author: Mr. Chief Justice Sheldon

text:
    William H. Kiernan v. The Chicago, Santa Fe and California Railway Company.

      Filed at Ottawa November 11, 1887.

    1» Eminent domain—measure of damages—elements to be considered— as to land taken and land not taken, generally. In assessing the value of th® land taken, in a proceeding to condemn for railroad purposes, and the damages to land not taken, the jury should not assess the same on the basis of what the owner would take for the same or any part thereof, or what the jury would take if they were the owners. J J
    2. The proper measure of damages, in such case, is the actual fair cash market value of the land taken, and the decrease in the actual fair cash market value of the land and .property not taken, by reason of the construction and operation of the railroad.
    3 Same—damage to land not taken, how to be ascertained. In assessing the damages to the market value of the land and property not taken, the jury should not take into consideration anything as an element of damages which is remote, or imaginary, or speculative, even though mentioned or testified to by witnesses, but the only elements they should consider as tending to reduce the market value, are those which are appreciable and substantial, and which will actually lessen the market value of the property.
    4. In such a ease, the land owner gave in evidence the opinions of witnesses as to the amount of the depreciation of the market value of his farm, by the railroad crossing it in the manner proposed. Evidence was admitted on the part of the petitioner, as to how the selling value of other farms in the county crossed by railroads had actually been affected thereby, as shown by cases of sales that had taken place: Held, that this evidence was not properly admissible in rebuttal, but as it did not appear that it did any harm, the error was not sufficient to call for a reversal.
    5. Same—damage from dimerti/ng water-cov/rse. Where a railway company, in a condemnation proceeding for a right of way for its road, sought to divert a stream of water crossing the line of the road, so as to confine it on one side of the road, the petitioner introduced evidence tending to show that the stream was the receptacle of all the sewage of a city in the -vicinity, and by such use had become so befouled as to be practically worthless for stock water: Held, that the evidence was competent as showing the nature and condition of the stream, and bearing upon the question of damages claimed for the diversion of the stream.

      6. Same—viewing the premises by the jury, as governing their action contrary to opinions of witnesses. The result of a jury’s personal view of the land over which a railroad is sought to be laid, is evidence proper to be acted upon by them; and if they believe, from the whole evidence, that they have, from such view, arrived at a more accurate judgment as to the value of the premises sought to be taken, and of the damages, than that shown by the evidence in open court, they may, upon the evidence, rightfully fix the value of the land taken, and the damages, at the amount so approved by their judgment formed from the personal examination, even though it differed from the amount testified to, and the weight of testimony given by witnesses in open court.
    7. Same—¿wy in a second proceeding—how selected. After the selection of a jury from the sixty-four names written by the clerk in a condemnation proceeding for a right of way, a second proceeding for condemnation was commenced. Thereupon the clerk took the residue of the names of the freeholders before written on slips of paper, which remained after the drawing of the prior jury, about a month before, examined them, rejecting such as appeared to be interested in the second case, and writing new names of freeholders sufficient to make sixty-four, from these names selected, by lot, another jury of twelve. The array thus selected was challenged on the sole ground that the clerk did not, at the time of issuing the summons, write the names of the fifty-two freeholders remaining after the drawing of the first jury: Held, that the challenge was properly disallowed, as the re-writing of their names on new slips of paper would have been an idle and useless act.
    8. Instructions—in writing—oral direction to amend finding of jury in condemnation proceeding. Where the jury in a condemnation proceeding fails to find any damages for the diversion of a stream, the court may direct the jury orally, on the return of their report, to find some amount as such damages, under section 9 of the Eminent Domain act, allowing amendments under the direction of the court. Such direction is not a violation of the statute requiring the court to instruct in writing.
    9. Weight oe evidence—to be determined by the jury. On the assessment of compensation and damages for right of way, the jury are not obliged to accept a witness’ statement or testimony as sworn to. If, from the entire testimony, and their inspection of the premises, they believe any witness has exaggerated the value of the land or the damages, it is then-right and duty to disregard the testimony of such witness, in so far as it is thus unjustly exaggerated.
    Appeal from the County Court of Knox county; the Hon. P. H. Saneobd, Judge, presiding.

      Mr. George W. Thompson, and Mr. F. A. Willoughby, for the appellant:
    The statute requires the clerk to write the names of sixty-four persons from which to select a jury, at the time of issuing the summons. The writing of the names on April 9 is not a compliance with the statute requiring this to be done on May 21 following.
    The court erred in allowing witnesses living at a distance from the land in controversy, and who had not seen it, to testify generally as to the effect of railroads cutting farms, on their selling price, without any reference in their testimony to appellant’s farm.
    There was error in admitting evidence showing that Cedar Fork was made the receptacle of a portion of the sewage of the city, and a drainage from the dye works and other places, for the reason that such pollution was illegal. Neither a private individual nor a municipal corporation has a right to pollute a stream to the injury of riparian owners, or those whose property it runs through, and such nuisance may be enjoined. Jacksonville v. Lambert, 62 Ill. 519; Haskell v. New Bedford, 108 Mass. 213; High on Injunctions, sec. 810; Wood on Nuisances, 848.
    The court erred in giving plaintiff’s second instruction. It authorized the jury to disregard the evidence of the witnesses, and act upon their own judgment as to the value of the land and the damages, and also gave undue prominence to the evidence derived from a personal inspection, and .this has been frequently condemned. Martin v. Johnson, 89 Ill. 537; Callaghan v. Meyers, id. 537; Aurora v. Hillman, 90 id. 62; Moore v. Wright, id. 471.
    In the third instruction, the court properly told the jury that they should not assess the damages on the basis of what the owner would take for the same, or what the jury would take if they were the owners; but the court went further, and told them these matters should not be taken into consideration in fixing the damages, and this was error, as these matters enter into and help to form the market value of the land, in connection with the other evidence.
    The fifth instruction was erroneous, tending to mislead the jury, by submitting to their consideration the question what damages are remote, imaginary, uncertain or speculative, and was not based upon any evidence. It is for the court to pass on the competency of evidence. Wickliffe v. Lynch, 36 Ill. 210; Byers v. Thompson, 66 id. 421; White v. Murtland, 71 id. 250.
    The ninth instruction is erroneous. A jury have no right, arbitrarily, to reject the testimony of an unimpeached witness. (Railroad Co. v. Coultas, 67 Ill. 399.) The court also erred in giving the jury an oral instruction as to the form of their verdict.
    Messrs. Williams, Lawrence & Bancroft, for the appellee
    The challenge to the array was properly overruled. Every requirement of the statute had been, with painstaking care and fidelity, observed by the county clerk in its selection.
    The jury having made personal examination of the premises, the knowledge gained thereby was evidence, which it was the duty of the jury to consider. The second of petitioner’s instructions correctly stated the law upon this point. Rev. Stat. chap. 47, sec. 9; Mitchell v. Railroad Co. 85 Ill. 567; Railroad Co. v. Hopkins, 90 id. 323; Green v. Chicago, 97 id. 372; McReynolds v. Railway Co. 106 id. 156; Railway Co. v. Bowman, id. 161.
    The third instruction correctly stated the law as to the basis of compensation. Railroad Co. v. Walsh, 106 Ill. 255; Railroad Co. v. Jacobs, 110 id. 416; Dupuis v. Railway Co. 115 id. 99.
    The fifth instruction on behalf of petitioner properly told the jury what elements of damage should be considered in arriving at a proper estimate of just compensation. Nor is it properly subject to the criticism of seeking to make the jury judges of the law. It had appeared, upon cross-examination of witnesses introduced by defendant, that their estimate of damage was, to a very great extent, imaginary and speculative. This instruction simply advised the jury that such supposititious elements of damage did not properly enter into the estimate of just compensation.
    The ninth instruction for petitioner advised the jury that .they should carefully scrutinize the testimony of each witness, giving due weight thereto, rejecting so much thereof as, upon the whole evidence, they justly deemed unworthy of credit, whether by reason of interest, prejudice, want of knowledge and experience, or truthfulness. This it was plainly the duty of the jury to do.
    It was their right, and their duty as well, to consider the entire evidence, and not to arbitrarily reject the testimony of an unimpeached witness; but they rightly might discard and disregard such part of the testimony of any witness as was evidently untrustworthy, and in the teeth of the truth.
    Under the ninth section of the Eminent Domain act, the court, in directing the jury how so to amend their report as clearly to set forth and. show the just compensation ascertained, is not confined to written instructions, as in ordinary cases.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

