R. 45. 3. Because she was guardian do facto; at all events, had possession of the note, and a colorable right to receive the money. A payment under such circumstances, must be regarded as valid. 2 Kinne’s Comp., 463; Poth. Obl., 299; R. S., 266, sec. 7; 268, sec. 20; Baldwin v. Kellogg, 1 Day, 4; Kelley v. Cowing, 4 Hill, 266. This payment must be sustained, upon principles of natural equity, upon the ground that Holmes paid the money to Mrs. Lester in good faith, without any knowledge of the circumstances by which her authority was put an end to. Morton v. Fox, 4 Bibb, 392.
    Merrimahs & Johnson, for Deft in Error,
   Caton, J.

The only important question presented in this ease is, as to the validity of the payment by Holmes, of four hundred and thirty dollars and twelve cents, made on the ninth of October, 1840, to Shapley Lester, in the presence of his wife, former guardian of the complainant. This payment was disallowed by the Circuit Court; and after the most mature examination and reflection, we arc satisfied with that decision. By his last will and testament, Drury S..Field appointed Amelia E., his wife, guardian to his infant daughter, the complainant, so long as she should remain his widow. She subsequently married Lester, still retaining possession of the note against Holmes, which belonged to the estate of the complainant. After the death of Field, and before her marriage to Lester, she took out letters of guardianship for the complainant, from the Probate Court of the proper county.

NTo additional authority was. conferred upon the mother of the complainant, by the appointment by the Probate Court. She was already, by the will of the testator, appointed guardian to the complainant; and that appointment was as perfect, as complete, and as absolute, during the time proscribed by the will, as it could be made; and the appointment by the Probate Court, as if by way of compliment to the will, was an act of supererogation, and entirely nugatory. The action of that Court conferred no more authority upon the testamentary guardian, than it would upon a stranger, in derogation of the rights of the guardian appointed by the will; and the appointment of a stranger, no one will doubt, would have been utterly void.' The Court acted upon a case over which it had no jurisdiction. Robinson v. Zollinger, 9 Watts, 169. It is this want of jurisdiction that makes the aet utterly nugatory. It is only by virtue of the statute that the Probate Court could appoint a guardian in any case; and, of course, it is only in the particular cases authorized by the statute, that the Court has any jurisdiction to • act. By our statute, which confers upon the parent broader powers than that of 12 Charles 2d, the father is authorized, by deed or will, to appoint a guardian to his children till they shall arrive of age, or for any less term: “Provided, That the rights, powers, duties, and obligations of such person or persons, may be restrained and regulated by the person making such deed or last will as aforesaid.” Here, the father is vested with authority to dispense with provisions of the statute, which must in all eases apply to and govern guardians appointed by the Probate Court; so that the authority conferred upon the father, is greater than that conferred upon the Court; and when the right has been exercised by the former, there is no room left for the Court to act. The Probate Court might as well have appointed a guardian for an adult. The ward was already furnished with a guardian appointed by a superior power, the father of the infant, who was properly amenable to the Circuit Court under the twentieth section of our act, or to the Court of Chancery under its general and well-known jurisdiction. Had the appointment been made by a Court having jurisdiction to act in the premises, although it might have acted erroneously, still its order would have been valid and binding, until reversed or set aside, and a very different case would have been presented. The appointment being good till reversed, the authority of the guardian to act could not be questioned collaterally. But here there was no jurisdiction, and the appointment was void. I shall, therefore, lay out of view entirely the appointment by the Probate Court, and consider the authority of the guardian as derived solely under the will.

That authority, by the terms of the will itself, terminated upon the subsequent marriage of the guardian with Lester. But that clause of limitation, it was insisted, was in terrorem, and void as being in restraint of marriage; and in support of this, a class of cases is referred to, where a similar clause had been so held, when attached to a devise of property, and where no devise over is made. But the cases are not alike. The appointment of a guardian bears no resemblance to a devise of property. The former is the conferring of a power, and the delegation of a personal trust; and that, too, without any interest in, or benefit to the person appointed: the latter is the grant of an estate or interest, solely for the benefit of the devisee. The motives or considerations which would conduce to the selection of the one, might have no influence in the choice of the other. The object in the selection of a guardian, is to promote the well being, and for the sole benefit of the ward; and qualifications which will best promote these ends, are sought after in the guardian, it may he, irrespective of obligation or affection: while these last almost entirely control, in the case of a devise. Nothing may have been more judicious, so far as the ward’s interests were concerned, than this limitation in the appointment of the guardian. While the mother, during her widowhood, may have been the most fit person to have the control of the infant, and the management of her estate, it would by no means follow, that they would he equally safe in her hands, after she should become subject to the influence and control of a second husband, a stepfather to the child. This must be so perfectly apparent to every one, that it is unnecessary to enlarge upon the subject. We can see sufficient reasons, from a regard for the interests of the child alone, to justify this limitation, without attributing it to any other motive. We therefore consider this limitation, not only perfectly legal, but entirely proper; and the will of the testator, in that respect, must be faithfully observed, and strictly enforced.

