author: Mr. Justice Scholfield

text:
    John Stafford v. The Chicago, Burlington and Quincy Railroad Company.

      Filed at Ottawa June 13, 1885.

    1. Fellow-servants—injury to one from, the negligence of another— liability of the common master. Where one servant is injured by the negligence of a fellow-servant, the duties of both being such as to bring them into habitual association, so that they may exercise an influence upon each other promotive of proper caution, and the master is guilty of no negligence in the employment of the servant causing the injury, the master will not be liable for the injury.
    2. Same—burden of proof—negligence of master. In a suit by a servant against his employer to recover damages for a personal injury from negligence of a fellow-servant, if it is claimed that the master was guilty of negligence in selecting or retaining incompetent servants, the burden is on the plaintiff to prove it.
    3. Master and servant—injury to the latter from alleged negligence of the former—liability, when servant takes the hazard of his employment. If a person lcnowing the hazards of his employment as the business is conducted, voluntarily continues therein, without any promise of the master to do any act to render the same less hazardous, the master will not be liable for any injury he may sustain therein, unless it may be caused by the willful act of the master.
    4. Practice in Supreme Court—vacating a judgment made under misapprehension of fact. Where a judgment of this court is entered in vacation, reversing the judgment of the Appellate Court inadvertently, and upon a misapprehension of the facts shown by the record, it will, on its own motion, vacate such judgment and cause the proper one to be entered.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit .Court of Peoria county; the Hon. N. M. Laws, Judge, presiding.
    Messrs. .Wilson & Raum, and Messrs. Stevens, Lee & Horton, for the appellant.
    Messrs. Jack & Moore, for the appellee.
   Mr. Justice Scholfield

delivered the opinion of the Court:

There was no oral argument in this case, and it was submitted to us' for decision on the printed arguments filed in the Appellate Court, alone. From this fact we were misled, and assumed that the Appellate Court had affirmed the judgment of the circuit court, and that it was only expected that we should pass upon the errors of law insisted upon in the arguments in the Appellate Court. Accordingly, we investigated the questions arising thereon, and being of opinion that the circuit court had, in some of its rulings, erred, in that regard, against the defendant in that court, we filed an opinion in vacation, on the 15th of May, 1885, pointing out wherein we held the circuit court had erred in its rulings, and entered judgment reversing the judgment of the Appellate Court, and remanding the cause. After that opinion was filed, our attention was called to the fact that we had misapprehended the condition of the record, and that the Appellate Court, instead of having affirmed the judgment of the circuit court, as we had assumed, had reversed that judgment, and refused to remand the cause. We thereupon recalled the record in the ease, and, of our own motion, we now order the judgment entered in vacation, on the 15th of May, 1885, to be vacated and wholly set aside, and that judgment be now entered (as it would then have been entered had we not then misapprehended the true state of the record) affirming the judgment of the Appellate Court.

The Appellate Court find, and recite in the record, the facts to be different from what they were found to be by the circuit court, and reverse the judgment of the circuit court because of this finding, waiving entirely the question whether the circuit court erred in its rulings upon questions of law, as contended by the defendant in that court. The recital in the record of the Appellate Court, of the findings of that court upon the questions of fact, is this: “This court finds the facts to be, that the appellee was guilty of contributory negligence and want of ordinary car-e, which led to the injury complained of in the declaration, without which contributory negligence and want of care such injury would not have occurred, in this, to-wit, that the incompetency and unskillfulness of the engineer, Bobert Mack, in manner complained of in the declaration, was as well known to appellee at least thirty days prior to and up to the time of the reception of the said injury by appellee, as it was or could have been known to the appellant, and that such knowledge wras, on the part of appellee, full and complete. And the court further finds, that at no time prior to the time the injury was received, in manner charged in the declaration, did the appellee notify the appellant of the incompetent and unskillful character of said engineer, Mack, nor of his deficiency as such engineer, in any way, nor exact or receive a promise from appellant that it would discharge said M.ack, or fill his place with a competent engineer, nor did appellee ever complain to appellant, or any of its officers, that said Mack was incompetent or unskillful in his capacity of engineer, but on the contrary, the said appellee, well knowing the unskillfulness and incompetency of said Mack as engineer of said engine, as fully as said unskillfulness and incompetency are charged in said declaration, did not leave the employment of the said appellant, but continued in the employment of appellant, as helper or switchman, working for it in company with said Mack, in manner charged in the declaration, taking his own risks of receiving any injury in said employment on account of the incompetency or unskillfúlness of said Mack. The court further finds, that the said appellee and said Mack were fellow-servants in the employment of appellant, in the same line, habitually associated and working together as such servants, in its common employment, on the same engine, prior to and at the time when the appellee received the injury complained of in the declaration. ” This relieves us from all inquiry, save whether, on the facts as thus found, the plaintiff below was entitled to recover. (Hurd’s Stat. 1880, page 798, sec. 87.) That he was not entitled to recover is not now open to controversy. We are firmly committed to the principies—

First—Where one servant is injured by the negligence of his fellow-servant, the duties of both being such as to bring them into habitual association, so that they may exercise an influence upon each other promotive of proper caution, and the master is guilty of no negligence in the employment of the servant causing the injury, the master will not be liable for the injury. Chicago ancl Northwestern Railway Co. v. Moranda, 93 Ill. 302; Chicago and Eastern Illinois Railroad Co. v. Geary, 110 id. 383.

Second—If it be alleged the master is guilty of negligence in selecting or retaining an incompetent servant, the burden is on the plaintiff to prove it. Columbus, Chicago and Indiana Central Railway Co. v. Troesch, 68 Ill. 545; Chicago and Eastern Illinois Railroad Co. v. Geary, supra.

Third—If a person, knowing the hazards of his employment as the business is conducted, voluntarily continues therein, without any promise of the master to do any act to render the same less hazardous, the master will not be liable for any injury he may sustain therein, unless, indeed, it may be caused by the willful act of the master. Simmons v. Chicago and Tomah Railroad Co. 110 Ill. 340; Abend v. Terre Haute and Indiana Railroad Co. 111 id. 202; Missowi Furnace Co. w. Abend, 107 id. 44; Pennsylvania Co. v. Lynch, 90 id. 334.

The judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    Thomas K. Means et al. v. Isham Harrison, Exr.

      Filed at Mt. Vernon June 13, 1885.

    1. Limitation—promissory note—effect of act of 1873 as to note given prior to that time. The Limitation acij of April 4, 1872, which took effect July 1, 1872, has no application to a promissory note given in January, 1872, payable two years after the date thereof. The Limitation law of sixteen years applies to such a note.
    2. Construction of statute—whether to give a retroactive effect, or only prospective. As a general rule a statute is construed so that it shall operate in futuro only, and not to affect past transactions. If the real design is left doubtful, the statute will be construed so as to have only a prospective-operation.
    3. Administration of estates—payment to an executor—in property. In the absence of any direction by will, an executor’s duty is to collect notes given to the testator, in money. He has no authority to exchange the same for other property.
    4. So in a suit on a note against several, the defendants pleaded that the note was given for $500 of money loaned by the payee to a Masonic lodge, and that such lodge paid divers large sums of money on the note, and after the death of the payee, the plaintiff (the executor of the deceased payee) received from said lodge, in payment of the note, other property of the value of $1400: Held, that the plea was palpably bad, and presented no defence.
    Writ of Error to the Appellate Court for the Fourth District ;■—-heard in that court on writ of error to the Circuit Court of Franklin county; the Hon. David J. Baker, Judge, presiding.
    This was an action of assumpsit upon a promissory note, brought against the makers thereof, Thomas K. Means, Henry Hudson, William T. Stacy, Thomas F. Tinsley, Isaac J. Clayton, A. D. Scaggs, Thomas M. Renfro, C. F. Mulkey, John T. Blake and William J. Moyers, the other makers having died. The defendants pleaded the general issue and two special pleas, the first being that the cause of action did not accrue within ten years next before the commencement of the suit.
    The last special plea avers, in substance, that at the time of the execution of the note in the declaration mentioned, said Isham Harrison, plaintiff, as agent of said Barzilla Silkwood, loaned to Polar Star Lodge No. 652, of A. F. & A. Masons, $500 for two years, said lodge then being organized and working under a charter from the Masonic Grand Lodge of Illinois, and that defendants, with T. F. Tinsley, C. F. Mulkey, J. T. Blake, W. J. Moyers, I. J. Clayton and A. D. Seaggs, being members of said lodge No. 652, executed to said Silkwood said note, to secure the payment of said sum of $500 loaned by said Silkwood, as above stated, the same being the only consideration for the execution of said note, and that said lodge No. 652 recognized and acknowledged the same as its own debt, and paid divers large sums of money on said note, without the knowledge or consent of defendants, and after the death of said Silkwood, to-wit, on the third day of August, A. D. 1882, said plaintiff received from said lodge No. 652, in payment of the note, other property of the value of $1400. The other facts appear in the opinion of the court.
    Mr. Thomas J. Layman, for the plaintiffs in error:
    Tbp law limiting the right of action in force at the time the note matured and the right of action accrued, should govern the case. Beasley v. Spencer, 25 Ill. 216.
    This position is not in conflict with the rule in Dickenson v. Railroad Co. 77 Ill. 331, which holds the act of 1872 is not to have a retroactive operation. We also refer to Hyman v. Bayne, 83 Ill. 256.
    Mr. F. M. Youngblood, for the defendant in error:
    The act of 1872, limiting actions upon notes, etc., to ten years, was designed to operate prospectively upon causes of action already accrued.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an action in assumpsit, brought by Isham Harrison, executor of Barzilla Silkwood, deceased, upon a promissory note made by the defendants and others on January 25,. 1872, to said Silkwood, in his lifetime, for $500, payable two years after date, with ten per cent interest. The pleas were non-assumpsit, and two special pleas. A demurrer was sustained to the two special pleas. The cause was then submitted to the court for trial without a jury, the issue found for the plaintiff, damages assessed at $896.67, and judgment accordingly. The judgment was affirmed by the Appellate ■Court for the Fourth District, and an appeal taken by the ■defendants to this court.