This was a petition filed by the appellee, the Chicago, Santa Fe and California Bailway Company, in the county court of Knox county, on May 21, 1887, for the condemnation of a strip, of land through the farm of appellant, for appellee’s right of way. Appellant’s farm consists of 132 acres, situated about three miles west of Galesburg, on adjoining lands, in sections 19 and 20. The right of way takes 10t5q6q- acres of land, and cuts the farm in such shape that a triangle of over 12 acres is left on the north side of the right of way on section 19, and a triangle of 9 acres north of the right of way on section 20. The petition proposed to change the course of a stream called Cedar Fork, which, if not diverted, would flow, in its natural state, on each side of the land taken for right of way, hut as proposed to he changed, would be diverted entirely from the 40 acres south of the right of way, on section 19= The jury found appellant was entitled to $750 as compensation for land taken, to $975 as damages to land not taken, not including damages for change of creek, and to one dollar for damage for diversion of the creek. There was judgment on the verdict, and appellant brings the case to this court, assigning as error the rulings of the county court.

It is assigned as error that the court should have allowed "the challenge to the array of jurors. There had been a prior ■condemnation case in April previous, at which time the county ■clerk followed the statute in selecting the jury at the time of issuing the summons in the case, writing the names of each of sixty-four disinterested freeholders on sixty-four slips of paper, and selecting from these sixty-four, the names of twelve jurors. The county clerk, in the present case, took the residue •of the sixty-four names remaining after drawing the jury in the prior'case a month before, examined them, rejecting any appearing to be interested, and writing sufficient new names to fill up the required number (sixty-four) and then drawing from these the jury. The requirement of the statute is: “In ■cases fixed for hearing of petition in vacation, it shall be the duty of the clerk of the court in whose office the petition is filed, at the time of issuing summons or making publication, to write the names of sixty-four disinterested freeholders of the county on sixty-four slips of paper, and, in presence of two disinterested freeholders, cause to be selected from said sixty-four names, twelve of said persons to serve as jurors, such selection to be made by lot, and without choice or discrimination.” -The sole reason for the challenge is, that in the present case the clerk did not, “at the time of issuing summons, write-the names,” etc., of the fifty-two" disinterested freeholders remaining from drawing the jury in the previous case. The-names were already written, and to re-write them would have-been a mere idle act. The challenge was groundless.

The next assigned error is, that the court admitted improper evidence on behalf of the petitioner. "Witnesses on behalf of the defendant had given their opinions as to the amount of the depreciation of the market value of appellant’s farm, which would be caused by the railroad running across it in the manner proposed. Evidence was admitted on the part of the petitioner as to how the selling value of other farms in the county, cut by railroads, had actually been affected thereby, as shown, by eases of sales which had taken place. This is claimed to-have been improper. While we regard this evidence as not •properly admissible, we think, in view of all the evidence before-the jury, it could not, in this instance, have done any harm, and we can not hold its admission to be sufficient ground for reversal of the judgment.

Objection is taken to the admission of evidence tending to-prove that Cedar Fork, the stream to be diverted, was the receptacle of all the sewage of the city of Galesburg, and by such use had become so befouled as to be practically worthless for stock water. This was competent evidence, as showing the nature and condition of the stream, and bearing upon the question of the damages which were claimed for the diversion of the stream. It tended to show appellant’s own estimate of its value and need to him, in his suffering such pollution- of the stream. It is said there was no right thus to pollute the-stream. The jury was fully instructed in this respect, and it was for their consideration how long might be the continuance-of the existing condition of the stream. The land from which the stream was to be diverted was watered by another stream.

The giving of instructions for the petitioner is assigned as error.

The jury, in accordance with section 9 of the Eminent Domain act, went upon the land, and examined the same. The second instruction given for the petitioner, and objected to, informs the jury that the result of their personal view of the premises was evidence properly to be taken into consideration in making up their verdict,—that if they believed, from the whole evidence, that they had, from personal examination of the premises, arrived at a more accurate judgment and determination as to the value of the premises sought to be taken, and of the amount of damages, than is shown by evidence in open court, then and in that case they might, upon the evidence, rightfully fix the value of land taken, and the amount of damage, at the amount so approved by their judgment so formed from personal examination of the premises, as a jury, even though it might differ from the amount testified to, and from the weight of testimony given by witnesses in open court. This accords with what this court has heretofore said upon this subject. (C. and I. Railroad Co. v. Hopkins, 90 Ill. 323; Green v. City of Chicago, 97 id. 372; McReynolds v. B. and O. Railway Co. 106 id. 156; Mitchell v. I. and St. L. Railroad Co. 85 id. 566.) In the case first cited it was said, the result of the jury’s own personal examination, when they go upon and view the land, may have been such as to have justified the assessment made, even if it was clear the preponderance of evidence preserved in the record was against the amount of the assessment. We do not perceive that the instruction is open to the criticism made upon it, that it gives undue prominence to that portion of the evidence derived from personal inspection.

It is insisted the court erred in giving petitioner’s third instruction, as follows:

“In assessing the value of the land actually taken and the damages to the land not taken, you should not assess the same on the basis of what the owner would take for the same, or any part thereof, or what you would take and let the railroad go across the lands if you were the owner of them. These are improper to be taken into consideration, either in fixing the value of the land taken, or in assessing the damages to the land not taken; hut you should, at all times, keep in mind that the actual fair cash market value of the lands taken, and the decrease, if any, in the actual fair cash market value of the lands and property not taken, by reason of the construction and operation of the railroad, are the proper measure of damages and compensation which you are to ascertain in this case.”

It is admitted the first clause of the instruction is correct, but the objection taken to the instruction is to that portion of the second clause which says the matters in the first clause were improper to be taken into consideration in fixing the damages. If the damages should not be assessed upon the basis of those matters, as is conceded, then we do not see that it was improper to say they should not be taken into consideration in assessing the damages. The proper measure of damages and compensation was given in the subsequent part of the instruction. J. and S. E. Railroad Co. v. Walsh, 106 Ill. 255; Chicago and Evanston Railroad Co. v. Jacobs, 110 id. 416; Dupuis v. C. and N. Wis. Railway Co. 115 id. 99. And to the instruction, as a whole, we perceive no substantial objection.

In the fifth and ninth instructions, which were objected to, we find no substantial error. They are as follows:

“5. In assessing the damages to the market value of the property not taken, you should not take into, consideration anything as an element of damages which is remote, or imaginary, or uncertain, or speculative, even though mentioned or testified about by witnesses; but the only elements which you should take into consideration as tending to reduce the market value, are those which are appreciable and substantial, and which will actually lessen the market value of said property.”

“9. Ton are further instructed, that if you believe, from the entire testimony, and from your inspection of the premises, that any witness has magnified or exaggerated the value of the land taken, or the damages to the land not taken, on account of his interest in the suit, or his prejudice, or want of knowledge, or experience or truthfulness, then you have the right, and it is your duty, to disregard the evidence of such witness in so far as the same is unjustly magnified or unjustly increased, either as to the value of the land taken or the damages to the property of the defendant not taken.”

The objection taken to the fifth instruction is, that it submits to the consideration of the jury what damages are “remote, imaginary, uncertain or speculative,” whereas that is a matter of law, upon which the court should pass. The court did indicate its opinion in that respect in the last clause of the instruction, in naming to the jury what were the only elements of damage they should consider.

The ninth instruction does not go to the length, as counsel would seem to intimate, of telling the jury that they might arbitrarily disregard the testimony of unimpeached witnesses. It was but to the effect that the jury were not obliged to accept a witness’ statement as sworn to, but that if, from the entire testimony, and their inspection of the premises, they believed any witness had exaggerated the value of the land or the damages, then it was their right and duty to disregard the evidence of such witness, in so far as it was thus unjustly exaggerated. We think this was well enough said.

