author: Mr. Justice Magruder

text:
    The People ex rel. Fuller, Collector, v. The Peoria, Decatur and Evansville Railroad Company.

      Filed at Springfield March 27, 1886.

    1. Taxation—municipal taxation—an ordinance for levying taxes, as distinct from an appropriation ordinance—and of its requisites. It is essential to the validity of municipal taxes levied by cities and villages incorporated under the general Incorporation act, that there shall first be passed and published an appropriation ordinance during the first quarter of the fiscal year, in which shall be specified the objects and purposes and amounts of the several appropriations, and after such ordinance has been published and become final, there shall be passed another ordinance levying the amount of all the legal appropriations upon the taxable property within the city or village. The appropriations can not be made and the taxes levied by the same ordinance.

      2. The statute requires- that a city ordinance for the levy of municipal taxes shall specify, in detail, the purposes for which the appropriations are made and the amount appropriated for each purpose; and when the limit of the taxing power is less than the aggregate of such appropriations, the levying ordinance must specify how the sum levied shall be apportioned toward the several objects of appropriation, and a failure to do so will invalidate the ordinance, and vitiate the proceeding to collect the taxes.
    3. Same—-toitem- appropriation ordinance takes effect, so as to be deemed “legally made.” An appropriation ordinance of a city or village, under the general law, does not take effect until ten days after the same is published or posted as required by section 64 of the Incorporation act, and until then the appropriations specified therein do not become “legal and valid, ” and can not be said to have been “legally made.”
    Appeal from the County Court of Coles county; the Hon. Charles Bennett, Judge, presiding.
    Mr. E. P. Rose, for the appellant.
    Messrs. Stevens, Lee & Horton, and Messrs. Wiley & Neal, for the appellee.
   Mr. Justice Magruder

delivered the opinion of the Court:

This was an application, made at the May term, 1885, of the county court of Coles county, by the county collector of that county, for judgment against delinquent lands and lots in said county for the taxes of the year 1884. Appellee filed objections in said court to the rendition of judgment against its property for the corporation tax of the city of Mattoon. The county court sustained the objections and refused judgment against the property of appellee as to the taxes objected to, and thereupon this appeal was taken by the People.

Section 89, chapter 24, of the City and Village act, says: “The city council of cities and boards of trustees in villages shall, within the first quarter of the fiscal year, pass an ordinance, to be termed the annual appropriation bill, * * * and in such ordinance shall specify the objects and' purposes for which such appropriations are made, and the amount appropriated for each object or purpose. ” Section 111 of the same chapter, provides: “The city council in cities * * * may levy and collect taxes for corporate purposes in the manner following: The city council * * * shall annuually, on or before the third Tuesday in September in each year, ascertain the total amount of appropriations for all corporate jmrposes legally made and to be collected from the tax levy of that fiscal year, and by ordinance specifying in detail the purposes for which such appropriations are made, and the sum or amount appropriated for each purpose, respectively, levy the amount so ascertained upon all. the property subject to taxation within the city, * * * as the same is assessed and equalized for State and county purposes for the current year. A certified copy of such ordinance shall be filed with the county clerk of the proper county, whose duty it shall be to ascertain the rate per cent which, upon the total valuation of all property subject to taxation within the city, as the same is assessed and equalized for State and county purposes, will produce a net amount not less than the amount so directed to be levied.” .

In supposed obedience to the requirement contained in section 111, the city clerk of the city of Mattoon, on July 16, 1884, filed with the county clerk of Coles county the following document:

“W. R. Highland, County Clerk, Coles County, Rlinois:
“By direction of the city council of. the city of Mattoon, I am authorized to notify you to extend on the tax books of Mattoon township and city, against the real estate and personal property within the territory of said city assessed therein, as tax levy, the sum of $20,300, according to law, to be for municipal purposes.
“I, J. S. Goodyear, city clerk of the city of Mattoon, certify the above to be a correct copy, as passed by the city council of the city of Mattoon, June 20, 1884.
“Given under my hand and the seal of the city of Mattoon, this 16th day of July, A. D. 1884.
J. S. Goodyear, City Clerk.”

During the trial in the court below, the People, by leave of the court, introduced in evidence and filed in the cause, on May 22, 1885, the following certified copy of an ordinance of the city of Mattoon, entitled “An ordinance relating to the annual appropriation and tax levy for the fiscal year 1884 and 1885

“Section 1. Be it ordained by the city council of the city of Mattoon, That for all necessary expenses and liabilities of said city for the fiscal year 1884 and 1885, there be appropriated the sum of $26,300, in detail, for the following purposes:

Salaries, - -- -- -- - $5000

Streets and drainage, ----- 7000

Gas, - - - - - - - - - 1500

Purchase of city building, - 3500

Miscellaneous, ------- 2000

Interest on city bonds, ----- 4300

For water-works rent from August 1, 1884, to May

1, 1885, -------- ,3000

$26,300

“See. 2. The city clerk shall notify the county clerk of Coles county to extend on the tax books of Mattoon township and city, against the real estate and personal property within the territory of said city assessed theréin, as tax levy, the sum of $20,300, according to law, to be collected for municipal purposes,

“Passed by the city council of the city of Mattoon, this 20th day of June, A. D. 1884.

“Approved by me this 24th day of June, A. D. 1884.

(Signed) G. G. Mao, Mayor.

“Attest, John S. Goodyear, City Clerk.

“I, John S. Goodyear, city'clerk of the city of Mattoon, hereby certify that the above and foregoing ordinance is a true copy of the annual appropriation and tax levy ordinance for the fiscal year 1884 and 1885, as it now appears on the ordinance records of the city of Mattoon, and on file in my office.

“Given under my hand, and seal of the city of Mattoon hereto affixed, this 20th day of May, 1885.

(Seal.) John S. Goodyear,

City Clerk of the City of Mattoon.”

The city of Mattoon has been incorporated under the general law since 1879. The county clerk extended the tax of the city upon the books of the collector upon no other authority than that contained in the above notification, dated July 16, 1884, and addressed to him by the city clerk. No other appropriation bill or ordinance relating to the levying and assessing of the taxes for 1884 and 1885 was passed by the city council of Mattoon, except as above set forth.

The first objection is, that the city council did not pass an appropriation ordinance prior to the passage of the ordinance which purports to assess and levy the tax. Section 89 provides for an appropriation ordinance, and section 111 provides for an ordinance levying the amount of such appropriation upon the property subject to taxation. In this ease the only ordinance was that passed on June 20, 1884, and the question is, whether the appropriation and the tax levy can be both embodied in the same ordinance.

The law certainly contemplated the passage of two separate ordinances at different times. Section 111 directs the city council to ascertain “the total amount of appropriations for all corporate purposes legally made. ” The appropriations which they are to ascertain are those which have been already “legally made” at the time they are required to ascertain the total amount of them. This imports and implies a previous making of such appropriations in a lawful way. Section 64 of the City Incorporation act provides that all ordinances of cities and villages “making any appropriation,” shall, within one month after they are passed, be published by at least one insertion in a newspaper, or by posting copies of the same in three public places, and that “no such ordinance shall take effect until ten days after it is so published.” Hence, the appropriation ordinance required by section 89 to be passed “during the first' quarter of the fiscal year,” does not take effect until ten days after it is published. (Riverside Co. v. Howell, 113 Ill. 256.) Until that time has passed, the appropriations which it specifies do not become legal and valid, and can not be said to have been “legally made.” (Barnett v. Newark, 28 Ill. 62.) The ordinance required by section 89, which fixes the amount of the appropriations and specifies their objects and purposes, should become a law before the ordinance required by section 111, which directs the levy of a tax to meet the amount of such appropriations, is passed by the city council. The publication of the appropriation ordinance, and the delay of ten days before its going into effect, were intended to give taxpayers notice of its provisions, and, in many cases, might lead to changes in the amounts "specified, before final adoption. In such event, any steps taken for the levying of the tax before the expiration of the ten days, would be premature. In commenting upon sections 64 and 111, in Mix v. The People, 106 Ill. 425, we said: “The ordinance making the city tax levy included in this case, was adopted August 7, 1876. * * * We do not understand it to be necessary to publish the ordinance levying the taxes. Such ordinance presupposes antecedent appropriations, and merely makes a levy to raise money to pay appropriations already made. The total amount of appropriations legally made is required to be ascertained prior to its passage. We find * * * an ordinance of July 7, 1876, duly published, making appropriations for certain specified purposes, etc. * * * The appropriations then were already made, and in strict compliance with the requirements of section 64. The ordinance of August 7, 1876, only acted upon these appropriations, and provided for levying a tax to pay these amounts that had been appropriated. ”

We conclude, therefore, that the appropriations can not be made and the taxes levied by the same ordinance, as was attempted to be done by the city council of Mattoon on June 20, 1884. '

It is still further objected by appellee, that the ordinance passed on June 20, 1884, can not be considered as properly making the assessment and levy of the corporation tax for 1884. Its first section, as above quoted, appropriates the sum of $26,300, in specified amounts, for certain specified purposes. Its second section directs the city clerk to notify the county clerk to extend on' the' tax book, etc., “as tax levy,' the sum of $20,300.” There is a difference of $6000 in the amounts named in the two sections. The balance of section 111 not embraced in the above quotation, is as follows: “And it shall be the duty of the county clerk to extend such tax in a separate column upon the book or books of the collector or collectors of State and county taxes within such city or village: Provided, the aggregate amount of taxes levied for any one (1) year, exclusive of the amount levied for the payment of bonded indebtedness or interest thereon, shall not exceed the .rate of two (2) per centum upon the aggregate valuation of all property within such city or village, subject to taxation therein, as the same was equalized for State and county taxes of the preceding year. ”

