author: Mr. Justice Magruder Mr. Justice Scott

text:
    Charles S. Clarke et al. v. Sarah A. Gaffeney.

      Filed at Mt. Vernon March 30, 1886.

    1. Basement—bight of way—of the conditions upon which an easement may exist—and in whose favor. An easement, as in the case of a right of way, may be created by the disposition made of the premises by the owner of the estate, and upon a severance of the title the purchasers will take their respective shares as they existed in the hands of the former owner, the foundation of the doctrine of easement, in such and like cases, being a disposition and an arrangement of the premises as to the use of the different parts by him, having the unity of seizin, and then a severance.
    2. In this case, the owners of a tract of land subdivided the same into lots, according to a plat made by them, which was recorded. By the plat there appeared to be two tiers of the lots, separated by a strip of ground extending along the entire plat. Subsequently the owners offered the lots for sale at public auction, announcing at the time that the strip of land separating the lots as mentioned, had been laid out as a road for the use and benefit of those buying lots, so that they could thereby have access to a public highway already established, and without which there would be no convenient means of access to or egress "from the lots which lay remote from the public road. It was this announcement that induced persons to buy. The lots were sold and conveyed to various purchasers. More than twenty years afterward, within which time neither the original owners nor their heirs made any claim of ownership of the strip of ground separating the two tiers of lots, a person procured from the heirs a conveyance of the same, and brought ejectment to recover possession. It was held, the easement or right of way over that strip of land passed to the purchasers of the lots by their purchase and deeds of conveyance. The title to each lot passed to the purchaser, with the advantages conferred upon the property by the former owner, as well as subject to any burden imposed thereon. So no rights passed to the purchasers from the heirs, inconsistent with the right of easement in the lot owners.
    3. And, under the circumstances, the purchaser holding the conveyance from the heirs of the original owners was as much estopped from interfering with that right of way as the original owners themselves would have been.
    4. Nor was it essential to the right of the purchasers of the lots to the enjoyment of the easement, that it should have been mentioned in their deeds. Incorporeal hereditaments, appendant or appurtenant to land, pass by a conveyance of the land to which they are annexed, without even mention of the appurtenances.

      Appeal from the Circuit Court of Madison county; the Hon. William H. Snyder, Judge, presiding.
    This was an action of ejectment, brought by Sarah E. Gaffeney, against Charles S. Clarice and Mary W. Clarice, in the circuit court of Madison county, to the March term, 1885. The cause, by agreement, was tried by the court without a jury. The court found for the plaintiff, and rendered judgment accordingly.
    In 1856 the owners of a tract of one hundred and forty acres of land made and filed in the recorder’s office of the county a plat, by which it was divided into ten lots, of about ten acres each, abutting upon a narrow strip (the land in question) running through the center of the tract. This strip had the appearance on the plat of being a street or road, open at both ends, and the plat was recorded in the proper book. The lots were numbered from one to ten, inclusive, five on each side of such open strip or road. The only way out to the public road, for the lots lying south of lots 1 and 10 was over this strip. On the same day this plat was filed for record, the lots were sold at auction, to various purchasers. It was shown in the evidence that at this sale it was publicly announced by the proprietors that this strip was left for the use and benefit of them that bought the lots. Deeds were made to the lots by their numbers, as shown on the plat, and appellants, through mesne conveyances, became the owners of lots 1, 2, 3 and 4. No claim was ever made by the original proprietors to this strip of land in their lifetime, nor by their creditors after their death, their estates proving insolvent. The plaintiff below afterwards obtained the title to lots 6, 7, 8 and 9, from J. A. Prickett, who had agreed with Charles S. Clarke upon a dividing line between them, about the center of this strip, and a division fence was placed there. Plaintiff also procured deeds from the heirs of the original proprietors for this strip of land, and brought this suit for the recovery of that part of it within the defendants’ inclosure.
    Messrs. Happy & Travous, and Messrs. Burroughs & War-nook, for the appellants:
    A conveyance of land abutting on a non-navigable stream, or upon a way, the grantor at the time of the conveyance owning the fee of the stream or way, as well as the land conveyed, gives the grantee the fee to the center of the stream or way, unless there be something in the contract manifesting a different intention. 3 Kent’s Com. (5th ed.) 427, 428; Tiedman on Real Prop. secs. 833, 837; Malone on Real Prop. Trials, 254; Tyler’s Law of Boundaries, 103; Braxton v. Bressler, 64 Ill. 488; Gebhart v. Reeves, 75 id. 307; Village of Brooklyn v. Smith, 104 id. 439 ; Low v. Tibbetts, 72 Me. 92.
    The same principles which apply to boundaries on a public road apply also to those on a private road,—that is to say, the presumption that the soil of the road, usque acl medium filum vice, belongs to the owners of the adjoining lands. Tyler’s Law of Boundaries, 112; Holmes v. Billingham, 7 C. B. (N. S.) 325; S. C. 97 Eng. C. L. 327; Smith v. Howden, 14 C. B. (N. S.) 398; Fisher v. Smith, 9 Gray, 441; Boston v. Richardson, 13 Allen, 146; Jamaica Pond Aqueduct, 9 id. 159; Winslow v. King, 14 Gray, 320; Peck v. Dennison, 121 Mass. 18; Bissell v. Railroad Co. 23 N. Y. 61; Perrin v. Railroad Co. 36 id. 120.
    Mr. John G. Irwin, for the appellee:
    A private way can not be established by mere parol declarations. It can be acquired only by grant or by prescription, which implies a grant. Forbes v. Balenseifer, 74 Ill. 184.
    It is an interest in land, within the Statute of Frauds, which extends to all incorporeal hereditaments. Browne on Statute of Frauds, secs. 230-232; Angell on Water-courses, sec. 168.

      A private way is “the privilege which an individual or several individuals have of going over the land of another. It is an incorporeal hereditament of a real nature, entirely different from a highway.” Cruise’s Dig. title 45, s. 59; Bouvier’s Law Dic. title, “Way.”
    The fee in one piece of land not mentioned in a deed can not pass as an appurtenant to another tract properly described. Gebhart v. Reeves, 75 Ill. 304; Jackson v. Hathaway, 15 Johns. 448; Tyler v. Hammon, 11 Pick. 193; O’Linder v. Lathrop, 21 id. 292; Bridge Co. v. Curtis, 103 Ill. 419.
    On the question of dedication of the strip as a road, see Belleville v. Stookey, 23 Ill. 442; Village of Princeville v. Auten, 77 id. 325; Princetown v. Templeton, 71 id. 68; Trustees v. Walsh, 57 id. 363; Insurance Co. v. Littlefield, 67 id. 368.
    The doctrine of this court is, the “limits of a lot abutting upon a street is the extent of the ownership, and it can not be ass.erted beyond those lines, and extended into the street on its vacation. ” Gebhart v. Reeves, 75 Ill. 307; Helm v. Webster, 85 id. 116; Chicago v. Rumsey, 87 id. 350.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is an action of ejectment, brought by appellee, against appellants,'in the circuit court of Madison county, to recover a strip of land described in the declaration, as follows: Beginning at a point on the east line of lot 1, of John T. Lusk & Co.’s subdivision of the north-east quarter of section 15, town 4 north, range 8 west of the third principal meridian, in Madison county, Illinois, where said east line intersects the south line of the highway known as the Edwardsville and St. Louis road, and running thence south on the east line of lots 1, 2, 3 and 4 of said subdivision, to the south-east corner of the lot last named; thence east sixty-seven links; thence north, on a direct line, to a point seventy-three links east of the north-east corner of lot 2 of said subdivision, and continuing thence north on a line of the same bearing as the one last described, to the line of the Edwardsville and St. Louis road; thence in a southwesterly direction, on the south line of said last mentioned road, to the place of beginning. The description will be better understood by an examination of the following plat, which was introduced in evidence on the trial below:

John T. Lusk and John R. Torrence are admitted to be .the common source of title. On June 21, 1856, they had become the owners, by a regular chain of title from the government, of the one hundred and four acres of land in the north-east quarter of said section 15, which are embraced in the plat above set forth. They are spoken of in the pleadings as J. T. Lusk & Co'. Lusk' died in December, 1857, and Torrence between 1860 and 1865.

In November, 1856, Lusk and Torrence made the foregoing plat of the one hundred and four acres owned by them, and recorded the plat on November 17,1856. It shows the subdivision of the one hundred and four acres into ten lots, containing each about ten acres, with a strip of land, containing six and seven-tenths acres, running north and south through the center of the one hundred and four acre tract, and dividing it so that lots 1, 2, 3, 4 and 5 lie on the west side of the strip, and lots 6, 7, 8, 9 and 10 lie on the east side of it. A main road, called the St. Louis road, or the Edwardsville and St.Louis road, ran “on the north side of this land.”

On November 17,1856, Lusk and Torrence, or J. T. Lusk & Co., sold the ten lots at public auction, and Lusk announced publicly to the purchasers at the sale, that the strip of land dividing the lots as above stated, had been laid out as a roa d for the use and benefit of those buying lots, so that the owners of lots lying south of the main road could have access to it through this strip, without traveling over the property of their neighbors. It was this announcement which induced parties to buy the lots. The proof shows that there was no convenient means of access to or egress from the lots that were remote from the main highway, except through the strip running between the eastern and western tiers of lots. At the auction sale, one Nelson Daniels bought lots 1, 2, 3 and 4, and the deed executed to him and William M. Whaling by Lusk and Torrence, dated November 17, 1856, describes the property as “lots 1, 2, 3 and 4, subdivision of west part, N. E. J of sec. 15, town 4 N., B. 8 west; lot 1 contains 9T|^ acres, lots 2, 3 and 4 contain each 10^°^ acres.” Appellants are now the owners of lots 1, 2, 3 and 4, by a regular chain of conveyances, beginning with Daniels and Whaling. At the auction sale lots 7, 8, 9 and 10 were bought by Timothy Brown, and lot 5 by Tyler Brown. The proof shows that appellee now owns lots 6, 7, 8 and 9, that one Wolf owns lot 10, and a Mrs. Lix owns lot 5.