When the jury returned into court with a verdict, the finding in it was “blank dollars” damages for diversion of Cedar Fork creek. The counsel for petitioner stated to the court they desired the jury should find some sum, as, one cent or one dollar, as damages for the diversion of the creek, and requested that the jury might be allowed to amend their verdict in that regard. Thereupon the judge of said court stated to the jury that they should find at least a nominal sum for the diversion of said creek, but it was for them to say, under all the evidence, what their finding should be in that regard, and that they might retire and consider further of their verdict; and the jury did so, and returned their verdict with the word “blank” stricken out, and “one” written in, instead. Exception is taken to this action of the court, as instructing the jury orally, contrary to the statute in that regard. The ninth section of the Eminent Domain act provides, that the jury, having examined the premises and heard the proof, shall make their report in writing, and the same shall be subject to amendment by the jury, under the direction of the court or the judge, as the case may be, so as to clearly set forth and show the compensation ascertained to each person entitled thereto. The action of the court was justified under this provision of the Eminent Domain act.

The judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Magruder

license: Public Domain

text:
    Nathaniel Carrico et al. v. The People ex rel. Trustees of Schools.

      Filed at Springfield November 9, 1887.

    1. Soho on district—forming new one—at whose instance—requisites of the petition. The trustees of schools of two townships have no authority to create a new school district out of territory belonging to two or more districts, except on petition of two-thirds of the legal voters living within the territory which is to comprise the new district, containing not less than ten families; and each petition filed with the several boards of trustees must show, on its face, the fact that the territory to be formed into the new district contained not less than ten families. The allegation of such fact is jurisdictional, and without it the boards have no power to act.
    2. Quo warranto—of the plea, showing right to office. On an information in the nature of a quo warramto, against persons assuming to act as directors of a new union school district claimed to have been formed, the •defendants are bound to show, in their plea, that the district of which they •claim to be directors was legally formed, and set forth the facts giving the boards of trustees jurisdiction to create such district, as, thy presentation ■of such a petition as the law requires.
    Appeal from the Circuit Court of Macoupin county; the Hon. "William E. Welch, Judge, presiding.
    Mr. E. B. Shirley, and Messrs. Einaker & Einaker, for the ■appellants:
    The allegations of the plea contain all the facts which the statute requires to exist in order to constitute a legal school •district. Eev. Stat. chap. 122, sec. 33.
    These facts are alleged with certainty, to a common intent, ■which is all the law requires. 1 Chitty’s PI. 233, 633.
    Messrs. Palmer & Chapman, for the appellees:
    In the proceeding by information in the nature of quo warranio, the defendant must either disclaim or justify. If he •disclaims, the People are at once entitled to judgment. If he justifies, he must set out his title specifically. It is not enough to allege, generally, that he was duly elected or appointed to •office, but he must state particularly how he was elected or .appointed. He must show on the face of the plea that he has a valid title to the office. The People are not bound to show .anything.
    The information calls upon the defendant to show by what warrant he exercises the functions of the office, and he must •exhibit good authority for so doing, or the People will be entitled to judgment of ouster. Clark v. People ex rel. 15 Ill. 217.
    But the plea in tins case is fatally bad, in that it does not ■allege that the petition filed with the trustees of the several townships interested, asking for the formation of the proposed district, contained the allegation that not less than ten families resided upon the territory sought to be formed into a new •district. Without this allegation in said petition it conferred no jurisdiction upon the trustees to act. Potter v. Board of Trustees, 10 Bradw. 343; Webb v. People ex rel. 11 id. 358; School Trustees v. People ex rel. 71 Ill. 559; Trustees of Schools v. People ex rel. 76 id. 623.
    It is not enough for appellants to allege in then plea that certain jurisdictional facts really existed, hut they must allege-that all jurisdictional facts were set forth in the petition filed with the trustees.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is an information in the nature of quo warrranto filed,, on leave, in the circuit court of Macoupin county, by the State’s attorney of that county, requiring Nathaniel Carrico et al.f. appellants, to show by what authority they assume to hold and exercise the office of school directors of a certain school, district. Two pleas were filed to the information. These-pleas were demurred to, and the demurrer was carried back .and sustained to the information. Upon leave had, the information was amended and the pleas to the original information were withdrawn. A plea was then filed to the amended information, and to the latter plea a demurrer was interposed and sustained. The appellants elected to stand by their plea to the amended information, and judgment of ouster was entered by the circuit court. To this judgment appellants excepted..

The question in the ease is, whether the court below erred in sustaining the demurrer to the plea. Several reasons are assigned by the appellees why the plea is not good. We do-not deem it necessary to notice more than one of these reasons..

The petition, filed with the trustees of the several townships and asking for the formation of the proposed district, should have alleged, that the territory, sought to be formed into a new district, contained not less than ten families; the plea is defective in not averring that the allegation here referred to was. made in the petition to the trustees.

Section 33 of chapter 122 of the Revised Statutes, being “An act to establish and maintain a system of free schools,” approved April 1, 1872, in force July 1, 1872, was amended in 1877, and again in 1879, and still again in 1881. Section 33, as amended in 1881, is the law, which was in force in February or March, 1882, when the petition, referred to in the information and plea in this case, was filed with the trustees of the townships. Bradwell’s Laws of 1881, p. 115.

Section 33, as so amended in 1881, provides, that trustees of schools in newly organized townships shall lay off the township into one or more districts to suit the wishes and convenience of a majority of the inhabitants of the township, etc.; that, when petitioned to do so, they may, having discretion in the matter, at the regular meeting in April, change such districts as lie wholly within their townships so as to divide or consolidate districts, to organize a new district out of territory belonging to two or more districts, or to detach territory from one district and add the same to another district adjacent thereto, “and, at the same meeting, by the concurrent action of the several boards of trustees of the township in which the district or districts affected lie, each board being petitioned as hereinafter provided, the same changes may be made in the boundaries, both of districts which lie in separate townships but adjacent to each other, and of districts formed of parts of two or more townships, provided, that none of these changes shall be made unless petitioned for—(1) by a majority of the legal voters of each of the districts affected by the proposed change; or, (2) by two-thirds of the legal voters living within certain territory, described in the petition, asking that said territory be detached from one district and added to another ; or, (3) by two-thirds of all the legal voters within certain territory, containing not less than ten families, asking that said territory be made a new district.” The last or third clause of the above proviso is the one, which applies to the case at bar»

Section 33, after providing for the filing of the petition with the clerk of the hoard of trustees and delivering a copy thereof, with notice of such filing, to the president or clerk of the hoard of directors of each district, whose boundaries are to be changed, directs that the trustees, when the petition comes before them at their April meeting, must ascertain “whether the foregoing provisions have been strictly complied with;” and they can only consider the petition and grant or refuse its prayer, when it shall appear that such provisions have been complied with.

Trustees of schools have no powers except those conferred by the statute, nor can they exercise the powers conferred upon them in any other mode than that prescribed by the statute. They can not be compelled to act and will not be permitted to act, until the law is complied with. When it is desired to form a new school district out of territory, lying in several ■different townships, the formation of such district must be petitioned for by two-thirds of all the legal voters living within such “territory containing not less than ten families, ” etc. The territory proposed to be erected into a new district must contain not less than ten families, and the petition presented to the board of trustees of any one of the townships interested must allege, that the proposed territory contains not less than ten families. If such allegation is absent from the petition, the board of trustees, to which it is presented, have no power to act in the formation of the new district.

The amended information avers that in February or March, 1882, appellants or some of them or some person presented to the trustees of schools of townships 9 and 10 range 5 in Montgomery county and of townships 9 and 10 range 6 in Macoupin county a petition in words and figures following, to-wit:

“Barnett, III., Feb. 28, 1882.

“To the honorable board of school trustees township 9 or 10 according to number, range 5 or 6 according to number, Macoupin or Montgomery Co., Ill., as the case was: We, the undersigned, petitioners being two-thirds of the legal voters living within the following described and bounded territory respectfully set forth that we are not properly accommodated with school privileges as contemplated by the school law: Therefore, we petition your honorable body to cut off such part of the following territory as lies in your township to be erected into a union school district, to-wit: (Then follows description of the territory.) And in duty bound we ever pray,” etc. (Then follow names of petitioners.)

