author: Mr. Justice Mulkey

text:
    Thomas Collins v. The People of the State of Illinois.

      Filed at Ottawa May 12, 1882.

    1. New trial—upon the evidence—m a criminal case. In a criminal case, it is only when this court is able to say, from the insufficiency or unsatisfactory character of the evidence, there is clearly a reasonable and grave doubt of the guilt of the accused, that it will be justified in setting aside a conviction on the ground it is not supported by the evidence.
    2. Same—on newly discovered evidence. Newly discovered evidence which is merely cumulative and impeaching in its character, does not afford ground for a new trial, except under special circumstances; and where it is not shown to the contrary, it will be assumed that the facts proposed to be proven by the alleged newly discovered witnesses were known to the party making the application, before the trial.
    3. Juror—whether objection availing on error when peremptory challenges are not exhanisted. In a criminal case, where the defendant was on trial upon a charge of robbery, a juror was challenged for cause, the ground of objection being that he could not understand the English language. Upon his examination the juror stated that he was a German; could read and speak English, but could not read writing in English. The challenge was disallowed in the court below, and the juror was sworn, and served as a juror in • the case. On error it was held, without inquiring whether the juror was incompetent on the ground suggested, that inasmuch as it did not appear that the accused had exhausted his peremptory challenges, or that he subsequently had occasion to do so, the objection was not well taken.
    Writ of Error to the Criminal Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    Messrs. E. & A. Van Buren, for the plaintiff in error.
    Mr. Luther Laflin Mills, State’s Attorney, for the People.
   Mr. Justice Mulkey

delivered the opinion of the Court :

At the September term, 1881, of the Criminal Court of Cook county, Thomas Collins, John Grady and Burt Murphy were indicted for the robbery of Patrick Doyle. In November following they were tried before the court and a jury, and convicted, the jury fixing their punishment at confinement in the penitentiary at four years. A motion for a new trial having been overruled, they were severally sentenced by the court in pursuance of the verdict. To reverse this conviction as to Collins, the present writ of error is prosecuted.

That Doyle was robbed some time after 12 o’clock on the night of the 15th of September, 1881, is not questioned. Doyle is positive in his identification of the defendants as the perpetrators of the offence, and his testimony on this point is uncontradicted by any one except Collins, and Doyle’s statements in most all other respects are fully corroborated by the other witnesses.

It appears that some time between 11 and 12 o’clock of the night of the robbery, the parties met at Murray’s saloon, 265 South Clark street, and remained there until 12 o’clock, when, by order of the proprietor, they went out of doors, and the saloon was closed. While there Doyle was engaged in throwing dice for money, and drinking pretty freely. The evidence tends to show that both Doyle and Collins were drunk, yet, notwithstanding this, it is clear they were able to leave the saloon together, and the fact that Doyle gives so correct an account, as corroborated by all the witnesses present, of what transpired while he was in the saloon, and of how he occupied his time while there, affords conclusive evidence that he was not so drunk but that he fully understood what was going on, and we therefore do not attach so much importance to the evidence tending to show he was drunk, as counsel. His account of the affair is altogether reasonable, and it was for the jury to say whether it was true or not, and in view of the fact he is so strongly corroborated in other particulars, and that he is contradicted only by Collins as to the principal fact, we would not be justified in reversing the conviction on the ground the evidence does not sustain it. It is only when this court is able to say, from the insufficiency or unsatisfactory character of the evidence, there is clearly a reasonable and grave doubt of the guilt of the accused, that it will be justified in setting aside a conviction on this ground. Such we do not think is the case here. The objection, therefore, that the case should be reversed on the evidence, can not prevail.

It only remains to determine what, if any, errors of law were committed by the trial court which may have improperly influenced the jury, or otherwise contributed to the conviction of the accused.

It appears that in the selection of the jury a juror was challenged by the accused, on the ground he did not understand the English language. The juror stated on his examination that he was a German; could speak and read English, but could not read writing in English. The challenge was disallowed, and thereupon the juror was sworn, and served as z a juror in the case, and this is assigned for error. Without stopping to inquire whether the juror was incompetent on the ground suggested, it is sufficient to say that it does not appear that the accused had exhausted his peremptory challenges, or that he subsequently had occasion to use all his peremptory challenges, and such being the case, under the authority of St. Louis and Southeastern R. R. Co. v. Lux, 63 Ill. 525, the objection is not well taken.

Various objections are made to the giving, refusing and modification of certain instructions. We perceive no error in the refusing of any instruction. While some of those given may not have been technically correct when considered separately, yet when all the instructions given, both for the People and the accused, are considered as a whole, we think they fairly presented the law of the case to the jury, and this is all the law requires.

It is further objected the court erred in refusing to grant a new trial on the ground of newly discovered testimony. We do not think so. It appears from the affidavits of Moyneham and Hopman, two of the newly discovered witnesses, that their testimony on a second trial would be merely cumulative and impeaching in its character, and it is well settled that such evidence does not warrant a new trial except under special circumstances, which do not appear here. As to the facts proposed to be proven by Watson, it appears from his affidavit they were acquired by him under such circumstances as to render him unworthy of belief. At the time of taking the affidavit he was confined, himself, in jail on a charge of robbery, and the facts proposed to be proven by him are, that he was present at the time of the robbery, and that it was committed by others than the accused. If convictions are to be set aside for testimony of this character, coming from such quarters in great cities like Chicago, where crime is organized and robberies are of nightly occurrence, courts and law-abiding people may well despair of bringing such offenders to justice. But outside of this, for aught that appears, the facts proposed to be shown by Watson were known to the accused before the present trial, and we must assume that such is the fact, otherwise the contrary would have been shown—and this, by all0the authorities, affords a conclusive reason why a new trial should n,ot be granted, so far as his "testimony is concerned. •

Believing the conviction is warranted by the evidence, and perceiving no substantial error of law in the record, the judgment of the court below will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Walker

license: Public Domain

text:
    Leander Douglass v. Joseph Martin et al.

      Filed at Ottawa May 12, 1882.

    1. Chancery jurisdiction—when there is a complete remedy at law. The general rule, subject to a few exceptions, is, that a court of chancery is prohibited from entertaining -jurisdiction in all cases when the plaintiff has a complete and adequate remedy at law. When the court of law has jurisdiction, the complainant must show that his case falls within the exception, to entitle him to relief in equity.
    2. Same—under the head of trust. Where a friend of one under indictment places money in the hands of another, under a contract that if an attorney shall procure the acquittal of the accused, or his discharge from arrest, by habeas corpus or otherwise, the depositary is to pay the amount thereof to the attorney, otherwise to return the same to the person depositing it, there is no such a trust created as to entitle the attorney to sue for and recover the sum promised him, in a court of equity, the remedy being adequate at law.
    3. Trust—to give a court of equity jurisdiction. The mere delivery, of property or money to one to be held by him until the performance of an act by another, when it is to be paid over to such other person, otherwise returned, does not, independent of other equitable circumstances, necessarily create a trust. It must either vest an equitable title in or create a lien in favor of the beneficiary, and this must be by agreement of the parties, or under such circumstances as equity will declare a lien exists.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.

    Mr. L. Douglass, pro se :

    A court of equity has jurisdiction to declare and enforce trusts. Harris v. Douglass, 64 Ill. 466; Hopkins v. Granger, 52 id. 504; Attorney General v. Illinois Agricultural Coll. 85 id. 516; Coates v. Woodworth, 13 id. 659; 2 Story’s Equity Jur. 60; Doyle et al. v. Murphy et ux. 22 Ill. 509; Steele et al. v. Clark, II id. 474; Marlow v. Marlow, 77 id. 633.
    A trustee may be defined to be a person in whom some estate, interest or power in or affecting property of any description, is vested for the benefit of another. Hill on Trustees, 65.
    All the conditions to the relation of a trustee concur in this case. Matteson v. Kellogg et al. 15 Ill. 547; 2 Story’s Equity Jur. 295, sec. 964.
    Mr. A. B. Jenks, for the defendants in error :
    A court of equity will not declare a trust where there is a remedy at law. Story’s Equity Pl. sec. 473; Doyle v. Murphy, 22 Ill. 502.
    A trust is where there is such a confidence between parties that no action at law will lie, but is merely a ease for the consideration of a court of equity. Sturt v. Mellish, 2 Atk. 612; 2 Story’s Equity Jur. sec. 964.
    There is adequate remedy at law, and if merely calling this a trust gives a court of chancery- jurisdiction, then in every case of a promise the court would" have jurisdiction if complainant called it a trust. Our law does not recognize equitable attachments. Bigelow et al. v. Andress, 31 Ill. 323.
    Equity can only recognize and enforce a lien which is created by the acts of the parties. Davey et al. v. Eckert, 62 Ill. 218.
   Mr. Justice Walker

delivered the opinion of the Court:

This was a bill in equity, filed by plaintiff in error, in the Superior Court of Cook' county, against defendants in error, for relief on this agreement:

“This agreement between M. C. McDonald, Joseph Martin and Leander Douglass, witnesseth:
“That said Douglass is to act as the attorney of Pat. Guerin, now in Knox county jail under indictment for larceny, and also for conspiracy to commit larceny; and said Martin has deposited with said McDonald §1200. Now, if said Douglass succeeds in obtaining the release of said Guerin, on habeas corpus, nolle pros, or on final trial in the circuit or Supreme Court, then the said McDonald agrees to pay said money to said Douglass; and if, in the end of the litigation, said Guerin shall not be successfully defended or released, or if said Martin shall procure his release before the first Monday of October next without the services of said Douglass, then the money to be paid to said Martin. ”

It was dated the 23d of July, 1880, and was signed by Martin, Douglass and McDonald!