During twenty-seven years' after the death of Lusk, his heirs and devisees asserted no claim of ownership in the strip of land running between these two sets of lots. During more than twenty years after the death of Torrence, his heirs asserted no ownership therein. In the year 1884 appellee succeeded in obtaining deeds to herself from the heirs and devisees of Lusk and Torrence, conveying the strip in question, and shortly thereafter began this suit.

Ever since the auction sale in 1856, this strip has been used openly and continuously by those who bought at said sale from Lusk and Torrence, and by the grantees from those so buying. The owners of the lots on either side of the strip holding under the purchasers from Lusk and Torrence, have used the whole of the strip, for one purpose or another, from 1856 down to the commencement of this suit. The northern part of it, running south from the St. Louis road for about one hundred yards, was used for twenty years as a roadway or means of approach to the lots lying on either side.

As between Lusk and Torrence, and the original purchasers from them, the latter were entitled to an easement or right of way in this strip of land for the use and benefit of their lots. It would certainly have been an act of great injustice for Lusk and Torrence to have interfered, in any way, with the enjoyment of such easement by their vendees. It is true, that while the title to the one hundred and four acres remained in Lusk and Torrence, the subdivision, as above made, created no easement of any kind. Until a severance, and the premises were held by separate owners, no question of that character could arise. The foundation of the doctrine of easement in this and similar classes of cases is a disposition and arrangement of the premises as to the uses of the different parts by him having the unity of seizin, and then a severance. “It being a general principle in relation to grants that every grant of a thing naturally and necessarily imports a grant of it 'as it actually exists, unless the contrary is provided for, it would seem to follow that each portion of the severed premises would pass subject to all the burdens and advantages imposed or conferred by the proper owner. ” “An easement may be created by the disposition made of premises by the owner of the estate, and, upon a severance of the title, the owners will take their respective shares as they existed in the hands of the former owner. ” Morrison et al. v. King et al. 62 Ill. 30.

Lusk and Torrence subdivided and platted this land in such a manner that there was no way of approach to the lots which did not abut upon the main highway, except along the strip in question. They then severed their title by conveyances of different lots to different owners, accompanying their sales with the declaration that each lot owner should have a right of Avay over the strip to the main road. Each lot passed with the advantages conferred, as well as subject to the burdens imposed, by the original owners. Under the circumstances of this case, appellee, holding by conveyance from the heirs of such original owners, is as much estopped as were Lusk and Torrence from interfering with the right of way of these different lot owners over the strip designated and reserved for their use.

It is not necessary that such right of way should have been specifically mentioned in the conveyances. “Incorporeal hereditaments, appendant or appurtenant to land, as, common of piscary and of pasture, and right of way, pass by a conveyance of the land to Avhich they are annexed, without even mention of the appurtenances. ” (Coke on Litt. 121b.) In Hadden v. Shoutz, 15 Ill. 581, a mill and dam had been erected upon a creek running through the quarter section, of which a certain six acres, on which the mill and dam had been built, were a part. Hadden conveyed the six acres, with the mill and dam thereon, to Shoutz. The dam flowed the- water of the creek back upon a part of the quarter section not embraced in the six acres conveyed to Shoutz, and which Hadden owned when he so conveyed. This back-flow of the water upon the land not conveyed, was necessary to the use of the mill, and was held to be an easement appurtenant to the mill, and to have passed by a grant of the mill, as appurtenant thereto. It was further held, that this easement,: so long as it was not abandoned, would not be extinguished by a conveyance of the land upon which the water flowed. So in the case at bar, the right ■ of way over this Strip passed to appellants as grantees from the original vendees of these lots, and whatever title, if any, appellee has obtained as grantee from the original vendees or their heirs, she has taken subject to such right of way.

The judgment of the court below is therefore reversed.

Judgment reversed.

Mr. Justice Scott

dissenting:

It seems to be conceded that prior to November 17, 1856, John P. Lusk and John E. Torrence were the owners of the strip of land now in1 controversy. It was then a part of a certain quarter section, which the -owners about that date divided into ten lots, of about ten acres each. A plat of the quarter section, showing the relative situation of the lots, was made .by a surveyor, and was duly recorded in the office of the recorder in the county where the land is situated. The lots were designated on the plat by consecutive numbers, from one to ten, both numbers included. Between these lots is a strip of land containing about six acres. This strip of land is not numbered on the plat as are the lots, nor is the length and width of it stated, as is clone in respect to the lots. The xdivision of the land into lots was.made by the owners for their convenience of making sale of it. It was timber land at the time. The plat made was not intended to be a plat of any town or village, nor was it intended to be an addition to any city, town or village. It was never acknowledged by the owners, as plats of villages or cities are required by statute to be executed and acknowledged. After the plat had been made and recorded, and perhaps on the same day it was recorded, the proprietors sold all of the lots, and executed to the several purchasers deeds conveying the lots as numbered on the plats, and by no other description. The purchasers entered into possession, and since then the several lots have been controlled by them and their assignees. A part of the narrow strip of land dividing the lots sold, is the land in controversy. No sale of any part of this strip of land was made on the day the lots were sold. One of the original owners, John T. Lusk, died December 18, 1857, and the other, John E. Torrence, died shortly thereafter, perhaps between 1860 and 1865. Neither Lusk nor Torrence ever made any conveyance of the land in controversy to any one, and Sarah Gaffeney, plaintiff in this suit, claims to own the title that was in them under quitclaim deeds from their respective heirs. That title so acquired is the one she seeks to maintain in this action. On the other hand, the defendants in possession, Charles S. Clarke and Mary W. Clarke, are the owners, through mesne conveyances from the purchasers at the sale made by Lusk and Torrence, of a number of the lots as they appear on the plat, and they insist that the strip of land intervening the lots was left by the proprietors making the plat, as a road for the use and benefit of such persons as might buy lots abutting on either side, and that by operation of law the conveyance of the lots on either side of the narrow piece of the land carried the title to the center of what they allege was a road or private way. Since then it has become unnecessary for a road, and defendants having inclosed that part next their lots to the center line, this suit was brought to recover that part of the strip of the land which defendants have in possession.

There can be no controversy that plaintiff’s title is the better title, and must prevail, unless the conveyance of the several lots abutting on the narrow strip intervening the lots, by operation of law, carried the title to the center line. No other title is insisted upon. Obviously the conveyances of the several lots could not have the effect claimed for them, unless it shall be ascertained the land on which the lots abutted was left by the proprietors for a public road, and was either granted to or dedicated to the public for a road or highway. This is the vital question in the case.

As before stated, the plat made of the quarter section was not a town or village plat, nor was-it an addition to any city or village, hence it is not a street in the sense the term street is used in the statute, where the fee vests in the corporation or municipality. Nor can it be said it is a public highway or road, in the statutory or any other sense. It was never granted to or dedicated to the public for a highway or public road. The owners, at the time the plat was made, forbade the surveyor to mark it “a road.” Nor is there the slightest evidence it was ever used or accepted by the public for a highway or public road. It is essential to every dedication of land for public use, as, for a highway or public road, there should be an acceptance and appropriation to the uses intended, and until there is such an acceptance, the owner may withdraw his offer and appropriate his land to any other purpose. It is obvious, from the evidence in this case, the public, by its officers, never contemplated appropriating this land to public uses as for a highway or public road. It was not practicable to do so, and it never was used by the public either for a highway or for any other purpose whatever. The assumption this was a highway or public road, has absolutely nothing in its support.

But was it a private way for the use and benefit of the adjoining landholders? Private ways for the use of particular persons are created only by grant, or by user for such length of time as implies a grant. No doubt a dedication of land to public uses may be made by mere verbal declaration, if accompanied by such acts as are necessary for that purpose ; but to make a valid dedication, an intention to appropriate the right to the general use of the public must exist. Where the appropriation, however, is for the use of particular persons only, and made under circumstances which exclude the presumption it was intended to be for public use, it will not amount to a dedication. (Illinois Ins. Co. v. Littlefield, 67 Ill. 368.) Applying these principles, it is plain this was never even a private way. It was never granted for that purpose by the owners, nor does such right exist by prescription, or by user for such length of time as implies a grant. The utmost that can be claimed is, that at the time of the sale the owners gave purchasers a verbal permission to pass over this strip of land when necessary, as a means of ingress and egress to and from such lots as they might buy. That is a mere license, and is revocable at any time. In Forbes v. Balenseifer, 74 Ill. 183, it was ruled a verbal agreement between the several owners of several tracts of land, by which each gives to the others a right of way over his land, amounts to a mere license, revocable at the will of either party. Verbal declarations are not admissible to prove a grant of a private way for the use and benefit of certain persons, and without a grant it is apprehended no such right exists. It was so expressly ruled in Forbes v. Balenseifer, supra.

Treating the permission given purchasers of lots to pass over this strip of land as a mere license, it is quite evident the doctrine insisted upon, the conveyance of land abutting on a highway where the grantor, at the time of such conveyance, owned the fee of the highway, gives the grantee the fee to the center line of the highway, unless where something in the contract indicates a contrary intention, can have no application to the facts of this case. That doctrine is applicable only to streets or highways where the public has acquired, by grant or condemnation, or otherwise, an easement over premises, the fee remaining in the original owner. It has never been applied where certain persons had a mere license to pass over the land of another. There is no principle on which it can be held, under the facts presented by this record, the conveyance of the lots by numbers carried the fee to the center line of another piece of land owned by the grantors. It may be, and doubtless is, true, that where an easement exists, it may pass, without express mention, as an incident to a grant of the adjacent premises; but as was said by this court in Gebhardt v. Reeves, 75 Ill. 301, “there can be no authority found, either in reason or justice, for the proposition the fee in one piece of land not mentioned in the deed passes as appurtenant to another tract granted by an accurate description, giving it a definite and limited boundary. ” In.such cases the principle is, the limits of the lot described mark the boundary," beyond which the title of the grantee does not extend. That is precisely the case here. The land, in this instance, was conveyed by a definite description, and as it abuts on no public highway, nor even upon any private way existing by grant or other lawful right, there is no principle upon which it can be held the grant carried the fee to the center line of another adjoining tract owned by the grantors. It therefore seems plain that plaintiff’s is the better title, and should prevail.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    The Santa Clara Female Academy v. Francis J. Sullivan et al.

      Filed at Springfield March 27, 1886.