It will be observed, that the petition contains no statement, that the territory, proposed as a new district, contains not less than ten (10) families. The petition seems to have been foamed under the provisions of section 33, as amended in 1879, (Brad-well’s Laws of 1879, p. 224) and not under the section as it stood after the amendments of 1881.

The information calls upon the respondents to show by what warrant they exercise the functions of the office of school directors, and charges that the pretended union school district was not formed according to law, and that proper petitions for its formation were not presented to the boards of trustees. Bespondents were bound to exhibit good authority for acting as directors; otherwise, the People were entitled to judgment of ouster. This being a proceeding by information in the nature of quo warranto, appellants were obliged either to disclaim, in which case the People were at once entitled to judgment, or to justify, in which case it was their duty to set out their title specifically. It was not enough to allege generally that they were duly elected to office; it was necessary to state particularly how they were elected, and how the school district, of which they claimed to be directors, had been formed. They should have shown on the face of their plea, that they had a valid title to their office; the People were not bound to show anything. Clark v. The People, 15 Ill. 217.

The plea of the appellants, so far as it has reference to the petitions filed with the school trustees, is as follows: “That, on the 23d day of February, 1882, two-thirds of all the legal voters living within the following described territory, which contained not less than ten families, to-wit: (Here follows description of territory,) filed petitions with the trustees of schools of the different townships, in which said described; district lies, setting forth in said petitions, that they were not properly accommodated with school privileges as contemplated by the school law, and praying said boards of trustees to cut off that portion of the said described territory lying within their respective townships to be erected hito a union school district.”

This plea merely states that two-thirds of the legal voters living in a certain territory, which contained not less than ten families, filed petitions with the school trustees. This was not sufficient to make it a good plea. It should have alleged* 'that the petitions, filed with the several boards of trustees, set-forth the fact that the territory to be formed into a union district contained not less than ten families. A petition, setting forth that the proposed territory contained not less than ten families, was necessary in order to give each board power to-act in the matter of forming a new district. The presentation of a petition making the allegation in question was a jurisdictional fact, and, without it, all proceedings of the board were void.

As appellants were bound to show in their plea, that the district, of which they claimed to be directors, was legally formed, they should have averred, that such a petition was presented to the boards of trustees in the several townships* as was necessary, under the law, to give such boards jurisdiction. The plea did not contain the required averment and was* therefore, defective. The demurrer to it was properly sustained by the court below, whose judgment is accordingly affirmed.

Judgment affirmed.


text:
    Jerome E. Bates v. Edward M. Woodruff.

      Filed at Ottawa November 11, 1887.

    1. Will—power of executor to comiey real estate. A testator, after providing for the payment of his debts and funeral expenses, and several legacies, devised to his son a certain house and lot, and directed that all the rest of his estate, real and personal, should be invested in interest-bearing ■securities, and that the interest and income from the estate so invested should be paid to the son and his wife for their support during their lives, •and upon their death the estate should be divided between their children, and then provided that his executor (the son) should “have full power to ■convey all property conveyed to him in trust by this will:” Eeld, that full power was given to the executor to convey the real estate which was directed to be invested in interest-bearing securities.
    2. Purchaser from am, executor—not bound to see to application of proceeds. Where an executor is given authority by will to sell and convey real estate, the proceeds to be invested in a specified way, a purchaser from the executor will be under no obligation to see to the application of the purchase money.
    Appeal from the Superior Court of Cook county; the Hon. H. M. Shepard, Judge, presiding.
    Messrs. Wallace & Patton, for the appellant:
    In the construction of a will, courts will give effect to all the words of the will, without rejecting or controlling any of them, if it can be done by a reasonable construction, not inconsistent with the manifest intention of the testator. 1 Redfield on Wills, 434; Dawes v. Swan, 4 Mass. 208; Cook v. Holmes, 11 id. 528; Hall v. Chaffee, 14 N. H. 215.
    The words of a will are in all cases to receive a construction which will give to every expression some effect, rather than •one that will render any of the expressions inoperative. 2 Jarman on Wills, 762; Construction of Wills, rule 8.
    A devise, by a testator, that his executor shall sell his lands, or of his lands to be sold by his executor, passes no interest in the land to the executor. Williams on Executors, (6th ed.) 619; Sugden on Powers, (6th ed.) 112; Yates v. Compton, 3 P. Wms. 308; Lancaster v. Thornton, 2 Burr. 1027; Knocker v. Banbury, 6 Bing. 306; Taylor v. Benham, 5 How. 269.
    When a testator, in his will, directs his lands to be sold for certain purposes, without declaring by whom the sale shall be made, the executor has no power, by implication, to make the sale, unless the funds to be derived therefrom are to be distributed by him either in the payment of the debts of the estate or of the legacies. Williams on Executors, (6th ed.) 618; Sugden on Powers, (6th ed.) 118; Bentham v. Wiltshire, 4 Madd. 44; Doe v. Hughes, 6 Ex. 223; Robinson v. Lowater, 17 Beav. 601; Patton v. Randall, 1 Jackson & Walker, 189; Curtis v. Fullbrook, 8 Hare, 278; Rankin v. Rankin, 36 Ill. 293; Perry on Trusts, sec. 501; Walter v. Logan, 5 B. Mon. 516.
    Messrs. Hoyne & Eollansbee, for the appellee:
    In construing a will, the intention of the testator must control, and in arriving at the intention, all parts of the will must be construed in relation to each other, so as, if possible, to form one consistent whole. 2 Jarman on Wills, 841; Updike v. Tompkins, 100 Ill. 406; Kennedy v. Kennedy, 105 id. 350; Hamlin v. Express Co. 107 id. 443; Banta v. Boyd, 118 id. 186.
    Ho certain form of wrords is necessary to create a trust. The word “trust” is not necessary, but whether there is a trust or not depends upon the intention of the testator, to be collected from the whole will. A trust may arise by implication. 1 Jarman on Wills, 385, 528, 569; Perry on Trusts, par. 121.
    Where the will directs the real estate to be sold, and the proceeds are the subject of devise, the devisees take no vested interest in the land, but the land is treated as personal property. Rankin v. Rankin, 36 Ill. 293; Jennings v. Smith, 29 id. 116; Baker v. Copenberger, 15 id. 103; Banta v. Boyd, 118 id. 186.
    A power of sale may be implied. If the testator directs his estate to be disposed of for certain purposes, or to be invested, the power to sell is implied. Williams on Executors, 655, 656; 1 Jarman on Wills, 528; Rankin v. Rankin, 36 Ill. 293; Cherry v. Greene, 115 id. 591; Going v. Emery, 16 Pick. 107; Kaufman v. Breekenridge, 117 Ill. 306.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

The appellee in this case, Edward M. Woodruff, filed a bill in equity, against the appellant, for a specific performance of a contract to purchase real estate. A demurrer to the bill was overruled, and a decree entered against the appellant, from which he appeals to this court.

The bill alleges that George W. Woodruff, the father of appellee, being seized in fee of certain real estate, among which was that described in the bill, died on or about the 15th day of March, 1882, leaving his last will and testament, which was duly proven, and admitted to probate in the State of New York; that appellee was named in the will as executor, and letters testamentary were duly issued to him'; that he is still acting as such executor; that letters testamentary or of administration upon the estate of George W. Woodruff have never been granted in this State, and that there are no creditors of the deceased in this State; that appellee is the- son and only heir of George W. Woodruff, and that the deceased left no widow.

The bill sets forth in full the will, which, after providing for the payment of debts and funeral expenses and of several legacies, devises to the testator’s son a house and lot in Brooklyn, New York, and then follow these clauses:

“Item 5—After the foregoing provisions of this my last will and testament are complied with, it is my will, and I direct, that all the, rest and remainder of my estate, both real and personal, of which I may die possessed, be invested, from time to time, in such securities as shall have a fixed value, and not a speculative value, having constant regard to the security of the principal than to a high rate of interest.

“Item 6—It is further my will, and I direct, that all the interest and income of my estate, so invested, shall be regularly paid to my son, Edward, for the support of himself and his family, and in the event of his death, all said interest and income shall be paid to his wife, Mrs. Carrie A. Woodruff, during their natural lives, respectively.

