Volume 128 — Illinois Reports

This was a petition for a mandamus, filed in this court by the relators, to compel the respondent to issue an alias ca. sa. against Elias Levee. The material facts appear in the opinion.

<p>1. Feanchise—what constitutes. The privilege or right to be a corporation is a franchise.</p> <p>2. Same—quo warranto to question right—against whom. Where the assumed right or franchise is denied, and is sought to be questioned by an information in the nature of a quo warranto, the writ is properly issued against those who are attempting to exercise the right or franchise.</p> <p>3. Appeal—whether a franchise is involved. On an information in the nature of a quo warranto, against commissioners of highways assuming to act as drainage commissioners of a certain drainage district, on the ground that such district has not been legally organized, a franchise is involved, and an appeal from the judgment of the trial court lies directly to this court, and not to the Appellate Court.</p> <p>4. Costs—on appeal—where there is no jurisdiction. Where an appeal is taken to the Appellate Court in a case involving a franchise, and is there entertained, and an appeal is taken from that court to this court by the same party, the judgment of the Appellate Court will be reversed and the cause remanded, with direction to dismiss the appeal, and no costs will be taxed in either court against the appellee.-</p>

Louis; the Hon. B. H. Canby, Judge, presiding. This was a petition by Butler & McCracken, lumber merchants, against appellee, Gain, and one Wiegriffe, defendants, to enforce a mechanic’s lien as sub-contractors.

<p>1. Chanceen—admission in answer, whether evidence against a co-defendant. In a contest between the mortgagee of chattel property ■and a purchaser from the mortgagor, in which the mortgagee claims the property as a fixture to real estate mortgaged to him, the answer of the mortgagor and his wife, admitting that the chattels were fixtures to the realty, is not evidence against the purchaser of the property from the mortgagor.</p> <p>2. Fixture—portable engine and saw-mill. The owner of a portable engine and saw-mill sold the same to a party, who moved the machinery, and set it up on his wife’s land, and the purchaser and his wife gave their mortgage on the land for the price of the engine, mill, etc. The mill was placed upon sills, and attached to stakes driven into the ground, so as to render it stationary while being operated. The engine was sunk into the ground and a shed built over it: Held, that the property did not acquire the character of fixtures, so as to become a part of the realty, and pass to the mortgagee.</p> <p>i. The vendor of a portable engine and saw-mill, after the purchaser had set up the same on Ms wife’s land for use, which was mortgaged for the price, brought replevin for the engine and mill as personal property, which was afterward dismissed, and after a return of the property, the purchaser sold the same, in good faith, to a creditor: Held, that the institution of the replevin suit by the vendor, if it did not estop him to claim the property as part of the realty, afforded very strong evidence against him that the property was not real estate.</p> <p>5. Chatted mortgage—not properly acknowledged. A chattel mortgage not acknowledged as required by the statute, is void as to creditors and purchasers, notwithstanding actual notice.</p>

<p>1. Unrecorded deed—attaching creditor, without notice. An attaching creditor who levies his attachment without notice of a prior unrecorded deed of his debtor, either actual or constructive, acquires a lien, which, if perfected by judgment, execution, sale and deed, will hold the legal estate, as against the grantee in the prior unrecorded deed. Having acquired a lien as creditor without notice, he will have a right to enforce the same, notwithstanding he may have, subsequently to the levy, of his attachment, received notice of the deed.</p> <p>2. Possession—as notice of occupant’s rights. Actual possession of land by a party under an unrecorded deed, is constructive notice of the legal and equitable right of the party in possession. Possession by a tenant is the same, in all respects, as if by the party himself.</p> <p>3. Actual residence by the owner or claimant of land is not essential to a continuous possession. If the party is in actual possession, and there are continuous acts of ownership, it is sufficient. The fact that a short time may elapse between the actual occupancy by one tenant before another tenant takes possession, will not lose the possession to the owner.</p> <p>4. B bought a tract of land in 1882, but failed to record her deed until October 22,1884. After the purchase, B retained C, the prior agent of her grantor, as her agent, who, in August, 1882, rented the premises to J. for one year. The tenant raised a crop thereon, and occupied the land till in August, 1884, when he surrendered his possession to 0. The premises were again rented in March, 1884. On October 10, 1883, the property was attached as that of B’s grantor: Held, that the possession of B was sufficient notice of her unrecorded deed, to the attaching creditor.</p>

William Marsh, Judge, presiding. This was an action of debt, brought by Sarah A. Kingsbury, against Alexander T. Miller, George A. Miller and Joseph Simons, on a penal bond executed on the 24th day of June, 1886.

Writ of Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of Coles county; the Hon. J. W. Wilkin, Judge, presiding.

<p>Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.</p>

William Marsh, Judge, presiding. This was a bill in chancery, brought by Warren C. Winget and Sarah M. Winget, his wife, against the Quincy Building and Homestead Association and William S. Flack, surviving trustee, to enjoin the sale of certain premises under the powers of sale contained in two deeds of trust executed by the complainants.

Writ of Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of Vermilion county; the Hon. C. B. Smith, Judge, presiding.

Weit op Ebbob to the Circuit Court of Tazewell county; the Hon. N. W. G-been, Judge, presiding.