      1. Corporations—foreign corporations—as to the exercise of their powers by foreign corporations outside of the jurisdiction in which they were created. A corporation created in one State, may, upon the principle of comity, exeróise within another State the general powers conferred by its own charter and permitted by the laws of its own State, provided the doing so be not inconsistent with the laws or public policy of such other State. And such public policy is manifested by its legislation.
    2. Same—foreign corporations “doing business in this State"-—those terms construed. It is provided in section 26 of chapter 32, (Rev. Stat. 1874, p. 290,) that “foreign corporations doing business in this State,” shall have no other or greater powers than corporations of like character organized under the general laws of the State, thereby impliedly granting to such foreign corporations the same privileges enjoyed by domestic corporations. The restriction to “foreign corporations doing business in this State” is not to be understood as necessarily excluding such foreign corporations as may carry on the special business for which they were organized, exclusively in another State, hut receiving lands in this State by devise, and the assertion in the State of ownership over them, will be a sufficient “doing of business in this State, ” within the purview of the statute.
    3. Same—-corporations for educational purposes—of their power to hold real estate—extent of the power—as to the mode of acquiring title— foreign and domestic corporations. The general laws of this State, for many years prior to 1874, and since, have expressly empowered corporations for educational purposes to take and hold real estate by grant and devise, without limit as to quantity and value.
    4. There is in the law of this State no discrimination against foreign corporations, but they are placed on the same footing with our own domestic corporations, and are given, by implication, equal powers with domestic ones of like character. Our law places them under the same restrictions as ours are, but this has no reference to the manner of their coming into existence or the mode of their organization.
    5. So a corporation organized under the laws of another State, purely for educational purposes, having the capacity, under its charter or the laws of its State, to acquire, hold and convey real and personal property, may take- and hold real estate in this State, by devise, to the extent of its capacity in the State of its creation.

      6. Same—former decisions—as lo powers of foreign corporation here. The cases of Carroll v. East St. Louis, 67 Ill. 568, Starkweather v. American Bible Society, 72 id. 50, and United States Trust Co. v. Lee, 73 id. 142, in respect to what was actually decided by them, do not conflict with the ruling in this case. The remarks in the first of those cases, which may be inconsistent with the rule here announced, not being necessary, to the decision therein made, are to be regarded as obiter dicta.

    7. Same—general power to acquire real estate—whether it includes a devise. A power conferred by law upon a corporation to acquire real estate, is broad enough to enable it to take by devise.
    8. Same—perpetuities—educational purposes. The rule in respect of perpetuities has no application to legacies or devises for educational purposes.
    9. Same—a devise construed—whether for educational purposes. A devise of real and personal property generally, without stating the puipose, to a corporation created and existing for educational purposes alone, must be regarded as a devise for educational purposes.
    10. Same—as to the place of the exercise of its powers by a corporation for educational purposes. It does not follow because the charter of an educational corporation provides that its academy shall be located at a place named, with power to establish a branch at another place, that all the powers conferred upon it must be exercised at such places and no other. The corporate purpose, that of furnishing education, must be earned on at the place or places named, but the incidental powers necessary and proper to maintain the academy there, may be exercised elsewhere.
    11. Same—corporation for “pecuniary profit”—as, a corporation for educational purposes A corporation for educational purposes, as, an academy, is not one for “pecuniary profit, ” merely because fees are charged for tuition. A corporation for pecuniary profit is one organized “for the pecuniary profit of its stockholders or members. ”
    12. Will—of the estate devised—life estate with power of disposition— vested remainder. A testator devised all his estate to his wife, in trust, to pay his debts and funeral expenses, to use so much of the income thereof as should be necessary for her own support and that of his three children, with power to sell and dispose of any portion of the estate, and to use the proceeds of sale, or so much as might be needful, to pay debts and funeral expenses, and to reinvest the balance for the benefit of his estate, and then provided, “and after the death of my said wife, all my estate, both real and personal, shall descend and belong to my said children, in equal proportions, ” etc.: Held, that the widow took only a life estate in trust, with power of disposition of the fee, and that a child dying before the widow, had no estate in possession, but was seized with a vested remainder, which was a devisable estate.

      Appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    Messrs. Hynes, English & Dunne, and Mr. Richard Prendergast, for the appellant:
    A corporation of another State, having authority to take and hold land by the laws of the State of its creation, and whose corporate purposes are favored by the laws and public policy of Illinois, may take and hold land in Illinois for its coiqiorate purposes. Appellant in this case is such a corporation, and exists for educational purposes solely. Therefore it may take and hold land in Illinois for its corporate purposes. Thompson v. Waters, 25 Mich. 214; Bank of Augusta v. Earl, 13 Pet. 589; Story on Conflict of Laws, sec. 38 ; State v. Railroad Co. 25 Vt. 433; Lumbard v. Aldrich, 8 N. H. 31; Silver Lake Bank v. North, 4 Johns. Ch. 370; Page v. Heineberg, 40 Vt. 81; White v. Howard, 38 Conn. 342 ; Thompson v. Stwoope, 24 Pa. St. 475 ; Merrick v. Santward, 34 N. Y. 217; Mining Co. v. Baker, 3 Nev. 386; Life Ins. Co. v. Cross, 18 Wis. 109; Lathrop v. Com. Bank, 8 Dana, (Ky.) 114; Rorer on Inter-State Law, 288; Gardiner on Am. Int. Law, 175; Hollis v. Drew Theological Seminary, 95 N. Y. 166; Cowell v. Springs Co. 100 U. S. 55; Christian Union v. Yount, 101 id. (11 Otto,) 352; Stevens v. Pratt, 101 Ill. 224; Loan Co. v. Tilton, 19 Fed. Rep. 73; 6 McLean, 1; 5 id. 111.
    The statutes of Illinois expressly provide that foreign corporations of like character to those that may be organized under the general laws of Illinois, shall have equal power with such domestic corporations, including the power to take and hold land. Appellant in this case is a corporation of like character to those that may be formed under the general laws of Illinois for educational purposes solely, with power to take by devise, and hold land without any limitation. Rev. Stat. 1874, secs. 26, 29, 30, 31, chap. 32; sec. 1, chap. 144; Stevens v. Pratt, 101 Ill. 217.

      The rule against perpetuities does not apply to legacies or devises for educational purposes. Such legacies and devises have been steadily fostered, encouraged and upheld. Heuser v. Harris, 42 Ill. 425; Andrews v. Andrews, 110 id. 223; Perry on Trusts, secs. 696, 700; Russell v. Allen, 107 U. S. 163 ; Ould v. Washington Hospital, 95 id. 303; Inglis v. Sailors' Snug Harbor, 3 Pet. 99; Vidal v. Girard, 2 How. 127; Perin v. Carey, 24 id. 465; 43 Eliz. C. 4; Powers v. Cassidy, 79 N. Y. 602; Germaine v. Baltes, 113 Ill. 29.
    The public policy of a State with reference to the capacity of aliens to take and hold land therein, is its public policy as respects foreign corporations. Trust Co. v. Lee, 73 Ill. 147; Loan and Trust Co. v. McKinney, 6 McLean, 5; Beazure v. Hillegas, 7 S. & R. 313; Runyan v. Caster, 14 Pet. 131. And see, for the power of aliens in this respect, Illinois Statutes cited in argument, and chap. 6, Rev. Stat. 1874.
    Mr. A. A. Exline, for the appellee Braley:
    The statutes of Illinois do not, either in express terms or by necessary implication, give to foreign corporations not doing business in this State, and not organized under the general law of this State, the right to take real estate in this State by devise. Rev. Stat. 1874, secs. 26, 31, chap. 32, and sec. 1, chap. 144.
    The public policy of the State of Illinois in relation to corporations taking real estate, is restrictive, and corporations not coming clearly within the provisions of the statute can not take real estate by devise in this State. Such taking tending to create perpetuities, will not be tolerated, unless clearly authorized by our laws. Carroll v. East St. Louis, 67 Ill. 568; Starkweather v. American Bible Society, 72 id. 50; Trust Co. v. Lee, 73 id. 142; Hough v. Land Co. id. 23.
    The enactments of our legislature in relation to subjects embraced in the common law or the English statutes adopted by our State, to the extent that they deal with subjects embraced in the common law or English statutes in force, repeal the common law and English statutes by necessary implication. Rev. Stat. 1874, chap. 28.
    Mr. William Elliott Furniss, and Messrs. McCagg & Culver, for the appellees the Sullivans:
    The appellant can not take any interest in the premises sought to be partitioned, because its charter restricts the exercise of its powers to three counties in Wisconsin. Private Laws of Wis. 1868, chap. 97.
    A corporation has no authority to perform any act its charter does not authorize, expressly or affirmatively. Morawetz on Corp. secs. 149, 151; Thomas v. Railroad Co. 101 U. S. 71; Dartmouth College v. Woodward, 4 Wheat. 636; Bank v. Godfrey, 23 Ill. 602; Fertilizing Co. v. Hyde Park, 97 id. 659; Angell & Ames on Corp. (11th ed.) sec. Ill; Beatty v. Knowles, 4 Pet. 162.
    Appellant being restricted as to the place in which to exercise its corporate powers, can not invoke the principle of comity, or hold real estate in Illinois. Day v. Manufacturing Co. 1 Blatchf. 628; Ducat v. Chicago, 48 Ill. 172; 10 Wall. 410; Paul v. Virginia, 8 id. 168; Health Ass. Co. v. Rosenthal, 55 Ill. 85; Carroll v. East St. Louis, 67 id. 568; White v. Howard, 46 N. Y. 167.
    Comity can not be invoked when to allow it would be contrary to the policy or prejudicial to the interests of Illinois. Bank of Augusta v. Earle, 13 Pet. 589.
    A foreign corporation can not exercise its functions without permission. Morawetz on Corp. secs. 505, 508; Milner v. Railroad Co. 53 N. Y. 363; Bard v. Poole, 12 id. 505; Ducat v. Chicago, 48 Ill. 172; Paul v. Virginia, 8 Wall. 168; Stark-weather v. American Bible Society, 72 Ill. 55; Rev. Stat. secs. 6, 106, 141, chap. 131; secs. 1, 4, 6, chap. 144; chap. 32, secs, 1, 26.