“Item 7—It is my will that after the death of my son and Ms wife, aforesaid, the whole estate, real and personal, shall be divided equally between the cMldren of my son, Edward, ‘ who may be then living, the children of any deceased cMld being allowed the share of. its deceased parent, for their sole use and benefit, their heirs, executors and assigns forever.

“Item 8—It is my will that my executor hereinafter to be ■appointed shall have full power to convey and release all property conveyed to Mm in trust by this will. Likewise, I make and appoint my son, Edward M. Woodruff, to be the executor of this my last will and testament, and it is my will, and I direct, that no bonds be required of him for the faithful discharge of this duty.”

The bill alleges the payment of all the debts and legacies; That the premises described are vacant and unimproved, situated in the suburbs of CMcago, which is unproductive, bringing in no income, but on the contrary being a source of expense to the estate, requiring the payment of taxes and assessments Thereon, and that therefore, being desirous of selling and disposing of said real estate for the purpose of investing the proceeds thereof in accordance with the direction of said will, appellee did, on the 8th day of June, 1887, enter into a written contract with appellant for the sale to him of said premises. The contract is set out in the bill, which acknowledges the payment of $50, and provides for the payment of the balance of the purchase, money within a certain time, or as much sooner after the date of the contract as the deed is ready for delivery, after the title has been examined. The bill further ■alleges a delivery of the abstracts of title for examination, the tender of a good and sufficient deed, the expiration of the time for payment of the balance of the purchase money, but that ■appellant refuses to carry out the said contract, insisting that appellee has no power,'under the will, to convey a good title to the premises. •

The only question which is here presented is, whether Edward M. Woodruff, executor of George W. Woodruff, deceased, has the power, under the terms of the will of the decedent, to sell and convey a good title to the real estate of the testator in this State. We are of opinion that he has such power. The will contemplates, that after the payment of debts and funeral expenses, all the rest and remainder of the testator’s estate, both real and personal, other than the lot devised to the son, shall be invested in interest-bearing securities, and expressly directs that it shall be so invested. The seventh item directs that all the interest and income from the estate, so invested, :shall be paid to the son, Edward M., and wife, for their support during their lives. It is next the testator’s will, that ;after the death of his son, Edward M., and wife, the estate should be divided between their children. Now, who, in the understanding of the testator, was to do these acts of making investments, and paying out the income from the investments, which he had expressly directed should be done ? Who else could it have been than the executor whom the testator appointed to execute the will ?

In conclusion, and in order for the accomplishment of the aforenamed objects of the will, comes the eighth item, as follows -. “It is my will that my executor, hereinafter to be appointed, shall have full power to convey and release all property •conveyed to him in trust by this will.” We can have no doubt that there was, here, given to the executor express power to convey the real estate which the testator had directed should be invested in securities bearing interest. To be sure, the words read that the executor should have power to convey “all property conveyed to him in trust by this will,” and there was, in terms, no property conveyed to him in trust. But it is not. the literal reading of the testator’s language which is to he followed. It is the meaning of the language which we are to look to. We are satisfied, from the reading of the entire will, that the meaning of the words here employed, “property conveyed to him in trust by this will,” was property which the testator had, by his will, directed the disposition of,—. which he had intrusted the executor with the disposition of,— or must have regarded that he had so done, as we have before-pointed out.

We deem it quite clear that the purchaser would he under no obligation to see to the application of the purchase money, as appellant expresses the fear he may he.

The decree of specific performance we think correct, and it. is affirmed. Decree affirmed.


author: Mr. Justice Scholfield

text:
    James H. Smith et al. v. John D. McLean et al.

      Filed at Ottawa November 11, 1887.

      1. . Landdobd and tenant—destruction of building—continued liability of tenant to pay rent. Where one leases land upon which there is a-building, and the building is destroyed by fire, without the fault of either party, in the absence of a covenant in the lease compelling the landlord to-rebuild, such destruction of the building will not terminate the lease, or relieve the tenant from his obligation to pay rent for the remainder of the-term.
    2. Same—premises damaged by fire—liability of tenant for rent—duty of landlord to repair—a lease construed. Where leased buildings or rooms are not destroyed by fire, but are damaged, only, and remain so that the tenant may still occupy them, and repair and restore them to their former condition, if he will, he will not be discharged from the rent.
    3. A lease of certain rooms stipulated that in case the premises should -be damaged by fire no rent should be paid while they were unfit for occupancy, and provided that the lessees should deliver up the premises at the end of the term in as good condition as when received, loss by fire, etc., excepted: Held, that in case of damage by fire the premises were to be repaired by the landlord, and that such damage would not terminate the lease, but would merely stop the rent while the premises remained unfit for occupancy. In such case the landlord would have the right to enter to make the repairs, but that such repairs would have to be made within a reasonable time, after which the tenant would have to pay the rent.
    4. Ebbob will not always bevebse—special plea held bad, when the sa/me matters are admissible wnder other pleas. This court will not consider the propriety of sustaining a demurrer to a special plea, where the same evidence admissible under such a plea is admissible under other pleas upon which issue was taken.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    This is covenant, upon the following instrument;
    “This indenture, made this 18th day of February, in the year of our Lord, 1884, between John D. McLean and Jacob Retterer, of Chicago, Illinois, party of the first part, for themselves, their heirs, executors, administrators and assigns, and James H. Smith, of Quincy, Illinois, and Thomas W. Pattison, of Chicago, Hlinois, party of the second part, for themselves, their heirs, executors and administrators:
    “Witnesseth, that the said party of the first part, for and in consideration of the covenants and agreements hereinafter mentioned, to be kept and performed by the said party of the second part, their heirs, executors and administrators, has demised and leased to the said party of the second part all those premises situate, lying and being in the city of Chicago, in the county of Cook, and State of Illinois, known and described as follows, to-wit: The third floor of building Nos. 83 and 85 Wabash avenue, also sixty-five feet by fifteen feet (65x15) in basement of said building; to have and to hold the above described premises unto the said party of the second part, their hens, executors and administrators, from the 18th day of February, in the year of our Lord, 1884, for and during, and until the 30th day of April, 1886, unless such term is before then determined.
    “And the said party of the second part, in consideration of the leasing of the premises aforesaid, by the said party of the first part, and the said party of the second part does covenant and agree with the said party of the first part, their heirs, executors, administrators and assigns,' to pay the said party of the first part, in the city of Chicago, aforesaid, the sum of two thousand eight hundred and fifty-six and T4^- dollars, ($2856.40,) payable in equal monthly installments of one hundred and eight and T3^30 dollars, ($108.33,) on the 18th day of each and every month during the term of this lease. And said party of the second part also agree to pay thirty per cent of any water taxes which may be levied or assessed upon said building, and for running elevator in same. * * *
    “And the said party of the second part hereby acknowledges that they have received said demised premises in good order and condition, and covenants that, at the expiration of the time in this lease mentioned, or sooner termination thereof by forfeiture or otherwise, they will deliver up the said premises to the said party of the first part in as good condition as when the same were entered upon by the said party of the second part,—loss by fire, or inevitable accident, or ordinary wear excepted ; and also that they will keep the said premises in good repair during this lease, at their own expense. * * *