The bill alleges that Douglass entered upon the defence, as required by the agreement; that the indictment against Guerin for conspiracy to commit larceny was by complainant procured to be dismissed; that he rendered other valuable services in the defence of Guerin; that he and Martin conspired to cheat complainant out of his fee, and in pursuance thereof Guerin plead guilty to the indictment for larceny, and was sentenced thereunder to a term in the penitentiary, thereby rendering it impossible for complainant to perform his contract by procuring his acquittal before a jury. He alleges he was ready, able and willing to perform his part of the contract, and to try the case before a jury. It is alleged in the bill that the amount mentioned in the contract as having been deposited by Martin with McDonald was a certificate of deposit in a Chicago bank, and was assigned by Martin to McDonald as a fund with which to pay complainant for his legal services in the case, and it is alleged that this thereby became a trust fund in favor of complainant. To this bill a demurrer was filed, which was sustained by the court, and the bill was dismissed. The ease was removed to the Appellate Court for the First District, where, on a hearing, the decree was affirmed, and complainant brings the case to this court on error, and urges a reversal. He assigns for error that it was error in the Appellate Court to affirm the decree of the lower court, and that it should have been reversed.

The question of the jurisdiction of a court of equity lies at the threshold of this case. It is urged, in support of the decree, that there is a complete remedy at law, and that a court of equity has no power to afford relief even if plaintiff in error has grounds of recovery. As long as the difference is recognized between the jurisdiction of the two forums, each must be confined to its own, and it is the'province of the legislature, and not the judicial department, to abolish the distinction. It is a rule that has never been questioned, that where the two courts prevail, a court of chancery is prohibited from entertaining jurisdiction in all cases where the plaintiff has a complete and adequate remedy at law. The rule is, however, subject to the limitation that in a small number of cases the jurisdiction is concurrent, and in others the General Assembly has conferred on the court of chancery a concurrent jurisdiction. But they do not form the rule, but are exceptions to it. And where a court of law has jurisdiction, complainant must show that his case falls within the exception, before he can obtain relief in equity. These propositions are plain, and familiar to the entire profession; but while they are fully recognized, difficulty may and does arise as to their application in some cases.

It can not be successfully contested that an action at law would lie on this agreement, nor is it perceived why it would not be as adequate and fully as complete, as a remedy, as by a bill in chancery. If a recovery was thus obtained, it would be against the same parties that a decree would be rendered, and the fruits of the judgment as certain and effectual. In an action at law, if a breach of the agreement was averred and proven, a judgment would follow, with an assessment of the amount of damages proven.

But it is claimed that the court should take jurisdiction under its equitable head of administering a trust,—that when Martin placed the money in McDonald’s hands it became a trust fund, to be held by him for plaintiff in error. We fail to see on what principle, or under what rule, it can be a trust. When a person loans another a sum of money, or sells him property on time, there is, in one sense, a trust, but not in the equitable sense. Complainant did not look to that fund for payment, but he took McDonald’s contract to pay it on the performance of the agreement by plaintiff in error. McDonald did not agree to pay plaintiff in error from that specific fund, but the promise was general. The agreement does not show, ñor is it alleged, that the money was placed in McDonald’s hands as a stakeholder; but if it did appear, that would not confer jurisdiction on a court of equity. The books abound with cases of suits against stakeholders, and no case has come to our attention where a suit in chancery was maintained in such a ease. We are clearly of opinion that the remedy was at law, and not in equity.

Plaintiff in error refers to the case of Steele v. Clark, 77 Ill. 471, as controlling this case. We regard this as a misapprehension. It is true that the rule is there broadly stated that where property is conveyed or given by one person to another for the use of a third person, such a trust as is recognized and administered by equity will be created. That was not said with a view to defining the rule with precision. The mere delivery of property or money to be thus held, independent of all other circumstances, does not necessarily create such a trust. Other and equitable considerations must exist to produce that effect. It must either vest an equitable title in, or create a lien in favor of, the beneficiary, and this must be by agreement of the parties, or under such circumstances as equity will declare a lien exists. There is nothing to show such title or lien in this case.

Perceiving no error in this record, the decree of the Appellate Court is affirmed.

Decree affirmed.


author: Mr. Justice Scott

text:
    Phillip Cole et al. v. John Hall, Collector.

      Filed at Ottawa May 12, 1882.

    1. Taxation—license fee on dogs—not a tax. The license fee imposed on the owners of dogs, under the act of 1879, entitled “An act to indemnify the owners of sheep in cases of damage committed by dogs, ” is in no sense a tax, and is therefore not within the constitutional provision that all needful revenue shall be raised by levying a tax by valuation. Such fee is imposed under the police power, and not under the taxing power of the State.
    2. Police power of the State—imposing license fee upon dogs. Everything hurtful to the public interest is subject to the police power of the State, and may be brought within restraining and prohibiting influence. Therefore the act authorizing a license fee to be imposed upon and collected of the owners or keepers of dogs is not subject to any constitutional objection.
    3. Statute—expressing subject in the title—act concerning dogs. The matter of imposing a license fee upon the owners or keepers of dogs is sufficiently expressed in the title of the act entitled “An act to indemnify the owners of sheep in eases of damage committed by dogs.”
    Writ of Error to the Circuit Court of La Salle county; the Hon. Francis Goodspeed, Judge, presiding.
    Mr. J. B. Rice, and Mr. Geo. W. W. Blake, for the plaintiffs in error.
    Mr. L. W. Brewer, for the defendant in error.
   Mr. Justice Scott

delivered the opinion of the Court :

The bill in this case was brought by owners of dogs, resident in the town of Serena, against the collector of taxes for the town, and is to enjoin the collection of a “license fee” of one dollar on each dog owned by complainants, respectively, and which was imposed by the proper authorities under the act of May 29, 1879, entitled “An act to indemnify the owners of sheep in cases of damage committed by dogs. ” It is not questioned the statute has been complied with by the proper authorities in charging the “license fee” upon complainants for dogs owned by them, but the questions argued have exclusive reference to the constitutionality of the act under which it is sought to be imposed.

The “license fee” imposed under the provisions of the statute is in no sense a tax, and is not therefore within the operation of section 1, art. 9, of the constitution, which provides all needful revenue shall be raised by levying a tax by valuation, so that every person or corporation shall pay a tax in proportion to his, her or its property, and hence all questions as to the value of property to be taxed are of no consequence in this case. It is simply what it purports to be, a “license fee, ” and is imposed under the police power, and not under the taxing power of the State. Undoubtedly “dogs” are regarded as a species of property for some purposes, but owing to their habits, which are known to be hurtful sometimes to persons and to some kinds of domestic animals, the keeping of them may be the subject of regulations provided by law. Everything hurtful to the public interest is subject to the police power of the State, and may be brought within its restraining or prohibitory influence, otherwise a public evil might exist, with no power to abate it. This ought not to be. It is known that “dogs ” often impart a most fearful disease to persons injured by them, and that they are oftentimes destructive to domestic animals, such as sheep, and the State may well provide such regulations for the keeping of them as will insure safety, and may, with a .view to effectuate that purpose, impose upon the owners or keepers either a license or a penalty. There is nothing in the constitution that forbids it.

As to the objection the matter of imposing a “license fee” upon the owners or keepers of dogs is not expressed in the title of the act, a majority of the court are of opinion it is sufficiently germane to the subject expressed as to be fairly embraced in it, and that, under the decision of this court in Johnson v. The People, 83 Ill. 431, answers the constitutional requirement in this regard.

It would seem it can make no difference what disposition is made of the “license fee” when collected. By the provisions of the act it is appropriated as indemnity to persons that have sustained damage done by dogs, other than their own, to sheep, and that would appear to be in the interest of justice, and right. No better disposition could be made of it.

The demurrer to the bill was properly sustained, and the decree of the circuit court will be affirmed.

Decree affirmed.


author: Mr. Justice Scholfield

text:
    The West Chicago Park Commissioners v. The Western Union Telegraph Company et al.

      Filed at Ottawa May 12, 1882.

