author: Mr. Justice Shope

text:
    John N. Price v. Phœbe Hudson et al.

      Filed at Mt. Vernon June 16, 1888.

    1. Delivery of deed—how far essential. As a rule, to render a deed operative as a conveyance, an unconditional delivery is requisite, or if the delivery is conditional, or to take effect on the happening of some event in the future, it must appear that the condition has been performed or that the event has happened.
    2. Same—what constitutes a delivery—and of evidence in respect thereto. It is not essential to a delivery that the deed shall pass from the hand of the grantor to the grantee. Any disposition of the deed by the grantor, with the intention thereby to make delivery of it, so that it shall become presently effective as a conveyance of title, will, if accepted by the grantee, constitute a sufficient delivery.
    3. The intention to deliver, on the one hand, and of acceptance on the other, may be shown by direct evidence of the intention, or may be presumed from acts or declarations, or both acts and declarations, of the parties, constituting parts of the res gestæ, which manifest such intention. In like •manner the presumption of a delivery may be rebutted and overcome by proof of a contrary intention, or of acts and declarations from which the contrary presumption arises.
    4. It is not competent to control the effect of a deed by parol evidence when it has once taken effect by delivery, but it is always competent to show that the deed, although in the grantee’s hands, has never in fact been delivered, unless the grantor, or those claiming through him, are estopped in some way from asserting the non-delivery of the deed.

      5. In 1863 the grantor, before going into the army, made a deed of his land to his wife, and placed it in his trunk, to be taken by her only in case of- his death while in the army. The grantor returned in 1865, but never afterward saw the deed, and the grantee took no manual possession of it until in 1883, when she took it from the trunk, and on advice that it was ineffectual to convey title, she destroyed it: Held, that the deed never took effect for a want of a delivery.
    6. Estopped—as to ownership in land. A person offered a contractor $300 for the building of a house on land occupied by him and his wife. The contractor, after consulting as to the cost, informed the husband that the building could not'be made for that price, and he replied that $300 was all the money he had, and that if it cost more, to let the work alone. The contractor then said that if it cost any more than that sum he would look to the wife for the balance, and that she could pay the excess by boarding hands, and this was assented to. The husband paid the $300, and a decree in a proceeding to enforce a mechanic’s lien was obtained against the wife for $64, the husband not having been made a party, upon which the wife’s supposed interest in the land was sold: Held, in ejectment against the husband and wife, that the former was not estopped from showing that the title was in him alone.
    7. Parties—of a decree as to one not a party. A decree for a mechanic’s lien against a wife, in a proceeding, in which the husband is not made a party, is not binding on him.
    Appeal from the Circuit Court of Richland county; the Hon. William C. Jones, Judge, presiding.
    Mr. E. McJilton, and Mr. F. G. Cockrell, for the appellant.
    Messrs. McCauley & Moutry, and Mr. T. W. Hutchinson, for the appellees.
   Mr. Justice Shope

delivered the opinion of the Court:

This was an action of ejectment, by John N. Price, against Phoebe Hudson and William D. Hudson, to recover the northeast quarter of the north-west quarter of section 3, township 3 north, range 9, east, in Richland county. The general issue was filed, and a trial by jury resulted in a verdict of not guilty. A motion for new trial interposed by plaintiff was overruled, and judgment entered on the verdict, from which the plaintiff below prosecutes this appeal.

The record shows that the tract of land in controversy was patented by the government of the United States to the defendant William D. Hudson, prior to the year 1863; that in that year said William D., and his wife and co-defendant, Phoebe Hudson, were occupying the tract of land, and the dwelling house thereon, as a homestead, and have ever since continued to so occupy it. It appears that said William, being about to enlist in the army of the United States, in the year 1863 made and acknowledged a deed for said land, in the usual form, in which his wife was grantee; that he took the deed and placed it in a trunk in their dwelling house, telling his wife that if he got killed in the army she should take the deed and have it recorded. The grantor was not killed in the war, but returned in 1865, and still survives.. The -plaintiff claims title through said deed of 1863, from said William D. to Phoebe Hudson, and by virtue of a sale and deed by a master in chancery, made in pursuance of a decree of the circuit court of Richland county, in a certain mechanic’s lien proceeding instituted by one Mrs. M. J. Lamport against said premises, and in which said Phoebe Hudson was alone made defendant.

The first question presented is, did the title pass to Phoebe Hudson by the deed from her husband ? Waiving the question as to the right of the husband to thus convey the homestead, to render the deed operative as a conveyance an unconditional delivery was requisite; or if the delivery was conditional, or to take effect upon the happening of some event in the future, it must appear that the condition has been performed, or that the event has happened. (Skinner v. Baker, 79 Ill. 496; Hoig v. Adrian College, 83 id. 267; Stone v. Duvall, 77 id. 475.) It is not essential, however, to a delivery, that the deed should pass from the hand of the grantor to the grantee. Any disposition made of the deed by the grantor, with the intention thereby to make delivery of it, so that it shall become presently effective as a conveyance of a title, will, if accepted by the grantee, constitute a sufficient delivery. (3 Washburn on Real Prop. 288-293; Benneson v. Aiken, 102 Ill. 284.) The intention to deliver on the one hand, and of acceptance on the other, may be shown by direct evidence of the intention, or may be presumed from acts or declarations, or both acts and declarations, of the parties, constituting parts of the res gestee, which manifest such intention; and in like manner the presumption of a delivery may be rebutted and overcome by proof of a contrary intention, or of acts and declarations from which the contrary presumption arises. It is not competent to control the effect of the deed by parol evidence when it has once taken effect by delivery, but it is always competent to show that the deed, although in the grantee’s hands, has never, in fact, been delivered, unless the grantor, or those claiming through him, are estopped in some way from asserting the non-delivery of the deed. Tn this case the deed was placed in the trunk by the grantor, to be taken by the grantee only in the event of the death of the grantor while in the army. He testifies: “I made this deed, so that if I got killed she would get the land, and my brothers and sisters would not heir it. I never intended she should have a title of the land unless I got killed in the army.” The deed never was placed upon record, and'remained in the trunk, where it had been deposited by the grantor, for substantially twenty years, without being taken by the grantee. The testimony shows that the. grantor never saw the deed after 1863, when he placed it in the trunk, and the grantee took no manual possession of-it until in 1883, about the time the mechanic’s lien proceedings were instituted, when she, for the first time, took the deed from the trunk for the purpose of obtaining advice -as to its effect, and upon being advised that it was, under the circumstances, ineffectual to convey title, destroyed it. She at no time asserted any claim under the deed, or attempted to do so. Both testify, and are substantially uncontradicted, they did not understand that the deed was ever delivered, or intended to be delivered, or that the title to the land was vested in Mrs. Hudson. An application of the principles before announced will fully justify the finding that the deed was in fact not delivered.

But is said that the defendant should be estopped to deny title in Phœbe Hudson at the time of the furnishing of material and of performing the labor for which the mechanic’s lien was declared by the decree in said mechanic’s lien proceedings. None of the facts or circumstances relied on by counsel as creating an estoppel are shown to exist by a preponderance of the evidence. Instead of William B. Hudson standing by and permitting the mechanic and material-man to improve the property, under a contract with his wife, without objection on his part, exactly the opposite state of facts is shown by the evidence. There is little or no conflict in the evidence in respect of the facts out of which the mechanic’s lien proceedings arose. Hudson and wife were residing in the dwelling house on these premises in the spring of 1883. The husband had $300 in money, and for that sum Lamport proposed to build them a new dwelling, the dimensions and plan of which were talked over and agreed upon. Lamport went to the neighboring town of Olney to price or purchase material, and on returning reported to Hudson that the house could not be built for the sum of $300. Hudson told her that $300 was all the money he had, and if the house could not be built for that sum, to let it alone. Mrs. Lamport replied that she would go on with the building; that if it cost any more she would arrange with Mrs. Hudson for the balance; that Mrs. Hudson could pay the excess over the $300 by boarding the hands engaged in its construction, etc. Hudson then told her if the house cost any more than the $300 his land should not stand good for it, but if she would consent to look to his wife for her pay over and above the $300, to go on. To this Lamport assented, and the building was erected accordingly upon that understanding and agreement. Hudson paid $300 in cash, and hands were boarded to the amount of $8. Mrs. Lamport presented a bill for $138 additional, which being disputed by Mrs. Hudson, the mechanic’s lien proceeding was commenced, (Mrs. Hudson alone being made defendant,) and a decree for $64 was obtained, which was made a lien on the title of Mrs. Hudson in said land. That the house was built under the agreement before mentioned, that Mr. Hudson claimed the land as his own, and refused to contract for the building unless it was understood that the land was not to be liable for any excess over the $300 cash on hand, and that the contractor so agreed, and contracted to look to Mrs. Hudson personally for the balance, if any, is overwhelmingly proved. In no sense, in view of this evidence, can it be said that the contractor furnished material or performed labor upon the faith of the title being in Mrs. Hudson, or in reliance upon her having an interest in the land. Everything was disclosed, at the time, to the contractor that is now insisted upon by appellees. William D. Hudson was not a party to the mechanic’s lien proceeding, and is not bound by the decree.