The questions presented are as -to the sufficiency of the second and third pleas, to which demurrers were sustained. The second plea was the Statute of Limitations,—that the ■cause of action did not accrue-within ten years next before the commencement of the suit.

The action was commenced October 15, 1884. The time ■of limitation of an action on a promissory note when the note in suit was made (on January 29, 1872,) was sixteen years, under the act of November 5, 1849. By the act approved April 4, 1872, which "went in force July 1, 1872, the time of limitation of an action on a promissory note was made ten years. The act of April 4, 1872, expressly repeals the act of November 5, 1849, with this provision in the repealing section : “But this section shall not be construed so as to affect any rights or liabilities, or any causes of action, that may have accrued before this act shall take effect.” The question is, which act is to govern here,—the act of November 5, 1849, which was in force at the time of the making of the note, or the act of April 4, 1872, which was enacted and went in force after the making of the note, but before the time of payment ■of the note, before a cause of action on the note accrued.

The saving clause of the act of 1872 extends not only to causes of action, but to “any rights or liabilities, or any causes of action, ” which might have before accrued. The time of the payment of the note had not then (at the passage •or going into effect of the act of 1872) arrived, and it may be said that a cause of action on the note had not then accrued; but can it be said that there had not accrued any right or liability with .respect to the note ? The payee had at that time the right to bring suit on the note at any time within sixteen years after it became due, and there was a liability •on the part of the makers to be sued upon the note at any time within that period, and it was such right and liability, we think, which it was the intention of the legislature should not be affected by the act of 1872,—that the act was designed to be wholly prospective in its operation, and not to affect ■contracts then existing. We must think the legislature meant more than causes of action which had accrued, when they say “any rights or liabilities, or any causes of action, that may-have accrued. ” Some additional meaning should be allowed to the words “rights or liabilities. ” This construction is in ■accord with the general rule that a statute is to operate in futuro only, and is not to be construed to affect past transactions, and that _ if it is left doubtful what was the real design •as to its having a prospective or retroactive effect, the statute ■must be so construed as to have a prospective effect only. Thompson v. Alexander, 11 Ill. 55; Dobbins v. National Bank, 112 id. 553.

The second plea sets up that the note was given for money loaned to Polar Star Lodge No. 652, of A. F. & A. Masons; that the lodge paid divers large sums of money on the note, and after the death of Silkwood, the payee, the plaintiff received from said lodge, in payment of the note, other property -of the value of $1400. The plea was palpably defective. It was to the whole cause of action. It did not state what was the property which was received. The plaintiff’s duty, as executor, was to collect the note in money. He had no-authority to exchange it for other property.

We are of opinion the circuit court rightly sustained the-demurrers to the two special pleas.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Scott

text:
    Sterling P. Rounds v. Nettie F. McCormick et al.

      Filed at Ottawa June 13, 1885.

      Stockholders—remedy upon their liability for debts of corporation— when in equity. The liability of stockholders under section 9 of the act of 1857, entitled “An act for the formation of manufacturing, mining, mechanical and chemical corporations, ” is to the creditors of the corporation as a class, and not to each individual creditor. Therefore, the remedy of a creditor seeking to enforce the personal liability created by that section, is in a court of equity, and not at law.
    Writ oe Error to the Appellate Court for the First District ;—heard in that court on appeal from the Superior Court-of Cook county; the Hon. B. S. Williamson, Judge, presiding.
    Mr. F. W. Becker, for the plaintiff in error:
    Whether defendant might have set up the defence that the capital stock had not been fully subscribed, as against the corporation, on a call, had he not waived his right, is not pertinent to this inquiry. That he can not set up this defence, or deny the existence of the corporation, as against a creditor of the corporation, after having acquiesced in the organization, acts and contracts of the company to the extent here shown, is established by many authorities. Morawetz on Private Corporations, secs. 145, 259, 285, 576, 595-; Thompson on. Liability of Stockholders, secs. 120, 400, 409, 415; Johnston v. Bank, 3 Strobh. Eq. 263; Stillman v. Dougherty, 44 Md. 380; Hager v. Cleveland, 36 Md. 476; O. H. and W. M. Co. v. Canney, 54 N. H. 295; Eaton v. Aspinwall, 19 N. Y. 119; Abbott v. Aspinwall, 26 Barb. 202; Slocum v. Warren, 10 R. I. 112; McHose v. Wheeler, 45 Pa. St. 32; Patterson v. W. M. Co. 40 id. 117; Farrar v. Walker, 3 Dill. 506; Gaff v. Fisher, 33 Ohio St. 107; Railroad Co. v. Railroad Co. 105 Ill. 110; Hickling v. Wilson, 104 id. 54; Dows v. Naper, 91 id. 44; McCarthy v. Lavasche, 89 id. 270; Wheelock v. Kost, 77 id. 296; Corwith v. Culver, 69 id. 502.
    Messrs. Miller, Lewis & Hudson, for the defendants in error:
    The appropriate remedy was by bill in equity, and not an action at law. Harper v. Manufacturing Co. 100 Ill. 225; Low v. Buchanan, 94 id. 76.
    There being no evidence that C. H. McCormick was a stockholder at the time the debt was contracted, he was not liable. Culver v. Bank, 64 Ill. 528.
   Mr. Justice Scott

delivered the opinion of the Court:

This suit seems to have been brought to the October term, 1872, of the Superior Court. It is a suit at law, and was brought by Sterling Bounds, against Cyrus H. McCormick, since deceased, to enforce his supposed liability to plaintiff as a stockholder in the Chicago News Printing Company, for goods, wares and merchandise sold and delivered to the company. Since the death of the original defendant the suit has progressed against his representatives. No trial of the cause appears to have been had until 1881, when there was a finding and judgment for costs, for defendant. That judgment was reversed by the Appellate Court for the First District, and a second trial was had in 1883, which also resulted in a finding and judgment for defendant. The latter judgment was affirmed in the Appellate Court, and now plaintiff brings, the case to this court on error.

• The amended declaration in this case sets forth that the-Chicago News Printing Company is a body corporate, created and existing under the act of the General Assembly of February, 1857, entitled “An act for the formation of manufacturing, mining, mechanical and chemical corporations, ” and that such corporation, among other things, was engaged in printing a newspaper, known as “The Chicago Daily News, and carrying on a general job printing office. It was alleged defendant, Cyrus H. McCormick, was a stockholder in the corporation, and- this action was brought at law to enforce his-supposed liability under - the 9th section of the act of 1857, for the indebtedness of the company to plaintiff. There is-one reason that is conclusive why the present judgment must be affirmed. The remedy, if plaintiff has any, is in chancery, and not at law. The liability of stockholders in such corporation, under the 9th section of the act of 1857, is to the creditors as a class, and not to each individual creditor. It was so expressly held by this court in Harper v. Union Manufacturing Co. 100 Ill. 225, on the authority of Low v. Buchanan, 94 id. 76. The precise question was raised and decided in the cases cited, so the point made is no longer a new question in this court, and need not be further discussed. This-view of the law being conclusive of the case, other questions made on the record need not be discussed or passed upon. • The judgment of the Appellate Court must be affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    William McDowell v. Julia Ann McDowell.