At the time this payment was made to Lester, the authority of his wife to receive the money, as guardian to the complainant, had ceased; as completely so, as if she had been removed by a Court of competent jurisdiction, or as if the ward had arrived at her majority. She had no more authority .to receive the money, than as if she had never been appointed guardian. 'Holmes alleges in his answer, that he paid the money in good faith, and that he did not know of the provisions of the will, so far as it relates to the said guardianship. As no replication was filed to the answer, its statements must be taken to be true in fact. But his ignorance that she had ceased to be guardian, cannot help him. He made the payment at his peril, and was bound to know whether the person to whom the payment was made, was authorized to receive the money or not. The question is, whether he, or the infant, shall suffer the consequences of his negligence. He says he made the payment under the threat of a prosecution. Had. such prosecution been instituted, he could have resisted it successfully. And this is indeed the true test, by which to determine whether he shall be protected in making the payment, as will be seen by a reference to the authorities cited by his counsel on the argument. In the case of Allen v. Dundas, 3 T. R., 125, administration had been obtained from the ecclesiastical court, upon a forged will, and letters testamentary issued to the executor named; and it was held, that a payment made to him in that capacity, before the letters were revoked, would protect the debtor; and the decision is placed expressly on the ground, that he could not have successfully defended a suit brought against him by the executor. The supposed testator was actually dead, and the ecclesiastical court had jurisdiction, to take proof of the will, and grant administration, upon his estate; and having had jurisdiction, its order was valid until revoked by a proceeding instituted for that purpose, and could not be questioned collaterally. Had the man still been living, the ecclesiastical court would have had no jurisdiction, and its order would have conferred no authority to collect or receive the money, and the payment would not have discharged the debtor, although made in the utmost good faith, and under the sanction of a court having apparent authority to act. Ashhurst, J., commences his opinion in that case, thus: “I am of opinion, that the plaintiff has no right to call on the defendant to pay this money a second time, which was paid to a person who had at that time a legal authority to receive it.. It is admitted, that if he had made this payment under the coercion of a suit in a court of law, he would have been protected against any other demand for it; but I think that makes no difference. For, as the party to whom the payment was made had such authority as could not be questioned at the time, and such as a court of law would have been bound to enforce, the defendant was not obliged to wait for a suit, when he knew no defense could be made to it. This, therefore, cannot be called a voluntary payment.” This case, we see, is expressly put upon the ground, that the debtor could not have resisted the payment which he had made; and it would have been very hard indeed, if the Court would not have protected the party in making a payment without coercion, which they would have compelled him. to make. The case of Moore v. Towers’ adm'r, 5 Monroe, 45, is, in all its principles, and nearly all its features, precisely like the former; and was decided in the same way, and for the same reasons, although no reference is made to it.

Suppose in this case, the ward had arrived at her majority, before this payment was made, would Holmes have been protected in a payment to the late guardian, because the debtor was ignorant of that fact? And yet she would have had the same authority to receive the money in that case, that she had in this. In that case, his ignorance would have been much more excusable than in this, for here he had the means of ascertaining precisely the nature and extent of the guardian’s authority, for the will had been upon the public records ever since 1838, and in the same office where he found the void appointment of her as guardian, by the probate court, which probably misled him. The question is one of legal authority on the part of the supposed guardian, to receive the money, and not of good faith on the part of the debtor. If the authority of the guardian has ceased, either by limitation or removal, ignorance of that fact cannot protect the debtor. If he could have successfully resisted the payment as against the guardian, then the ward may successfully resist it as against him.

I have hitherto examined this case, as if the payment had been made to Mrs. Lester. That, however, the defendant admits in his answer, was not the case. He states that he paid the money to Mr. Lester, in the presence of Mrs. Lester, and he does not pretend that she in any way sanctioned the payment, even by her silence, or that the money ever came to her hands, or was under her control, or was ever applied to the benefit of the ward. The only thing in the answer, from which we might infer that the payment was made with her approbation, is that she had threatened to sue him, if he did not pay the whole or a part of the note. Surely Holmes cannot insist that he was ignorant of the fact that Lester was not guardian, and had no right to receive the money. Even if the authority of the guardian had still continued, the payment to Lester, without her express sanction or direction, would have been void. As the husband of the guardian, ho would have no right to possess or control the estate of the ward.

In every point of view, we are satisfied that this payment was not valid as against the ward.