Finding no error in this record, the judgment of the circuit court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Scott

license: Public Domain

text:
    The People, for use of State Board of Health, v. John C. McCoy.

      Filed at Ottawa June 16, 1888.

    1. State Board of Health—revoking certificate to practice medicine —power of ■the board. Under section 10 of the act of 1877, to regulate the practice of medicine in this State, the State Board of Health had the power to revoke certificates issued to individuals to practice medicine, for the same reasons it might refuse to issue such certificates, viz., for “unprofessional or dishonorable conduct.” But the board can not, from mere caprice, or without cause, revoke a certificate fairly issued upon sufficient evidence of the holder’s qualifications.
    2. Same—revocation—for cause only. The right of the citizen to practice his profession is too important to be taken away from him without some reasonable cause. It must be for some act or conduct that would, in the common judgment, be deemed “unprofessional or dishonorable.”
    3. A revocation of such certificate by the State board can not be sustained, when it does not appear, from the record of their proceedings, that' such board, from any evidence submitted to it, or otherwise, ever found the holder guilty of any act or conduct that was unprofessional or dishonorable.
    4. Same—what is unprofessional or dishonorable conduct. If the holder of a certificate to practice medicine makes statements and promises with reference to the treatment and cure of the sick and afflicted which are calculated to deceive and defraud the public, that will be unprofessional and dishonorable conduct.
    5. Same—notice—before revocation, of certificate. Whether the right to practice medicine or law is property, in the technical sense, it is a valuable franchise, and one of which a person can not he deprived without an opportunity, by timely notice, to defend against the charges preferred against him.
    6. So where a physician having a certificate of the State Board of Health to practice medicine, had a charge made against him of making statements and promises calculated to deceive and defraud the public, of which charge he had no notice, and of which he was never found guilty upon any evidence of its truth, it was held, that an order of the board revoking his certificate was unauthorized, and void.
    Appeal from the Criminal Court of Cook county; the Hon. A. N. Waterman, Judge, presiding.
    Mr. John M. Hamilton, and Mr. Charles C. Gilbert, for the appellant:
    That the act under which this prosecution arises is constitutional, see Williams v. People, 121 Ill. 84; State v. Dent, 25 W. Va. 1; West v. Cutter, 37 Ohio St. 347; State v. Medical Examining Board, 32 Minn. 325; State v. Medical Examiners, 34 id. 387.
    The power to revoke a license for unprofessional or dishonorable conduct, in the State board, is not repugnant to the constitution defining and limiting the powers of the judicial and executive branches of the State government. People v. Dental Examiners, 110 Ill. 185; Donahue v. Will County, 100 id. 94; State ex rel. v. Examining Board, 32 Minn. 325; State v. Dent, 25 W. Va. 1; Sheldon v. Clarke, 1 Johns. 513; Zimmerman v. Morrison, 14 id. 369; Thompson v. Staats, 15 Wend. 395; Spaulding v. Inhabitants of Alford, 1 Pick. 33; Hewitt v. Charier, 16 id. 356; Wright v. Lanctin, 19 id. 288; Bibber v. Simpson, 59 Maine, 181; Antle v. State, 6 Texas, 202; State v. Goldman, 44 id. 104; State v. Hale, 15 Mo. 407.
    A person can not acquire an absolute vested right, under a license, for any definite period, beyond the control of the police power of the State. Schwuchow v. Chicago, 68 Ill. 451; Railroad Co. v. Dill, 22 id. 264; Railroad Co. v. McClelland, 25 id. 140; Railroad Co. v. Appleby, 28 id. 283; State v. Gazley, 5 Ohio, 21.
    A license to practice a profession confers no vested right or privilege above legislative control. Cousins v. State, 50 Ala. 113; Goldthwaite v. City Council, id. 486; Simmons v. State, 12 Mo. 268.
    The right to practice law is not property, and does not amount to a contract with the State, within the meaning of these constitutional terms. Cohen v. Wright, 22 Cal. 323 ; Calder v. Bull, 3 Dall. 394; Ex parte Yale, 24 Cal. 241; Caskell v. State, 53 Ala. 510; Sayer’s case, 7 Cow. 367; 4 Johns. 191.
    It rests with the legislative power to prescribe the conditions on which any avocation or calling shall be pursued. Mayer v. Yuille, 3 Ala. 137; 21 La. Ann. 201.
    A licensee takes the license subject to all the conditions and restrictions imposed by the law under which the license was issued or granted. Launder v. Chicago, 111 Ill. 291.
    Mr. William Brown, for the appellee:
    The board had no jurisdiction of the person of the defendant, and its acts are coram non judice. Campbell v. McCahan, 41 Ill. 45.
    The cause of revocation is shown “to be an advertisement, with coarse wood-cuts,”—a publication which the law authorizes. Such can not be either unprofessional or dishonorable, in a legal sense, whereas it must be both to warrant the order. A mere violation of the ethics of the profession is not sufficient. State v. State Board, 32 Minn. 324.
    The cause appearing, and being insufficient, nothing can be predicated of it, though if the cause was not shown it might be -presumed to be sufficient,—showing an insufficient cause rebuts the presumption of sufficiency. Schirmeier v. Baceker, 20 Bradw. 375; Osgood v. Blackmore, 59 Ill. 261; Underwood v. Greene, 42 N. Y. 140.
    So much of section 9 of the “Act to regulate the practice of medicine in the State of Illinois, ” as authorizes the State Board of Health to revoke the certificate of a physician for unprofessional or dishonorable conduct, is unconstitutional and void.
    The consideration of facts, and the application of the law to those facts, and the conclusion deduced from those facts, constitute a judgment. This power is confided exclusively to the judiciary. Hall v. Marks, 34 Ill. 362; People v. Dental Examiners, 110 id. 180.
    To ascertain whether a penalty has been incurred, is a judicial act. Poppen v. Holmes, 44 c. 360.
    That this is a judicial question, is definitely determined in Dental Examiners v. People, 20 Bradw. 457.
    The power to deprive of a license or certificate is a judicial power, and can only be exercised by the court for misconduct ascertained and declared by the judgment of the court, after opportunity to be heard has been offered. Ex parte Garland, 4 Wall. 333.
    Being judicial powers, in so far as the act assumes to give them to this “collection of persons” it is repugnant to article 3 of the constitution, and therefore unconstitutional and void. Hall v. Marks, 34 Ill. 362; Galesburg v. Hawkinson, 75 id. 152; Dodge v. Cole, 97 id. 338.
    That the license confers a right, and is not a mere privilege, see Wert v. Cluter, 37 Ohio St. 347; Williams v. People, 17 Bradw. 274; State v. Stevens, 35 Am. Dec. 72; 1 Blackstone’s Com. 138; Gibson v. Pulaski County, 2 Ark. 309; Cummings’

      case, 4 Wall. 277; Hope v. Henderson, 25 Am. Dec. 691; In the matter of Cooper, 22 N. Y. 67; Braun v. Chicago, 110 Ill. 188; Ex parte Garland, 4 Wall. 333.
    A party can not be deprived of property or other rights except by judicial decision, after being duly notified, and after reasonable time and opportunity to defend. Parke v. Lewis, 35 Ill. 421; Darst v. People, 51 id. 286; Yates v. Milwaukee, 10 Wall. 497.
    Every person charged with an offense has a right to a judicial investigation. Willis v. Legris, 45 Ill. 289.
    It is held in New York, that an act providing for trial at special sessions is unconstitutional, as it deprives the person of trial by jury, as guaranteed by the constitution. Wynehamer v. People, 13 N. Y. 378.
    The constitution protects the rights of persons against revocation by statute, and it is held the legislature can not confer the authority upon any person to deprive one of the right. Gilmore v. Sapp, 100 Ill. 303.
    The revocation clause can not be upheld under the police power. The exercise of the police power is subject to the constitutional restrictions in regard to the rights of persons and property. Such acts are void, unless they are really and in good faith within the necessities of the public protection. Railway Co. v. Jacksonville, 67 Ill. 37; Lake View v. Cemetery Co. 70 id. 192; Yates v. Milwaukee, 10 Wall. 497; Underwood v. Green, 42 N. Y. 140; Evarts v. Council Bluffs, 46 Iowa, 46; Winfield v. People, 14 Mich. 41; Babcock v. Buffalo, 56 N. Y. 268; Chicago v. Laflin, 49 Ill. 177; Wood on Nuisances, 773.
    Without notice to the appellee, the board had no jurisdiction to revoke his certificate and deprive him of any right. Eddy v. People, 15 Ill. 386; Clark v. Lewis, 35 id. 421; Gilmore v. Sapp, 100 id. 303; Goudy v. Hall, 30 id. 110; Johnson v. Johnson, id. 223 ; Nesbitt v. Trumbo, 39 id. 116; Hibbard v. Holloway, 13 Bradw. 101; Ex parte Garland, 4 Wall. 333 ; Campbell v. Campbell, 63 Ill. 462,