    1. Park Commissioners—power to locate boulevards to connect with other parks. Under section 12 of the act of 1869, in regard to the completion, improvement and management of public parks, etc., the West Chicago Park Commissioners have the power to condemn land for a boulevard within their district, to connect the park and boulevard under their control with those under the control of the South Park Commissioners. This section relates to a new and entirely different subject matter, not provided for in the original act relating to the West Chicago Park.
    2. Same—two sets of commissioners not required to join in proceeding to condemn. Section 12 of the act of 1869 is general, and has no specific reference to any particular park commissioners, and is limited only to the effect that the' parks whereof they are commissioners shall have been established in two or more towns contiguous to each other. It does not require that two sets of commissioners shall constitute a new and single board for the purpose of connecting their several parks. Bach set of commissioners simply acts within its own district. If the parks sought to be connected lie in separate districts, it may require cooperative action to complete the connection. But in such case the jurisdiction of each of the commissioners must terminate with the boundary of their respective districts.
    3. Same—are “corporate authorities." The West Chicago Park Commissioners are a quasi municipal corporation, capable of being invested by the legislature with power to assess and collect taxes within the district, and have the power to condemn land for the purpose of making a boulevard or pleasure way connecting two or'more parks already established by law.
    Appeal from the County Court of .Cook county; the Hon. Mason B. Loomis, Judge, presiding.
    • This was a condemnation proceeding begun by the West Chicago Park Commissioners under an ordinance passed by them on May 2, 1881, and providing as follows:
    1. That a boulevard running from the south end of Douglas Park to the Illinois and Michigan Canal, be located and established, as shown by an accompanying map.

      2. That said improvement shall be made and the cost thereof paid by special assessment, to be levied on the property to be benefited thereby.
    3. That the attorney of the board shall file a petition in the name of the board in the county court to condemn the necessary lands. •
    The county court sustained a demurrer to the petition, and dismissed the petition, to reverse which judgment this appeal is prosecuted.
    Mr. Geo. W. Smith, for the appellant :
    The special acts of 1869 create this board, and section 12 of the act of 1873 gives the commissioners the right to acquire land by condemnation, for the purpose of connecting the park with any other of a contiguous district. This is an express grant of a franchise. Chicago and Western Indiana R. R. Co. v. Dunbar, 95 Ill. 571. See, also, Kreigh v. City, 86 id. 407; People v. Walsh, 96 id. 232.
    It is urged that the commissioners are not corporate authorities. This has been settled otherwise. Andrews v. People, 83 Ill. 530; Andrews v. People, 84 id. 28; Wilcox v. People, 90 id. 192; People v. Walsh, 96 id. 232; Kreigh v. City, 86 id. 407; Atchison v. People, 95 id. 452.
    Because they do not levy the general tax, and because a specific method for the improvement of a boulevard, or laying a sewer, is pointed out, furnish no reason for overturning or reversing a plain and express grant of power to select and appropriate lands. Even this limitation, so far as concerns the improvement of streets taken for boulevards, has since been modified by the act of 1879, concerning drives to public parks. Rev. Stat. chap. 105, sec. 49; Laws of 1879, p. 216; People v. Walsh, supra.

    Mr. Eugene E. Pressing, for the appellees
    Schuttler and Holtz, contended that the act of 1873, of which section 12 is a part, confers the power to levy the assessments authorized therein, upon the town supervisor, clerk and assessor, and designates and constitutes them, and not the park commissioners, the corporate authorities of said town. There can not be two sets of corporate authorities having this power in the same town. Updike v. Wright, 81 Ill. 46.
    While it may be true that this court held in Andrews v. People, 83 Ill. 529, that the West Park Commissioners were corporate authorities for park purposes under the act of 1869, it is clear that for any purpose provided for in the act of 1873 they are not the corporate authorities. See sec. 4 of the act of 1873.
    Messrs. Leaming & Thompson, for the appellee Geo. W. Lay :
    The express limitation contained in the special act of 1869 creating the West Park Commissioners, declaring that the part of the boulevards south of the Chicago, Burlington and Quincy railroad track shall not be made unless the land therefor shall be acquired free of cost, is not repealed by section 12 of the general act of 1873. Repeal by implication is repugnant to the established rule for the construction of statutes. Town of Ottawa v. County of La Salle, 12 Ill. 339, and cases cited; City of East St. Louis v. Maxwell, 99 id. 439; Wragg et al. v. Penn Township, 94 id. 11; Gunnarssohn v. City of Sterling, 92 id. 569; Covington v. City of East St. Louis, 78 id. 548; Dillon on Mun. Corp. sec. 54.
    The West Chicago Park Commissioners are not included in the class of park commissioners to which section 12 of the act of 1873 refers, and said section does not apply to or confer any power upon said West Chicago Park Commissioners. The improvement contemplated is a local improvement to be made by special assessment, and as such can only be made by the corporate authorities of cities, towns and villages. The act in question expressly designates the town supervisor, clerk and assessor the corporate authorities of such town to levy the tax or any assessments in said act authorized. Sec. 12, act of 1873, (Rev. Stat. sec. 38, chap. 105); Constitution of 1870, sec. 9, art 9; sec. 4, act of 1873, (Rev. Stat. chap. 105, see. 30); Updike v. Wright, 81 Ill. 49.
   Mr. Justice Scholfield

delivered the opinion of the Court:

By the fifth section of the “Act to amend the charter of the city of Chicago, to create a board of park commissioners, and authorize a tax in the town of West Chicago, and for other purposes, ” approved February 27, 1869, (Private Laws of 1869, vol. 1, p. 345,) it is, among other things, enacted that the West Chicago Park Commissioners “shall have power, and it is made their duty, to acquire the lands required for a road or pleasure way, or boulevard, not less than two hundred and fifty (250) feet, beginning at a point north of Fullerton avenue, and at or near the north branch of the Chicago river, and extending west, to a point one mile or more west of Western avenue, and thence southerly to a point at or near the Illinois and Michigan Canal; also for three parks, upon the line of said boulevard, and upon the part of the same between the two last mentioned points, of not less than one hundred (100) nor more than two hundred (200) acres each, the first to be located north of Division street, the second to be located between Kinzie street and Harrison street, and the third to be located between Harrison street and the Chicago, Burlington and Quincy Eailroad track, ” etc. By the concluding part of the section it is enacted, “the part of said boulevards * * ■ * south of the said Chicago, Burlington and Quincy railroad track shall not be made unless the land therefor shall be acquired free of cost to said board, and shall not be ornamented or improved until after the improvement of the parks shall have been completed, unless the same be done by voluntary contributions. ”

The condemnation sought is for a boulevard to connect the boulevard and parks under the control of the West Chicago Park Commissioners with those under the control of the South Park Commissioners, the greater portion of which will lie “south of the said Chicago, Burlington and Quincy railroad track, ” and is therefore within this prohibition, if it be applicable to such an improvement. This is admitted by appellant’s counsel, but he claims the condemnation is authorized by the twelfth section of the “Act in regard to the completion, improvement and management of public parks and boulevards, and to provide a more efficient remedy for the collection of delinquent assessments,” (Rev. Stat. 1874, p. 747,) which is as follows:

“Sec. 12. Be it further enacted, That in cases where, by virtue of any act or acts heretofore passed, public parks or boulevards have been designated or established in two or more towns contiguous to each other, and where the commissioners authorized by such act or acts to locate such parks or boulevards shall desire to connect the same by a boulevard or pleasure way, so as to form a continuous improvement, or shall desire to connect such park with other portions of the park district in which such park is located, by a boulevard or pleasure way, it shall and may be lawful for such commissioners to select and designate the line of such boulevard or pleasure way, and to acquire title to the lands which may be necessary to make such connection, by purchase or otherwise; and in case such commissioners can not agree with the owner or owners, lessee or occupant of any of the real estate so selected, they may proceed to procure the condemnation of the same in such manner as is now or may be prescribed by any gen'eral law for the condemnation of lands for public use, and the cost and expense of acquiring title to such land shall be levied upon and collected by special assessment upon the property deemed specially benefited by the location of such boulevard or pleasure way, in the same manner as the cost of other lands for parks and boulevards is assessed under the several acts creating such boards; and such boulevards or pleasure way shall be under the control and management of such park commissioners, the same as other public grounds by them established. ”

Counsel for appellees contend this section does not repeal the prohibition in the fifth section of the act of 1869. In this we entirely agree with them, but we do not agree with the conclusion sought to be drawn therefrom. The fifth section of the act of 1869 has reference exclusively to the acquiring of lands “for a road or pleasure way, or boulevard, ” and “for three parks, upon the line of said boulevard, ” within a certain prescribed district, over which is given jurisdiction to the “West Chicago Park Commissioners, ” for park purposes, whereas this section relates to a new and entirely different subject matter not provided for by that section, nor directly affected by it, namely, to cases “where, by virtue of any act or acts theretofore passed, public boulevards have been designated or established in two or more towns contiguous to each other, and where the commissioners authorized by such act or acts to locate such parks or boulevards shall desire to connect the same by a boulevard or pleasure way, so as to form a continuous improvement, or shall desire to connect such park with other portions of the park district in which such park is located, by a boulevard or pleasure way. ”

But counsel for appellees contend this section can have no application to the West Chicago Park Commissioners, because it does not describe them; that its reading, if carefully observed, confines it to the South Park Commissioners alone; that to apply it in any manner to the West Chicago Park Commissioners, it is necessary to construe the language as applying to two different sets of commissioners of parks located, respectively, in towns contiguous to each other, and that if this construction were followed, it necessarily would require that both boards of park commissioners—namely, that of the West Chicago Park and that of the South Park,— should join in the proposed improvement, and the boulevard or pleasure way thus established would be under the management and control of such park commissioners the same as other “public grounds by them established, ” which is absurd. The language of the section seems to afford a complete answer to this position. The act professes to be general, and makes no specific reference to the South Park Commissioners. The language is as comprehensive as could have been used to indicate that it applies to all eases where it is desired by the commissioners to connect public parks established in two or more towns contiguous to each other. “Where * * * public parks * * * have been established in two or more contiguous towns to each other, ” and “where the commissioners authorized to locate such parks, ” not the commissioners of a particular park or park district, but generally, limited only by the previous language, to the effect that the public parks whereof they are commissioners, shall “have been established in two or more towns contiguous to each other, ” * * * “shall desire to connect the same, * * it shall and may be lawful, ” etc. There is nothing here requiring that two sets of commissioners shall constitute a new and single board for this purpose, but additional power is simply vested in each to make a boulevard or pleasure way for a purpose not within the contemplation of the respective original acts under which they were created—each set of commissioners simply acts within its own district. The new boulevard to be created may all lie in one district, connecting with a boulevard already created in another district to the common boundary, or partly in one district and partly in another, and thus require cooperative action to its completion. But in either case the jurisdiction of the commissioners must necessarily terminate with the boundaries of their respective districts.