The equalized valuation of the property in the city of Mattoon, for the year 1883, was $795,368. Two per cent on this amount is $15,907.36, to 'which, if there be-added $4300,— the amount to be raised for payment of bonded indebtedness,—the sum, to-wit, $20,207.36, is the total amount which the city had a right to levy for the fiscal year of 1884-1885, and is less than $20,300 by the sum of $92.36. It thus appears that the amount which the county clerk was notified to extend upon the tax books was $92.36 greater than the amount which the council had a right to levy. If, as claimed by counsel for appellant, this would only make the levy invalid as to the amount of the excess over the legal limit, still, after applying $4300 on the city bonds, the second section does not specify how the remaining $15,907.36 is to be applied. After deducting $4300 from $26,300, it will be seen that section 1 appropriates $22,000 in certain specified amounts for six specified objects. The only amount which can be legally raised by taxation to meet this appropriation of $22,000, is $15,907.36. Section 2 does not in any way specify-how the $15,907.36 is to be apportioned among the six objects named in section 1. It does not show how much is to be applied towards each of those objects. The statute requires that the levying ordinance shall “specify in detail the purposes for which such appropriations are made, and the sum, or.amount appropriated for each purpose, respectively.” It is true that section 1 does state the purposes for which the appropriations are made, and if the total amount appropriated was the same as the total amount directed to be raised by the tax levy, section 1 would also specify the amount “to be collected from the tax levy” for each purpose, respectively. But the amount for which the tax is to be levied, according to section 2 of the ordinance, is only $20,300, and not $26,-300. Neither section 1 nor section 2 specifies the part or proportion of $20,300 which is to be appropriated to “each purpose, respectively.” We are therefore of opinion that no proper ordinance was passed levying the corporation tax of 1884, as required by section 111 of the City Incorporation act.

The judgment of the court below is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    Henry A. Neal v. John T. Handley.

      Filed at Springfield March 27, 1886.

    1. Evidence—receipt in full, as evidence of payment—evidence to overcome the same. A receipt purporting to be in full payment of a judgment or decree, is evidence of such payment, which can only be overcome by a clear preponderance of evidence.
    2. Payment—of a sum less than the amount due—as a satisfaction. The rule of law that the payment of a less sum of money can not be pleaded in satisfaction of a larger sum, is confined to the case of the payment of or agreement to pay a less sum of money, merely, and does not apply to the case of the payment of a less sum of money and some other thing.
    3. So where a party paid $100 and gave a cow to' one in full satisfaction of a judgment against him for $200, which was accepted as such, and a receipt given him for the $200 in full, and the attorney of the plaintiff in the judgment sued out an execution thereon, giving credit of $140 on the same, under which the defendant’s land, without any notice to him, was sold, it was held, that the sale was properly set aside in equity.
    Appeal from the Circuit Court of Coles county; the Hon. C. B. Smith, Judge, presiding.
    This was a bill in equity, brought by John T. Handley, against Henry A. Neal, for the setting aside of a sheriff’s sale, and the cancellation of the deed made thereon.
    The following facts appear from the pleadings and proofs: On April 29, 1881, one John Hensley recovered a judgment against Handley for $760.94, and afterward, in a suit for divorce and alimony, against Hensley, brought by his wife, Anna Hensley, wherein Handley was made a party, Handley was, on April 26, 1882, ordered to pay to Anna Hensley, on her alimony, $200, to be credited on the said judgment of John Hensley against Handley, the order directing that she have execution against Handley if the $200 was not paid in twenty days. On August 21,1882, no execution having been issued up to that date, Handley went to the house of Anna Hensley, (then Anna Burnett,) in Douglas county, and made an arrangement with her in respect to her decree against him, which resulted in the giving of the following receipt, signed by herself and her then husband:
    “Beceived, Charleston, Illinois, August 21, 1882, of John T. Handley, the sum of $204, in full of amount awarded in my favor, and against John T. Handley, in case of Anna Hensley vs. John Hensley and John T. Handley.”
    —Which receipt was taken that day or the next to the clerk of the circuit court of Coles county, in which court the decree was rendered, and was by the clerk pasted in the judgment docket. Henry A. Neal acted as Mrs. Hensley’s solicitor in the foregoing proceedings in her favor against John Hensley and Handley. On seeing this receipt, Neal wrote to Mrs. Hensley, and in reply was informed by her that Handley had paid her $140, and was to pay all costs and fees due on the decree, and stand in her shoes, saying, “he must pay you according to our trade.” On September 5, 1882, Neal had execution issued on the decree of Anna Hensley against Handley, for $200, and $1.95 costs of the suit, and credited the execution with $140. On October 6,1882, the sheriff, under the execution, sold to Neal eighty acres of Handley’s land, described in the bill, for $75.48, one forty of which was worth $800, and the other forty $1600, and on January 18, 1884, the sheriff made a deed of the land to Neal. Neither Anna Hensley nor any other person had ever intimated to Handley that there was any dissatisfaction on the part of Mrs. Hensley, or any one else, on account of the settlement she had made with him, and the first knowledge he had that an execution had been issued, or that his land had been sold, was after the time of redemption had expired, and a short time before the deed was made. The execution was issued without the knowledge or authority of Mrs. Hensley, and she knew nothing of it until after the deed had been made to Neal. Before the bill was filed, Neal offered to quitclaim the land to Handley upon payment of the amount for which it was bid in, with accrued interest thereon, but Handley declined the offer. This was the sale and deed the bill asked to have set aside. The circuit court decreed the relief sought, and this appeal is prosecuted to reverse the decree.
    Messrs. Dunn & Connolly, and Mr. T. Stoddert, Jr., for the appellant:
    While Mrs. Burnett might have satisfied the judgment for less than the full amount, she did not pretend to do so, and the law is well settled that the payment of a less sum can not be pleaded in satisfaction of a larger. Kingsley v. Kingsley, 20 Ill. 208; Titsworth v. Hyde, 54 id. 386; Dowe v. Hatcher, 10 A. & E. 121; Fitch v. Sutton, 5 East, 230; Ryan v. Ward, 48 N. Y. 204; Harriman v. Harriman, 12 Gray, 341.
    The judgment not in fact being satisfied, and the receipt not purporting to be a satisfaction, an execution might properly issue without first setting aside the receipt. Seymour v. Haines, 104 Ill. 557; De Clerq v. Jackson, 103 id. 661.
    The attorney had full authority of law to collect the judgment of his client, and to order execution for that purpose. Nolan v. Jackson, 16 Ill. 272; Trumbull v. Nicholson, 27 id. 149; Custer v. Agnew, 83 id. 194.
    Messrs. W. B. & S. M. Leitch, for the appellee:
    ¡Receipt is prima, facie evidence of facts therein stated, and he who seeks to impeach it for fraud, or other cause, must do so by a clear preponderance of evidence. Winchester v. Grosvenor, 44 Ill. 426.
    A settlement for less than the .amount due, is binding. 6 Wis. 175.
    A judgment creditor having satisfied her judgment by receipt, could not have execution issued, even though not binding on her, until such satisfaction is set aside on proper motion and notice. Seymour v. Haines, 104 Ill. 527; Freeman on Judgments, sec. 480; Swan v. Saddlemire, 8 Wend. 676; Lewis v. Palmer, 6 id. 368; Wood v. Colvin, 2 Hill, 566; State v. Salyers, 19 Ind. 432; Neilson v. Neilson, 5 Barb. 565; Hammett v. Wyman, 9 Mass. 138; Carpenter v. Stillwell, 11 N. Y. 61; Lovel v. Rowley, 17 Ind. 36; 14 N. Y. 456.
    If, for any reason, a judgment has become incapable of being enforced by execution, and an execution should still be issued, and a sale made under it, such execution and sale would be void. Meyer v. Mintonye, 106 Ill. 414; Borders v. Murphy, 78 id. 81.
    Appellant purchased with full knowledge of satisfaction, and therefore has no title. Shinkle v. Letcher, 47 Ill. 216; Morris v. Robey, 73 id. 462; Berry v. Lovi, 107 id. 612; Mixer v. Sibley, 53 id. 61; Day v. Graham, 1 Gilm. 435; Graham v. Day, 4 id. 389.
    Execution is void, and sale under it may and should be set aside. Day v. Graham, 1 Gilm. 435; Sidwell v. Schumaker, 99 Ill. 426; Morris v. Robey, 73 id. 462; Fergus v. Woodworth, 44 id. 374.
   Mr. Justice Sheldon

delivered the opinion of the Court:

There is a dispute between the parties as to what the terms of the settlement were upon which the receipt in question was given. Mrs. Burnett and her husband testify that appellee paid her $100 and a cow valued at $40, and that he agreed to pay all the costs and fees, if there were any, and stand in her shoes. On the other hand, appellee testifies that Mrs. Burnett said if he would give her $100 and the choice of his cows, she would sign the receipt; that nothing was said in regard to his paying costs or attorney’s fees; that he ivas to do nothing but pay the $100 and let her have the cow; that Mrs. Burnett had before asked him about his cows, which he told her were worth $40 to $60 each. He said afterwards that the price of the cows was fixed at $60. The witness York testified that he was at Mrs. Burnett’s house with appellee at the time the receipt was given; that he was called in, and appellee told him that he was to pay Mrs. Burnett $100 and choice of his cows, and she was to sign a receipt in full for the judgment, and she nodded her head and said “Yes; ” that that was all that was said in his presence; that he heard nothing said about appellee paying any costs or attorney fees, or standing in her shoes; that after this was said, Mrs. Burnett sat down to sign the receipt, and soon after he got up and went out. Julia A. Gilbert and James B. Handley, daughter and son of appellee, testified that they were at their father’s house when Mr. and Mrs. Burnett came for the cow; that Mrs. Burnett then said she had signed a full receipt for the judgment; that she had received the money, not saying how much, and was to have choice of appellee’s cows, and Mrs. Gilbert went with her to pick out the cow. Mrs. Gilbert stated, further, that Mrs. Burnett said she had paid her lawyer $25; that it was all settled now—she had got her money, and it was all settled. The uncontradicted testimony of two other disinterested witnesses was, that the value of the cow Mrs. Burnett got was $50, one of them saying he had tried to buy the cow of appellee; that he asked witness $75, and witness offered $50 for her. Appellant testified a fee of $50 ■was due to him from Mrs. Burnett, and $4.50 for costs paid.