      Nothing is presumed in favor of the jurisdiction of inferior courts. Osgood v. Blackmore, 59 Ill. 261; Shufeldt v. Buckley, 45 id. 223; Swearengen v. Gulick, 67 id. 208.
    Unless the particular facts necessary to confer jurisdiction appear, they will not be presumed, and the judgment will be void. Freeman on Judgments, sec. 123; Foster v. Glazenor, 27 Ala. 391; Thatcher v. Powell, 6 Wheat. 119; Dunning v. Corwin, 11 Wend. 647; Adams v. Jeffries, 12 Ohio, 253; Harny v. Tyler, 2 Wall. 342.
   Mr. Justice Scott

delivered the opinion of the Court:

This suit was brought in the Criminal Court of Cook county, under and by virtue of the provisions of section 12 of the act of 1887, to regulate the practice of medicine in this State, in the name of the People, for the use of the State Board of Health, against John C. McCoy, alias J. Cresap McCoy, to recover the statutory penalty imposed by that section for practicing medicine without a certificate from the State Board of Health. On the trial the court found the issues for defendant, and rendered judgment against plaintiff for costs.

The court was asked by defendant, at the trial, to hold a great number of propositions to be law applicable to the facts in evidence, which it did. It is only thought to he necessary, however, to notice the twenty-third of the series, in the decision of the case. It is as follows: “The court holds, as a matter of law, that under the law and evidence the judgment in this case should be for defendant.”

It is conceded defendant has a certificate, issued to him by the State Board of Health, under which it was lawful for him to practice medicine in this State, but it is contended that certificate has been legally revoked by the State Board of Health, under power conferred upon that hoard by the tenth section of the act of May 29, 1877, to regulate the practice of medicine in the State of Illinois, and that since such revocation it is unlawful for defendant to practice medicine in this State. As has been seen, the court before whom the cause was tried found the “issues for defendant.” The court held, that under the “law and the evidence” the judgment should be for defendant.

There is one view that may be taken, aside from all other questions discussed, that leads to an affirmance of the judgment. It may be conceded, that under the tenth section of the act of 1877, to regulate the practice of medicine in this State, the State Board of Health had power to revoke certificates issued to individuals to practice medicine, for the same reasons it might refuse to issue such certificates, viz., for “unprofessional or dishonorable conduct.” The statute, in this respect, however,- must have a reasonable construction. The board can not, from mere caprice, or without cause, revoke a certificate fairly issued upon sufficient evidence of the applicant’s qualifications. The right of the citizen to practice his profession, for which he has expended time and money to qualify himself, is too important to be taken away from him without some reasonable cause. It must be for some act or conduct that would, in the common judgment, be deemed “unprofessional” or “dishonorable.” There is no evidence in this record that shows, or tends to show, defendant was not a reputable physician, nor does it appear the State Board of Health, from any evidence submitted to it, or otherwise, ever found defendant had been guilty of any act or conduct that was unprofessional or dishonorable. It is recited in the minutes of the board, in evidence, that charges had been preferred against defendant. The specific charge was, that defendant had made “statements and promises with reference to the treatment and cure of the sick and afflicted which are calculated to deceive and defraud the public.” It is said he was notified to appear before the board and defend against that charge. The fact of notice is denied. Be that as it may, defendant never appeared, and it does not appear, from anything in this record, that that charge against defendant was ever investigated by the board at the time stated in the alleged notice, or at any other time. It does appear, from their minutes, the board met to investigate charges against defendant, and it is recited in the record of their proceedings, that “on the 27th day of February an advertisement appeared in the ‘News-Democrat,’ of Belleville, Illinois, under the caption, ‘A surgical triumph,’ and announcing that Dr. J. Cresap McCoy, late of Bellevue Hospital, N. Y., had opened an office, for a limited time only, in a building fronting on the public square, Belleville, Illinois. Copy of advertisement submitted to members of the board. Similar advertisements appeared in the St. Louis papery, filled with matter pertaining to J. Cresap McCoy, and his wonderful attainments and success, with coarse wood-cuts of the human body and its members. After due consideration of the evidence, and on default of defense, it was ordered * * * that certificate No. 6793, issued to Dr. J. Cresap McCoy, be revoked for unprofessional and dishonorable conduct.” It will be assumed from the recital, that, “after due consideration of the evidence,” it was on account of the “advertisements” submitted to the board that defendant’s certificate was revoked. That seems to have been regarded as “unprofessional and dishonorable conduct. ” So far as the contents of these “ advertisements” are given, they are of a very harmless kindbut whether harmless or not, the specific charge against defendant was not for causing these publications. It was for making “statements and promises * * * calculated to deceive and defraud the public,” and it is not perceived how these “advertisements” could tend in the remotest degree to prove that specific charge. Had the board found him guilty of the charge alleged against him,—that defendant had made “statements and promises * * * calculated to deceive and defraud the public," — that, indeed, would have been “unprofessional and dishonorable conduct.” But the board did not find him guilty of any such conduct, nor does it appear the board ever investigated that particular charge against him, and that was the only specific charge alleged against him.

It is said the State board, in regard to revoking certificates issued to physicians, must investigate, hear and determine certain questions, and to the extent it exercises such powers its functions are judicial. It is therefore claimed that the question whether a physician has been guilty of “unprofessional or dishonorable conduct,” is a question of fact, the finding as to which, when submitted to the board, is final and conclusive, and is not open to review by other tribunals. The doctrine contended for finds support in the decision of this court in People v. Dental Examiners, 110 Ill. 180. Treating the record of the board, in the matter of revoking the certificate that had been issued to defendant, as having the force of a proceeding in its nature judicial on the part of the board in a case where it had jurisdiction of "the subject matter to be investigated, yet the present record is fatally defective, for the reason it is made to appear defendant had no notice of the proceedings proposed to be taken against him. The prosecution put defendant on the stand, and made him their own witness, and he distinctly stated, at their instance, that the notice found in the record was never in fact served upon him. The affidavit of service is not sufficient to overcome his testimony in that respect. It is contrary to the analogies of the law, that a proceeding, in its nature judicial, should be obligatory and conclusive upon a person not a party thereto, otherwise a party might be deprived of important rights, with no opportunity to defend against wrongful accusations. Whether the right to practice medicine or law is property, in the technical sense, it is a valuable franchise, and one of which a person ought not to be deprived, without being offered an opportunity, by timely notice, to defend it.

This view of the case renders it unnecessary to discuss the constitutional questions raised on the record.

The judgment will be affirmed.

Judgment affirmed.


text:
    Catharine Berdel v. Peter Egan et al.

      Filed at Ottawa June 16, 1888.