Again, it is contended by counsel for appellees, the improvement can only be made by the corporate authorities of cities, towns and villages, and these commissioners are not such authorities, and Updike v. Wright, 81 Ill. 49, is referred to as sustaining the proposition. This is a misapprehension. The question of who constitute the corporate authorities of a municipality, was not before the court in that ease, nor discussed in the opinion. It was conceded those claiming there to act as drainage commissioners were not such authorities. The language quoted by counsel from the opinion has reference to the corpoi-ation, which is empowered to make local improvements, by special assessments or special taxation, on contiguous property, etc., and not to the agencies or instrumentalities through which these corporate powers must be exercised.

But in The People ex rel. Wilson et al. v. Salomon, 51 Ill. 37, it was held, “while section 5 of article 9 of the constitution,—which provides that the corporate authorities of counties, townships, school districts, cities, towns and villages may be vested with power to assess and collect taxes for corporate purposes,—must be construed as a limitation upon the power of the legislature to authorize any other than corporate authorities to assess and collect local taxes, and as limiting the objects of local taxation to corporate purposes, yet it does not confine the legislature to any particular corporate authorities, or to any then known instrumentalities of that character. There is no prohibition against the creation, by the legislature, of every conceivable description of corporate authorities, and when created, to endow them with all the faculties and attributes of preexisting corporate authorities. ” And so it' was held several towns might be united into one district for park purposes, and in this respect, and for this purpose, the power of assessing or collecting taxes might be vested in commissioners specially created for the purpose. And again, in Wilcox v. The People, 90 Ill. 186, in speaking of these same West Chicago Park Commissioners, we said: “By the decisions of this court this board of park commissioners is held to be a quasi municipal corporation, a ‘corporate authority,’ in whom it was competent for the legislature to vest the power to assess and collect taxes within the park district created. ” This is reiterated in The People ex rel. v. Walsh et al. 96 Ill. 232, and it was there also held it was’ competent for the General Assembly to place streets of the city of Chicago under the control and management of park commissioners.

We do not at present conceive it our duty to inquire by what means the money to pay the expenses arising from this condemnation shall be raised. The question before us relates only to the right to exercise, or to cause to be exercised, for the purpose here indicated, the power of- condemnation.

We have, perhaps, omitted to notice specifically some minor objections, but if so, we deem them only of secondary imjjortanee, and necessarily controlled by what has already been said in regard to the objections we have considered.

The judgment is reversed, and the cause remanded for further proceedings consistent with this opinion.

Judgment reversed.


author: Mr. Justice Sheldon

text:
    Asahel Gage v. James Griffin.

      Filed at Ottawa May 12, 1882.

    1. Chancery—jurisdiction—bill to remove cloud on title. Since the act- of 1869, a bill to quiet title or remove a cloud from the title to land which fails to show that the complainant is in possession, or that the premises are unoccupied and unimproved, is bad on demurrer, as not showing a case of equitable jurisdiction.
    2. Same—waiver of objection to jurisdiction. Where a defendant demurs to a bill to set aside a tax deed as a cloud upon title, on the ground it presents no case for the interposition of a court of equity, but declines to answer, even upon being ruled to answer, he will not be held as having waived his objection that there was a want of jurisdiction, on the ground of there being an adequate remedy at law.
    Appeal from the Superior Court of Cook county; the Hon. J ohn A. Jameson, Judge, presiding.
    Mr. Augustus N. Gage, for the appellant :
    A hill to remove a cloud from the title to land can only be maintained when the property is vacant or unoccupied, or is in the possession of the complainant. The bill not showing the condition of the property, the demurrer should have been sustained for want of jurisdiction. Gage v. Abbott, 99 Ill. 366, and cases there cited.
    Again, the bill is defective in failing to offer the plaintiff in error the money he has paid out for the delinquent taxes. A party seeking equity must do equity.
    Messrs. Mason Brothers, for the appellee :
    The bill alleges that the deed is a cloud upon complainant’s title, and prevents his enjoyment and disposal of the same. This sufficiently shows that the land is vacant and unoccupied. Gage v. Abbott, 99 Ill. 366.
    It should be remembered the bill was taken for confessed, and that all intendments are to be made in support of the decree.
    In this case the defendant did not abide by his demurrer and allow a decree on it, but, on the contrary, ten days were allowed him in which to answer, and then the bill was taken for confessed for want of an answer. That this is a waiver of objection to the jurisdiction, see Knapp et al. v. Marshall et al. 26 Ill. 63; Dodge et al. v. Wright et al. 48 id. 383.
    No question appears to have been raised in the court below ■ as to the jurisdiction of a court of chancery in this case, and it is too late to raise it for the first time here. Mix v. Ross et al. 57 Ill. 121; Stout v. Cook, 41 id. 447.

      Objection that there is a remedy at law must be raised and urged in the court below, or it will be considered waived. Comstock v. Henneberry, 66 Ill. 212; Hickey v. Forrestal, 49 id. 256.
    A decree made by consent can not be appealed from, nor can error be properly assigned upon it. Armstrong et al. v. Cooper et al. 11 Ill. 540.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a bill brought by James Griffin, against-Asahel Gage, in the Superior Court of Cook county, to set aside certain tax deeds held by the defendant to a lot of land of which complainant was alleged to be owner, as being a cloud upon the title of complainant. To the bill a general demurrer was filed, which the court overruled, and ruled the defendant to answer in ten days, and on failure of compliance with the rule the bill was taken as confessed against the defendant, and a decree entered declaring the tax deeds to be void, and enjoining the defendant from asserting any title under them to the premises they purported to convey. The defendant appealed from the decree.

In Gage v. Abbott, 99 Ill. 366, this court held that since the statute of 1869, (Rev. Stat. 1874, p. 204, sec. 50,) a bill to quiet title, or remove a cloud from the .title, which fails to show that the complainant is in possession, or that the premises are unoccupied and unimproved, is bad on demurrer, as not showing a case for equitable relief; and to the like effect is Hardin v. Jones, 86 Ill. 313. The bill in the present case fails to show either one of the above named facts, and therefore was bad, and the demurrer to it should have been sustained, upon the authority of the above cases.

It is objected that it is too late to make the objection for the first time in this court that there was an adequate remedy at law, and that from the bill being taken for confessed against the defendant there was a waiver on his part of this objection, and various decisions of this court are cited as supposed to favor such view.

This court held in Stout v. Cook, 41 Ill. 447, that the objection there was a complete remedy at law came too late . after having filed an answer without taking the exception, and in Dodge v. Wright, 48 Ill. 382, that such objection will be deemed to have been waived by a defendant where, after the proofs have been taken, he consents to a hearing upon the merits. We do not understand, from any general expressions in other eases cited, that the court intended to decide anything differently than in the above cases, and that anything less than there indicated, and that no more than what occurred in the present case, would waive the objection.

In Stout v. Cook, reference was made to a note in 1 Daniell’s Ch. Practice, (5th Am. ed.) 551, where the authorities on this point are collected, and among them being First. Cong. Society v. Trustees, 23 Pick. 148, that “if a defendant in a suit in equity answer and submits to the jurisdiction of the court, it is too late for him to object that the plaintiff has a plain and adequate remedy at law. ” And see Grandin v. LeRoy, 2 Paige, 509; Hawley v. Cramer, 3 Barb. Ch. 574. So in Underhill v. Van Costland, 2 Johns. Ch. 369, it was said, by answering in chief instead of demurring, the defendants submitted the cause to the cognizance of the court, and they came too late at the hearing on the merits to raise the objection that there ivas an adequate remedy at law; that it would be an abuse of justice if defendants were permitted to protract a litigation to that extent, and with the expense attending it, and then at the final hearing interpose with this preliminary objection.