      Filed at Mt. Vernon June 13, 1885.

    1. Chancery—granting complete relief, although in respect to some of the elements in the case there was a defence at law. While, as a general rule, where a party has an adequate remedy at law, a court of equity' will not intervene, yet where equity has acquired jurisdiction of a case, such as a bill for partition of land, and to have a written contract respecting other lands specifically enforced, the court, on decreeing the equitable relief sought in that regard, may also enjoin the enforcement of a judgment against the complainant in a forcible detainer suit for possession of the land, although he-might have defended that suit successfully at law.
    2. Evidence—relevancy—in case of agreement for division of property between husband and wife—subsequent claim of alimony by the latter._ Where persons living together as husband and wife, separated, and agreed, in writing, for the division of their property, real and personal, in which contract the wife, upon receiving her portion, was to release the husband from all further claims for dower, it was held, on bill by the wife for the specific performance of the agreement and for partition, that proof offered by the defendant to show that the wife defended a suit brought by him for divorce, and claimed alimony, was properly rejected as irrelevant.
    3. Partition—by agreement—inequality of the division—estoppel. Husband and wife agreed to divide a lot of ground so that the wife should receive one-third in value of the whole lot, and they each selected a third person, who made the division, which was satisfactory to them. In suit for partition the court confirmed this division, without regard to the exact value of the part set off to the wife: Held, that the husband, having acquiesced in the division as made, could not be heard to allege that the wife received more in value than one-third of the whole lot.
    4. Error will not always reverse—as to admission of evidence. The admission of parol evidence which may vary or change the terms of a written contract, when the party introducing the same obtains no relief whatever on. the contract, is an error working no harm, and no ground of reversal.
    Writ of Error to the Circuit Court of Union county; the Hon. D. M. Browning, Judge, presiding.
    This was a bill in chancery, by Julia Ann McDowell, against William McDowell and James W. Coleman, seeking to enjoin the execution of a judgment in a forcible detainer case obtained by Coleman against complainant. The bill also prays for the partition of certain premises therein described, and for the conveyance by the plaintiff in error to defendant in error of a strip of land described in a certain bond for a deed, which bond is made an exhibit, and asked to be taken as a part of the bill.
    The bill was filed June 16, 1882, two days after the rendition of the judgment in the forcible detainer case by the justice, and three days before the expiration of the time in which an appeal could have been legally taken. It sets out an illegal contract of marriage between the plaintiff and defendant, a subsequent discovery of the real facts which existed at the time of the consummation of such illegal contract, by the marriage of the plaintiff and defendant, their living and cohabiting together as husband and wife for some years after the discovery of such real facts, and their final separation, and division of 'their property and effects according to the terms of a certain written agreement mutually signed by them, which said written agreement is filed with the bill, and marked “Exhibit A, ” and asked to be made a part of complainant’s bill; that by the terms of said contract the defendant in error was to have and retain as of dower onetliird in value of a certain three-acre tract, etc., on which they then resided; that when the parties thus separated the plaintiff in error left the defendant in error in the possession of the house formerly occupied by them as a homestead, etc. It is further alleged that after the separation and division as aforesaid, the defendant in error purchased a strip of land ten (ninety-five) feet wide, etc., from plaintiff in error, which purchase is witnessed by a contract in writing marked “Exhibit B, ” filed with the bill and asked to be made a part of the same, and that the defendant in error has wholly failed to comply with the terms of said contract of 'purchase, but desires to do so now by bringing the money into court as the court may decree, and prays that upon such compliance the plaintiff in error may be compelled to make, execute and deliver to her a deed, etc., to the said ten feet, etc.; also prays for partition and division. The bill then sets out the fact of the rendition of the justice’s judgment in the action of forcible detainer, avers inability to take an appeal on account of poverty, and prays for an injunction, etc.
    The plaintiff in error answered separately, alleging that at ihe time of his marriage with defendant in error she had a living husband; that she falsely and knowingly misrepresented-the facts to him, by alleging that she had been legally divorced from Charles Daniels, her then living husband; denies that she ever said that said Daniels was dead, but claimed that she was divorced; that upon these false and fraudulent representations he married her, but denies that he had any knowledge of the fact that she was the lawful wife of another man; admits that he abandoned the said Julia Ann, but denies that it was by their mutual labor, etc., that his small property was accumulated, but charges the fact to be that the said Julia Ann was' an invalid, etc., and -her services of small value; that she had two small girl children, aged three and six years, respectively, at the time of his marriage with her, both of whom he reared and educated. Plaintiff in error further says that the division of property, etc., mentioned in exhibits “A” and “B” was agreed to by this defendant- to avoid litigation, etc., and that in consideration thereof the complainant agreed to pay, etc., according to the terms as set out in “Exhibit B, ” and further, that she would cause him no unnecessary trouble or expense in a suit to dissolve the illegal marriage existing between them; that the complainant failed and refused to comply with the terms of said contract; that she notified this respondent that she would not pay anything on said contract, but that she would defend the divorce suit brought by him, claiming alimony, etc., and that she did defend said divorce proceeding; that she filed her answer and cross-bill, claimed alimony, etc., compelled respondent to pay her attorney’s fee of $25, etc., and that on a final hearing of said cause the equities were decided in. favor of respondent, and the complainant therein was denied alimony.
    The court found and decreed that complainant was owner-in fee of eighty-five feet, etc., describing the same, and made the injunction perpetual as to it; found that complainant had not complied with the contract of purchase of September 20, 1879.
    Mr. Matthew J. Inscore, for the plaintiff in error:
    If the complainant has any rights under either of the contracts set up, they are purely legal in their nature, and can be readily enforced in a court of law. Where a party has an adequate remedy at law, a court of equity will not interfere. Smith v. Powell, SO Ill. 21; Thomas v. Caldwell, id. 139; School Directors v. Miller, 54 id. 338; Winkler v. Winkler, 40 id. 179; Ohling v. Luitjens, 32 id. 23; Victor Scale Co. v. Shurtleff, 81 id. 314; Imperial Ins. Co. v. Gunning, id. 236.
    He who asks equity must do equity, and a party can not have a specific performance of a contract in equity, unless he can show that he has performed it in all its parts, or can show just excuse for non-performance; and the burden of proof is on the complainant to show his right to the relief he-asks, by a clear preponderance of the evidence. Brink v. Steadman, 70 Ill. 241; Walker v. Douglas, id. 446; Kimball v. Tooke, id. 553.
    Mr. M. C. Crawford, and Mr. N. Maxey, for the defendant in error:
    This was a bill in chancery, filed by the defendant in error, against the plaintiff in error, for specific performance and partition, both of which are proper subjects of equitable jurisdiction.

      The court denied the prayer for specific performance, but granted the partition, and the interest of defendant in error was set off to her by metes and bounds in severalty, and the decree conveys to her all the right, title and interests which the plaintiff in error had in and to the same. It is not necessary to cite authorities to prove that a court of chancery has this power.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by Julia Ann McDowell, for partition of a certain tract of land between herself and William McDowell, and also for specific performance of a contract providing for the conveyance of a certain other tract, which had .been executed by the complainant, and defendant, William McDowell. The bill also prayed for an injunction to enjoin McDowell from taking possession of the premises-claimed by complainant, under a writ issued or to be issued by a justice of the peace on a judgment in an action of forcibledetainer which McDowell had prosecuted against complainant. The defendant, McDowell, put in an answer to the bill, and on the hearing, upon the pleadings and evidence, the court, awarded a partition of the premises sought to be divided, and! refused a specific performance of the contract set up in the bill. The defendant, McDowell, not being satisfied with the decree, sued out this writ of error.

It is claimed that if the complainant has any rights under the contract set up in the bill, they are purely legal, and maybe enforced in a court of law. It may be true that complainant might have been able to defeat the action brought for possession of the premises, by relying on her contract on a. trial in a court of law; but if she was entitled to the land under the written contract, she had a clear right to invoke-the aid of a court of equity, and compel a division, or a deed, for that portion of the property which she acquired under the-written contract. The complainant, under the allegations of her bill, sought a partition of premises which were held undivided between her and the defendant. She also prayed for the specific performance of a contract in writing, providing for the conveyance of the land. The rule that a court of equity has jurisdiction to grant relief in such cases, is too familiar to cite authorities in its support. It is quite true, as suggested, that where a party has an adequate remedy at law, a court of equity will not interfere; but that doctrine has no application to the facts of this case. Here the complainant and defend•ant, who had lived together as husband and wife for a number of years, agreed to separate, and entered into a written ■contract providing for a division of the three acres of land in controversy, and certain specified articles of personal property. One-third in value of the land, including the house, was to be set off to complainant. After this contract had been executed, the parties agreed upon two men to go upon and divide the land. In pursuance of this arrangement two men were selected, and they examined the property, agreed upon a division, and the defendant, as the evidence shows, was entirely satisfied with and assented to the division so made, and complainant was left in the possession of the land which it had thus been determined she should have.