<p>1. Pbactioe—trial 6y the court—propositions of law, cmd of fact. Where the same proposition of law is substantially embraced in one "held” by the court as in one asked and refused, there will be no error in refusing to give the latter.</p> <p>2. In a suit upon promissory notes, in which want of consideration and fraudulent misrepresentation, leading to their execution, are set up in defense, where the evidence is conflicting, a proposition submitted to the court trying the case without a jury, that the plaintiff is not entitled to recover, is a proposition of fact, and not of law, and therefore properly refused.</p>

C. B. Smith, Judge, presiding. This was a proceeding brought by Samuel S. Chisholm and Wellington C. Chisholm, partners, composing the firm of Chisholm Bros., against F. F. Randolph, the First National Bank of Charleston, the First National Bank of Norwalk, Ohio, Theo. Williams and Frank Goodnow, to enforce a mechanic’s lien on certain mill property in Charleston, Illinois, for the payment of $2105, due June 15, 1883, and the interest thereon.

John C. Bagby, Judge, presiding. This was a bill for partition, filed by the appellant, against appellee, November 26, 1886, on the chancery side of the Fulton circuit court, to the December term, 1886. The real controversy between the parties grows out of their conflicting claims of ownership to the undivided two-thirds of the north- west quarter of the south-east quarter of section 13, town 5 north, range 2, east of the fourth principal meridian, in Fulton county, Illinois.

<p>1. Deed oe teust—with power of sale—trustee as the representative ■ofboth parties. Where a trust deed is made to secure a debt, the trustee named therein is the representative, not only of the owner of the debt, but also of the maker of the deed. He is the agent of both the creditor .and the debtor. His duty is to act fairly toward both, and not exclusively in the interest of either. The law requires the conduct of such ■a trustee to be absolutely impartial, as between the two parties whom he represents. Hence, his relations with one of them ought not to be of such a character as to tempt him to neglect the interest of the other.</p> <p>2. Same—trustee fixing amount of bid. It is not proper for a trustee , appointed in a deed of trust, to direct the representative of the creditor , what bid he shall make, but it is his duty to offer the property at public auction, in such a way as to make it bring' the highest possible price, and to leave the parties to decide for themselves what they will offer for it.</p> <p>3. Same—setting aside trustee’s sale—redemption—inequity. A trustee after the sale wrote to'the creditor: “We bid the property off for $9000, 1 and shall take judgment for the balance of about $4000. * * * My impression is, we had better get a quitclaim deed from Mr. S. (the debtor,) and, if you desire, will have one sent to him to sign. I did . not bid the whole amount on the property, as I thought, by having four ; or five thousand dollars hanging over him, he would- be more willing , to give us a deed of the property." It appeared that the trustee was the confidential adviser and the business agent of the creditor, and employed one of his attorneys to bid on the property, and directed the-' amount of the bid at much less than the value of the property, for the-purpose of forcing the debtor to make a deed : Held, that the action ' and conduct of the trustee were such as to require the setting aside of the sale and allowing a redemption.</p> <p>4. A court of equity will always examine with the closest scrutiny a sale that is made under the power contained in a trust deed, and when the rights of third persons have not intervened, redemption from such a sale, conditioned upon the full payment to the holder of the indebtedness of all that is due him, will be allowed, when there is evidence of any such unfairness on the part of the trustee, whether intentional or not, as has resulted in injury to the debtor.</p> <p>5. Laches—knowledge of the facts, essential. Where the facts relied on to set aside a trustee’s sale of property under a power in a trust deed are not discovered until after the filing of the original bill, and they are, when discovered, set up by an amended bill, laches will not be imputable to the complainant.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon, Owen T. Beeves, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of Scott county; the Hon. Cyrus Epler, Judge, presiding. April 6, 1883, James Brown and wife, Margaret, executed a note to defendants in error for $13,500, due in five years,„ with seven per cent interest, payable annually, and a mortgage to secure the same.

<p>Appeal from the County Court of Champaign county; the Hon. James W; Langley, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of DeWitt county; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>1. Special assessments—rule for ascertaining benefits—market value —present use of property, and of the use to which it is adapted. In a proceeding to levy and collect special assessments on property benefited, the true inquiry is, what will the influence of the proposed improvement be upon the market value of the property claimed to be benefited thereby. The jury should consider what the property is then fairly worth in the market, and what will be its value when the improvement is made.</p> <p>2. In determining the present market value, it is competent for the jury to take into consideration the uses to which the property is put, or for which it is suitable or adapted. If the present value of the property is increased by reason of the use to which it is then put, or its market value will be materially affected by an interference with that use, and the proposed improvement will have that effect, that is a matter clearly competent for the consideration of the jury.</p> <p>3. On a proceeding to confirm a special assessment upon certain lots, the court instructed the jury: “You" are instructed that it makes no difference -in this case whether or not the property assessed is used at present for such a purpose that it will not be specially benefited by the proposed sidewalk, or is put to any use to which the market value of the same is at present unimportant; and in determining your verdict, you should not take into consideration the present use to which the lots or tracts, or both, are put, but you should consider whether or not the market value of said lots or tracts, for any legitimate purpose for which the same may be used, will be increased by reason of the construction of the proposed sidewalk:” Held, that the instruction was erroneous, in directing the jury that they should not take into consideration, in determining the market value, the present use to which the lots were put.</p> <p>. '4. Pbactioe—time to object—as to admission of evidence. In a proceeding to confirm a special assessment for the building of a sidewalk, an objection that the ordinance for the proposed improvement was not certified to the mayor or approved by him, comes too late when made for the first time in this court. Objection to evidence should be made on the trial.</p> <p>5. Instbxjction—erroneous one—whether cured by others. In a case where the evidence is conflicting, the law should be given to the jury with substantial accuracy. An erroneous instruction can not be said to be cured by proper instructions on the other side, when, from the evidence, it is impossible to say that the jury did not follow the erroneous one.</p>