In the case before us, the defendant did take objection by demurrer that the bill presented no case for the interposition of a court of equity, and did nothing further. Had he answered without taking the exception that there was an adequate remedy at law, and thus submitted to the jurisdicfcion of the court, he might be deemed to have waived the objection. Though ruled to answer, defendant did not answer, and having taken no other step in the cause than interposing a demurrer, it does not appear that the defendant submitted himself to the jurisdiction of the court without objection, and we see nothing to amount to a waiver of the objection that there was an adequate remedy at law, or to preclude appellant from now insisting upon the objection.

The decree will be reversed, and the cause remanded for further proceedings consistent with this opinion.

Decree reversed.


author: Mr. Chief Justice Craig

text:
    The People ex rel. Johnson, Collector, v. Frederick M. Atkinson.

      Filed at Ottawa May 12, 1882.

    1. Taxation—assessment in the wrong town—in pursuance of incorrect return by owner of property. Where a person makes out and delivers to the assessor of the town in which he keeps his business office, a schedule of the amount, quantity and quality of all his personal property required to be listed for taxation, he will be bound By such return, though a portion of the property is required to be returned by him to the assessor of a different town, where it is also assessed.
    2. Injunction—to restrain collection of taxes on an assessment in wrong town. Where q person voluntarily makes a return of his personal property to an assessor of a town other than that of the situs of the property, and which is subject to assessment in a different town, a court of equity will not enjoin the collection of the taxes extended upon such erroneous assessment on the ground that the party was induced to make such return in ignorance of the law, upon the statement of the assessor to him at the time that the taxes would be the same if the property was assessed in either town. Such statement can not render the assessment fraudulent, as the party is bound to know the law.
    Appeal from the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.

      Mr. Consider H. Willett, for the appellant :
    Parties making returns of personal property under oath to assessors, are bound by such returns, and can not allege fraud or mistake in their execution. See Rev. Stat. secs. 5, 6, 7, 13, 24 and 25, of chap. 120.
    The law presumes that the appellee knew the meaning of the statutes to the same extent that the assessor could understand them. The allegation that the assessor stated that the taxes in the town of Proviso or in the town of South Chicago would be the same upon the same return, was but a conclusion of law equally known to either party, and hence can not be urged to establish fraud.
    An overvaluation of property is no ground to enjoin the collection of taxes. Gage v. Evans, 90 Ill. 569; Union Trust Co. v. Weber, 96 id. 346.
    The power to assess property for taxation is vested in the assessors, and the courts have no power to revise their assessments. Republic Life Ins. Co. v. Pollack, 75 Ill. 294; People v. Brislin, 80 id. 423; Porter v. Railroad Co. 66 id. 594; Spencer v. People, 68 id. 510; Ottawa Glass Co. v. McCaleb, 81 id. 562.
    The only remedy for an excessive assessment is by application to the board of review, or county board. People v. Big Muddy Iron Co. 89 Ill. 116; Madison County v. Smith, 95 id. 335; Adsit v. Lieb, 76 id. 198.
    As to the situs of personal property for taxation, counsel cited King v. McBrew, 31 Ill. 418; Irwin v. Railroad Co. 94 id. 105 ; Tazewell County v. Davenport, 40 id. 197; Sangamon and Morgan R. R. Co. v. Morgan County, 14 id. 163; Minard v. Lawler, 26 id. 301; First National Bank v. Smith, 65 id. 54; Wilkey v. City of Pekin, 19 id. 160 ; Mills v. Thornton, 26 id. 300; City of Dunleith v. Reynolds, 53 id. 45; Danville Banking and Trust Co. v. Parks, 88 id. 170; Munson v. Crawford, 65 id. 185; Story’s Conflict of Laws, sec. 550; Burroughs on Taxation, 59.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

This was a bill brought by Frederick M. Atkinson, appellee, to enjoin the collection of taxes assessed on personal property in the town of South Chicago, for the year 1881. It appears from the bill, that appellee is a manufacturer of railroad car springs; that the shops are located and business carried on in the town of Proviso; that the assessor of that town, on or about May 1, 1881, without notice to appellee, and without his knowledge, assessed all of his property, both real and personal; .that the taxes were extended by the county clerk, and have since been paid. It also appears from the bill, that the office of appellee was, on May 1, 1881, located on Washington street, South Chicago, but he had no property in that town except office furniture. The bill also contains the following allegation:

“Tour orator further says, that on or about May 1, 1881, Frank Drake, the duly qualified and acting assessor in and for said town of South Chicago, left at the office of your orator aforesaid a blank schedule, used by said assessor for listing personal property for taxation, together with a notice to your orator to fill out the said schedule, according to instructions thereon, and return the same, when so filled out, to him, the said assessor, at his office in said town of South Chicago; and your orator says that, not understanding the said schedule, nor the effect thereof, he went to the office of the said assessor, to-wit, on the 19th day of May, A. D. 1881, and then and there informed him, the said'assessor, or his duly authorized and acting deputy in charge of the office of said assessor, that he was a manufacturer, and that his business was carried on in the town of Proviso, said county of Cook, as hereinbefore more fully set forth. And your orator further says, that the said assessor or his said deputy, well knowing your orator was a manufacturer, and that his business was carried on in said town of Proviso, and that the said property was located in, subject to, and would be assessed in said town of Proviso for the several purposes as hereinbefore set forth, and well knowing the said property was exempt from assessment or taxation in said town of South Chicago, pursuant to the provisions of sec. 13, chap. 120, entitled Eevenue, Eevised Statutes of Illinois for 1881, and well knowing that the said property was beyond and without the jurisdiction of him, the said assessor of said town of South Chicago, wrongfully, willfully and fraudulently, and with intent to injure and defraud your orator, thereupon then and there told your orator that said property was subject to assessment either in said town of South Chicago or said town of Proviso, and that in either event the taxes would be the same, and your orator being uninformed in the premises, except as aforesaid, and relying upon the said statement of the said assessor, or his . said deputy, and having no knowledge, information or belief that his said property would be subject to taxes for said city of Chicago, South Park assessments, or said town of South Chicago, by mistake, and by misunderstanding the effect of signing said schedule, and under the order and direction of said assessor, or his said deputy, and without any knowledge of his rights, duties and obligations in the premises, he was wrongfully and fraudulently induced and prevailed upon by said assessor, or his said deputy, to sign a schedule of all his personal property, ” etc.

•It is also alleged in the bill that the taxes on the assessment amount to $300.36, and that the collector of the town of South Chicago holds a warrant for the collection of the same; that $2.97 is the amount due on the office furniture, and the balance is for the property situated in the town of Proviso. The defendants interposed a demurrer to the bill, which the court overruled, and rendered a decree enjoining $297.36 of the tax, to reverse which the defendant appealed.

Section 5, chap. 120, of the Eevised Statutes of 1874, provides that personal property shall be listed between the first day of May and first day of July of each year, when required by the assessor, with reference to the property owned on the first day of May. Section 24 declares that persons required to list personal property shall make out and deliver to the assessor, at the time required, a schedule of all personal property in their possession or control required to be listed for taxation by them. It shall be the duty of the assessor to determine and fix the fair cash value of all items of personal property. Section 13 provides that personal property of manufacturers shall be assessed in the town where the business is carried on. The law presumes that complainant knew the provisions of the statute in relation to the assessment of property, and he can not rely upon his ignorance to defeat the collection of the revenue.

The complainant resided in the town of South Chicago, and made return of his property to the assessor of that town, who made the assessment, but he claims that he was deceived by the assessor, and that the assessment was fraudulent. The gist of the charge in the bill, which is supposed to render the assessment fraudulent, is, that the assessor told complainant that the property was subject to assessment either in the town of South Chicago or the town of Proviso, and the taxes would be the same if assessed in either town. Conceding the truth of this statement, it can not render the assessment fraudulent. Complainant had no business to rely upon the statement of the assessor in regard to what the law was in reference to the town in which the property was liable to be assessed, and if he did so, and has suffered loss, it is his own fault. He was under no obligation to rely on the statement of the assessor, but it was his duty to ascertain from some other source where he ought to list his property. It is perhaps true that the assessor of the town of South Chicago could not have assessed the property in that town without the consent of the complainant, but when the complainant voluntarily made a return of his property to the assessor, it was the right and the duty of the assessor to make the'assessment. It was not the business of the assessor to inquire whether the property returned all had a situs in his town or not. It was enough that complainant kept his business office, in the town of South Chicago, and desired to be assessed in that town. We think it a safe rule to hold that where a person makes out and delivers to the assessor a schedule of the amounts, quantity and quality of all personal property in his possession required to be listed for taxation by him, as provided by section 24, he should be bound by such a return.

The decree of the circuit court will be reversed, and the cause remanded.

Decree reversed.


author: Mr. Justice Walker Mr. Justice Mulkey :

text:
    John I. Bennett v. Bridget Connelly.

      Filed at Ottawa May 12, 1882.

    1. Appeal from Appellate Court—reviewing the facts. On affirmance of a judgment in assumpsit by the Appellate Court, it will be taken that such court found the facts the same as the jury, and this court is precluded from inquiring into the correctness of such finding.
    2. This court can only look to the facts, as found by the Appellate Court, to determine whether the law was correctly applied to the facts.
    3. Instruction—should be given if properly asked. It is error to refuse an instruction which accurately states a rule of law applicable to the issues and evidence, when that rule is not announced in any others given.