These were some of the facts before the court which led to the decree enjoining the defendant from dispossessing complainant and vesting the title to the property in her, and the decree, in our judgment, was justified by the evidence. As no relief was granted in reference to the other tract of land, and no cross-errors have been assigned, it will not be necessary to spend any time in relation to that part of the relief claimed in the bill, although the matter is discussed in the argument of plaintiff in error.

It is also claimed that the court erred in admitting the evidence of the witnesses Buck and Williams, to vary the terms of the written contract (Exhibit “B.”) No relief was granted under this contract, and whether the evidence was competent or not is a matter of no consequence whatever.

It is also claimed that the court erred in rejecting evidence offered by the defendant to show complainant defended the bill for divorce brought by the defendant against her, and claimed alimony, and other evidence of a like character. We do not think this evidence had any bearing on the issue presented by this record, and for this reason, if for no other, the court did right in rejecting it. The contract under which complainant claims the land, provides that after receiving the property she shall release the defendant from all further claims for dower, but this is all. So far as any agreement was concerned she had a right to resist his suit for divorce, if she saw proper, and anything she did in that direction did not impair her rights under the written contract.

But it is said if the defendant was entitled to a decree in this cause for one-third in value of the whole lot, as prayed for in her bill, it was error in the court to decree her the fee simple title to the strip eighty-five feet wide on which the dwelling house stood, without ascertaining, by competent evidence, the value of the whole lot, and the relative value of the eighty-five foot strip. It appears from the evidence that the defendant was present when Buck and Williams divided the land between the parties, and expressed himself entirely satisfied with the division as made. The court, by the decree, followed and confirmed this division, which it was authorized to do by the evidence. In the division of the three-acre lot, if defendant saw proper to allow the complainant to have more in value than one-third of the lot, he could do so, and after the division was made with his sanction and approval, he will be bound by it, although she may have received a, trifle more in value of the property than the contract specified she might receive.

It will be remembered that the complainant and the defendant were never legally married, as complainant, at the date of the marriage, had a husband then living, so that no objection can be urged against the validity of the contract providing for a division of the property, on the ground that the contracting parties were husband and wife.

The decree of the circuit court will be affirmed.

Decree affirmed.


text:
    John O. Sullivan v. The Commissioners of Highways.

      Filed at Ottawa May 15, 1885.

    1. Commissioners oe highways—power to contract indebtedness. The commissioners of highways have no authority of law to contract an indebtedness in respect to roads and bridges, when the money to pay the same is not in their treasury to be expended, or has not already been actually levied.
    2. But where a tax has been levied by them, though the proceeds of such levy may have been intended by the commissioners to be applied in a way distinct from the making of a culvert, a party who builds a culvert for them under a contract, who has no notice that the levy was not made to pay for the same, and where there is nothing to afford notice of the purpose of the levy, may recover of the contract price a sum equal to such levy, and no more; and the fact that he was compelled to accept an order for the sum due, if such was not the agreement before the work was done, will not prevent a recovery upon an order not exceeding the tax levied for that year.
    3. Same—power to contract to pay interest. Where commissioners of highways contract for services and work in anticipation of taxes already levied, and give an order for payment, upon their treasurer, payable at a future day, they will have no power to agree to pay interest on the same; and if such order provides for interest, that part thereof may be treated as void, and only the principal can be recovered on such order.
    Writ oe Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of LaSalle county; the Hon. George W. Stiff, Judge, presiding.

      Mr. James W. Duncan, and Mr. H. T. Gilbert, for the plaintiff in error.
    Mr. Henry Gunn, and Mr. Daniel Evans, for the defendants in error.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an action brought in the circuit court of La Salle county, by John 0. Sullivan, against the commissioners of highways of the town of Deer Park, in La Salle county, upon the following order, executed and delivered by them to Fyffe & Hetherington, and assigned by the latter to the plaintiff, to-wit:

“$1000. The treasurer of the commissioners of highways of the town of Deer Park, LaSalle county, State of Illinois, will pay to Fyffe & Hetherington, or ortjer, the sum of one thousand dollars, ($1000,) with interest at ten per cent per annum, payable on or before the twentieth (20th) day of July, A. D. 1878.
“Dated at Deer Park, this 1st day of December, 1876.”

The cause was submitted to the court for trial upon an agreed statement of facts. The circuit court found in favor •of the plaintiff, and entered a judgment for $1446, which, upon appeal, was reversed by the Appellate Court for the Second District, and a judgment entered in favor of the defendants. The case comes here upon a writ of error to the Appellate Court.

It appears by the agreed statement of facts, that the order was given by the defendants to Fyffe & Hetherington for work done by the latter in the construction of a culvert upon a highway in the tovm of Deer Park. “The contract under .which said work was performed by said Fyffe & Hetherington was •entered into subsequent to the month of September, A. D. 1876, and the work thereunder was performed by said Fyffe & Hetherington prior to the 1st of December, A. D. 1876, and. the total amount of work performed by said Fyffe & Hetherington under said contract was worth the sum of one thousand seven hundred and eighty-three dollars and sixty-three cents, ($1783.63,) no part of which was ever paid by said defendants, but instead of making payment therefor in cash, said defendants issued to said Fyffe & Hetherington the order above mentioned, and a similar order for the sum of seven hundred and eighty-three dollars and sixty-three cents ($783.63.) At th& time of the making of said contract with said Fyffe & Hetherington there was no money in the hands of said defendants, or their treasurer, belonging to the road and bridge funds of said town of Deer Park. The amount of the road and bridge tax levied in said town for said year 1876, (which levy ivasmade in the month of September of said year,) was one thousand five hundred and sixty-six dollars, ($1566,) no part of which, however, had been collected at the time of the issuing-of said orders. At the time of the making of said levy the defendants did not contemplate entering into any contract with Fyffe & Hetherington, or with any other person or persons, for the making of the culvert built by them, but they intended to use the funds so levied, for other road and bridge purposes. But there were no records, either of said town of Deer Park or of said county of LaSalle, from which said Fyffe & Hetherington could have ascertained the purpose for which said funds, so levied, were to be used, nor did they, or the plaintiff, ever have any notice of the purpose for which said money was intended to be used. ”

The question presented is, whether, upon these facts, the original contract entered into under which the work was done, and the order issued to Fyffe & Hetherington, were null and. void. The decision of the Appellate Court that they were, appears to have been rested upon the cases of Commissioners of Highways v. Newell, 80 Ill. 587, and Brauns v. Town of Peoriar 82 id. 11. In the latter case it was said: “We do not find, in the very many provisions of the statute- respecting roads and bridges, any authority conferred upon the highway commissioners to expend money on the roads and bridges within their respective districts, which is not in their treasury to be expended, and which had not been actually levied, nor is any authority conferred upon them to anticipate revenue and expend it, unless it be actually levied. It seems to be the policy of the law, and a very just one, that the accruing revenue of the year shall be appropriated to the wants of the year, and that no expenses should be incurred, in the absence of money already levied, to meet them. ” In the Neivell case it was held that a tax having been levied by the commissioners of highways, they might enter into contracts, to be paid out of the funds derived from such levy.

These cases do not, in our opinion, go to the extent to deny power in the commissioners to contract for the doing of the work on the culvert which they did contract for in this case, and to require that the contract and order given should be held void. Prior to the making of the contract a tax levy for roads and bridges had been made, to the amount of $1566, and the cases cited admit the power, after having levied that tax, to make contracts for work.on the highways to the extent of that levy. The mere intention of the commissioners, without any expression whatever of that intention, to use the tax levied, for other road and bridge purposes, we do not think should be of any avail as against the contract which was made. Begard should be had for those performing labor under the employment of public officers, as well as for the tax-payers. At the time of entering into this contract for the culvert, the contractors saw by the public records that a tax levy had been made. fhey were informed by decision of court that the commissioners might contract for the doing of work to the amount of the tax levied, and we think they were justified and are to-be protected in entering into a contract for the doing of work to the amount of the tax which had been levied, they having no notice that the money was intended to be used for any other purpose, and no means of so ascertaining from any public records. The contract was made, and the work done under it. When it came to paying for the work, instead of making payment therefor in cash, the defendants gave to the contractors the order in question, with one other. The orders are payable on or before July 20, 1878, but it does not appear that by the contract for the doing of the work these orders were to be taken. For aught that. appears, the work should have been paid for at once, in money, but the contractors seem to have consented to take these time orders, bearing ten per cent interest. Of course, if the taking of such orders was not stipulated for by the original contract, the acceptance of them after the doing of the work should not affect the validity of the contract.