<p>1. Veitoob’s men—not assignable—lost by transfer of debt. The right to enforce a vendor’s lien is personal, and is therefore not transferable. It ceases to exist when the vendor sells and indorses the note representing the purchase money, although the transfer is made with the consent or upon the advice of the debtor.</p> <p>2. Homestead—what will defeat the right—effect of transfer of note given for purchase money—fraudulent acts. A person purchased a house- and lot, giving his promissory note for the purchase money, after.which he conveyed the premises to his wife, from which time the property was occupied by them both as their homestead. It was of less value than $1000. A third person, at the husband’s request, bought the note given for the purchase money. It was held, that the purchaser of the note acquired no equity as against the wife’s homestead. Even if she-had owed the note herself, and had requested such third party to pay the same, his doing so could have given him no right as against her estate of homestead.</p> <p>3. Even the fraudulent acts of the party entitled to a homestead are not allowed to divest that right.</p> <p>4. Trust—voluntarily assumed—not to be repudiated. <3-., having a small claim against a debtor who was being 'harassed by creditors, under the guise of friendship falsely advised the debtor and his wife that the creditors would take their homestead, which was in the wife, unless they mortgaged the same to him, and promised that if they would mortgage the same, he would, when he acquired the title, convey to the debtor’s wife, and thereby induced them to execute a mortgage for the sum he claimed, and afterward induced them to give a fictitious note and mortgage to a third person for $1000, which G-. afterward procured to be assigned to himself, and obtained a decree of foreclosure and sale, professedly for the benefit of the wife, but afterward refused to convey to her, disavowing and denying the trust: Held, that G-. could not be allowed to repudiate his assumed trust, and that a court of equity would compel .him to convey to the wife, or set aside the mortgages and sale of the property to him.</p> <p>5. Same— Statute of Frauds. "Where a party, by voluntarily assuming a confidential relation, as, that of a trustee, to save the homestead of another, and by means of confidence 'thus inspired obtains the title thereto, and refuses to perform his promises, the law will raise a constructive trust, which a court of equity will enforce, and the Statute of Frauds will have no application.</p>

<p>1. Wills—quantity of estate devised—whether afee, or less than a fee. It is provided by statute, that every grant, conveyance or devise shall be deemed a fee simple estate of inheritance, though lacking the use of words necessary, at the common law, to create such an estate, if a less estate be not limited by express words, or does not appear to have been granted, conveyed or devised by construction or operation of law.</p> <p>2. A simple devise of lqnd, without any words of perpetuity or inheritance, under the statute, is sufficient to pass an absolute estate in fee, unless a contrary intent is shown in other parts of the will. The intention of the testator, which controls, is to be ascertained from the w'hole will. If a less estate than a fee is intended, it is wholly immaterial in what part of the will such intention is manifested.</p> <p>3. It is the disposition of the courts to adopt such a construction as "will give an estate of inheritance to the first donee. When, therefore, the fee is devised by a clause or clauses of a will, and other portions or clauses are relied on as limiting or qualifying the estate thus given, they should be such as to show a clear intention on the part of the testator to thus limit or qualify the estate granted. Such an intent should clearly and unequivocally appear.</p> <p>4. Same—devise over upon condition—as, the settlement of the estate before the death of the first taker—as determining where the fee shall go. A testator devised all his estate, real and personal, to his wife, subject to the payment of his just debts, and appointed her his sole executor. The will further provided, that in case of the death of his wife before the settlement of his estate, all the testator’s property should be equally divided between his two nephews: Held, that the settlement referred to, which would operate to defeat the devise to the wife, was a settlement or adjustment of the estate in the due course of administration in the county court, and that such settlement in her lifetime was a condition upon which the devise to her depended.</p> <p>5. Until such settlement of the estate, which included the payment of the debts, the amount devised was uncertain, as it might become necessary to sell land, or some part thereof, to pay the claims against the estate; but when the administration was completed and closed, her rights became fixed and determined. If made during her life, she took the remaining estate absolutely; if not, it went to the nephews.</p> <p>6. In this case, a final settlement of the estate was made in the lifetime of the first donee, and so it was held, that the clause devising the estate to the nephews in the event of the death of the widow before the settlement of the estate, did not in any manner affect the devise to the widow, and that she having performed the condition annexed to her right, her estate ceased to be conditioned, and that the condition on which the nephews were to take, failed.</p> <p>7. Same—whether a trust rests upon the subject of a devise. A trust may be impressed upon the subject of a devise, but an intent to create the trust must clearly appear. If the intention of the testator be doubtful, precatory words will not be construed into a declaration of a trust.</p> <p>8. Mere expressions of a desire that the donee will be kind to, remember, consider, deal justly by, educate and provide for, or to do justice to a certain class of persons, will raise no trust.</p> <p>9. In the absence of words showing a contrary intent, a gift, whether of land or personal property, will be presumed to be absolute, and before it will be held to be in trust, it must be clear that the testator intended the property bequeathed, or some part of it, to be applied by the donee for the purpose of the trust,—and this is to be determined from a consideration of the entire will, and the circumstances and condition of the estate devised. So the fact that personal property was included in the devise to a wife, and was expected by the testator to go with the real estate to her, maybe considered as indicative of an intent to give her an absolute estate in the land.</p> <p>10. No trust will be implied from precatory words, where the donee may, at his discretion, apply the property to other purposes, or where there is an express direction that the donee’s absolute interest is not to be curtailed, or when the precatory words are not stated to be obligatory, or when the donee is to take free and unfettered.</p> <p>11. Where the words of a gift expressly point to an absolute enjoyment by the donee himself, the natural construction of subsequent precatory words is, that they express the testator’s belief or wish without imposing a trust.</p> <p>12. By the first clause in a will a testator made an absolute devise of all his estate to his widow, upon the sole condition that she should settle up his estate. By the following clause the estate was devised to his nephews in case his widow should die before the settlement of the estate, after which are these words: “I have full confidence in my beloved wife, Mary, that she will do what is best and proper with my effects, and that she would do with my property the same as I would wish to have done—that she will take care of the proceeds. She is, by this gift, free from all restraint, to do as may seem to her best and properHeld, that the will created no trust on the subject of the devise in favor of the testator’s nephews, or for any one else, and that the wife took an absolute estate in fee upon the settlement of the estate in her lifetime.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.</p>