      4. Action—attorney at law—right to recover for services and advances. An attorney at law who performs legal services for another with his consent, and advances and pays money for his client while acting as his solicitor, in matters connected with his employment, is entitled to recover the reasonable value of such service, and the amount of the money so advanced.

      5. Same—for money had and received—measure of recovery. A plaintiff has a right to recover, in an action for money had and received, only such sum as in equity belongs to him.
    6. Where an attorney received a sum of money from the purchaser of property at a sale on partition of land as a part of the price which was paid him to prevent the sale from being opened and a re-sale ordered, his client, who is entitled to only one-half of the property sold, or its proceeds, will not be entitled in a set-off to recover the whole sum thus received by the attorney, but only one-half thereof, and the attorney will be liable to the other owners for the balance.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. Frank J. Crawford, and Mr. W. J. Hynes, for the plaintiff in error:
    Attorneys may contract with their clients for conditional and contingent fees, and a contract that the attorney shall perform services and receive satisfaction in a share of the property or claim involved in suit, or in a percentage on the value of the property recovered, or out of the funds collected, is valid and binding. Smith v. Young et al. 62 Ill. 211; Newkirk v. Cone, 18 id. 449; Johnson v. Bright, 15 id. 465 ; Morgan v. Roberts, 38 id. 79; Wilhite v. Roberts, 4 Dana, 172; Topley v. Coffin, 12 Gray, 420; Ramsey's Devisees v. Trent, 10 B. Mon. 341: Thalhimer v. Brinkerhoff, 3 Cow. 643; Fitch v. Gardenier, 2 Keyes, 516; Bayard v. McLane, 3 Harr. 217.
    Attorneys are protected in advances made to their clients from motives of humanity, after actions brought. Bristol v. Dunn et al. 12 Wend. 142; Currie v. Cowles, 6 Bosw. 452.
    A demand to be set off must arise ex contractu, and not ex delicto. Barbour on Set-Off, 32; Sargeant v. Kellogg, 5 Gilm. 280; Robinson v. Hibbs, 48 Ill. 410; East v. Crow, 70 id. 94; LeLois v. Crow, 4 Camp. 134; Gillett v. Mawman, 1 Taunt. 137; Sherman v. Ballou, 8 Cow. 304; Dowland v. Thompson, 1 Wm. Black. 910; Freeman v. Hyett, 1 id. 394;
      Heck v. Shever, 4 Serg. & R. 249; Adams v. Manning, 17 Mass. 179.
    So, where the alleged damages arise out of the same subject matter, and arise ex delicto, they can not be set off, but must be recouped. And in such case they can never exceed the plaintiff’s demand. Stow v. Yarwood, 14 Ill. 426; Brigham v. Hawley, 17 id. 39; Babcock v. Trice, 18 id. 421 ; Schuchman v. Knoebel, Exr. 27 id. 178; Christy v. Ogle’s Exr.' 33 id. 298; Lunn et al. v. Gage, 37 id. 29; Streeter v. Streeter, 43 id. 161; McDowell et al. v. Milroy, 69 id. 500; Howell v. Goodrich, 69 id. 560; Waterman v. Clark et al. 76 id. 430; Barbour on Set-Off, 26, 29; The United States v. Buchanan, 8 How. 105.
    If the defendant was entitled to recover a set-off, it should have been only for her interest in the same, and not for the entire sum.
    Messrs. Swett, Bates & Haskell, for the defendant in error:
    It is the general policy of courts, in cases between client and attorney, to protect the suitors, and not to suffer any advantage to be taken of them. 1 Story’s Eq. Jur. secs. 310, 312; Warmsley v. Booth, 2 Atk. 25.
    While it is true the plaintiff was guilty of a tort in the way he obtained the money, the defendant had a right to waive the tort and sue for the money, if she chose. Schuyler v. Smith, 51 N. Y. 309; Rose v. Mynatt, 7 Yerg. 30.
   Mr. Justice Walker

delivered the opinion of the Court:

This was an action of assumpsit, brought by plaintiff in error, to recover for services as an attorney, and for money advanced. He claimed $2300. Defendant in error filed a plea, of set-off. A trial was had, resulting in a verdict and judgment in favor of defendant, in the sum of $5037.31, and costs. The case was removed to the Appellate Court for the First District, where, on a trial, the judgment of the Superior Court was affirmed. It is brought to this court, and a reversal is asked.

The facts of the case are argued at great length, the evidence contrasted and weighed and balanced, to show the jury were mistaken in their finding. We can hardly believe that counsel could suppose we would not remember that the 89th section of the Practice act (Sess. Laws, 1877, p. 153,) expressly prohibits this court from considering controverted questions of fact, but confines us alone to questions of law in this class of cases coming from the appellate courts. This has been frequently announced in reported cases. We can not suppose counsel were not aware of so important a provision of our Practice act, and the decisions of this court. The Appellate Court having affirmed the judgment of the Superior Court, it must be taken that on a full consideration of the evidence it found the facts as was done by the jury. We can only look to the facts, as thus found, to determine whether the law was correctly applied to the facts. We may also determine whether the Superior Court erred in its rulings in the progress of the trial.

It is not disputed that defendant in error was, in the lifetime of one Charles Dunn, his wife; that he purchased 110 acres of land in the vicinity of Calumet lake, in Cook county; that he died seized of the property, leaving no children or descendants of children, but leaving defendant his widow, and some collateral heirs; that they subsequently commenced proceedings for a partition, and defendant filed a cross-bill claiming that she furnished the money to make the purchase in her name, but the husband took the deed to himself, and not learning the fact until after his death, she claimed that there was a resulting trust in her favor, and asked to have it established. On a trial the claim was decided against her. The land being reported not susceptible of division, it was decreed to be sold. It was sold for $22,100.

In defending the partition suit, and in asserting her claim to the whole title to the land, she employed Kretzinger & Johnson as attorneys to protect her interests. They held a note on her for $6000 as a retainer, and a trust deed on the land to secure its payment. Some months after its date plaintiff in error became a member of the law firm, and its name was changed. This retainer was turned over to the new firm as a part of its business. Plaintiff in error becoming the owner of three-eighths of the note and trust deed, subsequently, on a dissolution of the firm, in the settlement became its sole owner. Defendant in error denied that she ever executed the note and deed of trust, and claims they are forgeries. After the land was sold other parties than the purchasers asked to have the biddings opened, and offered to raise them more than $5000 on the sum at which they were struck off to the purchaser. This application was denied by the court, and the sale was confirmed.

Defendant in error claims that plaintiff in error combined with the parties who became the purchasers of the property, for its sacrifice, and that she thereby sustained the loss of the difference in the price received and the price offered, had the biddings been opened. She claims that plaintiff in error sold the note and trust deed to one Bowen for $7000; that if Bowen became the purchaser at $125, he was to treat the note as paid, and satisfy the note and trust deed, and plaintiff in error to retain the money paid him for the note; that the land was struck off at a much higher price; that pending the motion to open the biddings, Beach, who held this note and trust deed, gave notice of the fact to her solicitors, and claimed it was a lien on her share of the property. The purchasers and her attorneys made some arrangement by which the note and deed of trust were cancelled. They claim it was by the purchasers paying Beach $7000 which plaintiff in error owed him, and to secure which Beach held the instruments, and upon defendant in error agreeing to pay one-half of the taxes on the land, and the purchasers agreeing that she should have the privilege of removing the buildings on the land, the matter was thus arranged, and the motion to open the biddings was denied, and the sale confirmed.

It is claimed that the money paid to Beach was an advance on the bid at which the property was struck off to the purchasers, and being a part of the purchase money. The evidence is by no means definite as to the manner in which payment was made to Beach or the amount paid; but the jury seem by their finding to have considered the amount as $7000, and whilst the evidence is not explicit, it would justify the conclusion that whatever the sum, it was paid by the purchasers. This seems to be the preponderance of the evidence, and it certainly would justify such a finding.

These are the leading facts in the case, and being prohibited from considering the evidence to determine whether or not the jury found correctly, we shall proceed to determine whether the jury were properly instructed as to the law arising on the evidence, omitting the discussion of other questions raised and discussed by counsel.

It is urged that the Superior Court erred in refusing plaintiff’s instructions. This is the first:

“If the jury find from the evidence that the plaintiff has performed services for the defendant, with her consent, since September, 1873, and has advanced and paid moneys for her while acting as her solicitor, in matters connected with her employment, they will find for the plaintiff a reasonable value for such service, as shown by the evidence, and also the amount of moneys which the evidence shows he has advanced for her.”

This instruction accurately states a rule of law clearly applicable to the issues and evidence in the ease, nor do we find that the rule was announced in any other instruction that was given. It was error to refuse it.