Another objection was taken upon the argument, which should be noticed. Previous to the filing of this bill, another guardian had been appointed by the probate court, and this bill was filed, not by that guardian, but by the next friend of the complainant, and to this the objection is raised. An infant is not always bound to appear in a court of chancery by a guardian, although one may be in existence. She may file her bill by her next friend, and if an objection is taken in proper time, that there is a guardian by vdiom the bill should have been filed, it may be that the Court, in the exercise of a sound discretion, may determine whether the suit shall proceed as it was commenced, or in the name of the guardian. The fourth section of our Chancery Act says, “Suits in chancery may be commenced and prosecuted by infants, either by guardian or next friend.” It is frequently necessary for thq infant to file a bill against the guardian; and when that is not the case, there may be reasons for fearing that the guardian is not acting judiciously, or in good faith, in relation to the subject of the suit. It is the business of the court of chancery, to see that no one stands between the infant, and a just protection of her rights, and for this purpose, the Court may appoint a person to prosecute or defend for the infant. So far as appears, this objection is now raised for the first time. It is now too late even to be inquired into.

The decree of the Circuit Court must be affirmed, with costs.

Decree affirmed.


text:
    The Trustees of Schools, Pltffs in Error, v. John S. Wright et al., Defts in Error.
    ERROR TO LA SALLE.
    In equity, a defendant cannot avail himself of the statute of frauds, or limitations, unless he relies thereon in some pr per pleading; and a defence of a kindred character, arising from length of time, will be subject to the same rule.
    If a commissioner has sold school land, the law requiring him to take a mortgage as security for the purchase money, which he omits to do, the lien upon the land is not .lost, and may be enforced against subsequent purchasers, wi.h notice, if proceedings lor that purpose are instituted within a reasonable time.
    This case was decided at Ottawa, at June term, 1850, and was reported in the 11th Illinois, p. 603 ; at the succeeding June term of the Court, in 1851, a petition for a rehearing; the case having been decided on the last day of the preceding term, was presented, and the prayer was allowed. At that term, the case was again argued, and the following opinion was pronounced.
    A. Hoes & H. G-. Cotton, for Pltffs in Error.
    The lien of the vendor for the unpaid purchase money will be enforced against the vendee, and subsequent purchasers with notice, unless waived, or an intention appear on the part of the vendor not to rely upon the lien.
    The respondents John S. Wright, Amasa Wright, Frederick Deming, and'Hosea Webster, had, at the time they respectively purchased, notice that the consideration money was unpaid.
    The lien in this case was not waived, nor does it appear that there was any intention, on the part of the vendor, not to rely upon the lien. The law required a mortgage in addition to the personal security, and the taking of the personal security cannot raise a presumption of any intent to waive the lien. The school commissioner was not authorized to waive it.
    The acts under which the sale was made were public acts, and all the parties are chargeable with notice of the provisions of the same.

      This was a bill filed to enforce a vendor’s lien for the purchase money upon school lands, sold by David Letts, school commissioner of La Salle county, to John T. Temple, on the first day of May, A. D. 1835, upon a credit of 1, 2, and 3 years. Notes, with personal security were taken, but no mortgage was executed.
    The bill was taken 11 pro con/esso” against all of the defendants, except John S. Wright, Amasa Wright, Frederick Deming, and Hosea Webster, who filed their answers; to which the complainants filed a general replication.
    The case came on to a hearing on bill, answer, replication, and exhibits.
    The Circuit Court dismissed the bill, as to all that portion of the land (described in the bill) conveyed by Temple to John S. Wright, and by him to Amasa Wright, Deming, and Webster.
    The writ of error is prosecuted to reverse this part of the decree.
    In support of the first point made by the plaintiffs in error, it is considered unnecessary to offer any remarks.
    The existence of the vendor’s lien, under the limitations and restrictions stated, is supported by the authority of numerous decisions in the Courts of the United States and England, and is recognized by this Court, in Conoven v. Warren, 1 Gil., 498; see also Dyer v. Martin, 4 Scam., p. 146, 151; see in addition, to cases cited by Treat, J., in Conoven v. Warren, Bradley v. Bozley, 1 Barbour C. R., 125, 152; Palmer et al., 1 Douglass’ Michigan, 425, 427; 9 Smedes & M., 122; 10 do., 143; 6 B. Monroe, 67, 74; 5 Conn. R., 468, 472; Story, J., 1 Mason, 191; 15 Vesey, Jr., 328; 9 Cowen, 316; Winter v. Lord Anson; 3 Russel, 488; 3 Eng. Chan., R.; Hughes v. Kearney, 1 Schoales and Lefroy, 132; 3 Sugden on Vendors, 151; 4 Wheaton, 255; 17 Ohio R., 530.
    The doctrine has been repeatedly questioned in England and this country, on the ground of inconvenience and impolicy, but is so clearly sustained by the authority, not only of the cases cited, but of many others to which the attention of the Court might have been, directed, if it had been deemed necessary, that we submit that objections on the grounds stated, would be more properly addressed to the legislative department.
    Notice is clearly made out notwithstanding the apparent denial in the answers.