    “It is agreed, that in ease the above premises are damaged by fire, no rent shall be paid while the premises are unfit for occupancy. And in order to enforce a forfeiture of this lease for non-payment of rent when due, no demand or notice shall be required, but any demand is hereby expressly waived. And the said party of the second part hereby waives their- right to any notice from said party of the first part, of their election or intention to declare this lease at an end, or of their declaring it so to be, and terminating it under any of its provisions, or any demand for the possession of the premises leased herein; hut the mere fact of the non-payment of the rent reserved, or of the non-performance of said party of the second part, their heirs, executors and administrators or assigns, should said premises be underlet, as aforesaid, of either or any of their covenants or agreements herein, or the violation by him or them, or any of them, such covenants and agreements, or any of them, shall authorize said party of the first part, their agent or agents, heirs executors, administrators and assigns, to forcibly take possession of said premises, by the use of all force and means necessary therefor, or by action of forcible detainer, or other proper action, all or any of which said party of the second part, for their heirs, executors and administrators, and also assigns, in ease said premises are underlet, as aforesaid, hereby empower said party of the first part, their agent or agents, heirs, executors, administrators and assigns, to do.
    “In witness whereof the said parties have hereunto set their hands and seals, the day and year first above written.
    Smith & Pattison. (Seal.)”
    The following pleas were pleaded:
    First—And the defendants, by Weigley, Bulkley & Gray, then* attorneys, come and defend the wrong and injury, when, etc., and say actio non, etc., because, they say, that after the execution of the indenture in the said declaration mentioned, and prior to the said time when, etc., to-wit, on the 14th day of April, 1885, the said possession and tenancy of the defendants, under and by virtue of the said indenture, was terminated by the destruction of the said demised premises in plaintiff’s declaration described, without the fault or neglect of the defendants, and the defendants then and thereby released and discharged from their covenant, in said indenture contained, to pay further rent therefor. And this the defendants are ready to verify, wherefore they pray judgment, etc.
    Second—And for a further plea in this behalf, the defendants say actio non, etc., because, they say, that prior to the said time when, etc., to-wit, on the 14th day of April, 1885, the said demised premises in the said declaration mentioned and described, and for which the defendants, in and by their said indenture in said declaration mentioned and described, covenated to pay rent, were destroyed by fire, without the fault or neglect of the defendants, and the defendants there and then ousted from their possession and enjoyment thereof, whereby said tenancy was terminated, and the defendants then and there released and discharged from the further performance of their said covenant to pay rent. And this the defendants are ready to verify, wherefore they pray judgment, etc.
    Third—And for a further plea in that behalf, the defendants say actio non, etc., because, they say, that prior to the said time when, etc., to-wit, on the 14th day of April, 1885, the said demised premises in the said declaration mentioned and described, and for which the defendants covenanted and agreed to pay rent, by their declaration in said indenture mentioned and set forth, was so badly damaged by fire, without the fault or neglect of defendants, that the defendants were then and there ousted and deprived of the possession and enjoyment thereof, whereby said tenancy was terminated, and the defendants then and there released and discharged from the further performance of their said covenant to pay rent. And this the defendants are ready to verify, wherefore they pray judgment, etc.
    Fourth—And for a further plea in that behalf, the defendants say actio non, etc., because, they say, that the said demised premises, in the plaintiff’s declaration described, were, at the time of said demise, part and parcel of a five-story and basement building, held and possessed by the plaintiffs, being the third floor and a portion of the basement floor, as in said declaration described; that prior to the said time when, etc., to-wit, on the 14th day of April, 1885, the building so held and possessed by the plaintiffs, and containing the said demised premises, as aforesaid, was destroyed by fire, without the fault or neglect of the defendants, and the defendants then and thereby ousted from and deprived of the possession and •enjoyment of the said premises and appurtenances, and each .and every part thereof, so demised and leased by the plaintiffs to the defendants, as aforesaid, by reason whereof the said term of said tenancy, mentioned and described in the said indenture of leasing, set forth in plaintiffs’ declaration, was then and thereby determined, and the defendants then and thereby released and discharged from the further performance of their covenant to pay rent. And this the defendants are ready to verify, wherefore they pray judgment, etc.
    Demurrer to first amended plea, and replications to fourth plea, and second, third and fourth amended pleas, as follows:
    “And as to the said plea of said Smith & Pattison, by them .fourthly above pleaded, say that they, the said McLean & .Betterer, by reason of anything by the said Smith & Pattison in that plea alleged, ought not to be barred from having and maintaining their aforesaid action thereof against them, the said Smith & Pattison, because, they say, that they did not •enter into said demised premises in said declaration mentioned, .and with force and arms oust and keep out the said Smith & Pattison from the possession of the same, in manner and form •as the said Smith & Pattison have above, in their last mentioned plea in that behalf, alleged. And. this the said McLean ■& Betterer pray may be inquired of by the. country, etc.
    “And the said plaintiffs, as to the said amended plea of the said defendants by them secondly above pleaded, say, that the said plaintiffs, by reason of anything by the said defendants in that plea alleged, ought not to be barred from having and maintaining their aforesaid action thereof against the said ■defendants, because, they say, that the said premises were not •destroyed by fire without fault or neglect of the said defendants, as by the said amended plea is above supposed. And this they pray may be inquired of by the country, etc.

      “And the said plaintiffs, as to the said amended plea of the-defendants by them fourthly above pleaded, say predudi nonr because, they say, that the said building was not destroyed by fire without the fault or neglect of the said defendants, in manner and form as by the said fourth amended plea, as-above, supposed. And this they pray may be inquired of by the country, etc.
    “And the said plaintiffs, as to the said amended plea of the said defendants by them thirdly above pleaded, say predudi non, because, protesting that the said premises were not so-badly damaged by fire, without the fault or neglect of the-said defendants, that the said defendants were ousted from the same, as in the said plea supposed, for replication: nevertheless, the said plaintiffs say, that after the said premises were damaged by the said fire in the said plea mentioned,, to-wit, within a reasonable time thereafter, the said plaintiffs fully repaired the said premises, and the same then and there-became and were fit for occupancy a long time prior to the said time, when, etc., to-wit, on the 1st day of July, A. D. 1885, and thence hitherto remained and continued so fit for occupancy, to-wit, at Cook county, aforesaid, of all which repairing and fitness for occupancy the said defendants then and there had full knowledge and notice. And this the said plaintiffs are ready to verify, wherefore they pray judgment, ” etc..
    The court sustained a demurrer to the defendants’ first amended plea. The defendants demurred to the plaintiffs’" replication to the third amended plea of the defendants. The-court overruled the demurrer, and no issue being joined upon that replication, by agreement of parties the cause was submitted to the court without the intervention of a jury, and the-court found the issues for the plaintiff.
    Messrs. Weighey, Bulkley & Guay, for the appellants:
    The lessee of land upon which there is a building, is not released from the payment of the rent by the destruction of the building by fire, without the fault of either party. But the rule is otherwise where only a building, or a part thereof, is leased, and is accidentally burned. Gilbert on Rents, 145, 186; Coke on Littleton, 4b; Doe v. Burt, 1 T. R. 701; Winton v. Cornish, 5 Ohio, 477; Kerr v. Merchants’ Exchange Co 3 Edw. Ch. 316; Graves v. Berdan, 26 N. Y. 498; Austin v. Field, 7 Abb. Pr. (N. S.) 29; Stockwell v. Hunter, 11 Metc. 448; Shawmut Bank v. Boston, 118 Mass. 125; McMillan v. Solomon, 42 Ala. 356; Alexander v. Dorsey, 12 Ga. 12; Ainsworth v. Ritt, 38 Cal. 89; Buerger v. Boyd, 25 Ark. 441; Schmidt v. Pettitt, 1 McArthur, 179; Whitaker v. Hawley, 25 Kan. 674,
    Mr. P. L. Sherman, for the appellees:
    The obligation to pay the rent as covenanted in the lease was not terminated by the fire, nor by any other circumstance disclosed in this record. Izor v. Gorton, 5 Bing. (N. C.) 501; Gates v. Green, 4 Paige, 350; Patterson v. Ackerson, 1 Edw. Ch. 96; Hallett v. Wyle, 3 Johns. 44; Fowler v. Bott, 6 Mass. 63; Phillips v. Stevens, 16 id. 237; Peck v. Ledwige, 25 Ill. 112; Ely v. Ely, 80 id. 532; Helburn v. Mofford, 7 Bush, 169; Redding v. Hall, 1 Bibb, 536; Buerger v. Boyd, 25 Ark. 441; Harmony v. Bingham, 12 N. Y. 99; Tomkins v. Dudley, 25 id. 275; Austin v. Field, 7 Abb. Pr. 9; Whitaker v. Hawley, 25 Kan. 264; Paradine v. Jane, Alleyn, 26; Shubrich v. Salmond, 3 Burr. 1637; Walter v. Waterhouse, 2 Saund. 422 ; 3 Kent’s Com. 468, et seq., note 1.
    The acts of the appellees in repairing the demised premises after the fire do not constitute an eviction. Morris v. Tilson, 81 Ill. 623; Hayner v. Smith, 63 id. 430; Lynch v. Baldwin, 69 id. 210; Walker v. Tucker, 70 id. 528; Upton v. Townsend, 84 Eng. Com. Law, 30; Edgerton v. Page, 20 N. Y. 284; Alexander v. Dorsey, 12 Ga. 12; Hoereler v. Fleming, 91 Pa. St. 322; Kep v. Merwin, 53 N. Y. 543; Whitaker v. Hawley, 25 Kan. 674.
   Mr. Justice Scholfield

delivered the opinion of the Court:

It is unnecessary to consider whether the Superior Court erred in sustaining the demurrer to the first amended plea, because the same evidence that was admissible under that plea was admissible under the second and fourth pleas, upon which issues were joined. (Zirkel v. Joliet Opera House Co. 79 Ill. 334; Zimmerman v. Willard et al. 114 id. 364.) Since the issues of fact were found in favor of the plaintiffs, and that finding is affirmed by the judgment of the Appellate Court, it only remains for. us to inquire whether the Superior Court erred in overruling the demurrer to the replication to the third amended plea.