      This is not a charitable devise. Jones v. Williams, Ambler, 651; Attorney General v. Whorwood, 1 Ves. Sr. 534; Trust Co. v. Lee, 73 Ill. 143.
    The charter of appellant tends to create a perpetuity in favor of a foreign corporation, and perpetuities in real estate, of the character proposed by it, are not permitted in this State. Carroll v. East St. Louis, 67 Ill. 568; Starkweather v. American Bible Society, 72 id. 50; Trust Co. v. Lee, 73 id. 142; Hough v. Land Co. id. 23.
    Mary A. Braley, at the time of her death, had no devisable interest. No estate could vest in her, under the will, until the death of the widow. Dove v. Low, 128 Mass. 38.
   Mr. Justice Sheldon

delivered the opinion of the Court:

The bill in this case seeks partition among the legal owners, the complainants alleging that they and one Frank Braley are such owners, of what remains of the real estate of Judd Braley, at the time of his death a citizen of Chicago, who died testate in March, 1863, leaving him surviving, his widow, Johanna Braley, and three children, Ellen 0., Mary A., and Frank, his only next of kin and heirs at law. By his will he devised to his widow a life interest in the real estate, with remainder over to his children, in equal parts, at the death of the widow. His widow died on the 29th of April, 1883, and prior to the commencement of this suit. His daughter, Ellen C. Braley, intermarried with one Michael J. Sullivan, and died February 15, 1875, intestate, leaving her surviving two children, the complainants, Francis Joseph and Mary Elegius Sullivan, her heirs at law. The daughter, Mary A. Braley, died in Grant county, Wisconsin, on the 19th of September, 1874, single and without issue, leaving a will whereby she devised all her interest in this estate to the “Saint Clara Female Academy, ” a corporation organized and existing under and by virtue of the laws of the State of Wisconsin, solely for educational purposes. The bill treats this will of Mary A. Braley as insufficient to pass the title to the real estate sought to be partitioned, alleging that as to such real estate she died intestate. The decree found that by virtue of the laws of Illinois the Saint Clara Female Academy could not take any interest in real estate in this State under the will of Mary A. Braley, and that the complainants and Frank Braley were the sole owners of the real estate, and made partition of it between them. The Saint Clara Female Academy appeals from the decree.

The charter of the Saint Clara Female Academy gives to the corporation the power to acquire and hold real estate not to exceed the value of' $500,000. The decree finds that at no time since the making of the will of Mary A. Braley has the Saint Clara Female Academy owned or possessed property, real and personal, to exceed the sum of $50,000, and that the interest of Mary A. Braley in the premises sought to be partitioned, at the time of her death or since, did not exceed in value $35,000.

The principal question presented for determination is, whether a corporation created by the laws of Wisconsin for educational purposes, with power to acquire and hold real estate to the extent of $500,000 in value, is capable of taking, by devise, lands in Illinois. It is the well settled doctrine that a corporation created in one State may, upon the principle of comity, exercise within another State the general powers conferred by its own charter and permitted by the law of its own State, provided the doing so be not inconsistent with the laws or public policy of such other State. We need to do no more than make reference to some of the numerous authorities in support of this rule: Lumbard v. Aldrich, 8 N. H. 31; State v. B. C. and M. R. R. Co. 25 Vt. 433; White v. Howard, 38 Conn. 342; Thompson v. Waters, 25 Mich. 214; Thompson v. Swoope, 44 Pa. St. 474; Lathrop v. Commercial Bank of Sciota, 8 Dana, 114; Hollis v. Drew Theological Semi nary, 95 N. Y. 166; Cowell v. Sprinys Co. 100 U. S. 55; Christian Union v. Yount, 101 id. 224; Stevens v. Pratt, 101 Ill. 224.

The public- policy of the State is made manifest by its legislation. In order, then, to the solution of the question in hand, we have but to look to the laws of this State, and see whether they be adverse to a corporation for the purposes of education, taking and holding land in this State by devise, and if they are found not to be so, then the title of the appellant, under the will, must be sustained.

By section 4 of “An act to incorporate academies and seminaries of learning, ” in force March 6, 1843, (Laws 1842-3, p. 6,) the corporate bodies formed under the act are given power to take or receive any estate, real or personal, by the gift, grant and will of any persons whatsoever, and to sell, convey, demise, place at interest, or otherwise dispose of the same, for the benefit of the academy or seminary whose interests they represent. This act of 1843 was reenacted in the revision of 1845. (Div. 2, chap. 25, on Corporations, Rev. Stat. 1845, p. 117.) By section 4 of “An act for the incorporation of institutions of learning, ” approved January 26, 1849, (Laws 1849, p. 84,) the corporations formed thereunder are given the like power as by the said section 4 of the act of 1843. By an act entitled “An act to amend chapter 25 of the Revised Statutes, entitled ‘Corporations,’ ” approved February 13, 1851, (Laws 1851, p. 85,) five sections of the act of 1843 reenacted in said chapter, containing certain conditions in order to become incorporated, one being that as to one hundred and sixty acres of land, are repealed, and the provision in said section 4 of the act of 1843, as to taking and holding real estate, is made to apply to all the corporations formed under such amendatory act. These statutory provisions continued in force down to July 1, 1874, when the following, being section 1, chapter 144, of the Revised Statutes of 1874, page 1090, went in force, the act being entitled “An act to revise the law in relation to universities, colleges, academies and other institutions of learning:”

“Sec. 1. That any corporation which has been or may be incorporated under any general law of this State for the purpose of establishing or conducting a university, college, academy or other institution of learning, in addition to the powers granted by such law, shall have power to take, by purchase, gift, grant, devise or bequest, and to hold for the use of such corporation, any real or personal property whatever, and to sell, convey, mortgage or otherwise use the same, as may be considered most conducive to the interests of such institution. But such corporation shall have no power to divert any gift, grant, devise or bequest from the specific purpose designated by the donor. ”

This was the law of Illinois on September 19, 1874, when Mary A. Braley’s will took effect by her death. These laws which have been referred to are not special and private, but general public laws of the State. In addition, appellant’s counsel append to their brief a schedule, containing a list of some eighty corporations, for educational and similar purposes, created by private or special laws of this State, with the statement, of which there is no contradiction, that a reading of these special charters will show that in the large majority of cases the capacity was given to the corporations to take and hold lands, unlimited as to quantity or value.

It is thus seen that the general laws of Illinois, before and at the time this will took effect, were not only not prohibitory of corporations for educational purposes holding land in this State, but that they expressly empowered such corporations to take and hold real estate by grant and devise, and without limit in quantity and value. There is in the law of this State no discrimination against foreign corporations, but they are given a hospitable reception, and placed upon an equal footing with our own domestic corporations. Section 26 of chapter 32, on Corporations, (Rev. Stat. 1874, p. 290,) being a revision of the act of April 18, 1872, provides: “Foreign corporations, and the officers and agents thereof, doing business in this State, shall be subject to all the liabilities, restrictions and duties that are or may be imposed upon corporations of like character organized under the general laws of this State, and shall have no other or greater powers. And no foreign or domestic corporation established or maintained in any way for the pecuniary profit of its stockholders or members, shall purchase or hold real estate in this State, except as provided in this act, ”—the provision of the act in that regard being, that corporations for pecuniary profit may own so much real estate as shall be necessary for the transaction of their business, and that corporations not for pecuniary profit shall be capable of' taking, purchasing, holding and disposing of real and personal estate for the purposes of their organization. By declaring that foreign corporations shall have no other or greater powers, there is a direct implication that they shall have equal powers with domestic corporations of like character. In Stevens v. Pratt, 101 Ill. 217, this court said: “The manifest and only purpose (of this section 26) was to produce uniformity in the powers, liabilities, duties and restrictions of foreign and domestic corporations of like character, and bring them all under the influence of the same law.”

As the section reads, foreign corporations “doing business in this State, ” it is said this corporation is not embraced therein, as it is not doing business in this State. Receiving lands in this State .by devise, and the assertion in the State of ownership over them, we regard a sufficient doing of btisiness in this State to bring ■ appellant within the purview of this language of the section. But express permission for the corporation to exercise its powers here is not required,—there is implied permission, unless the contrary is shown. Thus, in Cowell v. Springs Co. supra, after so stating the rule, in effect, it was said: “If the policy of the State or territory does not permit the business of the foreign corporation in its limits, or allow the corporation to acquire or hold real property, it must be expressed in some affirmative way, ” etc.

Some point is made upon this section that as it makes foreign corporations subject to all the restrictions of domestic corporations of like character, and as the latter are subjected to certain restrictions in becoming incorporated under the general law, and with respect to the qualifications of officers, to ivliich foreign' corporations are not subject, therefore the section can only apply to corporations organized under the general law of this State. This would be making but nonsense of the section. It speaks of foreign corporations, and moans foreign corporations. The section takes foreign corporations as they are found existing, without regard to how they came into existence or to their mode of organization, and they are subjected only to the restrictions of already organized corporations in this State. As respects the holding of land, the exercise of which power alone is involved in this case, there are no restrictions by our law which are not equally applicable to both corporations, domestic and foreign.

It is contended that Carroll v. East St. Louis, 67 Ill. 568, Starkweather v. American Bible Society, 72 id. 50, and United States Trust Co. v. Lee, 73 id. 142, should rule this case in favor of appellees. The decision in the Carroll case was, that a corporation created in another State for the sole purpose of buying and selling lands, had not power to purchase and hold lands in this State, because it was against the policy of our legislation, and there had been refusal by our legislature to charter such corporations. In the Starkweather case it was held that a corporation of New York which was prohibited by the law of that State from taking land by devise, was therefore incapable of taking lands by devise in Illinois. This was the main and true ground of the decision, although it was said further in the opinion that the decision might also be placed upon the ground of that in the Carroll case. In United States Trust Co. v. Lee, the refusal of the lower court to appoint a foreign corporation a trustee of real estate was sustained, it being made a point in the decision that no such capacity of becoming a trustee of real estate had been bestowed upon any of our own corporations.