      - The patents were not issued until the 21st of May, A. D. 1838.
    J. S. Wright, purchased of John T. Temple, and paid the consideration money in May, A. D. 1836.
    Webster, Deming, and A.-Wright, purchased of John S. Wright, October 31st, 1837; consideration paid “ at or before that time" At the time that John S. Wright purchased of Temple, his only evidence of title was the certificate issued to him by the school commissioner, which states on its face, that obligations were taken for the purchase money in pursuance of the advertisement. The same state of facts existed when John S. Wright conveyed to Webster, Deming, and Wright.
    If-these subsequent purchasers had exercised the ordinary precaution of enquiring of Temple for the evidence of his title, they would have ascertained that ho purchased upon a credit sale. The law had fixed the time of credit at 1, 2, and 3 years. It required the commissioner to report to the Auditor and county commissioners court, and the report to be recorded. That report had been made, and showed a sale upon a credit of 1, 2, and 3 years.
    The school commissioner was a public officer of the county, and if further information was required, they had the means of obtaining it.
    These inquiries it was their duty to make. Dyer v. Martin, 4 Scam., 146; Graham v. Day, 4 Gil., 389, 394; Hower v. Blackwell, 6 B. Monroe, 67; Thornton v. Knox, 6 B. Monroe, 74. They are in any event chargeable with notice of every fact appearing upon the face of the title papers of Temple, under whom they claim. A court of equity will not permit them to close their eyes when the road to the truth lies open and plain before them, and then insist upon immunity from liability as bona fide- purchasers without notice. Especially when, as in this case, the parties to be injured by their neglect, are beneficiaries of a trust fund, and are to suffer by the misconduct of a public officer, over whose appointment and official acts, after the initiative of a petition for a sale, they had no direct authority or control.
    If the subsequent purchasers from Temple, are to be the losers by the enforcement of this lien, the result will be attributable, to say the least, to their own culpable carelessness.
    Was this lien waived? When,, and under what circumstances the lien of the vendor will be considered as waived, does not appear to bo very clearly defined by the adjudged cases.
    It has been frequently held that the taking of distinct and independent security for the whole purchase money, in the absence of other circumstances showing an intention to retain the lien, will be held a waiver. Beyond this we apprehend the rule to be, that each case must stand upon the intention of the parties, as evidenced by the facts of the case.
    The facts of this case present a question, so far as the authority of adjudged cases is concerned, unless 10 S. & M. be an exception somewhat anomalous.
    The sale was made under the authority of a public statute, of the provisions of which, all parties are deemed to have been cognizant.
    The authority to sell, is no more plainly expressed, than the duty imposed, to take mortgage security upon the land. To hold that the taking of personal security, was in this case a waiver of the lien, is to hold that the commissioner and Temple intended to violate the law, to substitute a security, which by law, he was required to take as a cumulative security, as the sole security for the payment of the purchase money. We think such inference unreasonable, but on the contrary, that the fair and reasonable conclusion from the facts of this case is, that the commissioner intended to sell, and Temple intended to purchase, subject to the lien for the prarchase money, imposed by the statute, although no mortgage was executed. 10 S. & M., supra.

    But if the intention of the commissioner was otherwise, if he intended to waive the lien, we deny his right to do so, and the right of Temple, or his grantees with notice, to acquire a title to these lands, under this sale, divested of the lien for the purchase money. Kidder v. Trustees, 5 Gilman, 191.
    The statute did not vest a discretion in the commissioner to dispense with the mortgage.
    An arrangement between Temple and tire commissioner to take prersonal security solely, would have been a fraud upon the inhabitants of the township, and neither Temple nor his grantees with notice, would be allowed to set up such fraudulent arrangement in bar of our equitable claim.
    The patents have been issued and delivered, and the legal title is vested in the defendants. People v. Auditor, 2 Scam., 567.