It thus appears there was direct contradiction between the parties themselves as to whether or not the $100 and cow were taken in full satisfaction of the judgment. The receipt itself says that it was in full of the judgment. This was the writing which was given and taken as the evidence that the judgment had been paid, and it is only to be overcome by a clear preponderance of evidence. (Winchester v. Grosvenor, 44 Ill. 426.) From an examination of the whole evidence, we are unable to say the court was not justified in finding that the $100 and cow were given and accepted in satisfaction of the judgment.

But even if this were so, it is contended it would not be a discharge of the judgment, inasmuch as the $100 and the value of the cow were of a less amount than the judgment, and authorities are cited upon the point that the payment of a' less sum of money can not be pleaded in satisfaction of a larger sum. The doctrine of these authorities is confined to the case of the payment of, or agreement to pay, a less sum of money, merely, and does not apply to the case of the payment of a less sum of money and some other thing. The law in this respect is laid down in Pennel’s case, 3 Coke, 238, as follows: “And it was resolved by the whole court that payment of a lesser sum on the day, in satisfaction of a greater, can not be any satisfaction for the whole, because it appears to the judges that by no possibility a lesser sum can be a satisfaction to the plaintiff for a greater sum; but the gift of a horse, hawk, robe, etc., in satisfaction, is good, for it shall be intended that a horse, hawk, or robe, etc., might be more beneficial to the plaintiff than the money, in respect of some circumstances, or otherwise the plaintiff would not have accepted it in satisfaction.” And see 1 Smith’s Lead. Cas. 555, in Hare & Wallace's note to Cumber v. Wane.

We can have no doubt, under the circumstances here, and so far as concerns the present case, that the receipt in evidence should be held to be a satisfaction of the judgment. It was given as such, accepted as such, and immediately delivered by appellee to the clerk of the court, and by him pasted in the judgment docket, showing the reliance of appellee upon the receipt as a satisfaction of the judgment. He was entitled to make such reliance, and to repose upon it and say the judgment was satisfied, until he had been distinctly notified of an intention not to stand to the receipt, and to enforce collection of the judgment, so that he might have governed his action accordingly. After such a notice he would have been put upon his guard against the judgment, and might not have'been exposed to the peril which he suffered in this case, of having, without knowledge on his part, $2400 worth of his property sacrificed for the payment of less than $100.

The decree will be affirmed.

Decree affirmed.


author: Mr. Chief Justice Mulkey

text:
    Marshall Field et al. v. Nicholas H. Ridgely et al.

      Filed at Springfield March 27, 1886.

      1. Assignment for the benefit of creditors—under the statute— of a prior execution lien. The issuing of an execution upon a valid judgment, and its levy upon goods by the sheriff, will give the plaintiff in execution a valid lien on the same prior to the claims of other creditors of the defendant in the execution, under an assignment made by him after the execution came into the hands of the officer.
    2. In this case, after the entry of a judgment by confession and the issue of an execution thereon, the judgment debtor made a general assignment of his property, under the statute, for the benefit of creditors, and the assignee replevied the goods levied upon under the execution, and took the same from the sheriff, and made sale of them. The other creditors proved their claims in the county court, and that court directed the assignee to pay the judgment creditor first, out of the proceeds of the sale, which was done: Held, that the judgment creditor had the prior lien on the goods when replevied, and in equity was entitled to have their proceeds applied, as they were, in satisfaction of his judgment, and that the other creditors could not •maintain a bill to have such proceeds returned and applied in payment of their claims, in the absence of any other equitable grounds.
    3. Same—failure of a creditor to record his mortgage—or to make prompt collections—or to give notice of his dealings with his debtor—as affecting the rights of other creditors. The fact that a creditor having judgment notes and a mortgage to secure them, neglects to record the mortgage given to secure the same, and fails to take prompt measures to collect his notes when due, or give notice to others dealing with the debtor and giving him credit in ignorance of his financial embarrassment, when not asked to do so by them, is not evidence of fraud as against such subsequent creditors, so as to make the prior creditor a trustee for them in respect to property levied upon under a judgment and execution in his favor.

      4. A party is under no legal obligation to disclose the state of his account with a customer, to others having dealings with the latter, and his failing to do so, when not specially interrogated by one having a personal interest in knowing, or, failing to make the extent of his claim known by recording a mortgage securing the same, will not postpone his superior lien on the debtor’s property and effects to such other and subsequent creditors.
    5. Same—county court—its equitable jurisdiction in assignments of insolvents. The county court when sitting as an insolvency court, is clothed with ample power to pass upon and settle equitable as well as legal claims against the estate in the hands of the assignee; and the jurisdiction of that court having once attached, a court of equity will not interpose, except, perhaps, under extraordinary circumstances, and to prevent a failure of justice.
    C. Same—conclusiveness of the action of the county court. A creditor who proves his demand against. an insolvent debtor in the county court, and thereby submits to its jurisdiction, is thereafter bound and concluded by all orders made by that court affecting the fund for distribution, or his rights as a distributee.
    Appeal from the Appellate Court for the Third District;— heard in that court on writ of error to the Circuit Court of Sangamon county; the Hon. William L. Gross, Judge, presiding.
    Mr. James 0. Conkling, for the appellants:
    It is a well established principle that where a creditor has, through the instrumentality of a court of equity, sought out and discovered the property of his debtor, which he had before been unable to discover and seize upon by execution at law, he becomes entitled to a preference over other creditors to have his judgment first satisfied. Rappleye v. International Bank, 93 Ill. 399; Smith v. Lind, 29 id. 30; Ballentine v. Beall, 3 Scam. 203; Ward v. Enclers, 29 Ill. 522.
    The filing of complainants’ claims with the assignee does not estop them from pursuing this remedy. They do not thereby lose the right to secure assets fraudulently conveyed before the assignment. Estabrook v. Messersmith, 18 Wis. 572.
    The assignee has no more right to attack a fraudulent conveyance than the insolvent has. Choteau v. Jones, 11 Ill. 319 ;
      String v. Goldman, 8 Biss. 554; Porter v. Douglas, 27 Miss. 396; Brownell v. Curtis, 10 Paige, 318.
    The county court has full power to distribute only the assets that may come to the hands of the assignee. (Lund v. Skanes, 96 Ill. 183.) But other courts and appliances outside the county courts, may be used for the purpose of securing assets, and increasing the fund to be distributed.
    The judgment by confession in this case having been fraudulently devised for the purpose of hindering, delaying and defrauding complainants, is utterly void as against complainants, though it is good and valid as against the insolvent debtors and their assignee. Fitzgerald v. Forrestal, 48 Ill. 230 ; White v. Russell, 79 id. 156 ; Beebe v. Saulter, 87 id. 521; Upton v. Craig, 57 id. 259 ; Harmon v. Harmon, 63 id. 513; Finley v. McConnell, 60 id. 261; Chouteau v. Jones, 11 id. 319.
    Goods fraudulently transferred, with intent to hinder and delay or defraud creditors, do not pass to the assignee, but creditors alone can reach them. Lund v. Skanes, 96 Ill. 183; Estabrook v. Messersmith, 18 Wis. 578.
    The allowance of a claim against an estate is not conclusive on the lien, and the order of the county court on the assignee to pay the claim of Ridgely & Co. before paying other creditors, is not conclusive against the latter, they being no parties to it. Curry v. Mace, 90 Ill. 611; Manufacturing Co. v. Webster, 26 id. 239; Mooers v. White, 6 Johns. Ch. 389; Hopkins v. McCann, 19 Ill. 116.
    The creditors who have filed their claims with the assignee have a vested interest in the fund in the hands of the assignee, of which they can not be divested by a proceeding to which they were not parties. Chandler v. Brown, 77 Ill. 334; Rowell v. Chandler, 82 id. 288; Chestnut v. Pennell, 92 id. 55; Insurance Co. v. Gulick, 102 id. 44.
    That the concealment of the indebtedness of the firm of Kimber, Ragsdale & Co., and failing to pursue legal remedies against it, is a fraud against other creditors, see Hildreth v. Sands, 2 Johns. Ch. 35; Hildeburn v. Brown, 17 B. Mon. 779 ; Scrivener v. Scrivener, 7 id. 374; Worsley v. De Mator, 1 Burr. 467; Bank of United States v. Houseman, 6 Paige, 526; Hilliard v. Coyle, 46 Miss. 309; Pendleton v. Hughes, 65 Barb. 136; Carter v. Grimshaw, 49 N. H. 100; Blannerhassett v. Sherman, 105 U. S. 100.
    Judgment notes and warrants of attorney are in the nature of secret liens, which may be used to the injury of other creditors. If a person who has these secret liens, stands by and sees other persons advancing money or selling goods to the debtor, or makes fair representations concerning his credit, without disclosing his liens, he will be postponed in the collection of his debt, to the other creditors. Draper v. Borlace, 2 Bern. 370; Lee v. Monroe, 7 Cranch, 366; Smith v. Richards, 13 Pet. 36; 1 Story’s Eq. 201, 202.
    In Burrows v. Lehndorf, 8 Iowa, 96, where a party insolvent or contemplating insolvency, executes several mortgages and deeds of trust of all his property, the whole transaction constitutes a general assignment, and not being made for the benefit of all the creditors alike, is void. Cole v. Dealham, 13 Iowa, 551; Perry v. Holden, 22 Pick. 269; Van Patten v. Burr, 52 Iowa, 519.
    There is an analogy between the Assignment law and Bankrupt law in cases of preference. If the creditor is aware of the debtor’s intention to take advantage of the Bankrupt law, the security given to him by way of preference is void. Cooke on Bankrupt Law, (8th ed.) 368; Thornton v. Hargraves, 7 East, 544; Morgan v. Horsman, 2 Taunt. 241; Lock v. Winning, 3 Mass. 325; Ogden v. Jackson, 1 Johns. 370; Linton v. Bartlett, 3 Wils. 147.
    Messrs. Palmees, Robinson & Shutt, for the appellees:
    No breach of duty to the complainants is shown in the bill. The notes, with the warrants of attorney, were legal securities for bona fide indebtedness, and there was no obligation on the part of the defendants in error to disclose their existence to any one. The taking of additional security by way of mortgage was a legitimate transaction, and the only consequence of a failure to record the same, might be the loss of their benefit.
    Plaintiffs in error, by . proving their claims before the assignee, invested the county court with full and complete jurisdiction as to the funds of the insolvent, in his hands. Freydendall v. Baldwin, 103 Ill. 330.
    The bill also shows that the goods were taken from the hands of the sheriff by the assignee under a writ of replevin. By the levy the defendants in error acquired a prior lien on the property, which could not be divested by the assignment.
   Mr. Chief Justice Mulkey

delivered the opinion of the court:

The judgment of the Appellate Court affirming the decree of the circuit court sustaining a demurrer to appellants’ bill, and dismissing the same for want of equity, must be affirmed.