In the respect of what was actually decided in those cases there is no conflict with the decision in this case, but with certain obiter dicta in the Carroll case, there is disagreement. The statement which was made argumentatively in that case in regard to corporations for educational purposes, that the-law of March 6, 1843, which has been referred to, expressly inhibits such corporations from severally holding more than one hundred and sixty acres of land, was founded on a misconception of fact. Section 1 of that act does provide that, before persons shall associate themselves together and become a corporation, they must have land not exceeding one hundred and sixty acres, and must build a house thereon for the purposes of education. This is the only section of the-act in which there is reference to one hundred and sixty acres of land. But section 4 of the act gives to the persons, when incorporated, unlimited capacity to take and hold land. There was" the like misconception in the statement there made, that-this law of 1843 was revised in 1849, when the power to hold lands was increased to one thousand acres. The act in 1849-spoken of, is the act of January 26, 1849, hereinbefore referred to, which is entitled “An act for the incorporation of institutions of learning, ” and which does not appear to be in-any way an amendment to the law of 1843 or to the revision of 1845, or a repeal thereof, or to be inconsistent therewith, so that they may not stand together. The later act seems to-provide for the incorporation of different species of educational institutions, as it contemplates that college and university corporations may be formed under it. Section 4 of this act of 1849 provides that the corporations formed under the act may take real and personal estate by grant and will, without limit as to the power. And section 7 provides: “No corporation established as aforesaid shall be allowed to hold more than one thousand acres of land at any one time, unless the said corporation shall have received the same by gift, grant or devise, and in such case such corporation shall be required to sell or dispose of the same within ten years from the time the title thereto is acquired.” This is all of the act respecting one thousand acres of land. The act thus gives unlimited power to take by devise, and to hold for ten years, but restricts the power to hold longer than that time more than one thousand acres.

It is insisted that the Saint Clara Female Academy is a corporation for pecuniary profit. There is nothing whatever in its charter indicative of this. The charter contains merely six short sections. The first creating the corporation for “educational purposes,” with power to acquire, hold and convey property, real and personal. The second fixes the number of the members of the board of trustees. The third fixes-the place of the location of the academy. The fourth limits the value of the real estate the corporation may hold, to $500,000. The fifth exempts the academy buildings, and the grounds on which they stand, not exceeding forty acres, from taxation. The sixth names when the act shall take effect. This is all,—not a word as to stock, stockholders, dividends, or suggestive of pecuniary profit to anybody. It is said that fees are charged for tuition. We suppose this to be the case with all educational institutions, with hardly an exception, if any. What is meant by “pecuniary profit, ” is “for the pecuniary profit of its stockholders or members,” in the words of section 26, (Rev. Stat. 1874, p. 290,) before quoted. Such is not the purpose of this charter, but it is for educational purposes, and all the avails received are applied to the latter purposes. See McDonald v. M. G. Hospital, 120 Mass. 432, on this point. The proof is, “there is no pecuniary profit to the members of the corporation from this institution. There are no dividends declared, no money given to any member. The trustees themselves derive no personal profit. The corporation is not conducted for any other purpose than educational and charitable purposes. ” The record shows that the value of appellant’s property but slightly exceeds the incumbrances and debts. That educational corporations are not corporations for pecuniary profit, is recognized by the law of this State in section 4, chapter 144, of the Revised Statutes of 1874, page 1090, which provides that any educational corporation theretofore • incorporated under any special law of the State, may “become incorporated under the provisions of ‘An act concerning corporations,’ approved April 18, 1872, relative to corporations not for pecuniary profit. ”

It is further insisted that the charter of the Saint Clara Female Academy is restrictive, in this, that it confines the business of the corporation to Sinsinawa Mound, in the county, of Grant, and the counties of LaFayette and Dane, all in the State of Wisconsin, and because thus restrictive, the corporation can not hold real estate in Illinois. All of restriction which there is in this regard is, that the charter provides that the academy shall be located at Sinsinawa Mound, Grant county, Wisconsin, with power to establish and maintain a branch in the county of LaFayette, in the State of Wisconsin, and an amendatory act gives the power to establish and maintain a branch in the county of Dane, Wisconsin. The logical result of the argument on this head seems to us to be, that the corporation can exercise no power outside of the place where the academy is located, so that if appellant had not seen fit to establish any branch, then it could not have gone outside of Sinsinawa Mound to procure materials and labor •for the erection of its academy building, or to purchase furniture and apparatus for it when erected, or to employ teachers to teach therein, nor could have exercised its power to sue until there had been a court established at Sinsinawa Mound. Any such construction is obviously to be rejected. And yet, not to admit it, would seem to leave without foundation the position we are now considering. It does not follow that because the location of the academy is fixed at a particular place, all the powers of the corporation must be exercised at that place, and no other. The corporate purpose,—that of furnishing education,—may be should be carried on at the place where the academy is established, but the incidental powers which are necessary and proper for the maintaining of an academy there, may be exercised elsewhere. The receiving of gifts of money and property for the purpose of the corporation, is a means of maintaining the academy, of carrying out.the object for which the corporation was formed, and the power given to take, hold and convey property, real and personal, for such purpose, may, we conceive, be exercised anywhere, unaffected by the restriction as to the academy’s place of location. Because the corporation may not exercise all of its powers in this State, seems to be no reason" why it may not here exercise some of them,—why it can not exercise the, power to take, hold and dispose of land in this State for its purposes of education, although the location of its academy be confined to a particular place or places in Wisconsin.

The rule in respect of perpetuities,- which appellees call to their aid, has no application to legacies or devises for educational purposes. Heuser v. Harris, 42 Ill. 425; Andrews v. Andreivs, 110 id. 223.

But it is claimed that as the will of Mary A. Braley does not expressly declare that the property in question shall be used for educational purposes, therefore the devise is not for such purposes. The Saint Clara Female Academy exists only for “educational purposes, ” as declared by its charter, and a devise to that corporation we regard as a devise for educational purposes.

The grant of power here by the charter is, “to acquire, hold and convey property, real and personal; ” and the point is made that the word “acquire,” is not broad enough to in-elude a taking by devise—that the word implies some element of effort on the part of the one who acquires. In judicial opinions, and by law writers, the term is not infrequently used otherwise, and as coming to property by devise or descent, as well as in any other mode. Thus Blackstone says: “Descent, or-hereditary succession, is the title whereby a man, on the death of his ancestor, acquires his estate by right of representation as his heir at law.” (2 Blackstone’s Com. 201.) We have no doubt that the power granted to “acquire” property, is broad enough to enable the corporation to take by will.

Appellees assert that Mary A. Braley, the testatrix, had, at the time of her death, no devisable interest in the premises sought to be partitioned. Her interest came from the will of her father, Judd Braley, whereby he devised all his real and personal estate to his wife, in trust, to pay his debts and funeral expenses, to use so much of the income thereof as might be necessary for her own support and the support of his children, Ellen C. Braley, Mary A. Braley and Frank Braley, with power to sell and dispose of any portion of his estate, and to use the proceeds of the sale, or so much as might be needful, in the payment of his debts and funeral expenses, and to re-invest the balance for the benefit of his estate, concluding: “And after the' death of my said wife, all my estate, both real and personal, shall descend and belong to my said children in equal proportions, share and share alike, their and each of their heirs and assigns forever.” It is said the estate devised to the widow in trust must be held to have been one in fee, and if so, then no devisable interest vested in the children during its existence, and as Mary A. Braley died before the widow, that she had not at her decease any interest to devise, the estate at that time being vested in the widow. The widow had a life estate in trust, with power of disposition of the fee. Mary A. Braley, at the time of her death” before the widow, had no estate in possession, it is true, but she had one in remainder, and it was a vested remainder, as we regard it. Our statute makes devisable all the interest in possession, reversion or remainder which one has in any lands. Chancellor Kent, in his 4th Com. 261, says: “All contingent and executory interests are assignable in equity, and will be enforced if made for a valuable consideration; and it is settled that all contingent estates of inheritance, as well as springing and executory uses and possibilities, coupled with an interest, where the person to take is certain, are transmissible by descent, and are devisable ' and assignable.”

It seems clear that Mary A. Braley had, at the time of her •death, a devisable interest in the land. Our conclusion is, "that the devise to the Saint Clara Female Academy was a valid one, and that appellant took thereunder a one-third interest in the property sought to he partitioned.

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

Decree reversed.

Mr. Justice Magbubeb : I do not concur in the foregoing opinion.


author: Mr. Justice Shope

text:
    Elisha Essley et al. v. John C. Sloan et al.

      Filed at Ottawa March 27, 1886.