    1. Acknowledgment of deed—of evidence to overcome the certificate. Where a lost or destroyed deed is satisfactorily shown to have had attached to it a certificate of acknowledgment by the grantor and his wife, by an officer authorized to take acknowledgments of such instruments, it was held. that that fact of itself, after the lapse of twenty-eight years, was sufficient to overcome the denial of the wife that she ever released her dower, by the deed or otherwise.
    2. Secondary evidence of contents of lost deed—preliminary proof. For the purpose of laying the foundation for the introduction of secondary evidence of the contents of a deed, the party proved that the deed, when last seen, was most probably in the possession of a person named, and that the latter had made the most diligent search for it in everyplace where there was the slightest probability it would be if still in existence, but without success. The witness also stated facts showing, beyond reasonable doubt, that the deed must have been destroyed by the fire which occurred in Chicago in 1871, and which destroyed all record of prior deeds, as this one was: Held, this was a sufficient foundation for the introduction of secondary evidence of the contents of the deed.
    Appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    Messrs. Blum & Blum, for the appellant.
    Mr. Charles S. Thornton, for the appellees.
   Mr. Justice Scott

delivered the opinion of the Court:

It is alleged in the petition filed herein, that demandant, on the 8th day of July, 18—, was married to Nicholas Berdel; that during such marriage he was the owner, in fee simple, of the lands described in the petition, and that now, since his death, which occurred on the 23d day of March, 1883, she is entitled to dower in such lands. It is not denied that decedent was the owner of the lands during his marriage with petitioner, and the only question it is deemed important to consider is, whether demandant released her dower in such lands by joining with decedent in the execution of a trust deed to Henry Greenebaum.

A case having some questions analogous with those involved in this one, between petitioner and other parties, was passed upon at a former term of this court, and is Reich v. Berdel, 120 Ill. 499. In that case, petitioner was allowed dower in certain land of which decedent was seized during coverture. It was held her dower was not barred or cut off by the deed to Greenebaum, for the reason it did not appear, from any satisfactory evidence in the record, she had joined with decedent in the execution of the trust deed. In the case now before this court, the trial court, upon the evidence submitted, held that demandant did join with decedent in the execution of the trust deed to Henry Greenebaum, and that her dower in the lands in this suit was released by that deed, substantially in conformity with the statute.

There is much new and material evidence in the present record not found in the record in Reich v. Berdel. Evidence was offered in that case to prove the execution of a trust deed of the property involved, by Nicholas Berdel and petitioner, to Henry Greenebaum, trustee for Elias Greenebaum, a sale thereunder, and subsequent conveyances of the title to defendants in that suit. Neither the original nor a copy of this deed was produced. The evidence offered was held inadmissible, because the proper foundation was not laid for the introduction of secondary evidence of the contents of that deed. It was said by the court, the deed was last in the possession of Elias Greenebaum, and for aught that appeared in evidence it might be there yet, as it was not shown he had made any search for it. The difficulty found to. exist in the former case has all been removed by the additional evidence contained in the present. record. It is now proved the deed, when last seen, was most probably in the possession of Henry Greenebaum. Since the trial in the former case he has made most diligent search for ■it in every place where there was the slightest probability it would be if it was still in existence, but without success. The witness states facts that show, past all reasonable doubt, the trust deed must have been destroyed by the destructive fire which occurred in Chicago in 1871, and which destroyed all record of prior deeds. Thus it is seen a sufficient foundation was laid in this case for the introduction of secondary evidence as to the contents of the trust deed to Greenebaum. In this particular the cases are wholly unlike.

It was also said in the opinion of this court in the former case, “but even if the evidence were admissible, it could not be said there was error in not holding it to be sufficient to prove petitioner had released her dower pursuant to the statute then in force.” Petitioner had testified in that case, as she has done in this case, that she had never executed or acknowledged the trust deed, and the evidence found in that record was not thought to be sufficient to overcome her express denial. Here, again, the cases are unlike. The secondary evidence of the contents, and of the execution and acknowledgment of the trust deed, shows, with sufficient certainty, that petitioner joined with her then husband in its execution, and acknowledged the same substantially in compliance with the statute then in force. The abstract of title in the office of Handy & Co., which was introduced in evidence, shows the trust deed, as recorded, had her name to it,—that is, that it purported to have been executed by Nicholas Berdel and his wife. It is also shown the form of the trust deed was one of the blanks used by Greenebaum in his business. These forms contained a release of dower in the body of the deed, and had attached the usual statutory form of acknowledgment for both the husband and the wife. Henry Greenebaum, since his recollection has been refreshed by much reflection on the matter, is quite positive the trust deed had an acknowledgment both of the husband and wife, certified by an officer authorized to take acknowledgments of such instruments. He says he would not have made the sale under the trust deed had it not been executed and acknowledged in the usual mode. He was familiar with such business, and now states he has no doubt he examined the deed, and that it was acknowledged before a proper-officer, as the statute required. It is true he can not now remember the name of the officer nor the capacity in which he acted. It is now nearly thirty years since he made the sale under the trust deed, and it could not be expected any one could remember every detail of the transaction; but the witness is positive the trust deed was acknowledged by both the husband and wife, and had the certificate of a proper officer to that effect. Other testimony strengthens the testimony of Henry Greenebaum as to the contents of the trust deed, and as to the fact it was acknowledged by both grantors before some proper officer.

On the whole evidence, when closely considered, it can not be said it was error in the trial court, in this case, to hold it overcame the denial of petitioner that she signed and acknowledged the trust deed under which the title passed from decedent, and that her dower in the lands in controversy was released by it to her then husband’s grantee. Conceding, as it is thought must be done, under the evidence, the trust deed had attached to it a certificate of acknowledgment by an officer authorized by law to take acknowledgments of such instruments, that fact, of itself, after the lapse of twenty-eight years, ought to overcome the denial of demandant that she never-released her dower by the deed to Greenebaum, or otherwise. It was held by this court in Warrick v. Hull, 102 Ill. 280, the certificate of the officer, alone, was sufficient to overcome the testimony of one witness introduced to impeach the certificate of acknowledgment to a mortgage. It was there said: “In taking acknowledgments of deeds, mortgages and other-instruments, an officer acts under the sanction of his official oath; and his certificate of official acts, required by law to be made, ought to be regarded as of as high a grade of evidence as testimony given under oath.” In that case, the officer that took the acknowledgment died before the controversy arose, and it was said: “Although deprived of the testimony of the officer on the witness stand, there remains the presumption that will always be indulged, as to the certainty of an officer’s acts done in the capacity in which he was serving. After his death his certificates of his official acts must be heard to speak for him, otherwise there would be no security for titles acquired under instruments required by law to be acknowledged before such officers.” The principle of that case finds application to the facts of the case being considered. Here, the name of the officer who took the acknowledgment is unknown, so that his testimony can not be had. It is not known whether he is living or not. But there is satisfactory proof there was a. certificate of acknowledgment, by a proper officer, attached to the trust deed, and that ought to be regarded as evidence of as high a grade as that of demandant, who alone offers her testimony, after very many years, and after all the original deeds, and every record of them, had been destroyed by fire, to impeach the deed under which the title passed from her then husband.

On a careful consideration of the evidence in the present record, it is not thought there was any error in the trial court in holding it overcame the denial of demandant that she had ever executed or acknowledged the trust deed, under which defendants claim the property, as relieved from the burden of her dower.

The decree of the Superior Court will be affirmed.

Decree affirmed.


author: Mr. Justice Scholfield

text:
    The Ohio and Mississippi Railway Company v. Clara Barker et al.

      Filed at Mt. Vernon June 16, 1888.

    1. Description—as to land conveyed by deed—right of way. A deed to a railway company described the property as “all the line of railroad heretofore belonging to the Springfield and Illinois Southeastern Railway Company, * * * together with the right of way, and all the real and personal property late of the said railway company,” and also further described the property as “in any manner used or appropriated for the operating and maintaining of said line of road:” Held, that the latter words do not describe an additional kind or title of property intended to be conveyed, but simply describe the use to which the property conveyed had theretofore been devoted.
    2. Color of title—of its extent—according to description in deed. A deed is color of title only of that which is shown upon its face, or.otherwise, to be within the description of the grant. When it purports to convey all the right of way, etc., which before belonged to a certain railway company named, it is not color of title to any tract of land not shown to have been the right of way of the company therein named.
    Appeal from the Circuit Court of Clay county; the Hon. C. S. Conger, Judge, presiding.
    This was an action of ejectment, in the Clay circuit court, by Clara Barker, Henry Barker, Harvey Barker, John Barker, Ella Barker and Matilda Barker, against the Ohio and Mississippi Railway Company. The declaration contains but one count, and it recites that the plaintiffs were possessed of certain premises situated in the said county of Clay, and State of Illinois, and described as follows, to-wit: A strip of land running through the south-east quarter of the south-west quarter of section 2, town 3, range 6, the said strip being one hundred feet wide, and the center of the track of the Ohio and Mississippi railroad being the center line of said strip; and being so possessed thereof, the said defendant afterwards,— to-wit, on, January 30, 1870,— entered into such premises, and it unlawfully withholds from said plaintiffs the possession thereof; and said plaintiffs aver that they claim title to said premises in fee, wherefore the said plaintiffs say that they are injured, and have sustained damages to a large amount,— to-wit, $100,—and therefore they bring suit, etc. Not guilty was pleaded, and by agreement of parties the cause was tried by the court, without the intervention of a jury.
    The plaintiffs, to maintain the issues on their part, gave in evidence to the court, sitting as a jury, the conveyances showing a connected title in fee from the government to them, to the south-east quarter of the south-west quarter of section 2, town 3, range 6. Defendant, to maintain the issue on its part, gave in evidence a deed of conveyance dated September 15, 1874, of J. A. .Jones, master in chancery of the Circuit Court of the United States for the Southern District of Illinois, under decree of foreclosure made by said court in a certain cause on the chancery side thereof, wherein the Farmers’ Loan and Trust Company of New York, as trustee, was complainant, and the Springfield and Illinois Southeastern Railway Company, a corporation .of the State of Illinois, was defendant, by which deed was conveyed to M. Hildreth Bloodgood “all the line of railroad heretofore belonging to the Springfield and Illinois Southeastern Railway Company, extending from Shawneetown, in the county of G-allatin, on the Ohio river, north-westerly, through or touching at the towns of Fair-field, Wayne county, Louisville, Clay county, Pana and Taylorville, in Christian county, Springfield, in Sangamon county, to Beardstown, together with the right of way, and all the real and personal property late of the said railway company, in any manner used or appropriated for the operating and maintaining of said line of road, ” etc.; also, deeds showing that said railroad property was conveyed by the said M. Hildreth Bloodgood to Frederick Schuchardt and John Bloodgood, by deed dated January 28, 1875, and by said Schuchardt and wife, and Bloodgood and wife, to Daniel Torrence, by deed