The theory upon which appellants seek to recover is clearly without merit, and can not be sustained. The case made by the bill is, in substance, this: The appellants and appellees were both creditors of Ember, Ragsdale & Co., who had, for a number of years prior to the filing of the bill in this cause, been doing an extensive mercantile business in Springfield, this State. In the spring of 1879, being largely in arrears with appellees, they executed to them some forty-two judgment notes, covering the amount due them at that time. The notes, when given, aggregated $28,500. Prior to the execution of them, to-wit, on the 22d of April, 1878, Wesley F. Ember and Thomas A. Ragsdale, members of said firm of Ember, Ragsdale & Co., respectively executed to appellees mortgages on valuable real estate in the city of Springfield, where they were doing business, to secure their future as well as present indebtedness to appellees. The mortgages were not put on record, nor was any notice given appellants of the existence of them, or of the judgment notes above mentioned, until Kimber, Ragsdale & Co. suspended business, which occurred on the 12th day of January, 1883. On the morning of that day appellees took judgment by confession on the forty-two notes held by them, the principal and interest then amounting to $36,319.39, sued out an execution thereon, and caused the same to be levied on a large and valuable stock of goods belonging to Kimber, Ragsdale & Co. After this, on the same day, Kimber, Ragsdale & Co. made a general assignment for the benefit of their creditors. The assignee shortly afterwards replevied the stock of goods above mentioned, and, under the order of the county court, sold the same at public vendue, for $39,295.08. The assignee also, on the 29th of January, 1883, filed a motion in the Sangamon circuit court to vacate the above mentioned judgment for $36,319.39 in favor of appellees, and against the said Kimber, Ragsdale & Co. The court overruled the motion, and entered an order accordingly. On appeal that order was affirmed by the Appellate Court for the Third District, and also by this court, as will appear by reference to the ease Of Conkling v. Ridgely & Co. 112 Ill. 36. Appellees’ judgment by confession against Kimber, Ragsdale & Co. being thus sustained, it followed that the execution issued thereon created a valid lien upon the stock of goods upon which it had been levied, and that the sheriff’s title was therefore superior to that of the assignee. Such being the case, the county court, upon the application of the assignee, made an order directing him to pay appellees’ judgment out of the proceeds of sale of said goods, which he accordingly did. Before the making of this order, the appellants, like other creditors of Kimber, Ragsdale & Co. claiming under the assignment, had filed and proved their claims in the county court as creditors of the insolvent estate.

Upon this state of facts the appellants filed the present bill, by which they seek to recover back from the appellees the money so paid them by the assignee under the order of the county court, in satisfaction of their judgment against Ember, Ragsdale & Co., to be applied in satisfaction of appellants’ own claim against said firm.

It is first claimed that the judgment of appellees against Ember, Ragsdale & Co. was entered by the clerk without authority of law, and that the same, and all proceedings under it, are null and void. This position can not be maintained. Indeed, the contrary is expressly held in the case of Colliding v. Ridgely & Co. supra, where most of the grounds upon which the judgment in question is now assailed, were carefully considered and deliberately overruled. This is conceded. But it is suggested that the appellants were not parties to that proceeding, and that they are, consequently, not bound by it. It may be admitted that the validity of the judgment, as established by that decision, is not, as between the present parties, to be regarded as res judicata. Nevertheless, we are fully satisfied with the decision in'that case, and we see nothing in the case, as now presented, that requires a different conclusion. In so far, therefore, as one case can, on the principle of stare decisis, be governed by another, this case is clearly controlled by that.

Admitting, then, the validity of appellees’ judgment and execution against Ember, Ragsdale & Co., as we must, it follows they had a prior and valid lien upon the stock of goods when replevied out of the hands of the sheriff, and that, in equity, appellees are entitled to have the proceeds of the same applied, as they were, in satisfaction of their claim.

The theory of appellants’ case, except in so far as it is based upon the alleged invalidity of appellees’ judgment and execution, is not as clearly defined as could be wished. This doubtless resulted from the scarcity or indifferent character of the material at the hands of counsel in propounding the theory. As we understand it, however, it is, in substance, that the goods which are the basis of appellants’ claim, originally belonged to them, and that by means of fraud practiced upon them by appellees, they were induced to sell the goods to Kimber, Ragsdale & Co., who, at the time of such sale, were insolvent and financially irresponsible, and that this fact was known to appellees but not to appellants; that when, therefore, the proceeds of the goods passed into appellees’ hands, , they became ex malificio trustees in respect to such proceeds, and as such were bound, in equity, to account to appellants for them. It is clear the charges in the bill are not sufficient to sustain it on this theory. The bill, if framed upon the hypothesis stated, is too vague and uncertain in every respect. But outside of this, the acts of fraud relied on to raise the constructive trust are wholly insufficient. Indeed, of themselves they are no evidence of fraud at all. What are they ? First, that appellees failed to put their mortgages on record when executed; second, that they retained in their possession the judgment notes an unreasonable length of time without notifying appellants or others of their existence. These are the only tangible facts alleged in the bill upon which the charge of fraud is based. We are aware of no principle, outside of self-interest and prudence in business, that requires the holder of a mortgage to put it on record at any particular time. By not doing so promptly, he runs the risk of having it postponed to junior liens, and even of losing the benefit of it altogether. As to subsequent purchasers and creditors without notice, such securities take effect from the time of filing for record, only.

As to the complaint that appellees held the notes so long without giving notice of their having them, we perceive no force in it. There is no law or mercantile usage, so far as we are advised, that requires one in business to disclose the state of his accounts with his customers to others having dealings with them, and there are manifest reasons why this should not be done except when the creditor is specially interrogated on the subject by one having a personal interest in knowing. It is not charged in this case that appellants ever sought any information of appellees in respect to the claims of the latter against Kimber, Ragsdale & Co., or that they ever said or did anything, outside of what we have already stated, to mislead appellants with respect to Kimber, Ragsdale & Co.’s indebtedness to appellees, or in respect to the manner in which such indebtedness was secured. The forbearance of a cred-, itor to crush out a struggling debtor upon the first opportunity, with a view of enabling him to overcome business misfortunes, ought not to be converted by judicial construction into a species of fraud. On the contrary, so long as the creditor’s conduct is characterized by good faith, as was evidently the case here, such forbearance should be regarded by the courts with favor, rather than otherwise.

We are also of opinion that the appellants are concluded by the order of the county court directing appellees’ judgment to be paid out of the proceeds of the goods in the hands of the assignee. The appellants, by appearing and proving up their claim in the county court, gave that court jurisdiction over their persons, and they were thereafter bound, at their own peril, to take notice of all orders made by it affecting the fund for distribution, or their rights as distributees. If an order was made in their absence which was not satisfactory to them, as is claimed was the case here, they should, on discovering it, have applied for a reconsideration of the question in that court, and failing in this, the right of appeal was open to -them. The county court, when sitting as an insolvent court, is clothed with ample power to pass upon and settle equitable as well as legal claims against the estate in the hands of the assignee, and the jurisdiction of that court having once attached, a court of equity will not interpose, except, perhaps, under extraordinary circumstances, and to prevent a failure of justice.

The .judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    David K. Turley v. The People ex rel. Mayfield, Collector.

      Filed at Springfield March 27, 1886.

    1. Dbainage law—assessment of benefits upon several tracts—whether separately or in gross. Except under special circumstances showing that section lines have ceased to be regarded as descriptive of a tract of land, as, where lots are platted ignoring such lines, tracts in different sections should be assessed for benefits and valued separately, under the Drainage law. But the owner may waive his right to have them valued and assessed separately, by failing to make any objection to their being assessed in gross.
    2. Same—right of land owner to contest assessment of benefits. Under the Drainage - law the land owner has the clear right to contest before the commissioners, and also before the supervisors, on appeal, the reasonableness of assessments against each one of his tracts assessed for benefits.
    3. Same—change in assessment of benefits after appeal—powers of drainage commissioners in that regard. After an appeal has been taken from an assessment of benefits by the drainage commissioners against lands, their powers over the matter, except as to purely formal defects, are gone, and any substantial change in the assessment made by them after such appeal will be a nullity.
    4. Drainage commissioners assessed a party’s lands, being the west half of the north-west quarter of section 35, the south-west quarter of the southeast quarter of section 27, and the north-west quarter of section 34, as one body of two hundred and eighty acres, a gross sum of $420 for benefits, which assessment was affirmed in all respects by the supervisors on his appeal. A certified copy of the assessment roll was thereupon delivered to the treasurer of the drainage district, who returned the lands to the county collector as delinquent, after which the latter called before him the drainage commissioners, who, in the absence of the land owner, and without notice to him, changed the description of the last named tract to north-east quarter of section 34, and apportioned the $420 between the several tracts. This change was set up as an objection to an application for judgment against the lands. The court sustained the objection as to the north-east quarter of section 34, but gave judgment as to the other tracts: Held, that the attempted change and amendment of the record after the appeal were without authority of law, and that the court erred in rendering judgment against any of the lands.
    Appeal from the County Court of Logan county; the Hon. Stephen A. Foley, Judge, presiding.