<p>1. Appeal—from Appellate Court—whether it will lie. When a case determined in the Appellate Court does not involve either a freehold, a franchise or the validity of a statute, and the record contains no certificate of the judges of that court that it involves questions of law of such importance, on account of principal or collateral interests, that it should be passed upon by this court, and the amount involved is less than $1000, no appeal will lie from the judgment of the Appellate Court.</p> <p>2. The administrator of a deceased widow had appraisers appointed to appraise her deceased husband’s estate, who appraised the property left by the husband at $32.75, and fixed the widow’s award at $700. The administrator of the widow’s estate selected the personal property, and elected to take the residue ($667.25) in money, which was allowed against the husband’s estate as a second class claim. On appeal to the circuit court this claim was disallowed, and this judgment was affirmed by the Appellate Court: Held, that as the amount involved was less than $1000, and no certificate of importance was given, no appeal lay from the judgment of the Appellate Court.</p>

<p>1. Partnership—compensation to partner for services. One partner ■can not charge the firm or his co-partner for his services in attending to the partnership business, unless there is a special agreement among the partners entitling him to do so.</p> <p>2. Same—reimbursing partner for expenses in defending suit. After the dissolution of a partnership a former clerk sued the firm for his services, and recovered judgment therefor. One of the partners defended the suit, and paid out certain moneys for costs and attorney’s fees, which were not shown to be excessive or unnecessary: Held, that the amounts so paid were properly charged to the firm in stating the partnership account.</p> <p>3. Same—sale of partnership stock to one of the partners—action of arbitrators. On the dissolution of a firm an invoice of the stock on hand was taken, and it was agreed that arbitrators should offer the stock for sale to the two partners, and that the one bidding the larger amount should take the goods, and the price bid should be treated in the settlement of the partnership account the same as the goods, and the matter of the settlement was referred to the arbitrators. Their award was set aside : Held, on bill to adjust the partnership matters, that the setting aside of the award did not operate to vacate the sale, and that the purchaser was properly charged with the amount of his bid for the goods.</p> <p>4. Same—interest—as between partners. Interest is not allowable on the settlement of partnership accounts, where no unreasonable delay or improper use of the partnership funds is shown.</p>

<p>1. Do web—right of the widow—generally. Under the statute of 1845, and also under the present statute, upon the death of the husband, dower in the wife becomes consummate in all cases when he dies intestate ; and the question as to what class of heirs he leaves, or, in fact, whether he leaves heirs or not, is of no consequence. Should the fee be disposed of to others, either by the Statute of Descents or by a sale to pay debts, this dower right continues to exist, and can only be divested by the voluntary act of the widow.</p> <p>2. Same—•merger of dower right in a larger estate. Should the widow, however, become the owner of land in fee, or any part of it, her dower, ¡as in other cases where a greater and lesser estate unite in the same person, is merged in the fee, and, of course, can not be asserted.</p> <p>3. Same—in ease of death of husband without issue. Since the Statute ■of Descents of 1872, and the Dower act of 1874, as was the rule under the act of 1845, should the husband die without leaving lineal descendants, his widow will take, as heir, one-half of his lands, and will be ■entitled to dower in the other half thereof.</p> <p>4. Same—relinquishment of dower—effect of widow making deed as -administratrix. A widow, who in her capacity as administratrix makes a deed for lands of her deceased husband sold under a decree of court to pay debts, does not thereby relinquish her dower in such land, unless it is so specified in her deed, or she makes statements or does acts •calculated to mislead the purchaser.</p> <p>'5. Same—damages for non-assignment of dower—requisites of the bill —time to object. A widow is entitled to damages for the non-assignment of dower from the time of the filing of her bill for dower, that being, in law, a demand. The damages, however, should be claimed in the bill, by amendment or otherwise. But when both parties offer •evidence on the question of damages, without objection, in the court below, the objection that the bill makes no such claim comes too late when made for the first time in this court.</p>

Appear from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.

This was a petition for a mandamus, filed in this court by-Joseph Donnersberger, against Richard Prendergast and others, composing the canvassing board of elections of the cities of Chicago and Lake View, the towns of Lake and Cicero, and villages of Hyde Park and Jefferson, to compel such board to canvass certain votes cast at the annual election held April 3,1888, etc. The material facts appear in the opinion of the court.

James A. Creighton, Judge, presiding. This is assumpsit, by appellant, against appellee, for the recovery of $400, the amount of a license or tax collected by the latter of the former, under protest of the former.

<p>Appeal from the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Ford county; the Hon. Alfred Sample, Judge, presiding.</p>

Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. T.-A. Moran, Judge, presiding. The following statement by the Appellate Court will be found sufficient to present the points determined: “This was a bill brought in the court below, October 11, 1880, by the appellee, Vaughn, against the appellant, Raymond, as partner and trustee, for an accounting.