We are of opinion the contract, to the extent' of $1566, (the amount of the tax levy,) should be treated as valid, and that the order sued on, being less than that amount, should be held valid. We do not mean by this to sustain the interest clause in the order. The circuit court seems to have allowed six per cent interest on it. The drift of decision by this court has been to strictly limit these highway commissioners in their power to impose burdens upon the tax-payers of their districts, confining them in their expenditures to moneys in the treasury, or such as had been provided for by an actual tax levy. In this restricted range of action there is no necessity for the issuing by the commissioners of interest-bearing obligations, and burdening tax-payers therewith, and we are of opinion the power to do so should not be admitted. We hold the interest provision of the order invalid in its whole extent.

The judgment of the Appellate Court is reversed and the cause remanded.

Judgment reversed.


text:
    James P. Sidwell v. Mary J. Wheaton.

      Filed at Ottawa June 13, 1885.

    1. Lien—purchaser assuming incumbrance—of the Ken created thereby tin favor of the holder of the incumbrance. The owner of a tract of land, after having given a deed of trust to secure an indebtedness of §800, in which ■he intended to include the same and other land, but in which the tract first .mentioned was omitted by mistake, sold and conveyed the same by a deed •containing a clause that it was subject to such trust deed and another one, •describing the same and the date of their record, and then reciting that it was understood that the grantee, as a part of the consideration of his deed, ■assumed the payment of the several sums so secured by such trust deeds, with the interest, etc.: Held, that the reservation or assumption clause in the deed of conveyance was, in effect, the creation of an express lien, by contract, on the land conveyed, for a portion of the purchase money, in favor of the holders of the notes described in the trust deeds, which followed the land into the hands of all persons claiming under the grantee.
    2. Notice of lien as to prior incumbrance—by recitals in deed. Where a vendor of land states in his deed that it is subject to an indebtedness of his, naming the amount and to whom it is owing, and that the grantee, as a part of the consideration of his deed, assumes the payment thereof, such deed will create an express lien or charge on the land for a distinct portion •of the purchase money; and the recording of the same will be notice of such lien to all persons claiming under the grantee. Such a lien will have all the •efficacy of a mortgage.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook •county; the Hon. Henry M. Shepard, Judge, presiding.
    Mr. T. H. Gault, for the appellant:
    A vendor’s lien by reservation can, by apt words, be created in a deed of conveyance; but the recital necessary to create such a lien differs materially from that contained in the deed from Badeau to Lee, which is simply an assumption of the mortgage by Lee. 3 Pomeroy’s Eq. Jur. sec. 1256. See, also, Heist v. Baker, 49 Pa. St. 9; Pugh v. Holt, 47 Miss. 461; Carr v. Holbrook, 1 Mo. 240; Sanford v. Smith, 6 Bush, 129 ; Hester v. Green, 12 Wright, 96.
    Messrs. Dent, Black & Cratty Bros., for the appellee,
    contended that the clause in the deed as to the assumption of the debt secured by the trust deed, created a liability on the grantee to the incumbrancer, and a lien on the premises for its payment,—citing Markoe v. Andras, 67 Ill. 34; Carpenter v. Mitchell, 54 id. 126; 1 Hilliard on Mortgages, 473, 477, 486; Blaisdell v. Smith, 3 Bradw. 150; Washburn on Real Prop. 89.
    The deed, with its recitals, when recorded, was notice of the lien to all subsequent purchasers. Story’s Eq. Jur. 401; Washburn on Real Prop. 89; Case v. Busteed, 24 Ind. 426; Melross v. Scott, 18 id. 250. See, also, Jones on Mortgages, sec. 229; Moore v. Lackey, 53 Miss. 85; White v. Downs, 40 Texas, 226; King v. Young Men's Association, 1 Wood, 386;, Pomeroy’s Eq. Jur. secs. 1255, 1256.
   Mr. Justice Scott

delivered the opinion of the Court:

The bill in this case was exhibited in the Superior Court by Mary J. Wheaton, in which she alleges the execution, in March, 1871, of a trust deed by William G. Badeau and wife-to Joel D. Harvey, to secure the payment of a promissory note for $800, of which she is the assignee; that by mistake-only a part of the land intended to be embraced in the trust deed was in fact included in it; that thereafter Badeau and wife conveyed the premises intended to be described in the trust deed, to George L. Lee, by the proper and correct description, and that in the habendum clause of the deed to Lee-was inserted the following provision: “This conveyance is made subject to two certain trust deeds, as follows: one dated March 3,1873, recorded in the recorder’s office of Cook county, Illinois, in book 210, page 363„ made by William C. Badeau and wife to Lyman Baird, to secure his bond of even date therewith, conditioned for the payment of $800 on March 3, 1876, with interest at ten per cent per annum, payable half-yearly ; and one other trust deed, dated March 4, 1871, recorded in said recorder’s office in book 542, page 214, made by William C. Badeau and wife to Joel D. Harvey, to secure payment of the sum of $800,—it being understood that the party of the second part, as part of the consideration of this conveyance, assumes the payment of $1600, secured by said two trust deeds, with interest on $800 from March 3, 1873, and on $800 from March 4, 1872, at the rates therein specified. ” It is also alleged that through mesne conveyances the premises so conveyed to Lee came to defendant James P. Sidwell, who purchased pendente lite, and who was made a defendant on his own petition. The makers of the trust deeds and their grantees seem to have been made defendants, and all answered the bill except, perhaps, defendants Harvey and Lee, against whom defaults were entered. The court found the facts substantially as stated in the bill, and refused to correct the alleged mistake in the description of the premises in the trust deed given to secure the note held by complainant, but did decree that the conveyance by Badeau and wife to Lee, by reservation or clause of assumption, operated, in effect, as the creation of a lien or charge on the lands intended to be included in the trust deed in the nature of a mortgage for the payment of such indebtedness by Lee or his assigns in favor of his grantor, Badeau, and his assigns, and to the benefit and enforcement of which complainant is entitled. Defendant Sidwell excepted to the decision of the court, and prayed for an appeal to the Appellate Court for the First District, which was allowed, and it was thereupon stipulated, in substance, that only so much of the decision of the court as is last above stated should be assigned for error. The decision of the Superior Court was affirmed in the Appellate Court, and Sidwell brings the case to this court on his-further appeal.

The decision of the Superior Court was clearly correct. The reservation or assumption clause in the deed from Badeau and wife to Lee is, in effect, the creation of an express lien,, by contract, on the land conveyed, for a portion of the purchase money. It was expressed as positively and distinctly as it well could be,—“it being understood that the party of the second part, as a part of the consideration of this conveyance, assumes the payment of the sum of $1600." The reference to the trust deeds only makes the sums to be paid more definite, and indicates to whom the same were to be paid. The lien reserved for a distinct portion of the purchase money to be paid for the land appears from the record made of it in the proper book, and as all subsequent parties are chargeable with notice of what the record disclosed in the line of the title they were buying, the land in their hands is subject to the lien created by the deed. It is quite clear the deed from Badeau to Lee created, by express contract, a lien or charge upon the land itself for a distinct portion of the purchase money, which followed the land into whatsoever hands it passed, and had all the efficacy of a mortgage. The cases in this court that sustain this view of the law are numerous- and consistent, and it will only be necessary to make reference to a few of them: Carpenter v. Mitchell, 54 Ill. 126;. Markoe v. Andras, 67 id. 34.

The judgment of the Appellate Court must be affirmed.

Judgment affirmed*


author: Mr. Justice Mulkey

text:
    Thomas H. Smith et al. v. Charlotte Laatsch et al.

      Filed at Mt. Vernon June 13, 1885.