      Mr. R. C. Maxwell, and Messrs. Beaoh & Hodnett, for the appellant.
    Mr. S. G. Allen, and Messrs. Blinn & Hoblitt, for the appellee.
   Mr. Justice Scholfield

delivered the opinion of the Court:

But one question need be considered upon this record. The commissioners of a drainage district, organized by virtue of the provisions of the “Drainage act,’’ approved May 29,1879, (1 Starr & Curtiss’ Comp. 942,) assessed the benefits against lands assumed to be owned by appellant, and the amount, consequently, to be charged against them, as follows:

After hearing objections to the assessment by appellant, it was confirmed, without any change in the description of the land or in the amount assessed, or in the way the amount was assessed against the lands. Appellant .then appealed to three supervisors of the county, and they, after hearing all objections, affirmed the order of confirmation of the commissioners, .without changing a letter or figure. A certified copy of the assessment roll was then delivered to the treasurer of the drainage district, and he, in due time, returned the lands delinquent to the county collector. After this return was made to the county collector, that officer called the commissioners of the drainage district together, and in the absence of and without any notice to appellant they then changed the description of the north-west quarter of section 34 so as to read the north-east quarter of section 34, and apportioned the amount, which, up to that time, had stood assessed as a single sum against the entire lands as if constituting one tract, so that after their changes and emendations the delinquent record read as follows:

And in this form the collector gave notice of delinquency, and of his intention to- apply for judgment for these amounts against these separate tracts. Appellant appeared, and objected that the assessment, as thus changed and amended, was void, etc. The court sustained the objection as to the north-east quarter of section 34, but gave judgment against the south-west quarter of the south-east quarter of section 27, —forty acres,—for $51.72, and the west half of the northeast quarter of section 35,—80 acres,—for $113.05. Was this change and amendment within the powers conferred upon those officers ?

It is provided by the 14th section of the act under which the proceedings were had, ut supra, that “the commissioners shall assess to each tract of land its proportionate share of the entire cost of such work, but in no event shall any tract of land be assessed for benefits in a greater amount than its proportionate share of the estimated cost of the work and all expenses of proceedings, nor in a greater amount than it will be benefited by the proposed work, according to the best judgment of the commissioners; and they shall make out and file in the office of the town clerk an assessment roll, in which shall be set clown in proper columns the names of the owners, when known, and w'hen unknown, stating “unknown; ” a description of the premises affected, in words or figures, or both, as shall be most convenient; the number of acres in each tract; the amount of land taken from such tract and the value thereof, and if damages are allowed, the amount of the same, and if benefits are assessed, the amount of the same: and in case damages are allowed to and benefits assessed against the same tract of land, the balance, if any, shall be carried forward to a separate column for damages or benefits, as the case may be.” The 18th section of that act provides, that “at the time of meeting for hearing objections to the special assessments made by the commissioners, they shall hear whatever objections may be urged, by any person interested, to any special assessment made by the commissioners. * * * Any person appearing and urging objections who is not satisfied with the decision of the commissioners in confirming a special assessment against his lands, may appeal from the decision of the commissioners to three supervisors of the county. ” And the 20th section of the act requires the supervisors, on such appeal, to examine the assessment roll, and, if need be, hear evidence and visit the lands, and empowers them to annul the whole or any part of the assessment that they may deem excessive, and to cause the assessment roll to be corrected in accordance with their decision.

Had the objection been made, either before the commissioners or the supervisors, that a sum in gross was improperly assessed against separate tracts of land, it should have been sustained, for it has been said in Spellman v. Curtenius, 12 Ill. 409, and Moore, Ex’x v. The People ex rel. 106 id. 380, that two or more disconnected tracts of land should not be listed and valued together, and, unless under exceptional circumstances showing that, section lines have ceased to be regarded as descriptive of a tract, as, for instance, where lots are laid out and platted ignoring section lines, we think that tracts in different sections, though adjoining each other, should not be assessed and valued together. But this is very clearly a privilege which the owner may waive, and if he appear before commissioners or supervisors, making other objections, and saying nothing about this objection, he will be deemed to have waived it. But that question in this case can only be important after the cause is remanded. The omission of one tract of land and the substitution of another for it, and the apportionment of the whole amount assessed against the tracts of land as thus changed, quite clearly make an entirely new assessment. Under the sections we have quoted, appellant was entitled to contest, not only before the commissioners, but also before the supervisors, on appeal, the reasonableness of the assessment as against each of these tracts. He has never had any opportunity to make this contest.

Except as to purely formal defects, and those sought to be removed by the changes and emendations here made were not of that character, the jurisdiction of the commissioners was exhausted after their appeal to the supervisors. Their attempted change and amendment of the record, after that time, was therefore without authority of law, and is a nullity.

The judgment is reversed and the cause remanded.

Judgment reversed.


text:
    William W. Kirkland v. Sarah L. Conway et al.

      Filed at Springfield March 27, 1886.

    1. WlLli—description, as to land devised. A testator devised to his daughter, S., certain tracts of land, and in the next clause provided as follows: “Also SO acres in the south part of section 7,” and in the third clause devised to his grandson “314 acres of land, so as to leave S. (his daughter) in the south-east part of said section 7, in which his 314 is, it being the south part of said section 7, in town, ” etc. Meld, that the 50 acres given to S. was in a square in the south-east corner of section 7.
    2. A testator owned all of section 7, containing 520.58 acres, except 80 acres, being the east half of the north-east quarter of the section. He devised 50 acres in the south-east corner of the section to A, his daughter, and to B, a grandson, 314 acres, “so as to leave A in the south-east part of said section 7, in which his (B’s) 314 acres is, it being the south part of section 7,” etc.; also, to the heirs of his deceased daughter, C, 245 acres, “or all of the balance of section 7, as above described, to be divided equal between them:” Held, that after first taking out A’s 50 acres in the south-east corner,(B’s 314 acres was to be taken in the south part of the section, taking all of the south half except A’s 50 acres, and enough more off the south side of the northwest quarter and the west half of the north-east quarter of the section, leaving only 76.58 acres for the heirs of O, in the north part of the north-west quarter, and the west half of the north-east quarter.
    3. Same— evidence to show testator’s intention by his declarations. The declarations of the testator as to the extent of the interest he intended to give a devisee by his will, are clearly incompetent evidence. The testator’s intentions must be determined from the language of his will.
    Appeal from the Circuit Court of Piatt county; the Hon. C. B. Smith, Judge, presiding.
    Mr. A. T. Pipher, for the appellant.
    Messrs. Lodge & Huston, for the appellees Sidney and John Duhson.
   Mr. Justice Magruder

delivered the opinion of the Court:

William- Kearney, of Piatt county, died in January, 1877, leaving a will, dated January 11, 1877. The will was admitted to probate in the county court of Piatt county on January 23,. 1877, and the clauses thereof necessary to be considered, are as follows:

“To my daughter, Sidney Dubson, and her heirs, the north half of the north-west quarter of section 17, and part of the north-west quarter of the north-east quarter of section 17, all in town 19, range 6, east of third P. M., so as to have all the land belonging to me in section 17, in town 19. Also, 50 acres in the south part of section 7, being a part of the section that the railroad passes through, so as to include all of my land east of said P. D. railroad, except timber land. Also, to William Ward Kirkland, the son of my daughter Virginia, 314 acres of land, so as to leave Sidney Dubson in the south-east part of said section 7 in which his 314 acres is, it being in the south part of section 7, in T. 19, R. 6 E. of the third P. M. Also, to the heirs of my daughter Sarah Elizabeth Conklin, 245 acres, or all of the balance of section 7, as above described, that belongs to me, to be divided equal between them. And 90 acres in section 6, or all of the land that I own in section 6, and 10 acres of land deeded to me from Jesse Fitzwater, off of the east side of the south-east quarter of section 1, T. 19, R. 5 E. of the third P. M.”

The first question which arises upon the construction of the will, is as to the location of the 50 acres given to Sidney Dubson. The court below found that this tract of 50 acres should be located in the south-east corner of section 7, and in the final decree describes it as follows: “Commencing at the south-east corner of section 7, town 19 north, range 6 east, third principal meridian, thence north along the east line thereof, 22-r3ff67 chains, thence west parallel with south line of the section, 22T3060- chains, thence south parallel with the east line of said section, 22-^ chains, thence east to the place of beginning. ” In this respect the decree of the circuit court was unquestionably correct. The second clause of the will gives Sidney Dubson 50 acres “in the south part of section 7,” and the third clause can refer to nothing else except this 50 acres, by the use of the words, “so as to leave Sidney Dubson in the south-east part of said section 7. ”

The next question is as to the extent of the interest which the testator intended to give to the heirs of his daughter Sarah Elizabeth Conklin, who is admitted to be the same person as Sarah Elizabeth Conkle. The proof shows that section 7 is fractional, and contains only 520^^ acres, and that the east half of the north-east quarter of the section, containing .80 acres, is owned .by one Martha Keer. Hence, the testator, at the time of his death, only owned 440^5^ acres in section 7, of which, after deducting the 50 acres in the south-east corner given to Mrs. Dubson, there remain 390^0- acres. How many of these 390r5ff87 acres go to appellant, and how many to the Conkle heirs, and where shall their respective shares be located in the section ?