<p>Appeal from the Appellate Court for the Third District;—■ heard in that court on appeal from the Circuit Court of Douglas county; the Hon. C. B. Smith, Judge, presiding.</p>

<p>Writ of Error to the Appellate Court for the First District ;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.</p> <p>This was a bill in equity, brought by defendant in error, William H. Whitehead, to foreclose a deed of trust. The facts are fully stated in the opinion of the Appellate Court, as follows:</p> <p>“On the 29th day of November, 1880, Ira N. Herrick executed two promissory notes, for $17,040 each, payable to the order of Franklin H. Watriss, in one and two years after date, with interest, and to secure their payment executed a deed of trust to George W. Smith, as trustee, conveying six separate parcels of land. The first note was paid at maturity, and two of said parcels of land were thereupon released from said deed of trust. Partial payments were made on the other note, and the present bill was brought to foreclose the deed of trust for the residue remaining unpaid.</p> <p>“The deed of trust contained, among other things, a covenant that the grantor would, in due season, pay all taxes on said lands, and in ease of his refusal or neglect so to do, the grantee, or his successors in trust, or the holder of said notes, or either of them, might pay such taxes, and that the moneys thus paid, with interest thereon at the rate of eight per cent per annum, should become so much additional indebtedness secured by said deed of trust, to be paid out of the proceeds of the sale of said lands, if not otherwise paid by the grantor. Said deed of trust also contained the following provision:</p> <p>“ ‘In case of default in the payment of said promissory notes, or either of them, or any part thereof, according to the tenor and effect of said notes, * * * or in case of waste or non-payment of taxes, * * * or in case of the breach of any of the covenants or agreements herein mentioned, then and from thenceforth it shall be lawful for said party of the second part, or his successor in trust, or the person who may be appointed by the court to execute this trust, on application of the legal holder of said promissory notes, or either of them, to enter into and upon and take possession of the premises hereby granted, or any part thereof, and to collect and receive all rents, issues and profits thereof, and in his own name, or otherwise, to file a bill or bills in any court having'jurisdiction thereof, against the said party of the first part, his heirs, executors and assigns, to obtain a decree for the sale and conveyance of the whole or any part of said premises, for the purposes herein specified, by said party of the second part, as such trustee, or as special commissioner, or otherwise, under order of said court, and out of the proceeds of any such sale to first pay the costs of said suit, all costs of advertising, sale and conveyance, including the reasonable fees and commissions of said party of the second part, or person who may be appointed to execute this trust, and five per cent on the amount of such principal, interest and costs, for attorneys’ and solicitors’ fees, and also all other expenses of this trust, including all moneys advanced for insurance, taxes and other liens or assessments, with interest thereon at eight per cent per annum, then to pay the principal of said notes, whether due and payable by the terms thereof, or at the option of the legal holder thereof, and interest due on said notes up to the time of said sale, rendering the overplus, if any, unto the party of the first part, his legal representatives or assigns, on reasonable request.’</p> <p>“Prior to filing the bill, William H. Whitehead, the complainant, became the owner of the unpaid note, by purchase, and Herrick conveyed all of said parcels of land to A. B. Meeker, who in turn conveyed three of the four tracts not released from the deed of trust, to the Cheltenham Improvement Company. The bill makes the Cheltenham Improvement Company, George W. Smith, the trustee, Herrick, the maker of the notes, and various other parties who had or claimed some interest in the premises, parties defendant. The default of the Cheltenham Improvement Company was duly entered, and on reference to the master it was found that the balance (principal and interest) due on said note was $13,182; that the complainant had been compelled to pay out the sum of $1000 to redeem a portion of said premises from a tax sale; that he had paid out for an abstract of title, and for the procurement of certain information or data necessary to be used in preparing and filing the hill, the sum of $260. To this the master added five per cent of the amount found due, being $719, for solicitors’ fees, thus making a total of $15,161. The master’s report was approved, and a decree entered fixing the amount due on the deed of trust at the last mentioned sum, and awarding a sale of said premises therefor.”</p> <p>The Cheltenham Improvement Company appealed to the Appellate Court, where it was held that the decree was erroneous in allowing the attorney’s fee and the item of $260 for abstract. The cause was reversed, with directions to the circuit court to enter a decree for the amount found due complainant by the decree, less the two items mentioned above. To reverse the judgment of the Appellate Court the Cheltenham Improvement Company sued out this writ of error, and ihe complainant in the bill, William H. Whitehead, has assigned cross-errors, calling in question the decision of the Appellate Court in regard to the two items above mentioned.</p>

<p>1. Golobed pebsons—civil rights—access to theaters, etc.—discrimination on account of race or color. All persons in this State are entitled to the full and equal enjoyment of the accommodations, advantages, facilities and privileges of theaters, etc., subject only to the conditions and limitations established by law, and applicable to all citizens, and an action will lie against any one who shall deny another such rights and privileges on account of his race or color.</p> <p>2. So if the proprietor of a theater shall deny a colored person access to his theater, or to the several circles or grades of seats therein, on account of his race or color, he will be liable to such person so aggrieved in an action for damages.</p> <p>3. In an action by a colored woman, against the proprietor of a theater, for denying her equal privileges, etc., the only case her evidence tended to prove was, that after having paid, through another, for a ticket to the first balcony, she was first denied admission thereto, and afterward denied admission to any part of the theatei', on account of her color. On the trial, the defendant offered to prove that he had adopted a rule requiring colored people to sit in the same row, separate from white people, and that it was the rule of his theater that colored persons were given the same advantages, for the same price, in all parts thereof, that whites had, except that the former were assigned a particular row of seats,—which the court refused to allow: Held, that the court ruled properly, as the .proposed evidence was irrelevant to the issue.</p> <p>4. Same—constitutionality of the act. It can not reasonably be contended that the provisions of “An act to protect all citizens in their civil and legal rights, and fixing a penalty for violation of the same,” approved June 10,1885, in so far as they give an action against the proprietor of a theater for denying a colored person access thereto, are void, as being repugnant to the constitution of this State or of the United States.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon.-0. H. Horton, Judge, presiding.</p>