It is not questioned by counsel for appellants that the rule is, where one leases land upon which there is a building, and the building is destroyed by fire, without the fault of either party, in the absence of a covenant in the lease compelling the landlord to rebuild, such destruction of the building does not terminate the lease or relieve the tenant from his obligation to pay rent for the remainder of the term; they, however, contend, that where the subject of the demise is a portion of a building, or rooms or apartments in a building, the rule is otherwise. The distinction, they claim, is based upon the reason that in the cases where the rule stated applies, the land is the thing demised, and the building is but an appurtenance to the land; and, therefore, although the building may be entirely destroyed by fire, the tenant still has the use of the land for the term, and may occupy it and build upon it if he will; but where the demise is but of a part of a building, or rooms or apartments in a building, the tenant takes only such an interest in the land as is necessary to the enjoyment of the demised premises, and therefore, when the demised premises are destroyed, the subject of the demise is extinguished. We shall not undertake te determine whether the weight of authority sustains this view, for it will, for the present, be sufficient to show, that, conceding it to be accurate, the court properly overruled the demurrer to the replication.

The contention, it will he observed, requires that the part of the building, or the rooms or the apartments, demised, shall be destroyed, and this must mean not merely damaged or injured, but annihilated, for if they remain in but a damaged condition, the tenant may still occupy them, repair the damage, and restore them to their former condition, if he will; and in such a state of facts, the distinction relied upon by counsel, it is clear, would have no’existence,—and this is the purport of the authorities most favorable to appellants, which have been cited by counsel. This replication, in effect, denies that the demised premises were destroyed, and alleges that they were damaged, only, by fire, but not so badly that the defendants were ousted from the premises, and that within a reasonable time after they were thus damaged, the plaintiffs fully repaired the premises, so that they were fit for occupancy, etc. The language of the lease counted upon is: “It is stipulated that in case the above premises are damaged by fire, no rent shall be paid while the premises are unfit for occupancy.” The obligation is assumed by the lessees, of delivering up “the said premises,” at the end of the term, “to the said party of the first part in as good condition as when the same were entered upon by the said party of the second part, loss by fire, or inevitable accident, or ordinary wear excepted.” And so it follows, construing these clauses together, that damages occasioned by fire must be repaired by the landlord. Damages by fire are not to terminate the lease, but to stop the payment of rent merely while the premises are unfit for occupancy. The duty to repair necessarily carries with it the right of entry and of reasonable temporary occupancy for that purpose, and it must be done within a reasonable time, which the replication alleges was done. Wood on Landlord and Tenant, sec. 481; Kellenberger v. Foresman, 13 Ind. 475.

The judgment is affirmed.

Judgment affirmed.


author: Per Curiam :

text:
    M. C. Campbell et al. v. Leroy A. Goddard.

      Filed at Mt. Vernon November 8, 1887.

    Judgment by confession—including attorney’s fee, A power of attorney authorizing any attorney-at-law to appear before any court of record, in term time or in vacation, and confess judgment for the amount of a promissory note, and the interest thereon, and for a “reasonable attorney’s' fee,” will not authorize the amount of the attorney’s fee to he fixed by the-attorney himself. The warrant should be' construed as conferring upon-the court the power of determining the reasonableness of the fee.
    Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of Williamson county; the Hon. David J. Baker, Judge, presiding.
    Messrs. Clemens & Warder, for the appellants.
    Mr. W. W. Barr, and Mr. G. W. Young, for the appellee.
   Per Curiam :

At the May term of the circuit court of Williamson county, 1885, appellants moved the court to vacate or modify a judgment against them, entered by confession upon warrant of attorney before the clerk of said court in vacation. The motion was overruled by the circuit court and judgment rendered against appellants for costs. An appeal was prosecuted to the Appellate Court for the Fourth District, where the judgment of the circuit court was affirmed. The case is brought here by the further appeal of the defendants below.

The judgment was confessed for the sum of $1390.80, being for the amount of a promissory note mentioned in the warrant of attorney, and interest thereon, and an attorney’s fee of $25.

This case is in all essential particulars, except as to parties and amounts, precisely like the case of Campbell et al. v. Goddard, determined by this court, and reported in 117 Ill. 251. Here, as in that case, the warrant of attorney authorized and empowered any attorney at law to appear in any court of record, in term time or in vacation, and confess judgment for the amount of the note mentioned, and eight per cent interest from maturity thereon,.and “a reasonable attorney’s fee,” etc. The declaration contains no allegation of what would be a reasonable fee. The cognovit filed, includes in the amount for which judgment was confessed, an attorney’s fee of $25, the attorney entering said judgment having fixed the amount of such attorney’s fee, in his discretion. This record therefore presents the same questions determined in the case referred to, and should be decided the same way.

For the reasons set forth in the opinion in that case, the judgments of the Appellate and circuit courts are reversed, and the cause remanded to the circuit court for further proceedings.

Judgment reversed.


text:
    A. T. Gay, Admr. v. Harriet L. Gay.

      Filed at Ottawa November 11, 1887.

    1. Estate by the otjbtesy—when it exists. A married woman acquired the title to certain real estate with money realized from the sale of property devised to her by her father, there being then children of her marriage living. It was held, the husband took an estate by the curtesy in this land of his wife.
    2. Same—subject to levy and sale on execution. An estate of curtesy initiate is liable to seizure and sale on execution against the husband.
    3. EbaudtjIiENT conveyance—as to estate by the curtesy. A husband’s ■estate of curtesy initiate in his wife’s lands being liable to sale under execution against him, a voluntary conveyance of it to a trustee, in trust for the wife, will be fraudulent and void as to then existing creditors of the husband.