As already stated, the will first gives 50 acres in the southeast part of the section to Sidney Dubson. It then gives, in the third clause, to the appellant, 314 acres in the south part of the section. The words, “it being in the south part of section 7, ” etc., refer to and qualify the 314 acres. The fourth . clause of the will gives to the Conkle heirs “245 acres, or all of the balance of section 7, as above described, that belongs to me, ” etc. The word “balance” evidently refers to what should remain of the section after taking out 50 acres for Mrs. Dub-son and 314 acres for appellant. It is clear that by the use of the alternative expression, “245 acres, or all of the balance, ” etc., the testator had it in mind that there might not remain 245 acres in section 7 after taking out the tracts given to Mrs. Dubson and appellant. When the 314 acres devised to appellant are deducted from the 390-j5-^ acres, there remain only 76 j88^ acres for the Conkle heirs. A tract of 76-j^ acres constitutes “all of the balance of section 7,” which is referred to in the fourth clause of the will.

By the terms of the will, appellant’s 314 acres are “in the south part of section 7, ” etc., and will, of course, be south of the 76^®,, acres belonging to the Conkle heirs. The latter are, therefore, entitled to the north 76T^ acres of the 440j6580 acres owned by the testator in section 7. This tract of 76^0 acres is located partly in the north-west quarter and partly in the west half of the north-east quarter of the section. With the exception of the 50 acres above mentioned, appellant is entitled to all of the south half of section 7, which gives him 2O9T8570 acres in said south half. He is also entitled to the lOTj-Yg- acres of land in the north-west quarter and west half of the north-east quarter of said section which lie immediately south of the 76I808-B acres belonging to the Conkle heirs.

Some testimony has been introduced to prove oral declarations of the testator as to the extent of the interest he intended to give the children of his daughter, Mrs. Conkle. This was clearly incompetent. The intention of the testator must be determined from the language of the will.

The decree of the court below is affirmed in so far as it describes and locates the 50 acres given to Sidney Dubson. It is, however, reversed as to the description and location of the interests of appellant and the Conkle heirs, with directions to enter a decree in accordance with this opinion.

Decree reversed in part and in part affirmed.


text:
    D. G. A. Railsback et al. v. William B. Lovejoy et al.

      Filed at Springfield March 27, 1886.

    1. Judicial sale—variance between judgment and execution—effect collaterally—obviated by proof aliunde. Where it is made satisfactorily to appear that an execution under which land, is sold, issued on the proper judgment, a variance between it and the judgment, which, from the character of it, is necessarily a merely clerical error, can not be taken advantage of in a collateral proceeding.
    2. An execution issued upon a judgment of the circuit court omitted the name of one of the plaintiffs mentioned in the judgment, they having sued as partners, but the evidence aliunde was clear and satisfactory that there was but one judgment in that court in favor of the firm and against the defendant in the execution, and it corresponded precisely with the judgment, as to the amount recovered, the date of recovery, and the costs: Held, that this evidence established conclusively, notwithstanding the variance, that the execution was issued on the proper judgment, and obviated the apparent variance.
    3. Pabtnebship lands held in the name of one partner—in trust for the benefit of the firm. Where the legal title of land acquired by a firm is taken in the name of one partner, he will hold the same in trust for the interest of the several members of the partnership, on final settlement of the partnership affairs. The interest of each partner will be for whatever claim he may have against the firm upon a final accounting, and after the payment of its debts and the claims of his co-partners.
    4. Pabties—in partition—in respect to partnership lands—as to a partner not holding the legal title. Where an undivided interest in land is sold under a judgment and execution in favor of a firm consisting of several partners, to one of the partners, to whom the sheriff’s deed is made, he will hold the legal title in trust for the firm, and another partner not having the legal title will not be a necessary party to a proceeding for a partition as between the firm and the holders of the other interest. He will be fully represented by the partner having the legal title.
    5. Will—vested estate in remainder, subject to a power of sale—rights of creditors of remainder-man. A testator devised his land to his widow for life, with remainder to his seven children, and authorized the executor, with the concurrence of the widow, to sell the land, in which event she was to have the interest on the purchase money for life, and upon her death the money was to be divided among the children; according’ to "their respective interests in the land. During the-lifetime of the widow, the interest of one of the devisees in remainder was sold under execution against him, and sheriff’s deed made to the purchaser. No sale of the land was made by the executor during the life of the widow: Held, that the devisees took a vested estate in remainder, under the will, subject to the power of sale, and that the rights of such devisee passed under the sheriff’s deed.
    6. In such case, if the executor, with the concurrence of the widow, had sold the land after the sheriff’s deed, the title would have passed, and the grantee in the sheriff’s deed would have been entitled to one-seventh part of the purchase money upon the death of the widow.
    ' Appeal from the Circuit Court of Tazewell county; the Hon. N. W. Green, Judge, presiding.
    Mr. William Don Maus, for the appellants:
    A vested remainder is one by which a present interest passes to a party, though to be enjoyed in the future, and by which the estate is invariably fixed to remain to a determinate person after the particular estate has been spent. 2 Blackstone’s Com. 169.
    A contingent remainder is one limited to take effect on an event or condition which may never happen or be performed, by which no present or particular interest passes to the remainder-man, so that the particular estate may chance to be determined and the remainder never take effect. 2 Blackstone’s Com. 169.
    A contingent and uncertain estate in lands can not be sold on execution at law, nor can the naked legal title held in trust be so sold. Baker v. Copenbarger, 15 Ill. 103.
    If the purchaser under execution seeks to recover an equitable interest in the land sold, he must show that defendant in execution, at the time of the levy and sale, had such an equitable title as could have been enforced by himself. Hatch v. Wagner, 15 Ill. 127.
    A substantial variance between the execution and the judgment offered in evidence renders the execution void. Herman on Executions, p. 51, par. 65; Brinton v. Gerry, 7 Bradw. 238.

      When the judgment creditor purchases at the sale under his own execution, he is not an innocent purchaser. Bybee v. Ashby, 2 Gilm. 151.
    A sheriff’s deed to a stranger to a sale is a nullity. Davis v. McVickers, 11 Ill. 327; McClure v. Engelhardt, 17 id. 47; Dickerman v. Burgess, 20 id. 266; Johnson v. Adleman, 35 id. 265; Carpenter v. Sherfy, 71 id. 427.
    - The sheriff’s deed must he supported by the judgment and execution, and the return thereon. Johnson v. Adleman, 35 Ill. 265.
    It is a rule in equity pleading that all persons who have any substantial, legal or beneficial interest in the subject matter of litigation, and who will be materially affected by the decree which may be pronounced, must be made parties. (Greenup v. Parker, 3 Scam. 64; Atkins v. Billings, 72 Ill. 597.) And it is error to render a decree affecting the interests of persons who are not made parties to the suit in which it is entered. Pratt v. Pratt, 96 Ill. 184.
    The failure to bring in a necessary party goes to the foundation of the whole proceeding, and may be taken as an objection at the hearing in error or on an appeal. Lynch v. Rotan, 39 Ill. 14; Hoade v. Harris, 11 id. 24; Hassett v. Ridgely, 49 id. 197; Alexander v. Hoffman, 70 id. 114.
    The rule is rigidly enforced where titles may be divested. Smith v. Rotan, 44 Ill. 506; Story’s Eq. PI. par. 72; Hill on Trustees, 519; 2 Johns. Ch. 239.
    Mr. B. S. Pbettybian, for the appellees:
    The devise in the will was absolute, with a power in the widow and executors jointly to defeat it, contingent on the exercise of the power in the manner required by the will. The power was never exercised, and left the title vested for life in the widow, and the remainder to the seven children. Gilman v. Bell, 99 Ill. 149.

      The question of vesting or remaining contingent, depends upon the condition of the intervening estate determining, and the estate over taking effect, is one that must happen some time, or may never happen. If the former, then the estate in remainder will always be regarded as vested. Hunt v. McCartney, 18 Ill. 129; Gill v. Manufacturing Co. 92 id. 254; 2 Redfield on Wills, 215-217; 2 Jarman on Wills, 406.
    A vested remainder in real estate is subject to levy and sale under execution. Hayes v. Bernard, 38 Ill. 301.
    The misrecital of the date of the judgment in the deed, as, in 1870, instead of 1871, is a mere clerical error, and does not vitiate the deed or the title of appellees. Phillips v. Coffee, 17 Ill. 156; Lumis v. Riley, 24 id. 309; Jackson v. Streeter, 5 Cow. 529; Jackson v Withrell, 9 id. 182; Chicago Dock and Canal Co. v. Kinzie, 93 Ill. 432.
    Mere clerical errors may be shown and explained by other evidence, and a stranger to a sale under execution can not collaterally question the regularity of the process. Durham v. Heaton, 28 Ill. 264; Johnson v. Adleman, 35 id. 281; McClure v. Engelhardt, 17 id. 50; Kinney v. Knoebel, 47 id. 421; Keith v. Keith, 104 id. 401; Newman v. Willetts, 60 id. 520.
    A clerical mistake will not be regarded by a court of equity in adjusting legal or equitable titles or rights, and mistakes do not change the rights of jjarties in a proceeding. Stow v. Steel, 45 Ill. 333.
    Appellants can not complain of errors which do not affect them injuriously. Rev. Stat. chap. 110, secs. 35, 36; Scoville v. Hilliard, 48 Ill. 455.
   Mr. Chief Justice Mulkey

delivered the opinion of the Court:

We perceive no difficulty in the questions presented by this record. The apj)ellees, claiming to be the owners in fee of an undivided seventh part of the land in controversy, on the 15th day of April, 1885, filed a bill against the appellants in the Tazewell circuit court, praying for a partition of the same. The parties all claim through Thomas F. Railsback, who died testate on the 24th of May, 1884. By his last will and testament he gave the land in question, which constituted the homestead premises, to his widow, Louisa Y. Railsback, during her natural life, with remainder to his six children and two grand-children, the latter to take the share,of their mother, a deceased daughter of the testator. The will also authorized the executors, with the concurrence of the widow, to sell the land for money, in which event the interest thereon was to be paid the widow during her life, and the principal, upon her decease, was to be divided among the children and grandchildren, according to their respective interests in the land. The widow died in 1884, no sale of the premises having ever-been made under the power in the will. Prior to her. death, however, the appellees obtained a judgment against Ben. T. Railsback, one of the testator’s children, and devisee under the will, which became a lien upon 'his interest in the land. An execution was sued out upon the judgment and served on said interest. After due notice, the same was sold by the sheriff under the execution, and bid off by the appellees, who subsequently received a sheriff’s deed therefor.