      dated. January 29, 1875, and by said Torrence and wife to the Ohio and Mississippi Railway Company, the defendant, by deed dated January 30,1875 ; and also showed that said line of railroad ran through and occupied the strip of land in question prior to and at the time of said conveyance; that defendant had, since the date of said last mentioned conveyance, and up to the date of the bringing of this action, continuously been in possession of, and had occupied by its railroad, a portion of said strip of land in the declaration described, about fifty feet through the center thereof, and had, during said time, used said strip as its right of way, claiming title in good faith; that the right of way of said company through said land had been annually assessed by the State Board of Equalization as railroad right of way, and the railroad tax-books describe 18 40/100 acres, and eight thousand one hundred and thirty-five feet in length of right of way, in said section, and that it, the defendant, had annually paid all taxes assessed on the right of way of said railroad through said county, from the year 1876 to the year 1887, both inclusive, as shown by tax receipts introduced, giving the dates and amounts of said payments. Plaintiffs, in rebuttal, then showed payment on their account, annually, of all taxes assessed during the same period against the said south-east quarter of the south-west quarter of said section 2, through which the said strip of land described in said declaration runs, said strip not having beep excepted therefrom in the assessment and levy of taxes on said tract, but not of the taxes assessed on the said right of way, against the railroad company, which were paid by said company, as above stated, and that they had cultivated a portion of said strip from time to time, except said fifty feet, said strip not being fenced apart from their farm at the sides thereof, though cattle-guards and wing-fences, fifty feet in length, on either side thereof, had been maintained by the defendant at either end of said strip,— which was all the evidence offered by either of the said parties. And thereupon the court gave judgment against the defendant, to which the defendant then and there excepted, whereupon counsel for defendant filed a motion for a new trial, which was overruled by the court, to which the defendant then and there excepted.
    Messrs. Pollard & Werner, for the appellant.
    Mr. Rufus Cope, for the appellees.
   Mr. Justice Scholfield

delivered the opinion of the Court :

The description of the property conveyed to appellee is, “all the line of railroad heretofore belonging to the Springfield and Illinois Southeastern Railway Company, * * * together with the right of way, and all the real and personal property late of the said railway company.” The subsequent words, “in any manner used or appropriated for the operating and maintaining of said line of road,” do not describe an additional kind or title of the property intended to be conveyed, but describe simply the use to which the property intended to be conveyed has heretofore been devoted; and so we must first ascertain whether the property in suit is a part of “the line of railway heretofore belonging to the Springfield and Illinois Southeastern Railway Company,” or whether it is a part of “the right of way late of the said railway company.” The words, “right of way late of said railway company,” plainly can only mean right of way owned by said company, for the property of and the property owned by an individual or corporation, as commonly used and understood, mean precisely the same thing. There is no evidence in this record that the land in suit is a part of the line of railway heretofore belonging to the Springfield and Illinois Southeastern Railway Company, or that it is a part of the right of way owned by that company. The deed is only color of title of that which is shown to be within the description of the grant, and is therefore, under this evidence, not color of title to this land. Stumpf v. Osterhage, 111 Ill. 82; Holbrook v. Forsythe, 112 id. 306.

There being wanting proof of color of title, the judgment below is right, and it must be affirmed.

Judgment affirmed.


text:
    John T. Lester et al. v. Samuel Berkowitz.

      Filed at Ottawa June 16, 1888.

    1. Appeal—interlocutory order—what is a final order—of cm order to produce books of account. An appeal or writ of error will not lie to review a mere interlocutory order of court, or an order which is not final.
    2. An order of court upon the defendants in a suit at law, to place certain books in which the business transactions of the defendants with the plaintiff and other persons are recorded, in possession of the clerk of the court, -that they may be inspected by the plaintiff and his attorney, in order that they may prepare for the trial of the cause, is not such a final order as may be reviewed on appeal or writ of error.
    3. If the court attempts to enforce obedience to such an order by the imposition of a fine in a sum of money, with an order for an execution, or by a definite term of imprisonment, as for a contempt of court, the judgment of the court imposing such fine or imprisonment will be final, and one from which an appeal may be taken or to which a writ of error will lie. In such case, the propriety of the interlocutory order may be considered.
    Writ of Error to the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.
    Mr. John N. Jewett, and Mr. John S. Cook, for the plaintiffs in error:
    The order of the circuit court was a final order respecting the subject matter embraced within it. Blake v. Blake, 80 Ill. 523; Stuart v. People, 3 Scam. 396; Sloo v. State Bank, 1 id. 428; Wells v. Hogan, Beecher’s Breese, 337.

      Mr. Thomas J. Sutherland, for the defendant in error,
    contended that the order was not such a final order as could be brought in review by appeal or writ of error.
   Mr. Justice Scott

delivered the opinion of the Court:

The motion made by defendant to dismiss the writ of error in this case must be allowed to prevail. The order of the circuit court upon which error is assigned is not final, in the sense that an appeal may be taken from it, or writ of error may be sued out to review it. It is simply an interlocutory order made by the court in the progress of a suit at law, and is in no sense definitive, as that term is used in the law. It is an order made under power thought to be conferred by the statute, upon defendants, to place certain books, in which the business transactions of defendants with plaintiff and other persons are recorded, in the possession of the clerk of the court, that they may be inspected by plaintiff and his attorney, in order that they might prepare for the trial of the cause. It was the privilege of defendants either to obey the order, or stand in defiance of the power of the court. Had the court attempted to enforce obedience to its order by the imposition of a fine in a sum of money, with an order for an execution, or by a definite term of imprisonment, as for contempt of court, the judgment of the court imposing such fine or imprisonment would be final, and from which an appeal might be taken, or to which a writ of error would lie. That would conform exactly with the rule stated by this court in Blake’s case, 80 Ill. 523. On the reviewing of such a judgment of the court that might deprive defendants either of their-property or their liberty, the propriety of the preliminary or interlocutory order could be considered, otherwise not.

The writ of error will be dismissed.

Writ of error dismissed.


text:
    Annie E. Nichols v. Homer E. Sargent.

      Filed at Ottawa June 16, 1888.