    1. Ejectment—evidence—title from a common sowce. In actions of ejectment, where both parties claim from a common source of title, the plaintiff will only be required to show a good and connected chain of title from the common source down to himself, to entitle him to recover. If the plaintiff shows the better title, though not altogether free from objections, he will be entitled to recover, unless a paramount outstanding title is shown in another.
    2. Where the defendant files an affidavit denying that he claims title from the same source as the plaintiff, the latter may show that he does so claim, by introducing in evidence the various deeds connecting him with such alleged common source; and it is no objection to the exercise of this right that the evidence offered also proves the defendant’s title to be worthless. If the defendant does not deny claiming under the source named, the plaintiff need not prove that fact.
    3. It was not the purpose of the legislature, in adopting the 25th section of the Ejectment act of 1872, to hold the plaintiff absolutely bound by the denial of the defendant that the parties claimed from a common source, where a counter-affidavit is filed, and thereby cut off his common law right to show that the two chains of title did run back to a common source. The sole purpose of that section was to relieve the plaintiff, in cases of thig kind, from the burden of proving the defendant’s chain of title as well as his own, unless the defendant should deny, by counter-affidavit, that he claimed from the alleged common source, in which event the burden would still remain upon the plaintiff, just as it did before, of proving both chains of title, running back to a common source.
    4. In this case the plaintiffs filed an affidavit that they and defendants claimed title under a common source,—the father of the plaintiffs. The defendants denied this fact, and stated that they claimed under a deed from A B to C D, and a deed from the latter, the defendants’ deceased father. Plaintiffs, after proving their heirship, introduced in evidence a deed from the administrator of their father’s estate, under a decree of the county court, to J. Q-., and a deed from him to A B, and a deed from A B to O D, and from O D to the defendants’ father, made before his death, and also showed from the record that the administrator’s sale and deed were void for want of jurisdiction in the court ordering the sale. This being all the evidence, the court found for the defendants: Held, that the plaintiffs were entitled to recover, and that the court erred in its finding and judgment.

      5. Statute—construction—so as not to conflict with the common law. Statutes should be construed in reference to the principles of the common law; and it will not be presumed the legislature intended to make any innovation upon -the common law further than the case absolutely requires, or further than that specified or clearly implied.
    Writ of Error to the Circuit Court of Effingham county; the Hon. William C. Jones, Judge, presiding.
    Mr. John M. Lansden, and Mr. Angus Leek, for the plaintiffs in error:
    If the plaintiff alleges a common source of title, and defendant denies it, as now provided for in the statute the parties are left just as they were before the 25th section of the statute was adopted. This section was not intended to increase the burden on the plaintiff in ejectment in any case. It simply provided for releasing him from a burden on condition of his making a certain statement under oath, very much as the plaintiff in an action for a money demand may file his affidavit of claim and relieve himself from other proof, unless the defendant shall plead under oath.
    Where both parties claim under the same right, the plaintiff is not required to trace his title back beyond the common source. Ferguson v. Miles, 3 Gilm. 365; McConnel v. Johnson, 2 Scam. 528; McClure v. Englehardt, 17 Ill. 50; Holbrook v. Brenner, 31 id. 501; Pollock v. Maison, 41 id. 516; Huls v. Buntin, 47 id. 396.
    Messrs. Wood Bros., for the defendants in error:
    The plaintiffs were required to go behind the source of title set up in their affidavit, as it was denied. Hartshorn v. Dawson, 79 Ill. 110; Clark v. Day, 93 id. 482.
    Treating the declaration and affidavit of plaintiffs, and the plea and affidavit of defendants, as pleadings sworn to in the case at bar, it is evident that plaintiffs, to make out their case, must show a title in fee in Thomas H. Smith, their father. 2 Greenleaf on Evidence, sec. 309; Adams on Ejectment, 282; Tyler on Ejectment, 483; Almond v.Bonnell, 76 Ill. 539. This they might have done—
    First—By showing a connected title from the United States, the ultimate source of title, to Smith. Start v. Clegg, 83 Ind. 85.
    Second—As a prima facie title that their ancestor had possession of the premises, claiming it, by words or acts, as his own in fee. Jenkins v. Pritchard, 2 Wils. 45; Barger v. Hobbs, 67 Ill. 597; DeWitt v. Bradbury, 94 id. 448.
    To enable a plaintiff to recover in an action of ejectment, he must, except in such instances as mortgagee, or grantor, or landlord, etc., show a prior possession or sufficient paper title. Page v. O'Brien, 36 Cal. 561; Borrell v. Rawlings, 30 id. 417.
    It is only where both parties claim title from a common source, that it is unnecessary to prove title in that person. 3 Greenleaf on Evidence, see. 307; Horning v. Sweet, 27 Minn. 279; Mickey v. Stratton, 5 Sawyer, 479; Brown v. Brown, 45 Mo. 415; Gaines v. New Orleans, 16 Wall. 715; Ames v. Beckley, 48 Vt. 102.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Thomas H. Smith and Belle W. Sullivan, plaintiffs in error, on thé 17th day of April, 1884, brought an action of ejectment, in the Effingham circuit court, against Charlotte and Ferdinand Laatsch, defendants in error, for the recovery of the east half of the south-west quarter of section 29, in township 7, north, range 4, east. The declaration was in the usual form, and the general issue, alone, pleaded. The cause, by agreement of parties, was tried by the court without a jury, resulting in a finding and judgment for the defendants, to reverse which the plaintiffs have brought this writ of error.

Before the commencement of the trial, plaintiffs filed in the cause an affidavit, setting forth that they claimed title to the premises through a common source with the defendants,— namely, through Thomas H. Smith, deceased, the ancestor of the plaintiffs,—and also stating that the defendants claim title to the premises as purchasers under a sale of the same made by the administrator of the estate of the said Thomas-H. Smith, deceased. The defendants thereupon filed in the cause an affidavit, stating that they claimed title to the premises from a source other than that mentioned in plaintiffs’ affidavit,—that is to say, in the manner following: “First, by deed of William C. Wright and wife to Wilhelm Goers, dated April 21, 1866; second, by deed of Wilhelm Goers and wife-to Christ Laatsch, of date February 12, 1874; third, by descent to the defendants in error, as widow and heir of the said Christ Laatsch; fourth, possession under said deeds as color of title acquired in good faith, and payment of all taxes on said premises for more than seven successive years prior to the commencement of this suit, by defendants in error and those under whom they claim.” These affidavits were both read in evidence on the trial.

The plaintiffs, for the purpose of proving the issue on their part, introduced Thomas H. Smith as a witness, who testified that he was twenty-two years old on the 6th day of June, 1884; that Belle W. Sullivan was about twenty-seven years old; that she and witness were the only children and sole heirs at law of Thomas H. Smith, who was killed at the battle of Fort Donelson, in February, 1862. The plaintiffs then, for the purpose of showing the back links in the defendants’ chain of conveyances, extending to and connecting with the title of the said Thomas H. Smith, deceased, and not specified in defendants’ counter-affidavit, introduced in evidence the record of a proceeding commenced in the county court of Massac county, at its February term, 1865, by J. G. Willis, as administrator of the estate of the said Thomas H. Smith, deceased, to sell the south-west quarter of the section of land above mentioned,, and of which the eighty-a ere tract now in dispute is a part,. for the purpose of paying the debts of the estate; also, a deed for the premises from the said J. G. Willis, as such administrator, to John Gilbert, dated May 4, I860; also, a power of attorney from Gilbert to Willis, dated 29th of June, 1865, empowering the latter to sell and convey the premises; and finally, the record of a deed from Gilbert and wife to William C. Wright, for said quarter section, executed by Willis, as attorney in fact of the said Gilbert and wife, bearing date July 18, 1865. Plaintiffs also "put in evidence records of the several conveyances through which defendants claim, as specified in their counter-affidavit, thus showing a complete chain of conveyances from Thomas H. Smith, deceased, the common source of title, to the defendants. The defendants declining to offer any evidence, the cause was submitted to the court upon the facts above mentioned, with the result already stated.

By reason of a failure to obtain jurisdiction over the persons of the defendants in the proceedings had in the county court by Willis, as administrator, it is conceded the order of sale was void, and that consequently his deed conferred no title on the purchaser or those claiming through him. The question then arises whether, under the facts shown, the court ruled properly in holding, as it must have done, the plaintiffs were bound to show title in their deceased father from some legitimate source, in order to entitle them to recover.

The rule is firmly established, and has often been recognized by this court, that in actions of ejectment, where both parties claim from a common source of title, the plaintiff will only be required to show a good and connected chain of title from the common source down to himself, to entitle him to recover. (McConnel v. Johnson, 2 Scam. 522; Ferguson v. Miles, 3 Gilm. 365; McClure v. Engelhardt, 17 Ill. 50.) In such eases, if the plaintiff shows the better title as between himself and the defendant, although it may not be free from objections, he will nevertheless be entitled to recover, unless the defendant shows a paramount outstanding title ia another. 3 Wait’s Actions and Defences, 16; Holbrook v. Brenner, 31 Ill. 501.