Again, it is claimed that the purchaser, to avoid litigation, took up the note and paid Beach, who then held the note and deed of trust, the amount it was pledged to secure of money he had loaned to plaintiff in error, to prevent .the property from being again offered for sale, and that plaintiff in error thus received the advance that prevented the biddings from being opened, and it is urged, as plaintiff in error received $7000 of the purchase money of the property, defendant in error has a right to recover it from him. If it be true that Beach received that amount of the price for which the property was actually sold, and not at what it was bid off, and it paid the debt plaintiff in error owed him, and he thereupon released the deed of trust, the sum thus paid was a part of the purchase money of the entire tract, and not • on the half owned by the defendant in error. There can be no pretense that she had any title or claim to more than one-half of the land, and could have none to more than one-half of the sum for which it was sold. If this $7000, paid Beach for plaintiff in error, was a part of the price paid for the land, as the jury seem to have found, she had the title to but half of that amount, and it was error, on the evidence, to instruct as the court did, that she was entitled to recover more than .one-half, unless it be' the sum she paid for taxes, and the value of her house she was, under the compromise, permitted to remove from the land. After deducting that sum, the other heirs were entitled to one-half of the sum thus paid to Beach for the use of plaintiff in error.

If defendant in error is entitled to recover for money had and received by plaintiff in error, she is not entitled to recover unless it in equity is hers. That action is in the nature of an equitable demand. She having failed to show she has a legal or equitable claim to the whole of this $7000„ if the evidence proves a liability to her at all, it is but for half of that sum, and the other half to the heirs. And this is so if the recovery arises eoc contractu. If the law implies a liability on the relation shown for a recovery in assumpsit, it is but for one-half. If the action is ex delicto, the liability of ■plaintiff in error to the other heirs does not inure to her benefit. His liability is to them as well, and not alone to her. She has no more right to recover and use their money than has plaintiff in error. She has no right, either in law or equity, to recover and have their money. It was therefore error for the court to instruct the jury, on the evidence, even if it proved all that was claimed, that she could recover the $7000, or the balance of that sum after deducting all of the claim of plaintiff in error that he established by his evidence.

For these errors in the instructions the judgment of the Appellate Court must be reversed, and the cause remanded.

Judgment reversed.

Mr. Justice Mulkey :

I do not concur in the conclusion

reached in the foregoing opinion. The judgment of the Appellate Court, as is conceded, is conclusive upon all questions of fact. I am therefore unable to perceive upon what principle this court can raise any question as to the amount of recovery, when it is substantially conceded there might properly be a recovery for some amount. If there was a right of recovery at all, the amount was clearly a question for the jury. But outside of this, I am of opinion the judgment of the Appellate Court is proper, and should therefore be affirmed.


text:
    Henry Lowe v. Henry Foulke et al.

      Filed at Ottawa May 12, 1882.

    1. Practice in the Supreme Court—entering proper judgment—in ejectment—after remittitur. Where judgment in ejectment was erroneously rendered in favor of the plaintiff for an entire tract of land, the. proof showing title to an undivided part of the premises in another person not a party, whose precise interest was not disclosed by the record, it was held, that this court could not, on appeal, allow a remittitur, and render final judgment for the recovery of the plaintiff’s interest, for the reasons that the outstanding interest was not made certain, and because the defendant was entitled to a new trial under the statute at any time within a year from the date of the judgment below, on payment of the costs.
    2. New trial—in ejectment—under the statute—applies only to the trial courts. The statute giving the unsuccessful party in an action of ejectment a right to take a new trial within one year after judgment, by paying the costs, applies only to judgments in the circuit court, 'and does not authorize the vacation of a final judgment in such a suit in this court.
    3. Presumption—as to death of a person. Where it is shown that a person was living some years before the trial of a suit, no presumption will arise, in the absence of proof, that he has since died.
    Appeal ' from the Circuit Court of Will county; the Hon. Francis G-oodspeed, Judge, presiding.
    Mr. Thomas H. Hutchins, for the appellant.
    Mr. D. H. Finney, for the appellees.
   Mr. Justice Scott

delivered the opinion of the Court:

It is clear the present judgment can not stand. The action is ejectment, and purports to have been brought by all the heirs at law of Joseph Foulke, deceased, against Thomas Martin and Henry Lowe, to recover an eighty-acre tract of land, described in the declaration. Plaintiffs claim, by the pleadings, the fee simple title to the premises as heirs at law of the decedent, and on the trial recovered a judgment for the entire tract. From that judgment Henry Lowe has appealed to this court. Martin, the other, defendant, being his tenant, and claiming no title to the land, defends no farther.

Should it be conceded the proof shows the title to the premises was in the ancestor of plaintiffs, it appears they have recovered more than belongs to them. One of the devisees,—that is, Mary F. Stone, a daughter of the testator, and wife of Henry A. Stone,—died after the death of the testator, leaving three children, only two of whom were living when this suit was brought. The record is silent as to whether Henry A. Stone, husband of Mary, is still living. It appears he was living at the time of othe making of the will, because the testator refers to his daughter Mary as the wife of Henry A. Stone. In the same paragraph he refers to his daughter Sarah as widow of Peter Smith. Had Mary been a widow then, no doubt the testator would have referred to the fact, as he did in relation to his other daughter. In the absence of proof, no presumption will be indulged that he has since died. He would, if living, be an heir to his deceased child with his other children, and may be he would be a tenant by the curtesy of the lands of his wife, and entitled to a life estate in the same. But in regard to the latter-estate the evidence in the record is not full enough to enable the court to determine. At all events, if living, Henry A. Stone has some interest in the premises. He is not a co-plaintiff, and yet the present plaintiffs have recovered judgment for the entire property. The error in the finding of the court in this regard is fatal to the present judgment.

Counsel for plaintiffs asks to be permitted to enter a remittitur in this court as to the interest of Henry A. Stone in the property. Two objections stand in the way,—first, the evidence does not disclose definitely what interest he has in the premises; and second, under the statute of this State a defendant in ejectment, on paying the costs of suit at any time within a year from the date of the first trial, may have a second trial of the case without assigning any reason for it. Should final judgment be entered in this court, such as it might be thought the circuit court should have rendered on the evidence, the anomalous condition would appear of a final judgment in this court standing unvacated, and yet the case being tried ele novo in the circuit court, where a different judgment might be rendered. This ought not to be. It is the judgment of the circuit court defendant may have vacated under the statute, and -not an original and different judgment in this court. The statute has not provided he may have an original judgment of this court vacated, as the judgment of the circuit court in ejectment may be. There does not appear by the record to have been but one trial of the case in the circuit court, and that was on the 4th day of October, 1881. So there still remains time in which defendant can pay the costs, and take a new trial in the circuit court, under the statute.

No opinion will now be expressed touching the validity of the tax title set up as a defence to the action. The view taken renders that discussion unnecessary at the present time.

On account of the error indicated, the judgment of the circuit court will be reversed and the cause remanded.

Judgment reversed.


text:
    Lucinda E. Blanchard v. Isaac N. Maynard et al.

      Filed at Ottawa May 12, 1882.

    1. Will—time when title vests in beneficiaries. A testator devised all his estate, real, personal and mixed, to two persons, in trust, to take care of and manage the same, declaring the trust should continue for ten years after his death, and no longer, and then provided: “It is my will that at the expiration of the trust hereinbefore declared, that is to say, at the end of ten years after my decease, all of my said estate then remaining, and the income thereof, shall be distributed and vest in my three sons,” naming them, “and their heirs, and I do hereby give, devise and bequeath the same to them; but in case that either of my said three sons should die leaving no issue of their bodies, then I give, devise and bequeath my estate to the survivor of them:” Held, that no title under the will was intended to be vested in either of the testator’s sons until ten years after his death, and that the widow of one of the sons who died before that time leaving no issue of his body, took no estate as heir of her husband, or dower as his widow, in the testator’s real estate.
    2. Same—construction—intent as gathered from will alone governs. In construing wills the intention of the testator must govern when ascertained, and this intention must be sought for in the language of the will itself, without the aid of extraneous evidence.
    Appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Mr. Charles H. Roberts, and Messrs. Manahan & Ward, for the appellant :
    1. We contend that on the death of the testator the beneficial interest in the estate vested at once in the three sons, subject only to the chattel interest of the trust term.
    2. That the real estate vested subject to be divested by a sale by the trustees, which power not having been exercised, ended with their term.
    3. That the clause of survivorship is void for repugnancy, except as to deaths in the testator’s lifetime.
    4. That a clause of unrestricted survivorship in case of death without issue, is void for remoteness, and the clause of survivorship is unintelligible.
    5. That the terms of survivorship refer to the death of the testator.
    That the beneficial interest vested at once in these sons on the death of the testator, see Boraston’s Case, 3 Coke, 19; Richardson v. Power, 33 Beav. 163; Moore v. Lyons, 25 Wend. 143; Collier’s Will, 40 Mo. 287; Doe v. Prigg, 8 Barn. & Cress. 689; Doe v. Considine, 6 Wall. 471 ; Hansford v. Elliott, 9 Leigh, 79; Coxall v. Sherard, 5 Wall. 268; Blanch