      They insist in their answer upon their title under the patents. And inasmuch as they purchased with notice of our equity, the plainest principles of justice and equity, require that they should take the lands subject to our lien, for the unpaid balance of the purchase money.
    It is objected, that if we were entitled to the relief sought, we are barred of our remedy, by limitation. In reply to this, we insist that the question of limitation or laches not having been insisted upon by demurrer, plea, or answer, the same, even if apparent upon the record, comes too late.
    That there is nothing in the record to authorize this Court to adjudge that the right and remedy of the complainants are barred either by laches or limitation, If there is any distinction between them.
    That the rules of limitation in equity, are not discretionary, but depend either upon analogy to the rules of limitation at law, or in cases where courts of equity have exclusive jurisdiction, and the subject matter is not cognizable at law, upon known and settled rules.
    That the ordinary bar of a purely equitable right, when there is no circumstance in the case to avoid the limitation, is twenty years.
    That the subject matter of this suit, is the unpaid purchase money, evidenced by the notes of Temple, with Goodrich and Stewart as securities.
    That said notes are cognizable at law, and the rule of limitation at law is sixteen years. .
    That when the subject matter of the demand is such that it can be sued for, either at law or in equity, courts of equity invariably follow and adopt the rule of limitation at law; and if there are two or more remedies at law, and different rules of limitation, courts of equity adopt and enforce only the one which gives to the complainant the longest time.
    That tested by the above principles, the rule of limitation applicable to this case cannot, in any point of view in which it can be considered, be less than sixteen years. 19 Vermont, 467.
    If this Court has the power arbitrarily, and in their discretion, to bar us of our right, this is not a case which calls for the exercise of such discretion.
    The time which has elapsed, since the last note became due, and the commencement of the present suit, is only seven years and a few months, not sufficient to bar an ordinary book account.
    Intermediate that time, a previous suit had been brought and dismissed without prejudice. (See the answers of the defendants.) This is fairly inferrable from the language of the answers, and neglect to plead the former suit in bar. The language of the answers, in this respect is that of complaint rather than of defence.
    Payment was demanded of John S. Wright, as the grantee of Temple, in the winter of 1838 & 9, and his grantees were immediately advised by him that such payment had been demanded. See answers.
    Beinar so notified that we intended to look to the land as secuO rity, they have no reason to complain of delay. Ii they desired to have the incumbrance removed, they could have removed it by paying the balance of the purchase money.
    The title papers although constructively delivered, have always been, and are now actually in our possession.
    The circumstances and situation of the immediate parties remain substantially without change. The title is now where it was placed by John S. Wright, in 1837. No actual possession has been taken, or improvement made upon the land. There is no loss of evidence. The case stands upon the bill thus, sworn answers and replication.
    John S. Wright claims to be a Iona fide purchaser, and to avoid our proof of actual notice, he says he purchased and paid for the land in 1836. His deed from Temple bears date in 1840. What price did he pay Temple for the land, and what was the evidence of his title prior to the deed in 1840? He fails to disclose either, and by so doing, has left his conduct, to say the least, open to suspicion.
    The insolvency of the sureties is no answer; because if they had paid the money they would clearly have been entitled to the benefit of our lien, as against Temple and his grantees.
    The insolvency of Temple is no answer. We had a right to rely upon our lien, and it was their duty, before they purchased, to investigate the title, and take sufficient security to indemnify them against the lien for the purchase money. The first step in such investigation would have shown them that the purchase money was unpaid.