    1. Usury—who may take advantage of it—in case of a conveyance by « mortgagor—rights of the grantor and of the grantee, in respect to the usury in the debt secured by the mortgage. Where a party conveys land subject to a trust deed thereon, given by him to secure a note tainted with usury, this will be treated as an election on his part to affirm the validity of his contract; and the grantee of his equity of redemption, taking with full knowledge of the incumbrance, and reserving out of the purchase price the amount due on the mortgage, can not be heard to complain of the usury in the original debt secured by the trust deed, nor can he set up in defence any usurious payments which may have been made by the grantor.
    2. In such case, the conveyance being made expressly subject to the incumbrance, the grantor will, by such conveyance, divest himself of the right to redeem from the incumbrance, and will have no interest in the land or the lien; and so far as payment of his debt is sought out of the land, he can not set up the usury or payments of usury made by him, and thereby aid his grantee in avoiding payment of the incumbrance.
    3. Intebest—contract rate on bill to redeem from mortgage. Where a party seeks in equity to redeem land from a mortgage not tainted with usury, or where he is not entitled to avail of usury, it is proper, in decreeing the relief sought, to require him to pay the principal debt, together with the rate of interest stipulated by the parties in the contract, not exceeding that allowed to be contracted for by law. Gases affected by usury, in which this court holds that the party seeking relief shall pay only six per cent, have no application.
    4. Purchases—subject to incumbrance—presumption as to incumbrance being part of the consideration. Where a party takes a deed for land which expressly states it is made subject to an incumbrance therein described, the law will presume that the incumbrance as it appears on its face formed a part of the consideration for the deed.
    Appeal from the Appellate Court for the Second District;—• heard in that court on appeal from the Circuit Court of Mercer county; the Hon. George W. Pleasants, Judge, presiding.
    On the 15th day of January, 1872, Elisha Essley borrowed of John McKinney $2000, giving his note, payable in one year, with interest at ten per cent per annum, and, joined by his wife, executed a trust deed to Isaac N. Bassett, to secure the same. It was agreed that two per cent additional interest was to be paid by Essley, and for the first year two per cent was deducted from the money received by him, and two percent per annum was paid by him in excess of the ten per cent until January, 1878. February 8, 1878, Essley sold and conveyed the land to William Drury, subject to this trust deed. Essley was indebted to Drury and to F. P. Burgett. The consideration moving to Essley for the conveyance to Drury, was the satisfaction of the indebtedness. At the time of the conveyance the claims of Burgett and Drury, including this incumbrance to Bassett, was counted up between Essley and Drury, and it was found that they amounted to $7.68 per acre for the land. On the 25th of February, 1878, Drury sold and conveyed the land to Joseph W. Bigelow. The consideration expressed in the deed is $7300, and the deed is made subject to incumbrances, naming them, and among them the trust deed to Bassett, the amount of which is stated to be $2000, and interest paid to January 1, 1879. Bigelow paid interest at twelve per cent to January 1, 1880, when, by agreement with McKinney, the rate was reduced to eight percent per annum. Bigelow paid interest to January 1, 1884. On the 24th of March, 1884, Bigelow, for the expressed consideration of $1000, by deed of quitclaim sold and conveyed these lands to appellant Cyrus A. Ballard, subject to incumbrances. January 4, 1884, McKinney assigned the note secured by said Bassett trust deed, to appellee John C. Sloan, •and on the 1st day of May, 1884, Isaac N. Bassett, trustee, at the request of Sloan, advertised the land for sale under* the trust deed, claiming there was $2000, and interest from January 1, 1884, due thereunder. Thereupon this bill was filed, in the names of Ballard and Essley, to enjoin the sale, alleging the usury in the original contract between Essley and McKinney, and the payment, of usurious interest by Essley and Bigelow, and asking a statement of account, and that all usurious interest be applied as payments on 'the principal ; that the note be cancelled and surrendered; that injunction issue and be made perpetual, and offering to bring in all sums found due, etc. A temporary injunction was issued. Defendant Sloan answered, denying that usury was reserved in the note, and the taking of usurious interest by McKinney, or payment of the same, as charged in the bill ; alleges that Drury, Bigelow and Ballard severally bought, subject to the deed of trust to Bassett, with full knowledge of it, and that it formed part of the consideration of said purchases, severally, and that the amount thereof was deducted from the purchase price; denies that Essley has any interest in the subject matter of the bill, and denying all matters not admitted. Eeplieation was filed, and at the hearing the court refused to allow the usurious interest paid by Essley or Bigelow, and ordered an account taken, with instructions to the master to compute interest on the principal sum from January 1, 1884, at the rate of eight per cent per annum. It was admitted that $500 had been paid May 16, 1884, which was a proper credit. The master reported a balance due on note mentioned, of $1671.16. Exceptions to master’s report were overruled, and a decree was entered that complainants be per-, mitted to redeem in ten days, upon payment of the sum so found by the master, and in default thereof, that injunction be dissolved as to all said lands except fifty acres, and that the trustee sell, etc. It was further ordered “that no claim shall be held or set up as against said Essley, on said note or deed of trust, but that he be and is absolved from all liability thereon, personally, and that if the amount named in the decree was paid, the note should be surrendered to Essley, or if not paid, that as soon as the sale under trust deed was consummated, the note was to be cancelled and surrendered to him. There is a conflict in the evidence as to whether Drury, at the time of his purchase, agreed, in express terms, to pay the incumbrances then on the land, but there is no controversy that Drury, Bigelow and Ballard each took the land subject to the incumbrances, and that it was so understood and agreed at the time they severally purchased.
    Messrs. Bassett & Wharton, for the appellants:
    The property went to Drury virtually as an assignment, and to Ballard in that way, and the latter had the right to plead usury, which was denied him. Pearsall v. Kingsland, 3 Edw. Ch. 195; Jenkins v. International Bank, 97 Ill. 574.
    This court,decided that Essley was a proper party complainant, and had an interest to have his notes taken up. As such we claim he had the right to have the usury considered and allowed. Davis v. Hopkins, 15 Ill. 519 ; Johnson v. Thompson, 28 id. 352; Valentine v. Fish, 45 id. 462; Maher v. Lanfrom, 86 id. 520.
    Essley, who was the maker of the note, had the right to aid in equity, to have an account, pay what was due and have his mote surrendered, and be relieved from the usury, on equitable principles. 1 Story’s Eq. sec. 301; Rogers v. Rathbun, 1 Johns. Ch. 367; Fanning v. Dunham, 5 id. 142; Ferguson, v. Sutphen, 3 Gilm. 570; Sanner v. Smith, 89 Ill. 123; French w. Gibbs, 105 id. 523.
    Ballard, the remote grantee of Essley, had the right alone to exhibit the bill and ask for an account of what was due on the mortgage debt, and pay the amount to save the land from sale. Jones on Mortgages, secs. 1038, 1055, 1061, 1093, 1094, 1095; 2 Story’s Eq. secs. 1013, 1023; Brown v. Gaffney, 32 Ill. 251; 28 id. 149; Barnard v. Cushman, 35 id. 454; Roberts v. Fleming, 53 id. 198; Fosdick v. Van Huson, 21 Mich. 568; Barton v. May, 3 Sandf. Ch. 450; Henry v. Davis, 7 Johns. Ch. 40; Saunders v. Frost, 5 Pick. 259; Gibson v. Crehone, 5 Pick. 146.
    A surety may plead the usurious contract of his principal. Safford v. Vail, 22 Ill. 327; Sanner v. Smith, 89 id. 123; Morse v. Hovey, 9 Paige, 197. And an assignee may do so. Jenkins v. Greenbaum, 95 Ill. 11. And an executor or administrator. Maher v. Lanfrom, 86 Ill. 520. The mortgagor may convey and authorize his grantee to take advantage of the usury. Valentine v. Fish, 45 Ill. 462; Pike v. Crist, 62 id. 461 ; 1 Jones on Mortgages, sec. 644. A purchaser of the land may interpose the defence. Shufelt v. Shufelt, 9 Paige, 139; Bennett v. Keehn, 57 Wis. 582; Gunnison v. Gregg, 20 N. H. 100; Berdan v. Sedgwick, 44 N. Y. 626; Bullard v. Raynor, 30 id. 197; Banks v. McClelland, 24 Md. 62; McAllister v. Jerman, 32 Miss. 142; Doub v. Barnes, 1 Md. Ch. 127. A judgment or execution creditor may interpose the defence. Thompson v.
      Vetchen, 27 N. Y. 568; Dix v. VanWyck, 2 Hill, 522; Carow v. Kelly, 59 Barb. 239.
    It was error to require the payment of eight per cent on the decree. Hunter v. Hatch, 45 Ill. 178; White v. Haffaker, 27 id. 349; Pearson v. Hamilton, 1 Scam. 415.
    Mr. John C. Pepper, for the appellees:
    Essley having conveyed his equity of redemption, has no interest in the land, the sale, or the subject matter of the suit. He has no standing in court. Smith v. Brittenham, 108 Ill. 545.
    Essley, so far as he is concerned, has paid the note and interest, and has no right to recover it back. He placed means in Drury’s hands to pay the whole debt, and can not dispute the creditor’s right to reach it. Tyler on Usury, chap. 31; Adams v. Robertson, 37 Ill. 45; Daub v. Englebach, 109 id. 267; Thompson v. Dearborn, 107 id. 87; Rogers v. Herron, 92 id. 583; Flagg v. Geltmacher, 98 id. 293; Johnson v. Zink, 51 N. Y. 355.
    When a mortgagor sells land subject to the mortgage, the land becomes the primary fund out of which the mortgage debt is to be made. When the amount of the debt is deducted from the purchase money, the grantee must pay it, and can not plead usury. Sully v. Palmer, 51 Ill. 331; Fowler v. Jay, 62 id. 365.
    The law of usury was for Essley,—not to enable some one else to pocket money. Essley had paid for the holder of his note. Boyleston v. Bain, 99 Ill. 283 ; Valentine v. Fish, 45 id. 462.
    If the purchuser buys subject to a mortgage, he must pay it off or lose the land, and is not at liberty to set up usury or any other defence to the debt, unless it was agreed between the grantor and grantee, and the grantee reserved the right to make such defence. Henderson v. Bellew, 45 Ill. 322.
    Ballard having taken the land subject to the stipulation in the deed to Drury, the deed to Bigelow and the deed to himself, holds it as trustee, to sell and pay the lien which he purchased the same subject to. Sands v. Church, 6 N. Y. 347.
    A person who takes a subsequent mortgage, or purchases subject to a prior mortgage, can not set up usury in the same. Green v. Kemp, 7 Am. Dec. 169 ; Engel v. Harris, 43 id. 624.
    Drury was estopped from setting up usury by the clause in his deed, and so are all taking under him. Bigelow was estopped from setting up usury by the clause in his deed, and so are all taking and holding under him. Savings Institution v. Wilmot, 46 Am. Dec. 137.
    The decree does not provide for the payment of eight per cent interest, but gives complainants a right to redeem by paying a certain sum in accordance with the contract. If the bill had been dismissed for non-payment, they would have been required to pay the interest stipulated in the note.
   Mr. Justice Shope

delivered the opinion of the Court:

The conveyance made to Drury by appellant Essley, was subject to the incumbrance of the Bassett trust deed, securing the note payable to McKinney, and the deed expressly makes the title conveyed subject thereto. The same is true of the conveyances by Drury to Bigelow, and by Bigelow to appellant Ballard. In the deed from Drury to Bigelow the incumbrance for McKinney’s benefit is stated to be “$2000, with interest paid thereon to January 1, 1879,” and Bigelow took the land subject to the incumbrance and charged with that amount of money. Ballard, under his quitclaim from Bigelow, took the title of his grantor only.

It is apparent that usurious interest had been paid on the McKinney note by Essley and Bigelow, but neither of the grantees in the deeds mentioned acquired the right, if any existed, to set up as a defence to said note in the hands of McKinney, or his assignee, Sloan, any usurious interest paid by his grantor. Nor is there anything in the record tending to show that the usurious character of the McKinney note was mentioned or was in any way taken, into consideration in either of said purchases. The amount agreed to be paid to Essley consisted of certain indebtedness from Essley toDrury and to F. P. Burgett, which they were to satisfy.