<p>1. Assignment oe a judgment—subject to what defenses. Judgments and decrees are not commercial paper, and assignees of such securities take them affected "with all equities and defenses which might have been set up against them in the hands of the assignor. After a contract for the discharge of a judgment, and while such contract is in process of execution, the owner thereof can not, by an assignment of the same, divest or defeat the right of the debtor to a discharge under his contract, and on performance by the debtor the judgment will be satisfied as to him.</p> <p>2. Same—whether a satisfaction—the circumstances considered. Where judgments against two partners are taken up by a son of one of them, the fact that the son, as assignee thereof, claims to have the other partner charged with his proportionate share of the money actually paid for the transfer of the judgments, instead of the full amount due thereon, is a circumstance tending strongly to show that the judgments were taken up in the interest and for the benefit of the father.</p> <p>3. And where the son purchases the judgments and takes an assignment theréof, if, in the subsequent adjustment of accounts between him and his father the former receives credit from the latter for all the moneys expended by him in their purchase, his interest in the judgments will be precisely the same as though the purchases had been originally made by his father with his own money and for his own benefit, and neither the son nor his assignee can collect such judgments of the father, or from his estate.</p> <p>4. In this case, a son of one of two partners, after the purchase of certain judgments against the partners, agreed with the other partner to purchase his interest in the assets of the firm, and to pay him a price to be fixed by arbitrators, such partner to be charged with his share of the firm liabilities in fixing the price to be paid, and the son further agreed to assume the partner’s share of such liabilities, and to save him 'harmless therefrom. It was held, that the agreement to keep such partner harmless from his share of the firm liabilities, including the judgments so held by the son, even if bought with his own money, operated between them as a satisfaction and discharge of the judgments, and being a discharge of one partner, it was equally so as to the other partner or joint debtor.</p> <p>5. If the assignee of a judgment against two persons agrees with one of them to save and keep him harmless from liability thereon, this will operate as a satisfaction of the judgment as to both debtors, and neither the holder of such judgment nor his subsequent assignee will, in equity, be allowed to enforce the collection of the same, and such judgment can not form the basis of a creditor’s bill as against the estate of the other joint debtor. The satisfaction of a judgment as to one joint debtor is a satisfaction as to both.</p> <p>6. Obeditob’s Bum—prerequisites—and herein, in case of the death of the judgment debtor. A money decree in a court of equity stands upon the same footing as a judgment at law, in respect to a creditor’s bill. An execution thereon must be issued, and returned no property found.</p> <p>j. It is a general rule, subject to a very few exceptions, that before a bill can be filed to reach equitable assets, the creditor must first recover a judgment at law,—or what, in a proper case, would be its equivalent, a money decree in equity,—and have an execution issued, and returned unsatisfied.</p> <p>8. By the death of a judgment debtor, remedies which might have been pursued in his lifetime are extinguished, and a new class of legal rights and remedies is created. His personal estate is no longer liable to sale on execution, but creditors are given the right, upon exhibiting and establishing their claims in the county court, to share in the distribution of his estate.</p> <p>9. Not only is it true that when a debtor dies the law gives new legal remedies against the representatives, but the rule is imperative, that to entitle a creditor to share in the distribution of his estate, those remedies must be pursued. The creditor must exhibit and prove his claim in the court before he can be entitled to payment. In this respect judgment creditors, except so far as their judgments are liens on real estate, and simple contract creditors, stand upon the same footing.</p> <p>10. The mere fact that a creditor has exhausted his legal remedies against his debtor while living, does not fuínish a sufficient ground for proceeding, by creditor’s bill, to reach personal estate while the administration of the estate of the debtor is in progress, especially when no fraud is charged against the intestate, and the only scope of the bill is to seek a remedy against the fraud or failure of duty of the administrator himself, and to reach property which the administrator is entitled to, but which he has failed to get into his possession.</p> <p>11. By the statute, claims against estates of deceased persons are to be classified, and some may be paid in full and others pro rata, and a claimant can not avoid this statute by resorting to equity. A court of equity will not ordinarily assume jurisdiction until the claimant shall have exhibited his claim and had it allowed in the county court, and then, if any special reasons that may be deemed sufficient can be assigned why that court can not afford the requisite reliei, equity will assist him, but not otherwise.</p> <p>12. Same—as to judgment in United States Court. A judgment in the United States Court, that being a court of another jurisdiction, can not be made the basis of a creditor’s bill in a State court.</p> <p>13. Adhutistbation oe estates—in chancery—powers of the eownty' court—how far exclusive. A court of chancery may, in the exercise of its general jurisdiction, take upon itself the administration of an estate. But this will b.e done only in extraordinary cases; and when it does, it will take the whole administration, and not merely a part of it. The fact that the administrator has, through negligence or fraud, failed to find and collect assets in the hands of surviving partners of the intestate, is not a sufficient ground for the interposition of a court of equity. In such a case, the remedy is within the powérs of the county court.</p> <p>li. The county court has ample power to compel an administrator to proceed properly and faithfully in the discharge of Ms duties. If he makes mistakes, it has power to correct them. H he has been guilty of fraud, or has wasted the estate, or has shown himself incompetent or an improper person to conduct the administration, the court has power to call him to account, or to remove him and appoint another and suitable person in Ms place.</p> <p>15. The remedy by which the creditors of an intestate may subject the personal estate of their deceased debtor to the payment of their claims, is by due course of administration. As to all personal assets which are legally within the reach of the administrator, and upon which the creditor has obtained no lien during the lifetime of his debtor, this remedy is exclusive. All personal assets as to which the intestate was himself in a position to assert title at the time of his decease', pass to the administrator, and it is through him alone that the creditors must seek to have them subjected to the payment of their debts.-</p> <p>16. Same—aba/ndonment or release of claim. A covenant or agreement by a creditor of an estate with the widow and heirs, that all proceedings for the collection of his debt through the instrumentality of the administration shall be abandoned, that the estate may be finally settled and final distribution made, wholly discharged of his claim, and releasing and relinquishing to the widow and heirs of the intestate any claim he may have to share in such distribution, is in effect a complete abandonment and release of all legal claim to have his debt satisfied out of any personal estate which the administrator has reduced to possession, or to which he is entitled as administrator.</p> <p>17. In such case, it can not avail the creditor that a reservation was made in the contract of release, of the right, by other proceedings then pending or thereafter to be instituted, to enforce the collection of Ms claim out of that of the intestate in the assets of certain firms of which the intestate was a member at his death. That interest could be reached by the creditor by due course of administration, and not otherwise, and therefore such reservation is nugatory.</p> <p>18. Same—on the death of a partner—assignable interest of distributees. On the death of a partner, all rights and causes of action growing out of his dealings with the firms of which he was a member, and the right to an accounting with the surviving members of such firms, are by law vested in Ms administrator, and not in his widow and children, and they can not transfer to a third person the right to call on such surviving members for an accounting.</p> <p>19. The widow and heirs of an intestate have an assignable interest in their distributive share of the assets of the estate after the payment of debts; but that interest is wholly distinct from an interest in specific chattels upon which no administration has been had. As to the latter, they have no interest susceptible of assignment, the entire ownership, for all the purposes of administration, being vested in the administrator.</p> <p>20. Laches—delay in attaching an accounting and settlement between surviving partners and the administrator of deceased partner. An unexplained delay of nearly six years after the settlement of a partnership between the surviving members and the administrator of a deceased partner, during which time one of the surviving partners has died and the situation of the others has materially changed, and more or less of the evidence by which the true state of the accounts of the firm could be established has disappeared, will constitute such laches as will bar the widow and heirs of the deceased partner, and their assignee, of their right to attack such accounting and settlement as fraudulent and collusive.</p> <p>21. Supplemental bill—in chancery. Where a supplemental bill is filed setting up a supposed interest acquired pendente lite, and it appears from such bill that the assignment relied on passed no interest to the complainant capable of being asserted either at law or in equity, it will be subject to demurrer. In such case, the complainant will have no newly acquired interest which can be the basis of such a bill.</p>