    1. Contracts—personal liability of guardian upon contracts relating to his ward’s estate. If a person makes a contract describing himself as guardian or trustee for another, and so signs the#same, he will be personally liable for the performance of the contract, in the absence of an express provision showing clearly that both parties agreed to act upon the responsibility of the fund in his hands, alone, or upon some other responsibility, or there appears some other circumstance clearly indicating another party who is bound by the contract, and upon whose credit, alone, it was made.
    2. So where a guardian, under the approval of the county court, leases his ward’s property, covenanting in the lease to purchase, at the expiration of the term, the improvements put upon the premises by the tenant, at the valuation of three persons, to be selected as provided in the lease, and the lease is signed by the guardian, as such, he will be personally liable to the tenant for a breach of the covenant.
    3. Guardian and ward—indemnity to guardian out of ward's estate. In such case, where the guardian discharges the debt of his ward he may have indemnity out of the estate of his ward, or if he has been discharged of his guardianship, he may have an action against his ward or his estate as for money paid for his use.
    4. Landlord and tenant—covenant of lessor to purchase improvements at appraised value. Where a guardian, under the approval of the probate- court, leases his ward’s property, covenanting in the lease to purchase the improvements put on the premises, at the end of the term, at the valuation of three appraisers to be selected by the parties, he will have no right to refuse to submit the valuation to appraisement unless the lessee shall consent that the award shall be subject to the approval of the probate court.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    This suit was brought by Homer E. Sargent, in the Superior Court, against Annie E. Nichols, on a written lease from defendant to plaintiff, and signed by both parties. On the trial before the court, without a jury, plaintiff recovered a judgment against defendant. That judgment, on the' appeal of defendant, was affirmed in the Appellate Court for the First District, and defendant now brings the case to this court on her further appeal.
    Messrs. Hutchinson & Partridge, for the appellant:
    Appellant being guardian of part owners of the land, it was her duty, under the approval of the county court, to lease the premises, and the covenant in the lease for the purchase of the improvements was a covenant for the benefit of the minors, provided the valuation should be submitted to the probate court, and approved; therefore the covenant was not a personal covenant.
    Appellant did not refuse to carry out the terms of the lease, and therefore is not liable.
    Appellee remained in possession of the improvements, and the title thereto continued in him; therefore," if there were damages, they should not include the value of the improvements, but should be only the difference between the fair value of the improvements and the contract price for the purchase.
    The valuation to be given by the appraisers should be only what the improvements would have been worth to appellee to -remove from the ground, or what they would enhance the value of the land.
    Messrs. Dexter, Herrick & Allen, for the appellee:
    The covenant was, by express provision of our statute, both joint and several, (Rev. Stat. chap. 76, sec. 3,) and Mr. Sargent had the right to sue Mrs. Nichols separately, at his election. Bank v. Ferry, 40 Ill. 255; Gage v. Bank, 79 id. 62; People v. Harrison, 82 id. 84; Byers v. Bank, 85 id. 423.
    A guardian is bound, personally, by the contracts he makes as guardian, although describing himself as such. Sperry v. Fanning, 80 Ill. 371.

      The fact that Hutchinson, as guardian, may have refused to unite in the appraisement, did not relieve Mrs. Nichols from her covenant to take the improvements at an appraised value, and the consequent liability to pay their value if there was no appraisement without fault on Sargent’s part.
    The measure of damages for a breach of the covenant was the value of the improvements, they, by operation of law, becoming the property of the lessor. Hood v. Hartshorn, 100 Mass. 117.
   Mr. Justice Scott

delivered the opinion of the Court:

This was an action of covenant on that clause of the agreement to renew the lease that had formerly existed between the parties, which, it is said, obligates defendant personally to purchase, at the expiration of the lease, the improvements put upon the demised premises by plaintiff, “at the valuation of three persons,” to be selected as in the lease provided. The renewal agreement is signed by defendant, Annie E. Nichols, (formerly Annie E. Haven,) “Annie E. Nichols, guardian.” The premises seem to belong to defendant and her minor children, for whom she was guardian at the time of mailing the lease. It is recited in the original lease it is between “Annie B. Haven in her own right, and as guardian” for .her .three surviving children, and plaintiff, Homer B. Sargent. In the declaration, the covenants contained in the lease upon which breaches are assigned, are declared upon as the personal covenants of defendant, and the first question presented is, did defendant, by executing the agreement to renew the lease, become personally liable to perform the covenant it contained for the purchase of the improvements made by the tenant on the demised premises.

The precise question made in this ease was made in Sperry v. Fanning, 80 Ill. 371, and it was there held, if a person makes a contract, describing himself as guardian or trustee for another, and so signs the same, he will be personally hable, in the absence of an express provision showing clearly that both parties agreed to act upon the responsibility of the fund in his hands, alone, or upon some other responsibility, or there appear some other circumstances clearly indicating another party who is bound by the contract, and upon whose credit, alone, it is made. The principle of that case is, if a guardian promises, on a sufficient consideration, to pay the debt of his ward, he is personally bound by it, although he expressly promises as guardian. In such cases, where the guardian discharges the debt of his ward, he may have indemnity out of the estate of his ward, or if he has been discharged from his guardianship, he may have an action against the ward or his estate, as for money paid for his use. The facts in both cases are so nearly analogous, no reason is perceived why the ease being considered is not controlled, in every respect, by the case cited. An effort is made, however, to distinguish this case from Sperry v. Fanning, on the ground that in the latter case the agreement made by the guardian was not made with the approval of the probate court, as was done in the ease now before this court. In that respect there is no difference between the cases. It appears from the dissenting opinion, the contract made by the guardian in Sperry v. Fanning was made with the approval of the probate court, and that is persuasive evidence, at least, of the existence of that fact in the case.

The declaration seems to be framed upon the theory, defendant had refused to submit the valuation of the improvements to the appraisers, as is provided in the lease shall be done. Whether defendant did refuse to go on with the appraisement, is a controverted question of fact, and as it was found against defendant by the trial and Appellate courts, it is not subject to review in this court.

It is said there was an offer to go on with the appraisement if plaintiff would consent the award should be subject to the approval of the probate court before it should be binding on the guardian or the ward’s estate, and, inasmuch as plaintiff would not consent to that proposition, there was, in law, no refusal. Plaintiff was not hound to submit to the conditions imposed by the guardian. He very properly insisted his rights should be determined and ascertained by and under the lease. That was his clear right, and on the refusal of defendant to submit to the appraisement, as provided in the lease, it is but just and right plaintiff should recover as for the value of the improvements in controversy. In no other way could he obtain full damages for the breach of the covenants of the lease. The probate court had once approved of that mode of ascertaining the value of the improvements tin the demised premises. Neither the law nor his contract required that plaintiff should submit the matter again to the probate court for any further action.

Most, if not all, of the other questions discussed-in the elaborate arguments of counsel, are controverted questions of fact not subject to review in this court, and, of course, need not be noticed.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


text:
    Chalon G. Cloud v. Kate Greasley et al.

      Filed at Mt. Vernon June 16, 1888.

    1. Specific performance—as to land out of the State. Where the court has acquired jurisdiction of the person of the defendant, it may compel him to specifically perform his contract for the conveyance of land, although the land may lie in another State. The decree in such case will operate upon the person of the defendant.
    2. Statute of Frauds—verbal agreement to convey land. An oral agreement for the conveyance of land can not be enforced, either at law or in equity, when the objection that it is not in writing is made. The entire contract must be in writing, to satisfy the statute. It will not suffice that the greater part of it is in writing.
    3. A complainant wrote the defendant a proposition to furnish the materials and carpenter work for a house, for a conveyance of a tract of land by defendant. The latter replied, in writing, stating he could not accept the offer, but saying, if the former would do certain other things in addition to his offer, he would convey the land. Instead of accepting this offer in writing, complainant made a different offer, proposing to furnish, in addition, two thousand brick for the flues, and this last proposition was verbally accepted by the defendant: Held, that all that preceded the last offer, and its acceptance, were mere matters of treaty, and that the agreement to convey the land was within the Statute of Frauds.
    4. Same—performance to take case out of the statute. The mere doing of some work and furnishing some building material by the complainant for the defendant, pursuant to a verbal contract for the conveyance of land by the defendant, and the taking of possession of vacant land, without being put in possession by the defendant, is not a sufficient part performance to take the case out of the Statute of Frauds.
    5. Same—how availed of. Where it appears upon the face of a bill for specific performance that the agreement to convey is oral, the Statute of Frauds may be taken advantage of by demurrer to the bill.
    Appeal from the Circuit Court of Hamilton county; the Hon. Carroll C. Boggs, Judge, presiding.
    Mr. William Hamill, for the appellant:
    A demurrer is an allegation of a defendant, which admits the matter of fact alleged by the bill to be true. Story’s Eq. Pl. sec. 446.
    A demurrer admits to be true all the facts that are well pleaded. Newell v. Bureau County, 37 Ill. 256; Harris v. Cornell, 80 id. 62.
    The first ground of demurrer is not tenable. Having jurisdiction of the defendants, the court can compel them to make the deed for land in another State. 2 Parsons on Contracts, 377; 2 Story’s Eq. Jur. sec. 743.
    If the Statute of Frauds is relied on, it must be pleaded. Switzer v. Skiles, 3 Gilm. 534.
    While it may be true that the defendants may avail themselves of the benefit of the Statute of Frauds, by demurrer as well as by plea or answer, yet we insist that whichever mode is adopted, it must distinctly and specifically appear, by the pleading, that the defendants desire to avail themselves of the benefit of the statute, in the usual explicit manner of pleading it. It is said in School Trustees v. Wright et al. 12 Ill. 441, that “it is a familiar principle of equity that a defendant can not avail himself of the benefit of the Statute of Frauds or of Limitations, unless he specifically 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.”
    A court of chancery will enforce the specific performance of a parol contract for the conveyance of land, notwithstanding the Statute of Frauds, where the contract has been in part performed, such as the payment of the purchase money and taking of possession. Ramsey v. Liston, 25 Ill. 114; Blunt v. Tomlin, 27 id. 93; Keys v. Test, 33 id. 318; Mason v. Bair, id. 194.
    Mr. John C. Edwards, and Mr. Leonidas Walker, for the appellees:
    In the case of Temple v. Johnson, 71 Ill. 13, the court, in passing upon this statute, holds that the payment of the purchase money will not take a case out of the Statute of Frauds, and in so doing, uses thife language: “Whilst the decisions of the various courts are not entirely uniform, the general rule seems to be, as stated by Story in his work on Equity Jurisprudence, (sec. 761,) that the general ground on which to execute parol contracts for part performance, as the governing rule, is, ‘that nothing is to be considered as a part performance which does not put the party into a situation which is a fraud upon him unless the agreement is fully performed; ’ and he says, that although formerly a payment of the purchase money was considered a sufficient part performance to take the case out of the statute, the rule is now otherwise settled. And in this he is fully sustained by the adjudged eases, both in the British and American courts.”