Prior to the adoption of the present statute regulating the practice in this class of cases, the plaintiff, in order to relieve himself from the burthen or danger, as the case might be, of deducing title from the government of the United States, or some other independent source of title, was bound to show not only his own claim of title back to the common source, but that of the defendants also, and if, upon this showing, the plaintiff appeared to have the better title, he would be entitled to recover, but not otherwise. The ease of Holbrook v. Brenner, supra, well illustrates the rule and practice as they formerly existed. In that case, Holbrook, the plaintiff, treated Bostwick, assignee in bankruptcy of Campbell, as the common source of title. Prettyman, under whom Brenner held as tenant, was admitted to defend. The plaintiff, for the purpose of showing that Prettyman claimed through Bostwick, introduced a deed from the latter, as assignee, to Doolittle, for the premises, bearing date June 17, 1851; then a deed from the master in chancery, under a decree for the sale of the premises, against the heirs of Doolittle, to pay the debts of the deceased. Holbrook then offered a deed from Bostwick to himself, for the premises, dated October 18, 1850, which, as will be perceived, was from October till June older than the deed from Bostwick to Doolittle. The court rejected this deed on the ground, among Other things, that it was not connected with any paramount source of title,—or, in other words, the court required plaintiff to show title in Bostwick before it would admit the deed. The plaintiff failing to do this, judgment was given for the defendant, which, on appeal, was reversed by this court on the ground the ruling of the circuit court in the respect stated was improper. In disposing of the case here, it is said: “The first objection to the deed as evidence was, that it was not, it is insisted, connected with a source of paramount title. On the contrary, it is urged that the evidence showed that the parties claimed title from Bostwick as a common source. In the action of ejectment it is held that where both parties claim under the same right, the plaintiff is not required to trace his title back beyond the common source. When it is found defendant has purchased by deed, and is in possession of the premises, it is prima facie evidence that he claims under that title; and if he and plaintiff claim from the same source, it is not necessary for the latter to trace his title further in the first instance. When he exhibits a title from the same source, better than that of the defendant, it is sufficient to put him on his defence. The defendant may, however, show that he claims under a different title, or he may show a paramount outstanding title, to defeat a recovery. In this ease it was sufficiently shown that both parties claimed from common source, to authorize the reading of the deed in evidence, and the court erred in excluding it from the jury.”

In Huls v. Buntin, 47 Ill. 396, the evidence showed that Huls, the plaintiff, claimed the premises in dispute from one Shaw through his heirs, while the defendant claimed from him through his administrator, under a sale authorized by” a decree of court. The plaintiff, to make out his own title, introduced a deed from Shaw’s heirs to himself, and made proof of their heirship, and then, as was done in this case", introduced the record of the proceedings by the administratrix to sell the premises in controversy to pay debts, culminating in a deed by her to the defendant. This proof having been made, the plaintiff rested. The record of the proceedings by the administratrix to sell the landj showed, in that case, as it does in this, that the court failed to obtain jurisdiction of the defendant, and that consequently the administratrix’s sale, and the deed founded thereon, conferred no title. This being developed, the defendant then set up the conveyance as color of title, only, and proceeded to make out a defence under the Limitation act of 1839. The plaintiff then offered to show in rebuttal the minority of the heirs, but the court rejected the evidence because it was not offered in chief, and judgment was given for the defendant. The judgment was reversed by this court on the ground the evidence was improperly excluded. That case, in many of its features, is much like the case before us, and well illustrates both the law and former practice in cases of this kind. It will be observed all the plaintiff proposed to prove, in addition to what had been shown in chief, was the minority of the heirs. It is clear, therefore, if the evidence offered would not have changed the result,—or, in other words, entitle the plaintiff to recover without showing title in Shaw,—this court would not have reversed the judgment. The case also shows that for the purposes of the rule permitting the plaintiff to introduce evidence to prove the defendant claims from a common source of title with the plaintiff, it is no objection to the exercise of this right that the evidence offered also proves the defendant’s title to be worthless. It was so in that case, as well as in the present.

It is clear, upon the authority of the cases cited, that under the law as it stood before the adoption of the 25th section of the Ejectment act of 1872, the plaintiffs in this case, upon the facts shown, were entitled to recover, and the only question now is, whether the common law is so modified by that section as to require a different result. That section is as follows: “If the plaintiff, or his agent or attorney, will state, on oath, upon the trial, that he claims title through a common source with the defendant, it shall be sufficient for him to show title from such common source, unless the defendant, or his agent or attorney, will deny, on oath, that he claims title through such source, or will swear that he claims title through some other source.” Here, the defendants did swear that they claimed through some other source, and specified the chain of conveyances upon which they relied; but in their specification they did not, as the evidence abundantly demonstrates, disclose the source or beginning of the chain, and this the plaintiffs did for them, thereby bringing the case within the rule as it existed before the statute.

The question then arises, was it the purpose of the legislature in adopting this section of the statute, to hold the plaintiff absolutely bound by the denial of the defendant, where a counter-affidavit is filed, and thereby cut off his common law right to show that the two chains of title run back to a common source ? We think not. On the contrary, we are of opinion that the object, and sole object, of the legislature in its adoption, was to relieve the plaintiff, in cases of this kind, from the burden of proving the defendant’s chain of title as well as his own, unless the defendant would deny, by counter-affidavit, that he claimed from the alleged common source of title, in which event the burden still remained upon the plaintiff, just as it did before, of proving both chains of title, running back to a common source. That the plaintiffs did in this ease. To construe the statute otherwise would be to repeal, by mere implication, a rule of the common law of great convenience and highly promotive of justice. Courts never do this unless the implication is absolutely imperative. It is well said in Potter’s Dwarris on Statutes, page 185: “As a .rule of exposition, statutes are to be construed in reference to the principles of the common law, for it is not to be presumed that the legislature intended to make any innovation upon the common law further than the case absolutely required. The law rather infers that the act did not intend to make any alteration other than what is specified and besides what has been plainly announced, for if parliament had had that design, it is naturally said they would have expressed it. ” To give the statute the construction contended for, would be violative of the rule of construction here so clearly and forcibly laid down. Had the defendants offered evidence of possession and payment of taxes under their color of title, so as to make out a prima facie defence under the statute, as intimated in their affidavit they were able to do, the plaintiffs would then, under the rule announced in Huls v. Buntin, supra, have-had the right to show the minority of the plaintiffs, or any other legitimate matter, by way of reply, which, in law, would be a sufficient answer to the prima-facie defence so made out. Suppose the plaintiffs in this case had filed no affidavit, but had gone on, according to the old practice, and proved, just, as they did, the two chains of title terminating in Smith. It-is clear, under the authorities cited, the plaintiffs, upon the facts proved, would have been entitled to judgment. This will not be denied. Surely, then, the filing of the conflicting affidavits by the parties (which do not tend to prove the case upon the merits, the one way or the other,) can not change the force and effect of the evidence before the court to such an extent as to require a wholly different judgment. The very statement of such a proposition demonstrates its unsoundness.

It follows from, what we have said, the circuit court erred in finding for the- defendants. The judgment will therefore be reversed, and the cause remanded for further proceedings-in-conformity with the views here expressed.

Judgment reversed.


author: Per Curiam :

text:
    John D. Kedzie et al. v. The West Chicago Park Commissioners.

      Filed at Ottawa June 13, 1885.

    1. Park commissioners—power to levy special assessments. The West Chicago Park Commissioners are a quasi public corporation for park purposes, and as such have the power to take steps to cause property benefited by the establishment of a boulevard, to be specially assessed for the cost of the same.
    2. Same—effect of the act of 1873, as granting new powers, and of the mode of procedure under the several acts on the subject. Section 12 of" the act entitled “An 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,” approved May 2,1873, relates to a new and entirely different subject matter not provided in the original act relating to the West Chicago Park Commissioners, and invests them with powers they did not before have.
    3. The language of that section, to the effect that the cost and expense of acquiring title to land for a connecting boulevard or pleasure way “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, ” means that the same shall be done by and through the same agencies or instrumentalities as were provided in such former acts. Section 4 of the act of May 2, 1873, does not compel action in pursuance of its terms in a proceeding under section 12, and does not repeal section 13 of the act of February 27, 18G9.
    4. Fobmeb adjudication—as to judgment of confirmation of special assessment. Where a court has jurisdiction of the subject matter and the persons whose property is assessed, and power to adjudicate upon an application to confirm a special assessment, its judgment of confirmation will be conclusive upon all questions and objections that might have been interposed before judgment, and such questions can not be raised by a bill in chancery seeking to enjoin the collection of the assessment.
    5. Pleading in chancery—allegation of want of notice of application for confirmation in a proceeding for special assessment. An allegation in a bill seeking to enjoin proceedings for the collection of special assessments for park purposes, that “ complainants are advised and believe, and therefore charge the fact to be, that no sufficient notice of the application for confirmation of said assessment was given, ” is but the statement of a conclusion of law. If a notice was given, the legality of which is denied, it should be specifically set out, that it may be seen whether it conforms with the requirement of the law.
    Appeal from the Circuit Court of Cook county; the Hon. T. A. Moran, Judge, presiding.
    Messrs. Hutchinson & Luff, with whom were Messrs. Judd & Whitehouse, for the appellants:
    The assessment is void, and the court had no jurisdiction to enter the order of confirmation, because the commissioners had no authority to make the assessment, which should have been made by the corporate authorities designated in section i of the act of May 2, 1873. Hurd’s Stat. 1881, chap. 105, p. 772.