      In support of the above positions, the following legal propositions and authorities are submitted:—Statute of limitations is a good bar to a suit in equity, as it is at law in matters oí concurrent jurisdiction. Story’s Equity Pleadings, p. 757, 751; Humbert v. The Rector &c. of Trinity Church, 7 Paige, 195; White v. Turner, administrator, 2 Gratten, 502; Sheppard v. Turpin, 3 Gratten, 374; Hughson v. Manderville, 4 Desau, 87.
    A defendant who has answered, cannot have the benefit of the statute of limitations, at the hearing, unless he has insisted on it in his answer, or demurred or pleaded. Harrison v. Bonvell, 16 English Ch. R., 382; Story’s Equity Pleadings, §484, 760; Pratt v. Vatu, 9 Peters, 415; Dey v. Dunham, 2 Johns. C. R., 182.
    If an equitable title is not sued upon until after the time within which a legal title of the same nature ought to be sued upon to prevent a bar by the statute of limitations, courts of equity, acting by analogy to the statute will not entertain it. Story’s Equity Pleadings, p. 763, §757; 2 Story’s Commentary on Equity, 735.
    A vendor’s lien can only be barred by lapse of twenty years. Morton v. Harrison, 1 Bland, 491; Elmondorf v. Taylor, 10 Wheaton, 152; 6 Conn. R., 47; Lingan v. Henderson, 1 Bland, 236, 282; Smith v. Ramsay, 1 Gilman, 372.
    Every equitable title must be pursued within twenty years after it accrues. Hovenden v. Lord Annersley, 2 Schoales & Lefroy, 607; Heyer v. Pruyn, 7 Paige, 465.
    Chancery will not set up lapse of time against a claim, when an ación of debt for its recovery would not be barred by the statute of limitations. Forbes v. Taylor, 10 Ohio, 104; Grafton Bank v. Doe and others, 19 Vermont, 463.
    As the Court has not legislative power, it cannot limit the time. Smith v. Clay, 2 Ambler, 647.
    Courts of equity, though not within the words of the statute of limitations, (which apply to particular legal remedies,) are within the spirit and meaning of them. Courts of equity, act not by analogy, but in obedience to the statute of limitations. Hovenden v. Lord Annersley, 2 Schoales & Lefroy, 629.
    Jas. H. Collins, for Deft in Error.
    The record of this case shows that David Letts, as school commissioner for La Salle county, on the first of May, 1835, sold, under the act of 1829, the school section in the above township, at public sale, pursuant to law. That John T. Temple became the purchaser of certain lots, among which were lots 1, 2, 3, 6, 7 & 8, in the subdivision of said section. That on the purchase of said lots, three sealed notes were executed by said Temple, to said commissioner, to secure the purchase money of these and other lots purchased by said Temple at the same sale, in the same section, with Grant Goodrich and Eoyal Stewart as sureties. Said notes were received by the commissioner and deposited with the treasurer, and divers payments were subsequently made, but no mortgage was executed by Temple as collateral to the notes. The commissioner at the same time executed a certificate of purchase to Temple for these and other lots. The patent subsequently issued to Temple, and is in the hands of the treasurer of the township. Temple failed to pay the notes; and he and bis sureties became bankrupt; and the bill prays that the plaintiffs in error, may have a lien upon these lots for their proportion of the balance of the purchase money, secured by said notes, and that, the ids may be sold to satisfy the same. John S. Wright in his answer alleges, in substance, that lie purchased these lots (I, 2, 3, 6, 7 & 8) of Temple, and paid the consideration for the same in May, 1838, prior to his knowledge, that notes instead of ca>h liad been given on the sale to Temple. That on the 28lb of September, 1840, Temple and wife executed a deed to him for said lots. He denies all knowledge or notice that the purchase money was due or unpaid, and avers that the allegations of the bill in that behalf are false, and insists that he is a bona fide purchaser, without any notice of any equities of the plaintiffs in error, or that they had, or pretended to have any lien on the premises, and that he had paid the whole consideration rnonev, before he had any notice of their claim. That on the 81st day of October, 1837, he conveyed to his co-defendants Amasa Wright, Hosea Webster, and Frederick Detning, of New York city, by separate deeds, to each an undivided one-third of said six lots, for the consideration of four hundred and fifty dollars, paid by each, at and before the date of their respective deeds, and that neither of them had notice that the original purchase money had not been paid.
    A. Wright, Webster, and Doming, in their answer,
    allege the purchase from John S'. Wright, each, of an undivided one-third of the lots, and that each paid four hundred and fifty dollars as the consideration, at and before the purchase, and expressly deny all notice of the non-payment of the original purchase money by Temple, before, or at the time of the payment of the consideration money to John S. Wright.
    The purchase money having,been secured by Temple, by his giving his sealed notes or covenant, with Goodrich and Stewart as sureties, the lien was waived or discharged.
    The rule is well settled that it the vendor take a note or bond of the vendee, secured by a third person, it is an extinguishment of the implied lien for the purchase money, 1 Mason’s R., p. 214, 215, Brown v. Gilman, 1 Paige R., p. 29; Fish v. Howland, where all the cases are reviewed, Harding, 48; 3 Bibb, 183; 4 Pet. Cond. R., p. 457, Brown v. Gillman.
    The defendant John S. Wright, as well as his grantees Amasa Wright, Denting, and Webster, being bona fide purchasers, without notice, took the lots divested of any lien, even if such lien had ever existed. 2 Edwards Ch. R., 507; 1 Paige, p. 29; 6 Binny, 119; 1 Teat’s, 393; 5 Pet. Cond. R., p. 231.
    It is alleged in the bill, that the consideration of the conveyance from John S. Wright, to Wright. Deming, and Webster, was a precedent debt due by John S. Wright to the latter. This is expressly denied, but if the allegations are true, the case last cited, (5 Pet. Cond. R.) establishes the principle that a bona fide conveyance to a creditor would defeat the lien.
   Treat, C. J.