Without stopping to discuss whether, as testified to by Essley, Drury 'in express terms agreed, as part of the consideration of his purchase, to pay and satisfy the incumbrances, on these lands, it does appear from Essley’s testimony, and without contradiction, that there was a counting up of the-claims Drury and Burgett had, and they amounted to $7.68 per acre, and that the trust deed to secure the McKinney note-was counted in to make up the $7.68 per acre that he swears was to be paid for the land. We have already seen that in. the deed from Drury to Bigelow the amount of the incumbrance is stated at its face value, “$2000, and interest from January 1,1879.”,

It is evident, we think, that Essley did not understand, nor did Drury, that any right was transferred by him to Drury to-defeat any portion of the McKinney claim, and the same is-true of Drury and Bigelow, at the time of the conveyance to-the latter. The conclusion that it was understood, by all parties to these transactions, at the time the deeds were severally made, that the incumbrances formed part of the consideration for the purchase, seems irresistible. Whether it was so agreed in express terms is not material. The legal effect is the same. In both of the conveyances last mentioned, the incumbrances then on the land were excepted out. of the warranty, and all three of the conveyances were made with a view to these incumbrances and subject to them, with full knowledge of their amount and the priority of the lien created thereby, and no authority was given to or .permission obtained by the vendees to set up usury as against the McKinney note, and the presumption is that the incumbrance, “as it appears on its face, formed part of the consideration”*' to be paid in each case for the lands. Essley had the right, if he chose, to affirm the validity of his usurious contract with McKinney, and having conveyed only the equity of redemption, will be held to have done so. Drury and his grantees purchased subject to the incumbrance, with full knowledge thereof, and it in no w7ay concerns them whether, as between Essley and McKinney, the contract was tainted with usury or not. If Essley protected the incumbrance, and provided for its payment by taking that much less from Drury for his land, thereby in effect leaving enough of the consideration of his sale in Drury’s hands to pay off the lien, and Drury so purchased, and paid only the excess he agreed to ‘pay over and above what the incumbrance Avas under-' stood to be, he is in nowise injured, and neither he nor those claiming through or under him can be heard .to complain. Henderson v. Bellew, 45 Ill. 322; Valentine v. Fish, id. 462; Maher v. Lanfrom, 86 id. 513; Darst v. Bates, 95 id. 493; Sands v. Church, 6 N. Y. 347.

Appellant Ballard is, then, in no position to insist upon the usurious character of the transaction between Essley and McKinney, nor can he haA’e applied the usurious interest paid by Essley or Bigelow, in reduction of the debt, for the payment of which funds were, in effect, left in his hands. He and his grantor purchased with full knowledge of this incumbrance, and paid, presumably, only the excess of the value of the lands over and above the amount of the liens thereon, and took his interest in the lands,—the equity of redemption,— subject to their payment. It would be inequitable, after his having received the benefit of the incumbrances by deducting the amount thereof from the consideration paid for the land, to permit him to keep it himself, and not apply it to the purpose for which it was set apart and reseiwed in his hands. Essley haAdng conveyed his equity of redemption, has divested himself of the right to redeem, and has no interest in the lands or the lien of this trust deed thereon. Nor can he be permitted to aid appellant Ballard to accomplish that which Ballard has no equitable right to do. His only possible interest is in his release from further liability on the note, and in this he is fully protected by the decree of the circuit court. In any event, whether the money is paid under the decree, or the sale of the lands under the trust deed is consummated, the note is ordered to be cancelled, 'and he is, by the decree, absolutely absolved from all liability thereon.

It is urged that the circuit court erred in computing interest at eight per cent -per annum on- the note, to the date of the decree. It is not claimed that there was any mistake in the length of time for which interest was computed, but it -is said that the rate was erroneous. This is not a money decree, within the statute.

The cases cited by counsel for appellants, where redemptions were allowed from incumbrances to secure debts tainted with usury, and holding that the party seeking to redeem would be required, in equity, to pay the amount remaining unpaid of the principal, and six per cent interest, have no application here. Here the appellants, as against the trustee in this deed of trust, or as against appellee’s right to have his debt satisfied by sale of this land, were entitled to no relief, and the court could, with propriety, have dissolved the injunction and dismissed the bill, as to appellant Ballard, at least, and permitted the sale to proceed under the power contained in the trust deed. The court allowed appellants to redeem by paying the balance of the ¡principal, with the interest contracted to be paid, which, being the legal rate, was not inequitable, and appellants have no cause to complain.

There being no error in the decree of the circuit court, the judgment of the Appellate Court affirming the same will be affirmed.

Judgment affirmed.


author: Mr. Chief Justice Mulkey

text:
    Peoria, Decatur and Evansville Railway Company v. The People ex rel. A. E. D. Scott, Collector.

      Filed at Springfield March 27, 1886.

    1. Taxation—municipal taxation—power implied, where there is no express grant—as, when power is given to create a debt. When the legislature confers authority on a county or other municipal body having the power to levy taxes, to contract a debt for some specific object, but makes no special provision for its payment, the very act of conferring the power to incur the liability, by implication also confers the power to levy the necessary taxes for its discharge.
    2. Same—taxation by counties—extent of the power, as to amount, for county pwposes, and to pay preexisting obligations. Section 121, chapter 120, and the sixth clause of section 25, chapter 34, of the Revised Statutes, when construed together, as they must be, mean, that unless authorized by a vote of the people the county board has no power to levy a tax for county purposes, exclusive of indebtedness existing at the. time of the adoption of the present constitution, the aggregate amount of which will exceed seventy-five cents on each one hundred dollars’ valuation of taxable property. In addition to this, the board may levy an annual tax, not to exceed one dollar on the hundred, to pay the principal and interest of any county indebtedness that may have existed at the time of the adoption of the constitution.
    3. Where a county has subscribed to the capital stock of a railway company, and issued its bonds therefor, under a clause in the charter of the company providing that any incorporated town, city, or any county or township subscribing, etc., as aforesaid, shall, by its proper authorities, annually thereafter levy and collect a sufficient tax on its assessed property to pay the interest on its bonds so issued as aforesaid, it will be obligatory on the county board to annually thereafter levy and collect a sufficient tax to pay the interest on its bonds, and the principal when due.
    4. And where a county is authorized by railway charters to issue its bonds in aid of railway companies on a vote of the people, and to raise money by a tax to pay the same, with the annual interest, it is not essential that the rate per cent of the tax to be levied should be named. In such case the liability the county is permitted to incur, and for the liquidation of which it is authorized to levy a tax, is sufficient to mark the extent of its power to raise money by taxation.
    5. Same—presumption in favor of validity of tax—burden of proof. It is the settled doctrine of this court that a party objecting to the enforcement of a tax, assumes the burden of showing its invalidity. The presumption is. that the tax is jnst, and that all officers having any connection with it have properly discharged their duties. These presumptions can only be overcome by clear and explicit testimony.
    6. So when a county having outstanding corporate bonds bearing interest, some of which are clearly valid obligations, levies a tax in excess of its power except as to such indebtedness, and it is not shown that any of such tax is levied for the payment of any illegal or invalid bonds, or interest thereon, a party can not successfully resist an application for judgment against his lands for such county taxes.
    7. Constitutional law—impairing the obligation of contracts—as, in limiting the power of municipal corporation to levy taxes in discharge of preexisting obligations. All legislative acts passed after the contracting of a valid debt by a county or other municipal corporation, which, if enforced, would deprive it of the means of payment to any considerable extent, such as a law materially diminishing its powers of taxation, is void, as being in conflict with that provision of the Federal constitution which declares no State shall pass any law impairing the obligation of contracts:
    8. So where, prior to the adoption of the present constitution, a county was authorized by law to issue its bonds in aid of the construction of railways, bearing interest, with power to levy such taxes as were necessary to pay the accruing interest, and the principal, when due, and did issue such bonds, a subsequent limitation of the taxing power of the county which would operate to deprive it of the means to meet its obligations, would, as to such outstanding indebtedness, be void, as impairing the obligation of contracts.
    9. Judicial notice—of railroad charters made public acts. Where charters of railroad companies are declared to be public acts, the courts will take judicial notice of their provisions, and give effect to them the same as to any other public statutes.
    Appeal from the County Court of Moultrie countythe Hon. J. Meeker, Judge, presiding.
    Mr. J. S. Stevens, and Messrs. Stevens, Lee & Horton, for the appellant:
    The power to raise taxes for all county purposes is vested in the board of supervisors in counties under township organization. In the same law granting the power is an inhibition on a greater levy than one dollar on the hundred to pay this class of indebtedness. Hurd’s Stat. 1883, sec. 25, p. 315, clause 6; Hurd’s Stat. 1884, sec. 121, p. 841.