      Section 4 of the act of May 2, 1873, provides, that the town supervisor, clerk and assessor of such town be and they .are hereby designated and constituted the corporate authorities of such town, and they, or a majority of them, may levy the tax or any assessments herein authorized. It is under the 12th section of the same act that the park commissioners claim their authority to establish the boulevard. The commissioners having no authority to levy the assessment, it is void, and the court will enjoin. McConkey v. Smith, 73 Ill. 313; Munson v. Miller, 66 id. 380; Bank of Shawneetown v. Cook, 77 id. 622.
    No action ivas ever taken by any official to ascertain whether the lands in West Chicago would be specially benefited to the amount of said assessment; and the assessment ivas not made according to benefits, but according to value, and is therefore in violation of the constitutional rule requiring uniformity of benefit and burden. Greeley v. People, 60 Ill. 19; Crawford v. People, 82 id. 557; White v. People, 94 id. 604; Craw v. Tolono, 96 id. 255; Chicago v. Baer, 41 id. 306; Warren v. Grand Haven, 30 Mich. 24; Marsh v. Supervisors, 42 Wis. 502; Scofield v. Lansing, 17 Mich. 437; 2 Desty on Taxation, 643.
    The assessment being void, there was nothing to be confirmed by the circuit court, and appellants were not bound to appear and object to a confirmation. Marsh v. Supervisors, 42 Wis. 502; Lyman v. People, 2 Bradw. 289.
    Equity will enjoin the collection of the assessment for want of authority to make the same. Town of Lebanon v. Railroad Co. 77 Ill. 539; Bank v. Cook, id. 622.
    The assessment under consideration is in no sense a special assessment, and therefore was made without any authority of law, and the court will enjoin. Nunda v. Chrystal Lake, 79 Ill. 311; Ramsey v. Hoeger, 76 id. 432; Kimball v. Trust Co. 89 id. 611; 2 Desty on Taxation, 669; Pomeroy’s Equity, secs. 260, 268-270, 273; Scofield v. Lansing, 17 Mich. 437.

      Mr. George W. Smith, and Mr. William E. Mason, for the appellees:
    This is a collateral attack upon a judgment at law of the ■circuit court. Therein it differs from the ordinary case of a bill to enjoin a tax in the course of collection. But even if there were no judgment, the bill fails to state a case of equitable cognizance. DuPage County v. Jenks, 65 Ill. 275 ; Railroad Co. v. Johnson, 108 id. 11.
    The assessing authority is the board of park commissioners. Act of 1873, see. 12; Park Commissioners v. Telegraph Co. 103 Ill. 103.
    The word “may, ” in the 4th section, does not mean “must. ” Kane v. Footh, 70 Ill. 587.
    The rule of section 12 must be followed. Mix v. Rose, 57 Ill. 121.
    The assessment was not fraudulent. Gage v. Evans, 90 Ill. 569.
    The rule as to the prevention of multiplicity of suits has no application. DuPage County v. Jenks, 65 Ill. 275.
    Every question which the bill seeks to raise is res judicata. People v. Brislin, 80 Ill. 423; Andrews v. People, 84 id. 24; 83 id. 529; Gage v. Parker, 103 id. 528.
   Per Curiam :

Circumstances that were unavoidable have prevented the preparation and filing of an opinion in this case at an earlier day. We are notified by counsel that longer delay in announcing a decision will be highly prejudicial to the rights of the parties, and at their earnest solicitation we have suspended the current business of the June term long enough to dispose of the case. But, in consequence of the many •duties pressing upon us, arising from the holding of daily sessions, we are constrained to be content with announcing the conclusions we have reached upon the questions discussed in the arguments submitted, without setting forth, at length, the reasons which have induced those conclusions. We hold—

First—That the West Chicago Park Commissioners are a quasi municipal corporation for park purposes, and-that they have power to take the steps to cause the property to be specially assessed for the cost of the boulevard, that were here-taken by them.

Second—Section 12 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, approved May 2, 1873, (Eev. Stat. 1874, p. 747,) relates to a new and entirely different subject matter,—one not provided for in the original act relating to the West Chicago park,—and invests the West Chicago Park Commissioners with a power they did not before have. The language therein, “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, ” means that the same shall be done by and through the same agencies or instrumentalities, and so, as applied to the present case, by and through the agencies or instrumentalities provided by section 13 of the act of February 27, 1869, creating these commissioners. We do not think section 4 of the act of May 2, 1873, compelled action in this proceeding pursuant to its terms, and we hold section 13, supra, unrepealed and in full force.

Third—We hold that the several steps taken in this special assessment anterior to the action of the circuit court, invested that court with jurisdiction in the proceeding, to reject, revise, amend or confirm the special assessment, in whole or in part, and to make or order a new assessment, in whole or in part, and to revise and confirm the same. The allegation in the bill that “complainants are advised and believe, and therefore charge the fact to be, that no legal or sufficient notice of the application for confirmation of said assessment was given, ” is but the statement of a conclusion of law. If no notice was

given, that is a fact, and should have been stated. But if a notice was given the legality of which is denied, a question of law is raised, and the notice given should be specifically set out, in order that it may be seen whether it conforms to the requirement of the law.

Fourth—Assuming, as we do, that on the application for confirmation the circuit court had jurisdiction both as respects the person and the subject matter, and hence had power to adjudicate, we hold that no question that could have been there raised can be heard upon bill in chancery to enjoin.

These conclusions lead to an affirmance of the decree below, which is accordingly adjudged.

Decree affirmed.


author: Per Curiam:

text:
    Charles Lucan et al. v. J. H. Cadwallader et al.

      Filed at Ottawa September 21, 1885.

    1. Appeal—whether a freehold is involved. A bill to enjoin a defendant from rebuilding a mill-dam, and thereby prevent the overflowing of the complainant’s land, etc., does not involve a freehold, so as to justify an appeal directly to this court from the trial court. A claim of an easement in the lands of another does not constitute a freehold in such lands.
    2. Same—whether appeal will lie from order dissolving a temporary injunction. The mere dissolution of a temporary injunction in vacation is not an order from which an appeal will lie in any case, as the injunction may be made perpetual on the final hearing.
    Appeal from the Circuit Court of Knox county; the Hon. Arthur A. Smith, Judge, presiding.

      Messrs. McKenzie & Calkins, for the appellants.
    Messrs. Williams, Lawrence & Bancroft, for the appellees.
   Per Curiam:

The appellants, who were plaintiffs below, filed a bill in the Knox circuit court, against the appellees, to enjoin them from rebuilding a mill-dam across Spoon river, in Knox county. It appears from the bill itself, that the-original dam was built more than thirty years ago; that its construction and maintenance caused the river to overflow the lands of complainants, rendering them unfit for cultivation, and also, as is alleged, injuriously affecting the health of the people of the neighborhood, including complainants and their families; that the dam, with the attending results, was maintained until in February, 1884, when it gave way, and the waters of the river receded into their natural channel, etc. A temporary injunction having been awarded, the defendants entered a motion to dissolve the same, and by stipulation of parties it was heard, on affidavits, before the circuit judge, in vacation, resulting in an order dissolving the interlocutory injunction. From that order the complainants appealed to this court.

The appeal must.be dismissed. The cause seems to have been brought here upon the hypothesis that a freehold is involved. This is a misapprehension. The defendants do not claim to have anything more than a mere easement in the lands of appellant, and it is well settled that does not constitute a freehold. But even if this objection were not in the way, this appeal was prematurely brought.

The appellants will be permitted to withdraw the record, abstracts and briefs, to make such use of them as they may be advised.

Appeal dismissed.