<p>Appeal from the Circuit Court of Will county; the Hon. Dorbance Dibell, Judge, presiding.</p>

<p>1. Advancement—cannot rest in parol—since the act of 1872. An advancement of a parent, in his lifetime, to his child, can not, since the act of 1872, relating to the descent of property, be shown by the parol declarations of the parent or the parol admissions of the child, that he or she had received his or her share.</p> <p>2. .Under this statute, an advancement can not be created by parol declarations or statements. On the other hand, in order to create a valid advancement, the gift or grant must be expressed in writing as an advancement, or charged in writing by the intestate, or acknowledged in writing by the child or other descendant.</p> <p>3. In 1869, a father, for the expressed consideration of love and affection and one dollar, conveyed a lot of ground to his daughter, of the value of $1000. In 1876 he conveyed to each of two of Ms sons eighty acres of land in Iowa, for the expressed consideration of love and affection and one dollar. In 1886 he executed a will, which was not probated, on account of a subsequent marriage, in and by which he devised to his daughter five dollars, reciting: “She having heretofore received the sum of $1000 in real estate. * * * My several sons all had land and other property to the value of at least $2000 each Held, that the words used in the will were not sufficient to afford evidence of an advancement to the daughter and sons.</p>

<p>Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of DeWitt county; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>1. Divorce—custody of the children. Although the general rule that the custody of the children will be given to the party in whose favor the divorce is granted, is never enforced when the welfare of the chil■dren will be injuriously affected by its enforcement, yet it must be clearly shown that their welfare does really require the abrogation of the rule.</p> <p>2. The right of the father is superior to that of every other person, and can only be made to yield when it is manifestly inconsistent with the health and welfare of the child.</p> <p>3. In this State it may sometimes be proper to give to the mother the custody of the children in case of a divorce, even when the divorce is granted on account of her desertion of her husband.</p> <p>4. The controlling consideration with a court of equity, when both the husband and the wife are equally fit to have the care of the children, is the welfare and best interests of the children, and not the gratification of either parent. In such cases, the custody is often given to the mother when the health or tender years of the children require her care and attention. The common law right of the father to the custody of his infant child will be made to yield to the discretionary power over the subject vested by the statute in the court.</p> <p>5. In this case the considerations are stated which induce the court to give the custody of the oldest son, aged about ten years, to the father, .and the youngest son, aged about seven, to his mother.</p>