      Some of the questions involved in this tax are, in principle, decided in the ease of Webster v. People ex rel. 98 Ill. 343, and in Binkert v. Jansen, 94 id. 283.
    The board of supervisors clearly exceeded their authority when they ordered the levy of this tax in excess of one dollar, and to that extent the tax was void, and could be reached by objections to judgment in the county court or by bill in chancery. Ramsey v. Haeger, 76 Ill. 432; Porter v. Railroad Co. id. 561; Mix v. People ex rel. 72 id. 241.
    This law does not impair the obligation of any contract. It simply applies to the remedy,—provides the means of carrying out the contract. The charters under which the bonds were issued do not attempt to fix the rate of taxation for the payment of either principal or interest.
    Remedies which the law affords to enforce contracts, constitute no part of the contracts themselves. Templeton v. Horne, 82 Ill. 491.
    The right of taxation and the power to fix the amount lies with the legislature, unless restricted by the constitution. With the wisdom of legislation upon this subject, courts have nothing to do, nor have they anything to do Avith the convenience or inconvenience of any regulation upon this subject.
    Mr. S. M. Smyser, State’s attorney, for the appellee:
    The county tax in this case was levied to pay the interest and principal on bonds issued by the county under section 9 of an act to incorporate the Decatur, Sullivan and Mattoon Railroad Company, and to the Bloomington and Ohio Railroad Company, Avhich authorized the municipalities issuing them, annually thereafter to levy and collect a sufficient tax to pay the interest thereon.
    The bonds were issued under said acts, and the provisions thereof relative to taxation became a part of the contract between the county and the holder of the bonds. The legislature has no poAver to pass an act impairing the obligation of that contract, and the clause of the Revised Statutes relied on by appellant does not purport to, nor can it be claimed that it does, repeal it. County of Pope v. Sloan, 92 Ill. 177; Chiniquy v. People, 78 id. 570; 3 Private Laws 1869, p. 1, sec. 8; 2 id. p. 947, sec. 10.
    It will be observed that the power of the county to levy taxes to pay the indebtedness created under said acts, is general, unlimited, and the acts mandatory, and that such power can not be taken away by subsequent legislation. This principle is elementary, and the citation of authorities in support thereof is unnecessary.
   Mr. Chief Justice Mulkey

delivered the opinion of the Court:

This appeal presents for review an order of the county court of Moultrie county, overruling objections to part of a tax assessed against the Peoria, Decatur and Evansville Railway Company for the year 1883, and rendering judgment against it for the same. The tax complained of, and to which objections were filed, was levied by the board of supervisors to pay a county indebtedness existing at the time of the adoption of the present constitution, mainly the principal and interest of certain railroad aid bonds, which are conceded to be valid and binding upon the county. The entire tax levied for this purpose amounted to $1.38 on each hundred dollars’ valuation of the taxable property in the county. The appellant, conceding the validity of the tax to the extent of one dollar on the hundred, paid that amount, and filed its objections to the residue. The gross amount of the excess complained of is $450.28. The simple question for determination is, whether the county court, under existing laws, had power to levy a tax for the purpose stated, in excess of one dollar on the hundred.

The county board in levying county taxes can exercise such powers only as are expressly or by necessary implication conferred upon it. The- two following general provisions of the statute are the only ones that are supposed to have a direct bearing on the question:

Section 121, chapter 120, of the Revised Statutes, provides: “The county boards of the respective counties shall annually, at the September session, determine the amount of all taxes to be raised for county purposes, the aggregate amount of which shall not exceed the rate of seventy-five cents on the one hundred dollars’ valuation of property, except for payment of indebte'dness existing at the adoption of the present State constitution, unless authorized by a vote of the people of the county. When for several purposes, the amount shall be stated separately.” This section of the statute, it will be perceived, is substantially the same as section 8, article 9, of the constitution.

It is declared by the sixth clause of section 25, chapter 34, of the Revised Statutes, that the county board shall have power “to cause to be annually levied and collected, taxes for county purposes, including all purposes for-wliich money may be raised by the county by taxation, not exceeding seventy-five cents on the one hundred dollars’ valuation, and in addition thereto, an annual tax not exceeding one hundred cents on the one hundred dollars’ valuation, for the purpose of paying the interest and principal of indebtedness which existed- at the time of the adoption of the constitution. ”

The manifest import of these provisions of the statute, • when construed together, as they must be, is, that unless authorized by a vote of the people, the county board has no power to levy a tax for county purposes, exclusive of indebtedness existing at the time of the adoption of the present constitution, the aggregate amount of which will exceed seventy-five cents on each hundred dollars’ valuation of taxable property. In addition to this, the board may levy an annual tax, not to exceed one dollar on the hundred, to pay the principal and interest of any county indebtedness that may have existed at the time of the adoption of the present constitution. Such being the plain and palpable meaning of these provisions of the statute, it clearly follows they afford no authority for the levy by the county board of so much of the tax in question as is in dispute. Indeed, the appellee does not claim that they do, but maintains such authority is to be found in the charters of the Decatur, Sullivan and Mattoon Railroad Company and the Bloomington and Ohio River Railroad Company, the companies to which the bonds in question were issued.

The section of the charter of the company first above mentioned, provides, that “any incorporated town, city, county or township subscribing stock or donating to said railroad as aforesaid, shall, by its proper authorities, annually thereafter levy and collect a sufficient tax on its assessed property to pay the interest on its bonds so issued as aforesaid. ” (See 3 Private Laws, 1869, p. 1.) Section 8 of the charter of the latter company declares: “The several counties, cities, villages, incorporated towns, and the several townships in counties having township organization, through or near which said road shall be located, are hereby authorized to raise money by a tax to be levied upon all the real and personal property in the said several counties, * * * and to subscribe the same to the capital stock of said corporation hereby-created, for the purpose of aiding in the construction and completion of said road; and the said several counties * * * are further authorized to issue bonds, drawing interest at the rate of ten per cent per annum.” Section 10 provides, that “such county * * * shall levy such tax and subscribe to such corporation the amount thereof, to be determined or voted for at any such election, and shall issue to said corporation their bonds for such amount, ” etc. See 2 Private Laws, 1869, p. 947.

The first of these acts made it obligatory on the county board to “annually thereafter levy and collect a sufficient tax on its assessed property to pay the interest on its bonds, ” etc. The other act, as we construe it, authorized the county, upon an affirmative vote of the people, to subscribe to the capital stock of the company, issue interest- bearing bonds for the amount, and “to raise money by a tax” to pay the same. The rate per cent of the tax to be levied is not mentioned in either ease, nor was it necessary that it should be. The liability which the county was permitted to incur, and for the liquidation of which it was authorized to levy a tax, sufficiently marked the extent of its power to raise money by that means. The charters of these companies are declared public acts, and consequently we must take judicial notice of their provisions, and give effect to them as we would to any other public statutes.

While the charter of the Sullivan, Decatur and Mattoon Railroad Company, as we have just seen, expressly directs the county authorities to levy an annual tax to pay the interest on the bonds issued to that company, yet no such express direction is given in respect to the payment of the principal. But the power to do so we think is fairly implied. At that time the county authorities were not authorized by the general law to levy a tax for county purposes in excess of fifty cents on the hundred dollars, and as the legislature deemed it necessary to direct a special tax to be levied to pay the interest, it becomes a serious question whether it did not intend that a special tax should be levied to pay the principal also, at least so far as it might be necessary to pay the bonds according to their terms. The presumption can not be indulged that the legislature, by reason of its omission to mention the principal as well as the interest in directing a tax to be levied, intended the principal of the bonds should go unpaid. A more reasonable construction would be to say that the legislature intended the necessary tax should be levied by the county authorities to pay both, yet as there was more danger of the payment of the annual interest being neglected, the duty of paying that by means of a special levy was expressly enjoined* The rule seems to be well recognized that where the legislature confers authority on a county or other municipal body having the power to levy taxes, to contract a debt for some specific object, and makes no special provision for its payment, the very act -of conferring the power to create the liability, by implication clothes the municipal authorities with power to levy the necessary tax for its discharge. Loan Association v. Topeka, 20 Wall. 655; 4 Myers’ Fed. Dec. sec. 1163; United States v. New Orleans, 8 Otto, 381; Myers’ Fed. Dec. sec. 1604.

If the rule of construction here laid down is applied to the present case, it removes all difficulty, for it is very clear that if the charters of the railroad companies in question, either,, expressly or by fair intendment, gave the county board authority to levy and collect a tax sufficient for the payment of the principal and interest of the bonds, that authority necessarily still exists, unless the legislature has provided some other mode of payment equally efficacious, and there is no claim or pretence of that kind. That it is incompetent for the legislature to pass an act that will impair or substantially diminish the means of enforcing a contract, is too well settled to admit of serious discussion, hence all legislative acts passed after the contracting of a valid debt by a county or other municipal corporation, which, if enforced, would deprive it of the means of payment to any considerable extent,— such as a- law materially diminishing its powers of taxation,—are uniformly held to be in conflict with that provision of the national constitution which declares: “No State shall pass any * * * law impairing the obligation of contracts.” Wolf v. New Orleans, 13 Otto, 358; Van Hoffman v. City of Quincy, 4 Wall. 535; Louisiana v. Pittsburg, 15 Otto, 278.

It is clear from the authorities cited, that if, under the railroad charters in question, the power of the county board to tax is limited only by the amount of bonds it was authorized to issue and actually did issue to said companies, the present limitation of its power to one dollar on the hundred, if intended to apply to this class of cases, would be inoperative and void. So far as the tax complained of relates to bonds issued to the Bloomington and Ohio River Railroad Company, we have, as already indicated, no doubt whatever as to the power of the county board to levy it. As to the tax relating to the other series of bonds, the case is not so clear. Nor is it, under the facts as now presented, necessary to definitely determine that question. It is the settled doctrine of this court, that any one objecting to the enforcement of a tax assumes the burden of showing its invalidity. The presumption is that the tax is just,—that all officers who have had any official connection with it have properly discharged their duties in respect to it. These presumptions can only be overcome by clear and explicit testimony. Chiniquy v. The People, 78 Ill. 570; Buck v. The People, id. 560; Beers v. The People, 83 id. 488; Mix v. The People, 86 id. 312.

'We do not think the proofs before us meet the requirements of the law as laid down in the above cases and as here announced. While it sufficiently appears that bonds were originally issued to both companies, yet it does not appear how many of them were so issued to either of the companies, or whether all of them, or what portion of them, are now outstanding. It does appear, however, that part of the tax complained of was levied to pay the principal and interest of ten bonds, of the denomination of $1000 each, issued by the county to the Bloomington and Ohio River Railroad Company, and held by one R. D. Lawrence. And it also appears that the sum of $25,000 was at the same time levied “for the payment of the principal and interest accrued and to accrue on the outstanding bonds of Moultrie county not in judgment, issued to the Bloomington and Ohio Railroad Company or to the Decatur, Sullivan and Mattoon Railroad Company.” Now, assuming the interest on both sets of bonds, and the principal on one set only, might thus lawfully be raised by taxation, it would by no means be a strained or unreasonable construction of this order of the county board to say that the money to be thereby raised was intended to be applied to the payment of the interest and so much of the principal as might lawfully be paid, and for aught that appears, all that portion of the tax complained of may have been required to pay the principal of the bonds issued to the Bloomington and Ohio River Railroad Company, in which case it would have been strictly legal. In addition to this, it does not clearly appear, from the record before us, that at the time of this levy there were any of the other company’s bonds outstanding. There probably were. But this was a fact susceptible of direct proof, and should have been made to overcome the presumption which the law indulges in favor of the levy. Upon the whole, we think it is not satisfactorily shown that the levy is invalid.

The judgment will be affirmed.

Judgment affirmed.