      4. Laches—;judgment creditor seeking satisfaction by levy of execution. A creditor recovered a judgment against his debtor in 1875, upon which an execution issued within a year, which was returned no property found. In 1882, and within seven.years, another execution was issued, and levied upon land in which the debtor had an estate by the curtesy, which he had voluntarily settled upon his wife after having contracted the debt upon which the judgment was based. The wife, by bill, sought to enjoin the sale under the execution, and the creditor filed a cross-bill to set aside the conveyance, which the court dismissed, and decreed in favor of the wife: Held, that as the judgment was not barred, laches of the creditor could not be set up as against the rightfulness of the levy.
    Writ op Error to the Circuit Court of Kankakee county; the Hon. Alfred Sample, Judge, presiding.
    Mr. James Fbake, and Mr. H. Losing, for the plaintiff in error:
    Elkanah Gay had, at the time the indebtedness was incurred, an estate by the curtesy in the lands of his wife. 1 Washburn on Real Estate, chap. 6, sec. 51; Wolf v. Wolf, 67 Ill. 55; Lang v. Hitchcock, 99 id. 550.
    This estate of curtesy initiate was liable to seizure and sale on execution against the husband. 1 Washburn on Real Estate, chap. 6, sec. 51; Shortall v. Hinckley, 31 Ill. 219; Jacobs v. Rice, 33 id. 369.
    The conveyance from Gay and wife to Bishop, trustee, and the subsequent conveyance from that trustee to Harriet L. Gay, were void as to existing indebtedness of Elkanah Gay, and plaintiff in error being the holder of that existing indebtedness, had, therefore, a right to levy upon and sell Elkanah Gay’s estate in said lands upon execution against Elkanah Gay, and this even before filing a bill to set aside prior fraudulent conveyances. Rev. Stat. chap. 59, sec. 4; Choteau v. Jones, 11 Ill. 300; Bay v. Cook, 31 id. 347; Moritz v. Hoffman, 35 id. 553; Russell v. Fanning, 2 Bradw. 632; Guffin v. National Bank, 74 Ill. 259; Morrill v. Kilner, 113 id. 318; 1 Story’s Eq. Jur. secs. 350, 359, 361; Reade v. Livingstone, 3 Johns. Ch. 500; Chitty on Bills, sec. 238; VanDuzer v. VanDuzer, 6 Paige, 366; Gould v. Steinburg, 84 Ill. 170; Newman v. Willetts, 60 id. 519.
    Parties to the deed are estopped from contradicting the plain admissions in the deed. 4 Kent’s Com. 261, note.
    Another maxim of the law is, that a person can not. take advantage of his own wrong. Greenman v. Greenman, 107 Ill. 411.
    The concealment of the deed of trust for over a year was a badge of fraud. Hungerford v. East, 2 Vern. 261; Hildreth v. Sands, 2 Johns. Ch. 48; Salmon v. Burnett, 8 Wheat. 229.
    Mr. C. E. Starr, for the defendant in error:
    A settlement made upon a wife after marriage is not to be treated as wholly voluntary, when it is done in performance of a duty which a court of equity would enforce. 1 Story’s Eq. Jur. secs. 362-372.
    Mere indebtedness at the time will not, per se, establish that a voluntary conveyance was void even as to existing creditors, unless the other circumstances of the case justly create a presumption of fraud, actual or constructive. Patrick v. Patrick, 77 Ill. 561; Moritz v. Hoffman, 35 id. 554; 2 Kent’s Com. 174.
    A sufficient consideration is “receiving from the trustees of the wife possession of her equitable property, that will be a sufficient consideration to give validity to the settlement.” See 2 Kent’s Com. 174; Sweeney v. Damron, 47 Ill. 455; Gridley v. Watson, 53 id. 193; Merrill v. Johnson, 96 id. 231.
    The Statute of Limitations may be urged on demurrer when a bar appears on the face of the bill, unless an equitable excuse is alleged in the bill to avoid the bar. Board of Supervisors v. Drainage Co. 52 Ill. 299; Bell v. Johnson, 111 id. 379; Story’s Eq. Pl. sec. 484.
    It is the settled doctrine of courts of equity in England, and of this court, that great delay of either party, unexplained, constitutes such laches as would forbid the interference of a court of equity. Walker v. Ray, 111 Ill. 320.

      If complainant has been guilty of gross laches, or if he applies for relief after a, long lapse of time, unexplained by ■equitable circumstances, his bill will be dismissed. Anderson v. Frye, 18 Ill. 94.
    If the complainant in the cross-bill had a legal right, it was gross laches that he did not assert it before, and the authorities say if he does not do so in apt time, a court of chancery will not entertain the bill, but will dismiss it on demurrer. Iglehart v. Gibson, 56 Ill. 92; Hough v. Coughlan, 41 id. 135; Castner v. Walrod, 83 id. 172; 2 Story’s Eq. Jur. secs. 1520, 771.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

This was a bill in chancery, filed in August, 1882, in the ■circuit court of Kankakee county, by Harriet L. Gay, to enjoin the sheriff, and Mace Gay, the judgment creditor, from further proceedings under a levy of an execution which had been made upon the interest of Blkanah Gay, the husband of the complainant, in the lands described in the bill.

In 1853, Harriet L. Gay purchased the real estate described in the bill, with money realized from the sale of property devised to her by her father, she, at that time, being the wife of Blkanah Gay, and there being then two children of their marriage living. In July, 1857, Blkanah Gay became indebted to one A. T. Gay by a purchase of a cargo of lumber, a portion of which was used in improving the land in question. Subsequently, Blkanah Gay gave to A. T. Gay a promissory note for the balance then due on the said indebtedness, and this note was afterward transferred by A. T. Gay to Mace Gay, the principal defendant in the bill. This note was subsequently given up to Blkanah Gay, who gave another note as evidence of the same indebtedness. In 1875 this last note was put in suit by Mace Gay, and judgment obtained thereon by him, against Blkanah Gay. An execution issued thereon "within one year after its rendition, was returned no property found. In 1882, within seven years after the rendition, of the judgment, an alias execution was issued, under which the .levy in question was made. By deed dated August 25, 1857, Elkanah Gay joined with his wife in conveying the lands in ■question to one Jesse P. Bishop, in trust, for the benefit of Harriet L. Gay, stating in the trust deed that it was made for the purpose of protecting the property from the debts of Elkanah Gay, “heretofore or hereafter to be contracted.” One George Gay Was afterward made trustee in place of Bishop, and in 1874, George Gay and Bishop conveyed all their interest in "the land to Harriet L. Gay. Mace Gay filed his cross-bill, .asking that the deeds from Elkanah Gay and wife to Bishop, from Bishop to George Gay, and from George Gay and Bishop to Harriet L. Gay, be set aside, and declared null and void as to him. A demurrer to the cross-bill was sustained, and on final hearing the relief prayed by the original bill was decreed.

There is some evidence going to show that the indebtedness for lumber, on account of which, in part, the judgment was -rendered, was contracted subsequently to the making of the trust deed by Elkanah and his wife to Bishop, on August 25, 1857, but the great preponderance of evidence is, that it was ■contracted on July 28,1857. As against such prior indebtedness, then, the subsequent trust deed made by Elkanah Gay and his wife to Bishop, on August 25,1857, being a voluntary conveyance, without consideration, was invalid, as respected any interest of Elkanah Gay in the land. Elkanah Gay had, at that time, an estate by the curtesy in this land of his wife. (Wolf v. Wolf 67 Ill. 55; Lang v. Hitchcock, 99 id. 550.) This estate of curtesy, initiate was liable to seizure and sale on execution against the husband. Shortall v. Hinckley, 31 Ill. 219; Jacobs v. Rice, 33 id. 369; Lang v. Hitchcock, supra.

As Elkanah Gay makes the statement in his testimony that he joined with his wife in the trust deed to Bishop, in consequence of an agreement with Bishop, who was the trustee of the property in Ohio, from the avails of which this land was purchased, it is urged that the trust deed to Bishop was not, therefore, wholly voluntary,—that it was made in pursuance-of a duty which a court of equity would enforce. Without stopping to inquire as to the effect of any agreement in such respect, the agreement spoken of by Elkanah Gay is too vague and unsatisfactory to allow to it any influence in controlling the present decision. It does not appear when the agreement was made or what it was,—that it was anything more than an agreement on Gay’s part to unite with his wife in this deed of trust, made at, or recently before, the time of its execution. This trust deed to Bishop was made nearly four years after the purchase of the land by Mrs. Gay. Had there been any such agreement then existing, at the time of such purchase, we must suppose the deed would have been made to Bishop, as trustee, instead of to Mrs. Gay in her own name.

The trust deed to Bishop, although containing recitals in the matter, as, that she theretofore became possessed, in her own right, of certain moneys accruing to her by inheritance, with which the real estate was purchased, etc., makes no-mention of such agreement; nor is any mention of it made in the bill, or in the testimony of Mrs. -Gay. We do not find anything in the agreement testified to by Elkanah Gay, or any other circumstance in the case, to repel the legal presumption of fraud in respect to existing debts, which arises from the making of a voluntary settlement.

Laches is relied upon in support of the decree. The voluntary conveyance of the land to Bishop, as trustee, was null and void, as we find it to be, as against the judgment creditor here, and he had the right to take out execution upon the judgment, and levy upon the land, the judgment not being barred by any statute of limitations. The objection of laches' has no-application as against the rightfulness of the levy of the execution.

There was a mortgage on the land of $1000, and it is claimed that the land conveyed was not worth more than the homestead right above the mortgage on it. We consider that the testimony fairly shows the land was worth at least $3000.

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

Decree reversed.