      As sustaining the same view of this court, the attention of the court is respectfully called to the following cases: Tanner v. Volentine, 75 Ill. 624; Farwell v. Lowther, 18 id. 252; Wood v. Davis, 82 id. 311; Holmes v. Holmes, 44 id. 168; Wood v. Thornly, 58 id. 464; Pickerell v. Morss, 97 id. 220; Cronk v. Trumble, 66 id. 428; Langston v. Bates, 84 id. 524; Padfield v. Padfield, 92 id. 198; Worth v. Worth, 84 id. 442.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This is a bill for the specific performance of a contract to convey real estate lying wholly within the State of Arkansas. It is alleged in the bill, after stating the ownership of the real estate by Kate Greasley, one of the defendants, that on the 15th of March, 1887, she proposed to the complainant to convey the same to him, in consideration that he should “furnish the material and carpenter work to build a. frame house for the said Kate, on,” (describing the lot,) “in the town of McLeansboro;” that complainant took the proposition under advisement, and afterwards wrote and delivered the following:

“McLeansboro, Ill., April 12, 1887.
“Mrs. Greasley—I will furnish the oak lumber for sills, upper and lower joists, studding and rafters, (all the framing lumber,) and employ a carpenter to do all the carpenter work in a good, workmanlike manner, for a house as specified in your diagram, for a warranty deed to the land you have in Arkansas,—you to furnish abstract showing a clear title to the land.
“Respectfully, C. G. Cloud.”

That afterwards, Kate Greasley wrote the following in reply:

“McLeansboro, Ill., April 16, 1887.
“Mr. C. G. Cloud—I find, on inquiring, that I can purchase all the hard and soft lumber and doors for the house planned, at from $250 to $260. I can not accept the offer you made, but if you can furnish all the hard and soft lumber and the doors, I shall be ready to make the deed, etc., to you.
“Respectfully, Mrs. Catherine Greasley.”

And on the same day complainant wrote and delivered the following, in reply to that:

“McLeansboro, Ill., April 16, 1887.
“Mrs. Greasley—For the soft lumber and doors I would have to pay the cash. The carpenter work I can have done, paying with a claim due me. The carpenter says he will charge me $80 to $85 for doing the work. I will furnish the oak lumber for sills, upper and lower joists, studding and rafters, (all the framing lumber,) and employ a carpenter to do all the carpenter work in a good, workmanlike manner, for a house as specified in your diagram, and furnish you two thousand brick for the flues, for a warranty deed to land you have in Arkansas,—you to furnish abstract showing a clear title to land. I seldom make more than one offer, but I have been at some trouble and expense in finding condition of the land, and will give you the brick more than I first thought I would.
“Respectfully, C. G. Cloud.”

That on the next following buiness day,—Monday, the 18th day of April, 1887,—the said Kate Greasley called at the place of business of complainant, and accepted the proposition as last above stated, and then and there contracted and agreed, verbally, as she had theretofore, in her said writing dated April 16,1887, agreed, to convey the real estate before described, to complainant. It is then further alleged that complainant proceeded to deliver on the lot of Kate Greasley, before described, all the hard lumber and material specified in said proposition, as aforesaid, for the building of said house specified in said written proposition of Kate Greasley; that on May 1, 1887, Thomas Greasley gave directions about making changes in the length of part of the timbers to be used in said house, and the size of the rooms thereof, and he directed a change in the cornice of the house; that at the request of said Kate, and Thomas Greasley, her husband, complainant delivered the two thousand brick mentioned in the contract,— the said Thomas going with the complainant to the brick kiln, and making his own selection of said brick; that complainant, at different dates named, informed Kate Greasley that he was ready to proceed with the carpenter work, but she postponed the beginning of the work until the 23d day of July, 1887, when she informed complainant that she considered the contract broken; that complainant has, in every particular, complied with said contract and agreement; that at the date of the agreement between complainant and Kate Greasley, the land in Arkansas, which she was to convey, was vacant and. unoccupied, and in the month of July, 1887, complainant, through an agent, took possession, and that he has since been in possession; that he has requested Kate and Thomas Greasley to convey the land to him, but they refuse to do so; that Kate Greasley is insolvent, and not worth above $400 in personal property, nor above $1000 in real estate, and that he knows of no property belonging to Thomas Greasley except his household goods. The prayer is, that Kate and Thomas Greasley be enjoined from conveying to other parties the land in Arkansas, and that they be decreed to convey the same to complainant, and for general relief.

The defendants demurred to the bill, and for cause of demurrer alleged, “first, that said bill seeks to enforce a specific performance of a contract in regard to the sale and conveyance of real estate situated in the State of Arkansas;—this therefore is a local action, and should be brought where the real estate is situated; second, that this is a suit upon an oral contract, and seeks to enforce such contract, the same being a contract in regard to the sale and conveyance of real estate. ” The court sustained the demurrer and dismissed the bill, and this appeal is prosecuted to reverse that decree.

The first ground of demurrer is clearly not well taken. There being personal jurisdiction of the defendants, the decree acts directly upon the persons, and the defendants could, therefore, if the case were in other respects made out, be compelled by decree to execute and deliver a conveyance of the Arkansas land. Baker v. Rockabrand, 118 Ill. 365 ; Cooley, impleaded, v. Scarlett, 38 id. 316; Penn v. Lord Baltimore, 1 Ves. Sr. 444; Massie v. Watt, 6 Crunch, 148; Brown v. Desmond, 100 Mass. 267.

The second ground of demurrer is, however, in our opinion, well taken, and justifies the decree rendered by the court. An oral agreement for the conveyance of real estate can not be enforced either at law or in equity, where the objection that it is oral and not in writing is urged. The entire contract must be in writing, to satisfy the statute. It will not be sufficient that the greater part of the contract is in writing. It must all be in writing. Farwell v. Lowther, 18 Ill. 252; Seymour v. Belding, 83 id. 222; Weaver v. Fries, 85 id. 356; Frazer v. Howe et al. 106 id. 574. There was here no contract until the acceptance of complainant’s offer of April 16, 1887. All that preceded that was mere treaty. The bill alleges that the contract and agreement then made to convey were made verbally, though it was to convey as the defendant had theretofore, in writing, agreed to convey, etc. Without that verbal agreement there is no contract to convey, to be enforced. The rule is, where it appears upon the face of the bill that the agreement to convey is oral, it may be taken advantage of by demurrer to the bill. Walker v. Locke, 5 Cush. 90; Slack v. Black, 109 Mass. 496; Ahrend v. Odiorne, 118 id. 268; Farnham v. Clements, 51 Maine, 426; Randall v. Howard, 2 Black, (U. S.) 585. And, in principle, to like effect is Walker v. Ray, 111 Ill. 315.