On a former hearing of this case, the decree of the Circuit Court was affirmed. For the facts of the case, and the reasons for that conclusion, reference is made to the report of the case, in 11 Illinois, 603. A rehearing has since been allowed, and the case is again submitted for our consideration. The opinion was expressed in the former decision, that an implied lien on land, for the payment of the purchase money, must, as against third persons, be enforced by the vendor, within a reasonable time after his right to do so attaches ; and it was by the application of that doctrine to the case, that the decree dismissing the bill was sustained. Upon further reflection, we are still strongly inclined to adhere to the principle then laid down ; but we are likewise well satisfied, that the principle ought not to be applied to this case, in the condition in which it is presented by the parties. The defendants do not, by their pleadings,- assume the position, that the complainants are not entitled to the' relief sought, because of the lapse of time between the maturity of the notes and the filing of the bill. They claim no advantage by reason of any delay or laches on the part of the complainants.In this respect, the answers are wholly silent. The only questions presented by the answers are, whether the complainants ever had a lien on the lands, and, if so, whether the defendants were purchasers with notice thereof. It is a familiar principle of equity, that a defendant cannot avail himself of the benefit of the statute of frauds, or of limitations, unless he specially relies thereon by answer, plea,- or demurrer. If he fails thus to' claim the protection of the statute, he is to be understood as waiving it. He must give the complainant an opportunity to show by averments and proof, that the case is tiot within the operation of the statute. In the present case, the objection arising from length of time, although not within the statute of limitations, is a defence of a kindred character, and subject to the same rule. The defendants did not raise the Objection in their answers, and they must be held to have waived it. If they intended to insist, on the hearing, that the complainants were barred by the lapse of time, from asserting a lien on the lands, they should have interposed the defence in their answers, or in some other appropriate mode. The complainants might then have amended their' bill, by inserting allegations accounting for the delay, and thereby laying a foundation for the introduction of proof to1 sustain the' case against the objection. As it is, they were not notified that such a defence would be attempted, and consequently they were not called upon to repel or avoid it. It may be, that they could have accounted satisfactorily for the long delay, and have shown that they were still in a situation to enforce the lien. At all events, they ought not to be concluded, until such an opportunity has been afforded them.

We are also well satisfied, that the complainants, once had a lien on the lands for the payment of the purchase money, and that the defendants were chargeable with notice of its existence when they purchased. The statute, under which these lands were sold, required the school commissioner to take notes with personal security, and a mortgage on the premises, to secure the payment of the purchase money. The lands were sold on a credit of one, two, and three years, and the notes of the purchaser, with sureties, taken for the payment of the several instalments, but the commissioner omitted altogether the taking of a mortgage. Under these circumstances, we think the lien was not waived. The-purchaser did not acquire the land divested of a lien, which the law expressly provided should be reserved. See Powell v. Kettelle, 1 Gilman, 491. In such a case, there can be no doubt of the right of trustees of schools to assert a lien as against a purchaser; and we think it equally clear, that the same remedy may be pursued against those claiming under him with notice, if proceedings for the purpose are instituted within a reasonable time after the right to do so accrues. The defendants all purchased before the patents issued, and before the last of the notes became due. The certificate of purchase showed on its face, that the original purchaser had given notes for.he consideration, and the same fact appeared in the report of the sale to the county court. If the defendants had examined the sources of their title, they would at once have discovered that the lands were sold on a credit which had not then expired, and by inquiring at the proper office, they would have ascertained that the notes were still unpaid. They are chargeable with knowledge of every thing appearing on the face of the title papers, and of the records relating to the sale.

The decree of the Circuit Court dismissing the bill, so far as it seeks to enforce a lien against the lots conveyed by the original purchaser to John S. Wright, is reversed; and the cause is remanded, with leave to the parties to amend their pleadings.

Decree reversed.


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    Francis Voris et al., Pltffs in Error, v. Joseph J. Thomas, Deft in Error.
    ERROR TO PEORIA.
    A party claiming title to land, listed for taxation in his name, does not acquire any greater interest, by purchasing it at a sale for taxes. Hor does a mortgagor defeat the hen of a mortgage he has executed, by a like purchase.
    Sor can a party avail himself of a title thus acquired by a third person through his default.

      This was an action of ejectment commenced by Voris and another, in the Peoria Circuit Court, to recover possession .of lot seven, in block twenty-eight, in the city of Peoria. The pleadings are in the usual form. At March term, 1850, Kellogg, Judge, presiding, the cause was tried by a jury, which found the defendant, Thomas, not guilty of the trespass or ejectment laid to his charge. The proof set out in the bill of exceptions, shows, that Thomas left Peoria in 1839, and was absent two years; that after his return, he went into possession of the lot in question, and. has resided thereon ever since. That Thomas, two or three years after his return, said that he got the lot through the management of George C. Bestor, and that he occupied the same under Bestor. A bond from Voris to Thomas, for the sale of the same lot, dated 18th November, 1837, for the consideration of $750 00, was also read to the jury. The lot was sold in May. 1840, for the taxes of 1839, and purchased by Laurason Biggs, who conveyed to Bestor on the 28th of April, 1843.
    Plaintiffs also proved that while Thomas was absent in 1840, J. C. Heyl was called upon by Bestor to appraise some furniture for Thomas, to be paid to Voris, on the purchase of the lot, but that no appraisement or payment was made. That Bestor was the brother-in-law of Thomas, and that Bestor was supposed to be acting as the agent of Thomas.
    Evidence of preliminary proceedings of assessment of lot, judgment, precept, &c., and tax deed, were read to the jury. The Circuit Court refused to allow the plaintiff to read from the book of listed lands, an entry showing that the lot in question was assessed for the year 1839, to the name of Thomas.
    H. O. Merriman and E. S. Blackwell, for Pltffs in Error.
    The defendant having entered under a contract of purchase from the plaintiff, is estopped from setting up the tax title. 3 Peters, 43; 4 J. J. Marshall, 396; 7 ibid., 147; Act of 1839, §15.
    N. H. Purple, for Deft in Error.
   Trumbull, J.