The suit in which the judgment at law was obtained was brought by Wm. B. Lovejoy & Co., and it appears from the judgment itself that the firm consisted not only of appellees, but also of one Albert P. Lovejoy. It appears, however, from the execution docket, that appellees alone constituted the firm. This being so, the point is made that the .execution appears to have been issued on a different judgment from the one relied on to support the execution sale and sheriff’s deed, through which appellees claim. There was evidence aliunde, showing beyond all question that, there was but one judgment in the Tazewell circuit court in,favor of Wm. B. Lovejoy & Co. and against the said Ben. T. Railsback. The execution and judgment docket both show that this judgment was for $659.30, and costs taxed at $14, and that it was recovered on the 7th day of February, 1871. This, in connection with the positive proof that there was but one judgment in the court on which the execution could have issued, establishes conclusively that notwithstanding the variance the execution was issued on the proper judgment, and it is well settled by the decision's of this court that when this is made to appear, such a variance, being necessarily a merely clerical error, can not be taken advantage of in a collateral proceeding, as is sought to be done here. Durham v. Heaton, 28 Ill. 264; Johnson v. Adleman, 35 id. 281; McClure v. Engelhardt, 17 id. 50; Kinney v. Knoebel, 47 id. 421; Keith v. Keith, 104 id. 401. This is especially true in equitable proceedings. Stow v. Steel, 45 Ill. 333.

It is next urged, that inasmuch as Albert P. Lovejoy was a member of the firm of Wm. B. Lovejoy & Co., he is necessarily interested in the property sought to be partitioned, and is therefore a necessary party to the suit. It is to be observed in the first place, that this one-seventh interest in the land, when conveyed by the sheriff, became a part of the partnership assets of the firm of Wm. B. Lovejoy & Co., but the legal title thereof, by virtue of the sheriff’s deed, vested in William B. Lovejoy alone. This transaction occurred nearly fifteen years ago, and as he does not join in the suit, he may have retired from the firm altogether, upon a final accounting and settlement between the partners, by .the terms of which he may have ceased to have any further interest in the partnership effects.

But conceding Albert P. Lovejoy still has an equity, of which there is no proof other than afforded by the original sale and sheriff’s deed, it is not perceived how his equity can be injuriously affected by the present decree. Assuming there will be a division of the land itself, the only difference in his present and former relation to this seventh interest is, that by virtue of the decree it will be set apart from the balance of the land, and when so set apart, the legal title thereto, instead of being vested, as before, in William B. Lovejoy alone, will then be held by appellees for the use of the partnership, which, of course, will include any claim Albert P. Lovejoy, as partner, may have against it upon a final accounting between the partners. His interest, in that case, might equal its entire value, or it might amount to nothing at all, depending upon the firm’s liabilities to outside creditors and the state of the accounts - between the partners themselves. In short, we are of opinion that whatever interest Albert P. Lovejoy had in the land, it was fully represented by William B. Lovejoy, who, as we-have seen, alone held the legal title. (1 Washburn on Real Prop. 667.) As to appellants, they have no concern whatever as to how this matter shall be settled between the partners.

It is further contended by appellants, that by reason of the power of sale in the will, which might have been exercised after the execution of the deed by the sheriff, the children, including the defendants in the execution, had a contingent remainder only, and that consequently nothing passed by the sheriff’s deed. This view is clearly unsound. The power had nothing whatever to do with the vesting of the estate. It is obvious the estate vested in the children upon the testator’s death, subject to the power. Had the executor, with the concurrence of the widow, seen proper to sell the land after the sheriff’s sale, they might well have done so and made a good title to the property. The appellees, however, in that ease would have been entitled to one-seventh part of the purchase money upon the death of the widow. With respect to the proceeds, their rights would have been precisely the same as the child’s whose interest they purchased would have been had the execution sale never occurred.

The decree will be affirmed.

Decree affirmed.


author: Mr. Justice Shope

text:
    The Chicago and Eastern Illinois Railroad Company v. Charles S. Wiltse.

      Filed at Ottawa March 27, 1886.

    1. Eminent domain—as to an appropriate and permissible exercise of the power—as a legislative or judicial question. The question of the necessity for the exercise of the right of eminent domain, and in what cases it may be exercised, within constitutional restrictions, is legislative, and not judicial; and when the power has been delegated to a corporation, its exercise, within the scope and for the uses and purposes named in the legislative grant, will not be a proper subject for judicial interference or control, unless to prevent a clear abuse of power."
    2. The question, however, of whether the use to which it is sought to appropriate the property is a public use or purpose, and whether such use or purpose will justify the exercise of the compulsory taking of private property under the statute and constitution, and, when the power is attempted to be exercised by a corporation, whether the po-wer is delegated to it by the legislature, and whether the uses and purposes for which such power is sought to be exercised falls within the legislative grant of powers, are proper subjects of judicial determination.
    3. Same—the rule of strict construction—and its application, as to the use intended. The taking of private property under the Eminent Domain act being in derogation of common right,' the grant of power to corporations for its exercise will be strictly construed. Therefore, the mere fact that the building of lateral branch roads may add to the earnings of the main line of a railroad company, or increase its business, will not authorize such corporation to build the same under its charter, which fails to so provide.
    4. The exercise of the right of eminent domain is subordinate to all statutory and constitutional restrictions on the subject, and to the further limitation that the courts which are authorized to entertain applications for its exercise, are clothed with ample power to prevent any abuses of the right.
    Appeal from the County Court of Kankakee county; the Hon.- James N. Ore, Judge, presiding.
    The Chicago and Eastern Illinois Eailroad Company, appellant, filed its petition in the count}' court of Kankakee county, praying for condemnation of certain lands belonging to appellee. The petition, as amended, alleged the incorporation of appellant, with power to construct a railroad from Chicago, through the intervening counties, to the city of Danville, Illinois ; that it had located its line in accordance with its charter, and that such line passed over and across appellee’s land, describing the portion sought to be taken with particularity. The petition contained in other respects the statutory requirements, and it was alleged therein that the “petitioner desires to appropriate and use said property for the purpose of building and constructing its said line of road, and represents that said property is necessary for the right of way, sidetracks and appurtenances required by petitioner in constructing and operating said road, ” and praying that compensation to appellee might be ascertained, etc. On the return day a motion was made by appellee to dismiss the petition, which was overruled. A cross-petition was then filed by appellee, under the statute, and a jury sworn to fix .compensation, etc. After the petitioner had made its case, appellee renewed his motion to dismiss, which was again overruled, and at the conclusion of the hearing, and before the jury retired, the like motion was again made and overruled. The trial resulted in a verdict for $150 for land taken, and $1350 for damages to land not taken. Motion for a new trial overruled, and judgment on verdict in usual form in'proceedings for condemnation. Appellant appealed to this court, assigning numerous errors. Appellee assigns cross-errors on the record, and asks their consideration.
    On the trial appellant introduced evidence showing its incorporation under the general law of the State for the incorporation of railroad companies, and that appellant’s railroad was built between Chicago and Danville, Illinois, by the Chicago, Danville and Vincennes Eailroad Company, during the year A. D. 1872, under a private charter, passed by the legislature in A. D. 1865 ; that by conveyances under certain foreclosure proceedings, the title to said railroad was vested in the appellant company, which had been operating the railroad between Chicago and Danville for the past eight years. The point where the land was sought to be condemned was in the country, and it was conceded that appellant had thirty feet of land on its right of way, either side of its main track, level, and in every way suitable for a side-track, if one was needed at that place. It further appeared, that in 1884, about three-fourths- of a mile from the main line, a bed of clay, very valuable for the manufacture of red pressed brick,' had been discovered; that a company was formed for the manufacture of brick therefrom, and at the time of the trial over $100,000 had been expended in machinery, etc., for such manufacture; that a large number of brick were then on hand, ready for shipment, and that the machinery had a capacity of 40,000 brick per day; that the brick required careful handling, and it was impracticable to haul them in wagons, as the corners would get knocked off, and the value of the brick deteriorated or destroyed; that the principal market was Chicago, where they sold at $20 per thousand, and upwards; that the brick works were built as close to the track of appellant’s road as would be profitable in handling the clay, and that the brick works company had made an arrangement with appellant to furnish the money to build the track from the main line to the brick works, and were to be repaid by a rebate of twenty-five per cent of all freights hauled for them, until repaid; that to get this freight it was necessary to build this spur or side-track; that the trains of appellant would, by the arrangement, run once each way over this track each day. A map or plat was also introduced by appellant, showing the proposed track running substantially at right angles with appellant’s main line, and terminating at said brick works, and passing over appellee’s land for something over a half mile. The appellant’s general superintendent testified that the purpose of building 'this track was to maintain and -help out the business of the road; it was necessary to enable the company to get this freight,—the track might be used to shove cars on; that it was impracticable to get that freight without building this track, etc.
    Mr. William Armstrong, for the appellant:
    Of the necessity of a cross-petition to have damages to lands, not taken, assessed, see Railroad Co. v. Mayrand, 93 Ill. 592; Railroad Co. v. Hopkins, 90 id. 319 ; Mix v. Railroad Co. 67 id. 319; Jones v. Railroad Co. 68 id. 380; Railroad Co. v. Sawyer, 71 id. 361; Bloomington v. Miller, 84 id. 621.
    The cross-errors question appellant’s right to condemn this land. It was necessary to reach the new clay discovered, to construct this spur of the road. It is one of the incidents of the operation of a line of railroad. Railroad Co. v. Dix, 109 Ill. 237; Fisher v. Railroad Co. 104 id. 326.
    Mr..H. K. Wheeler, and Mr. B. F. Gray, for the appellee:
    The constitution only permits private property to be taken for a “public use. ” Taking land whereby to gain access to a brick yard, or rather private enterprise, is not for a “public use.”
    Grants to corporations being in derogation of common right, are to be strictly construed, and this especially when poiver is claimed which affects the ordinary rights of property. Cooley’s Const. Lim. 530.
    The courts have repeatedly held that land can not be taken to construct roads to coal fields. Cooley’s Const. Lim. 531; Young v. McKenzie, 3 Ga. 44; Taylor v. Porter, 4 Hill, 146; Railroad Co. v. Brainard, 9 N. Y. 108.
    So it has been held that a railroad company could not condemn land for manufacturing railroad cars. Eldridge v. Smith, 34 Vt. 484.
    Necessity and a public use must in all cases exist in order to permit a railroad company to condemn land. Tracy v. Railroad Co. 80 Ky. 259.
    This spur is not a side-track or appurtenance to the main line
   Mr. Justice Shope