      ard v. Blanchard, 1 Allen, 223; Duryea v. Duryea, 85 Ill. 41; King v. Isaacson, 1 Sm. & Gif. 371; Hempstead v. Dickson, 20 Ill. 193; Illinois Land and Loan Co. v. Bonner, 73 id. 325; Hunt v. McCartney, 18 id. 130; Nicoll v. Scott, 99 id. 539.
    That the interest vests when the gift is independent of the clause of distribution, see King v. Isaacson, 1 Sm. & Gif. 371; In re Bartholomew, 1 Mac. & G. 353; Nicoll v. Scott, 99 Ill. 539.
    So, too, when there is a receipt of profits during the intermediate term. Eldridge v. Eldridge, 9 Cush. 516; Hansford v. Elliott, 9 Leigh, 79.
    A clause of survivorship to survivors and their heirs in case of death without issue, extending to an indefinite failure of issue, has always been held void for remoteness.
    As to personalty, see 3 Jarman on Wills, (Rand. & Talc, ed.) 318, 330; Kirkpatrick v. Kirkpatrick, 13 Vesey, Jr. 476; Massey v. Hudson, 2 Merrivale, 130.
    As to realty, see Beauclerk v. Darmer, 2 Atk. 308; Barlow v. Salter, 17 Vesey, Jr. 483; Saltern v. Saltern, 2 Atk. 376; Williams v. Jekyl, 2 Vesey, Sr. 682; Ide v. Ide, 5 Mass. 499; Patterson v. Ellis, 11 Wend. 266; Hall v. Chaffee, 14 N. H. 220.
    That the will devises real estate, and if it did not it is marked by all those elements which have led courts to depart from the doctrine of Cripps v. Wolcott, see Nicoll v. Scott, 99 Ill. 538; Doe v. Prigg, 8 Barn. & Cress. 221; Passmore’s Appeal, 23 Pa. St. 382.
    Messrs. J. P. & T. R. Wilson, for the appellees :
    The words “ of survivorship, ” in the eighth article of the will, should be referred to the period fixed by the will for the distribution of the estate. Ridgeway et al. v. Underwood et al. 67 Ill. 419; Blatchford et al. v. Newberry et al. 99 id. 11; 2 Jarman on Wills, 462; Knight v. Poole, 32 Beav. 548;
      Stevenson v. Gullon, 18 id. 590; Spurrell v. Spurrell, 11 Hare, 54; Young v. Robertson, 8 Jur. N. S. 825; Linton v. Boyd, 19 Ohio St. 30; Olney v. Hull, 21 Pick. 311; Teed v. Morton, 60 N. Y. 503; 2 Williams on Executors, (7th ed.) 1576.
    The clause of survivorship is not unintelligible. The rule of law is well settled that where two clauses or gifts are irreconcilable, and can not stand together, the clause which is last must prevail. 1 Jarman on Wills, 397; Redfield on the Law of Wills, 443.
    The will vested the fee in the premises in the trustees. A power of sale, even on a contingency, confers a fee. Lewin on Trusts, 251; Perry on Trusts, sec. 315.
   Mr. Justice Walker

delivered the opinion of the Court:

About the 17th day of December, 1867, one Seth Blanchard died, the owner of some lots in the city of Chicago, with other property. Previous to his death he made and executed his will, which was duly probated after his death. By it he devised all of his property, real, personal and mixed, of every description,' to Wm. A. Allen and O. F. Boler, in trust, to take care of and manage the same; to have and receive the rents, issues, income and profits, and out of the same to pay all tases, assessments, premiums on insurance, interest on incumbrances, repairs, and out of the estate to discharge incumbrances, with full and ample power and authority to sell and convey or to mortgage, or both, all or any portion of the estate, but only for the purpose of raising money to extinguish debts and incumbrances thereon, or to improve the property in case of loss by fire, etc. He declared the trust should continue for ten years after the time of his death, and no longer. The eighth clause is this: “It is my will that at the expiration of the trusts hereinbefore declared', that is to say, at the end of ten years after my decease, all. of my said estates then remaining, and the income thereof, shall be distributed, and shall vest in my three sons, Samuel A. Blanchard, Henry S. Blanchard and Joseph Gr. Blanchard, and their heirs, and I do hereby give, devise and bequeath the same to them; but in case that either of my said three sons should die leaving no issue of their bodies, then I give, devise and bequeath my estate to the survivor of them and their heirs. ”

About the first day of February, 1867, Joseph Gr. married appellant, and died on the ,13th of May, 1873, intestate, leaving no child or descendants of a child surviving him, but leaving appellant, his widow. After the death of Joseph G., Henry conveyed the premises to Samuel, and he and his wife, on the 18th of October, 1879, conveyed to I. N. Maynard, and he, on the 15th of March, 1880, conveyed a portion of the premises to appellees Adams and Spaulding. On the 4th day of June, 1881, appellant filed this bill, setting up the facts as here stated, claiming to be the owner in fee of an undivided one-sixth part of the property, and to have dower in another undivided sixth part. Defendants filed a demurrer to the bill, and on a hearing it was sustained by the court, and the bill was dismissed. From that decree complainant appeals to this court, and urges a reversal.

The whole controversy turns on the true construction of the eighth clause of the will. Appellant claims that by its provisions Joseph, her husband, immediately on the death of the testator, took a fee simple estate in the premises, and having died without children or descendants of children, and leaving her his widow, she, under the statute, took one-half of his third in fee, and her dower in the other half of that third. Appellees contend that under that clause the trustees took an estate in the premises, to hold until the period for distribution' should arrive, and then the fee to vest in the devisees or the survivors, or the children of such as might have died before the period arrived,—that this being the true construction of the clause, the. title vested in Henry and Samuel, and they, by mesne conveyances, hold the fee.

In giving construction to wills, the intention of the testator, as manifested by the instrument itself, when ascertained, must control. This rule is coeval with wills themselves. It is the purpose of the law enabling men to make wills, that they may dispose of their property that it may descend according to their intention. Any other rule would defeat the great object of permitting the disposition of their estates by will. It is then the duty of courts to ascertain and enforce that intention, and in doing so they are confined to the will itself, and are precluded from seeking aid from extraneous evidence. What, then, was the testator’s intention as expressed in this will ? By the second clause he devises and bequeaths all of his property of every kind to the persons named as trustees. The language of the devise is broad and comprehensive. If it were not limited by the trusts imposed in what follows, they would have taken an absolute and unlimited fee. But he declares the title thus taken shall be to hold in trust for the purposes specified, and he in them declares, by the eighth clause, that when the trustees shall have held it for ten years after his death, all of his property then remaining, etc., shall vest in his three sons (naming them), and limits it to the survivors in case of the death of either leaving no heirs of his body. How and when to vest in them ? In fee, of course, and at the end of ten years from the time of his death. "That is the period testator fixed for the title to vest in his beneficiaries. He says so in terms plain and unmistakable. He does not say that the property shall then be distributed, or a division merely made, but it shall at that time vest in his three sons and their heirs. Of this there would seem not to be the slightest question. When he says the property shall then vest in them, it excludes every presumption that he intended that it should vest before or after that time. It unerringly points to and names that as the precise period when the title shall vest in them, because he in terms fixes that as the period when the title shall vest, and not merely as the period when the property sbpuld be divided, and a mere distribution was not intended. If he only intended that it should be distributed at that time, why superadd the term that the property should then vest in the beneficiaries ?

The word “survivor, ” used in the eighth clause, unmistakably refers to the period when the trust ceases, and not to the time of the death of testator. This is the only fair and reasonable construction that can be given to the language employed. It is its manifest import, and to hold otherwise would be too refined and constrained a construction. He was making provision for the title to pass from the trustees and to vest in the beneficiaries. He had, in a previous part of the same clause, fixed the time at ten years after his death as the period when the property should be distributed and vest in his three sons, or the survivor. If there is any doubt arising in the clause where the word “survivor” is used, it is fully explained by the previous part of the paragraph fixing the period when the title should vest in the beneficiaries, and that excluded and prevented it from vesting before the period named. There can be no question, from the language of the will, that testator intended that on his death, the title should vest and remain in the trustees for ten years, and he says it should then vest in the beneficiaries. We can not, in the absence of clear and explicit language, suppose he intended the title to vest in both the trustees and the beneficiaries at the time of his death, but such a supposition is repelled by what he said in the eighth paragraph.

Again, and for the purpose, no doubt, of preventing such a construction, he devises the property in terms in joint tenancy, and not to them as tenants in common. This was done that in case of the death of either of the trustees the other should take the title held by the one deceased, by survivorship, thus investing in him the entire title. He thereby precluded all claim of descent or the vestiture of title in the beneficiaries, until the time named for it to vest in them should arrive. He thus most clearly precluded the idea that the beneficiaries should in any event become invested with title, either in whole or in part, until the expiration of ten years after his death.

Counsel have shown much research, and have invoked much of the abstruse learning on the question of when a remainder shall be regarded as vesting in the grantee or donee, but we regard the cases as inapplicable to the construction of this will.' Had testator not named the time specifically when the title should vest in the devisees, it may be' the cases referred to might have been applicable, but we shall not now stop to inquire, as it would answer no beneficial end.

It then follows that Joseph Gr. Blanchard never was invested with such a title or interest in the property in controversy as could or did descend to his hems. Hence it follows that appellant took neither a fee nor a dower estate in the premises, and the court below did not err in denying the relief prayed, and the judgment is affirmed.

Judgment affirmed.