Ejectment for a lot of ground in the city of Peoria. The plaintiff1 gave in evidence a connected title to the premises in question from the government to himself, and the defendant admitted that he was in possession at the commencement of the suit.

The defendant set up an outstanding tax title in one George G. Bestor, which defeated a recovery by the plaintiff 'in the Court below. Numerous exceptions were taken to the tax title on the argument, nope of which, it is necessary to notice in the view we take of the case, as, be the tax title ever so good, the defendant was not in a position to set it up against the plaintiff.

The record shows that ip eighteen hundred and thirty-seven, the defendant entered upon the lot in question under a contract of purchase from the plaintiff, and occupied the same till some time in eighteen hundred and thirty-nine, when he left and was absent about two years. From June, 1841, to May, 1842, the premises w.ere occupied by one Nourse, under Bestor, who is the brotker.-in-law of the defendant, and who, during his absence in 1840, called upon a witness to appraise some property belonging to defendant, to be p§id to the plaintiff on the purchase of the lot, and the witness supposed Bestor at the time to be agent of the defendant. The lot was sold in 1840, for the taxes of 1839, apd purchased at the tax sale by one Biggs, who, in June, 1842, procpyed a collector’s deed for tlie same, and in April, 1843, ponveyed to Bestor. It was also proven upon the trial, that the defendant had stated, that he got the lot through the management of Bestor. The Court refused to give the jury the following instruction asked by plaintiff, to wit: “That if the defendant went ipto the lot in question under the bond given in evidence, and by himself, or agents, or tenants, was in such possession at the time of the levy and sale of the lot for the taxes of 1839, the defendant is estopped from setting up the tax title given in evidence as a defence to this suit, and thp jury will disregard that title.”

It has beep decided by this Court, that a party who claims title to land which is listed for taxation in his name, acquires no greater interest by permitting if to be sold for taxes, and purr chasing it himself; also that a mortgagor cannot defeat the lien of the mortgage he has executed, by purchasing the land at a sale for taxes. Choteau v. Jones, 11 Illinois, 322; Frye v. Bank of Illinois, ibid., 383. The same principles apply to this case. The defendant acquired the possession under an ggreeement to purphase, and sustains towards the plaintiff the relation of a quasi tenant. While thus in possession, as shown by the record offered in evidence by the plaintiff, and improperly excluded by the Court, the lot was assessed to him for the taxes of 1839. He failed to pay the taxes, and as is insisted, abandoned the premises, but there is no evidence that he surrendered the possession to the plaintiff; on the contrary, it is apparent from the record that he still retained control over them through his brother-in-law, Bestor, who was taking steps, in 1840, to have certain property, left by defendant, applied on account of the purchase of the lot. The fact that Hourse occupied the premises from 1841 to 1842 under Bestor, does not prove that Bestor was not at that time the agent of the defendant. The presumption is that he was, for he then had no pretence of title to the lot, or right to control it, except as derived from the defendant. The tax title did not mature till some time in 1842, and Bestor did not acquire it from Riggs till 1843. What possible claim had Bestor to the land in 1841, when he rented to Hourse? Hone surely, except as the agent of his brother-in-law, for whom he was assuming to act, so far at least as to take steps towards completing the payment to the plaintiff.

The attempt to show that Bestor was claiming the lot in his own right in 1840 and 1841, was a total failure. The defendant obtained the possession from the plaintiff, admitted that he was in possession at the time this action was commenced, and so far as the record shows, and as between these parties, he is to be presumed as having had the possession from the time he first took it till this suit was brought. In this view of the case he is not to be permitted to set up the outstanding tax title against him from whom he obtained the possession.

The instruction which the Court refused to give] is based upon the supposition, that sooner than let the land be sold for taxes, it was the duty of the party having possession, at the time of the assessment and sale, under a contract of purchase, to pay such taxes, and we think should have been given.

A party under such circumstances has an equitable title to the land, and when it is assessed in his name, the taxes may be collected from him. If he suffers the land to go to sale for the taxes, it is clear that by purchasing it in himself he cannot defeat his vendor’s title, and if he cannot avail himself of a title £Wg acquired in his own name, no more should he be permitted to do so of a title acquired by a third person through his default. Judgment reversed and the cause remanded.

Judgment reversed.