delivered the opinion of the Court:

It will be unnecessary -to discuss the errors assigned by appellant, as the determination reached on the cross-errors assigned will be conclusive of the case.

The petition, as amended, was in substantial compliance with the statute, and gave the court jurisdiction, and the motion first entered to dismiss, was, upon the record as it then stood, properly overruled.

The general act for the incorporation of railroads requires that the terminal points shall be designated and set out in the articles of incorporation, but no limitation is placed upon the company as to the location of its appurtenant tracks, such as side-tracks, turn-outs and switches. The right to locate and build such appurtenant tracks, within reasonable limits, must, of necessity, be left in the discretion of the company. The 3 8th section of the act referred to expressly provides that if the corporation is unable to agree with the owner for the purchase of real estate required for the purposes of this incorporation, or the transaction of its business, or for depots, station buildings, right of way, or any other lawful purpose connected with or^necessary to the building, operating or running of its railroad, such corporation may acquire title by condemnation thereof, as provided by law. A large discretion, of necessity, must be lodged in the railroad company, to be exercised through its officers and agents, to' determine where side-tracks, turn-outs and switches should be located, with a view to the convenient and successful operation of the main line of the company’s road, and as to the amount of land actually requisite for that purpose; and the legislature has given such discretion, providing, however, that such appurtenant tracks for which land is sought to be condemned, shall be connected with the building, operating or running of the railroad, or necessary to such building, operating or running.

The question of the necessity for the exercise of the right of eminent domain, and in what cases it will be exercised, ■ within the constitutional restrictions, is legislative and not judicial. And where the power has been delegated to an incorporation by the legislature, the exercise of that power by the incorporation, within the scope and for the uses and purposes named in the legislative grant, will not be a proper subject for judicial interference or control, unless to prevent a clear abuse of the power. The questions, however, of whether the use to which it is sought to appropriate the property is a public use or purpose, and whether such use or purpose will justify the exercise of the compulsory taking of private property under the statute and constitution, and, where the power is attempted to be exercised by an incorporation, whether the power is delegated to the corporation by the legislature, and whether the uses and purposes for which such power is sought to be exercised fall within the legislative grant of powers, are proper subjects of judicial determination. Dillon on Mun. Corp. 465; Chicago, Rock Island and Pacific Railroad Co. v. Town of Lake, 71 Ill. 333; South Chicago Railroad Co. v. Dix, 109 id. 237; Dunlap v. Mt. Sterling, 14 id. 251; Cooley’s Const. Lim. 537, et seq.; St. Louis, etc., Railroad Co. v. Trustees, 43 Ill. 306; Chicago and Western Indiana Railroad Co. et al. v. Dunbar et al. 100 id. 129; Smith v. Chicago and Western Indiana Railroad Co. 105 id. 511; In re New York Central and H. Railroad Co. 77 N. Y. 248; Eldridge v. Smith, 34 Vt. 484; Bradley v. New York and New Haven Railroad Co. 21 Conn. 305.

It is evident from the evidence in this case, that the sole use and purpose of the proposed track was to reach the brick works, situated between a half and three-quarters of a mile from appellant’s railroad, and thereby create a feeder to its main line, and add to the value of its freights. There was no pretence that there was any necessity for any increased facilities in the locality of the proposed track, except for the purpose of saving the hauling of brick from these brick works, and the increased traffic brought to appellant’s main line by the building of this spur. True, the superintendent says this track could be used to store cars upon; but it is in the country, and there is no pretence that there is or will be any necessity for such use, o;r that it will be convenient to store cars at this point, or that the track was intended for such use. Besides, the track is shown to be designed for use by running cars over it every day. Indeed, so patent is it, from the record, that the proposed track was a spur road, intended for the use indicated, that the only statement by appellant’s counsel, in his brief, of the use to which appellee’s land was to be appropriated, is as follows: “The appellee being the owner of some land located between the railroad and the brick works, appellant filed this petition to condemn a strip thirty feet in width across his land, in order to build a railroad track from its main track to the brick works, as described. ” Toward the close of his argument, the counsel insists upon the great expense incurred in building up the brick works, the great volume of freight thereby produced, and the loss if compelled to move the brick from the kilns to the railroad in wagons, as reasons for the exercise of this compulsory power of taking appellee’s land, and concludes: “To say that appellant. has no power to build a spur to the works in order to move this vast volume of freight, is placing a narrow construction on the powers of appellant. ”

It is conceded, substantially, and the evidence abundantly show's the fact, that this proposed track in no way increases or adds to the facilities for transacting the business of the railroad appellant is authorized by its charter to build and operate, but on the contrary, by adding to the volume of its freights, would tend rather to embarrass the main line of road than otherwise. If this was a side-track, and.w'as in some way necessary to or aided in the convenient and successful operation of appellant’s railroad, the fact that it serves the private use mentioned would not, as said by this court in South Chicago Railroad Co. v. Dix, supra, make it any the less necessary as a side-track; but there is no such pretence here, and the right to condemn appellee’s land depends upon the right of appellant to build an independent branch road from its main line to the brick works, for the purpose of creating a feeder to its main line of road, or, as put by counsel, “to remove this vast volume of freight. ”

In no just sense can this proposed line be said to be connected with or necéssary to the building, operating or running of appellant’s railroad. The taking of private property under the eminent domain statutes is in derogation of common right, and the grant of power to incorporations for its exercise will be ..strictly construed. (Cooley’s Const. Lim. 530, 531, and authorities cited.) The fact that the building of lateral branch roads may add to the earnings of the main line, or increase its business, will not authorize appellant to build the same under its charter, and condemn lands therefor. South Chicago Railroad Co. v. Dix, supra; Carrier v. Massetta and Cincinnati Railroad Co. 11 Ohio, (N. S.) 228; Young v. McKenzie, 3 Ga. 44; Taylor v. Porter, 4 Hill, 146; Buffalo and New York Railroad Co. v. Brainard, 9 N. Y. 108.

Nor is it material to the determination of this question that the proposed track is only a half or three-fourths of a mile in length, or that great loss would occur to the brick works, company if it be not built. Appellee’s land is sought to be taken, and it can, as to his right, make no possible difference whether the proposed line be long or short. In principle it could make no difference. If the railroad company may condemn appellee’s land for the purposes indicated, why can it not build any distance it may choose for like purposes, or from Danville, its terminus, to St. Louis, if thereby its revenues would be increased, and the interests of the points to which it should build be promoted thereby ? The legislature has conferred no such power upon appellant.

It therefore was made apparent, from the proofs, that the purposes and use intended were not such use as is contemplated by the grant of power under which appellant was acting, and that therefore no appropriation of appellee’s land for such purpose could be made, and it was then the duty of the county court to arrest the further proceedings, and refuse the aid of the court in wresting appellee’s land from him for an unlawful use.

It is said by this court in Smith v. Chicago and Western Indiana Railroad Co. supra, that “this right, (of the exercise of the right of eminent domain,) of course, is subordinate to all statutory and constitutional restrictions on the subject, and also to the further limitation that the courts of the State which are authorized to entertain applications of this character are clothed with ample power to prevent any abuses of this right by such companies.” In the case of South Chicago Railroad Co. v. Dix, supra, the question was raised, by motion entered in the county court, to dismiss the petition, which motion was supported by affidavit filed in said court, showing the reasons for such motion. The company filed counter affidavits, and on consideration of the motion that court dismissed the petition. On appeal to this court the judgment of the court below was reversed, this court finding, upon consideration of the facts established by the petition and affidavits, that the use for which the condemnation was sought was necessary for the convenient and successful operation of the railroad, and therefore a lawful purpose.

The powers of the court were invoked by appellant to aid it in the appropriation of this land for a lawful purpose, and that it should, under this guise, be permitted to use the court to enable it to appropriate appellee’s land to an unlawful purpose, and by its orders invest appellant thereunder for such unlawful purpose, would be a travesty upon the administration of the law. It therefore, we think, became the duty of the county court, upon it appearing that the land of appellee could not be lawfully taken for the purposes really intended, to have discharged the jury and dismissed the petition at the petitioner’s costs, and for the error in not so doing the judgment will be reversed, and the cause remanded to the county court of Kankakee county, with directions to set aside the judgment entered and enter an order dismissing the petition.

Judgment reversed.