The allegation of the bill shows that complainant was not put in possession of the land, but that, being vacant and unoccupied, his agent entered into possession. The mere doing of some work and furnishing some building material, by the complainant for the defendant, pursuant to the contract, is not sufficient part performance to take the case out of the Statute of Frauds. Cronk et al. v. Trimble, 66 Ill. 428; Pad- field v. Padfield, 92 id. 198; Langston v. Bates et al. 84 id. 524; Pickerell v. Morss et al. 97 id. 220; Fry on Specific Performance, sec. 390.

The decree is affirmed.

Decree affirmed.


text:
    The Chicago, Milwaukee and St. Paul Railway Company v. WALTER WEST.

      Filed at Ottawa June 16, 1888.

    1. Master and servant—liability of the master for acts of the servant—generally. Where the relation of master and servant exists between a railway company and the person whose act is the cause of injury to another person, the company will not be liable if the servant causing the injury is not acting within the scope of his employment; hut on the other hand, the master is responsible, when the servant acts within the general scope of his employment, for acts done while engaged in his master’s business, with a view to the furtherance of that business, by which injury is caused to another, whether negligently or wantonly committed.
    2. SAME—engine-driver permitting persons to ride upon the locomotive. It is the duty of an engineer in charge of an engine, to not permit any unauthorized person to get on or ride upon the same, and if any stranger gets upon the engine, even if by his invitation, it is his duty to put him off, and in doing so he will be acting within the scope of his employment, and if, in the discharge of that duty, he negligently or wantonly inflicts an injury upon such person, the master will he liable. It is the duty of the engineer to observe reasonable care in putting a person off the engine, even when wrongfully there.
    3. So if the engineer invites a person to ride with him on his engine, this, act will not be within the scope of any duty he owes to his employer, and if any injury happens to such person on account of such act of the engineer himself, whether negligently done or not, the master will not be liable.
    4. But where the engineer invites a boy of the age of seven years to ride on his engine, without authority, or in violation of his duty, and then directs the boy to get off while the engine is in motion, and the latter is injured in getting off, the company will be liable for the injury. It is negligent conduct in the engineer to direct a child of that age to get off while the engine is in motion, for which the company is liable in case of a personal injury caused thereby.

      Appeal from the Appellate Court for the First District ;— heard in that court on appeal from the Superior Court of Cook county; the Hon. John P. Altgeld, Judge, presiding,
    Mr. E. Walker, for the appellant:
    Where the relation of master and servant exists between a railway company and the person whose act is the cause of the injury to another person, the company is not liable if the servant, in causing the injury, is not acting within the scope of his authority. Railway Accident Law, sec. 105; Mitchell v. Crassweller, 13 C. B. 137; 76 E. C. L. 2; Wood on Railway Law, 1213, 1224; Story on Bailments, sec. 402; Ramsden v. Railroad Co. 104 Mass. 120; Watton v. N. Y. C. S. C. Co. 139 id. 558; Howe v. Newmarch, 12 Allen, 57; Snyder v. Railroad Co. 60 Mo. 413; Sherman v. Railroad Co. 12 id. 62; Mott v. Ice Co. 73 N. Y. 547; Duff v. Railroad Co. 91 Pa. St. 458; Flower v. Railroad Co. 69 id. 210; Coal Co. v. Heeman, 86 id. 418; Halty v. Markel, 44 Ill. 225; Railroad Co. v. Downey, 18 id. 259 ; Railroad Co. v. Flexman, 103 id. 546; Railway Co. v. McMahon, id. 486.
    Mr. Selden Fish, for the appellee:
    Putting the boy off the engine was within the scope of the engineer’s authority, and if negligently done, resulting in injury, the company was liable. Railroad Co. v. Flexman, 103 Ill. 546; Railway v. McMahon, id. 486; Railroad Co. v. Hack, 66 id. 241.
   Mr. Justice Scott

delivered the opinion of the Court:

This appeal is from a judgment of affirmance by the Appellate Court for the First District of a judgment rendered by the trial court in favor of Walter West, who sues by his next friend, Elizabeth West, against the Chicago, Milwaukee and St. Paul Railway Company. The action was to recover for personal injuries to the beneficial plaintiff, occasioned by the improper conduct of defendant’s servants in putting him off an engine, on which it is alleged plaintiff had been riding by the invitation of the engineer. Of course, evidence in relation to controverted questions of fact can not be discussed, and the argument addressed to this court on that branch of the case will not be considered.

Among the controverted questions of fact made before the jury, were, first, as to how plaintiff got on the engine,—whether by the invitation of the engine-driver, or otherwise; and second, whether he was on the engine at all. It is insisted on behalf of plaintiff, that he got upon the engine by the invitation of the engine-driver, and that he was injured by the negligent conduct of the engineer in putting him off without first stopping the engine; and on the part of defendant it is claimed plaintiff was not on the engine at all, but that he was injured in attempting to get on a flat-car while the train was in motion, without any knowledge on the part of the train-men that he was trying to do so. There is testimony tending to sustain both positions. The jury, by their verdict, sustained plaintiff’s theory of the case, and as there is testimony tending to support the verdict, since that finding has been affirmed by the Appellate Court, the finding of the latter court is conclusive on this court. It will therefore be assumed, in the consideration of the questions of law discussed, that plaintiff was on the engine by invitation of the engine-driver, and that the injuries sustained by him were caused by the negligent manner in which plaintiff was put off the engine while in motion. It is not necessary for this court to express an opinion whether it would have found the same way, from the evidence, the trial and Appellate courts did. The statute provides, this court shall not reconsider controverted questions of fact. That is the appropriate work of the courts through which the cause has come to this court. It has now passed that stage where controverted questions of fact can be reviewed.

Undoubtedly the law is as counsel states it to be, that where the relation of master and servant exists between the railway company and the person whose act is the cause of injury to another person, the company is not liable if the servant, in causing the injury, is not acting within the scope of his employment ; but, on the other hand, the law is equally well settled that the master is responsible, where the servant acts within the general scope of his employment, for acts done while engaged in his master’s business, with a view to the furtherance of that business, by which injury is caused to another, whether negligently or wantonly committed. Applying these general principles of law, the case in hand will be found to present no serious difficulty. Conceding, as must be done, the engineer invited plaintiff to ride with him on his engine, he was acting without the scope of any duty he owed to his employer, and had any injury come to plaintiff on account of that act of the engineer itself, whether negligently done or not, the master would not be liable. If that were all there is of this case, it is plain the judgment would be contrary to law, and should be set aside. The action is not based on any such ground. It is sought to recover for a very different reason. It is because when plaintiff was on the engine, no matter how he got there, it was the duty of the engineer to put him off, and in doing so he was obliged to observe reasonable care. The rules of the company, in evidence, show it was unlawful for any one, other than certain employes, to ride upon the engine. Should any stranger get upon the engine, it would clearly be the duty of the engineer to put him off, and in doing so he would be acting within the general scope of his employment, and if, in the discharge of that duty, he negligently or wantonly injured such person, the master would be liable. In this ease it may be conceded plaintiff was wrongfully on the engine, whether he was there by the invitation of the engineer or by his own wrongful conduct, and it was the duty of the engineer to cause him to get off. At the time of the accident plaintiff was about seven years old, and, of course, was too young to observe much, if any, care for his personal safety. It was the duty of the engineer to observe care, even if plaintiff was in the wrong in getting upon the engine. It was admitted by counsel at the trial, “the engineer has no right to throw a boy off or to kick him off.” That concession is in harmony with the law that makes it his duty to observe reasonable care, under the circumstances, in putting a person off the engine, even when wrongfully there. The evidence tends to show, and it must be assumed such is the fact, that when the engine-driver saw the yard-master, he said to plaintiff, “Cheese it,—the old man is coming,” and then told plaintiff to get off. The engine was then in motion, and the boy undertook to get off, as he was told to do, and in doing so was injured, as is alleged in the declaration. Conceding these to be the facts, it was negligent conduct in the engineer to direct a child only seven years old to get off the engine while in motion. It may be the engine-driver was guiltless of improper or negligent conduct in the matter; but the lower courts have found otherwise, and this court is prohibited from reviewing that finding, and it must consider the case as it comes before it.

The instructions given for plaintiff are not so variant from views here expressed as to make the giving of them any serious ground of error. • The second and fourth requests of defendant, which the court refused to give, do not contain accurate expressions of the law applicable to the facts of the case, and the court very properly refused to give them. Other instructions asked were properly refused for the same reason. The doctrine applicable to “co-employes in the same line of employment," as stated in the seventh refused instruction, could have no appropriate application to the facts of the case, and was properly refused.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.