<p>1. Juror—question of discharge pending the trial, for supposed prejudice. When a juror was accepted, it did not appear that he was in any manner prejudiced against the defendant. Dining the trial, however, he assumed to cross-examine some witnesses, but there was nothing in the nature of the questions to show that he had become incompetent to discharge the duty of a juror. The defendant’s counsel moved the court to exclude the juror from the panel, which the court refused: Held, no error in overruling the motion.</p> <p>2. Bum op exceptions—what it should contain—of instructions not .copied into the bill. Where instructions given on the trial of a cause are not written into the bill of exceptions, they can not be considered in this court. In this case, the original bill of exceptions was brought up by agreement, but the instructions were not copied therein, though they were sent up with the transcript: Held, that they could not be treated as part of the record.</p>

<p>1. Limitation—act of 1889—'payment of taxes—of an illegal tax. In order to establish title by limitation under the act of 1839,—section 8 of the Revised Statutes of 1845,—the person in possession of the premises under color of title is required to pay all taxes legally assessed on the property for seven successive years. He is not required to pay a void tax.</p> <p>2. In 1873 the legislature passed an act for the levy and collection of city taxes, under which a lot was taxed $5.70, which sum the holder of color of title paid. The courts having adjudged the act unconstitutional, in 1877 the legislature authorized the levy and collection of uncollected back taxes, requiring credit to be given to those who had paid the prior illegal levy. Under this act the city levied a tax on the lot of $6.15, which included forty-seven cents of an illegal tax, being for interest on void city bonds: Held, that the amount paid the city in 1874 was a payment under the act of 1877, and that the holder of the color of title was not bound to pay the illegal tax for interest on city bonds. The credit allowed by the act of 1877, in such case must be taken as applied on the valid taxes, and not on a void tax.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.</p>

Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.

<p>Appeal' from the Circuit Court of Edgar county; the Hon. James F. Hughes, Judge, presiding.</p>

<p>1. Vendos and pubchasek — of the right of rescission—conditions upon which it rests. Where one has obligated himself to convey to* another a fee simple title to a tract of land by a warranty deed, before the vendor can rescind the contract for non-payment of the purchase money, he must not only tender to the purchaser a proper deed, but must also be able to convey a marketable title,—that is, a title not subject to such reasonable doubt as would create a just apprehension, clone that persons of reasonable prudence and intelligence would be willing to take and pay the fair value of the land.</p> <p>2. A person holding land in trust under a will, made a contract for its sale, agreeing to make a warranty deed conveying the title in fee, and to furnish an abstract showing title and his power to sell and convey, tendered his deed after the filing of a bill by the heirs of his testator to set aside the will, and on refusal of the vendee to accept the deed, and perform his part of the contract, the vendor filed his bill to rescind the sale. It was held, that as the vendor was not able to convey such a title as would satisfy the covenants of his agreement, he could not put the purchaser in default by the tender, and demanding performance before the termination of the suit to contest the will, which was his. authority to convey. In such case, no prudent man would accept the deed subject to the doubt and uncertainty cast upon his right to convey by the filing of the bill to set aside the will.</p> <p>3. A contract for the sale and conveyance of land provided that the-vendor, on or before a day named, should make and deliver to the purchaser an abstract showing title and the right to convey, and that if the abstract failed to show a good title, then the cash payment which had been made should be returned to the purchaser and the contract determined: Held, that the clause relating to the rescission of the contract if the abstract did not show a good title, was for the benefit of the purchaser, and that the vendor could not take advantage of it to-rescind the contract.</p> <p>4. A party who seeks to determine his contract by availing himself of a condition therein contained providing for such determination, must bring himself strictly within the terms of such condition. Such a condition is not to be construed liberally, nor enlarged to include facts or circumstances not within its terms, but on the contrary, is, in contracts for the sale of land, to be taken most strongly against the vendor.</p> <p>5. A vendor can not make use of a condition to rescind his contract-for the purpose of getting rid of a duty which attaches to Mm upon the-rest of the contract.</p> <p>6. A trustee under a will made a contract for the sale of a tract of land, and $500 was paid down. The vendor was, by a given time, to furnish the purchaser with an abstract showing title and his right to convey, and if he failed to show a good title, then the $500 was to be returned and the contract to terminate. Independently of this, the vendor covenanted that on performance by the purchaser he was to-convey and assure to the latter a fee simple title. The vendor furnished. an abstract, which on its face showed a good title and right to convey, but in fact there was a bill then pending, filed by the heirs of the testator, to set aside the will, not shown in the abstract: Held, that the vendor had not brought himself within the terms of the condition, although his abstract did not show any defect in his title, and that he could not rely on facts outside of the abstract as a ground of rescission, and further, that he was bound to convey by his covenant to that effect.</p> <p>7. As a general rule, a contract can not be determined or rescinded by a party to it for non-performance of the other party, unless the former is in a position to demand a specific performance.</p> <p>8. Same—waiver of prior performance. Under a contract for the-sale of land, the purchaser was to pay down $500, which was done. The vendor was then, by a certain time, to furnish the vendee an abstract showing a good title and power to convey such a title, and in ten days-thereafter the purchaser was to pay $3500, and execute notes for the-balance of the price, seemed by mortgage, when the vendor obligated himself to convey the title in fee simple. It was also provided, that if the abstract, when furnished, failed to show such title, the $500 was to be returned and the contract to be determined. The abstract was furnished, showing a good title, but failed to show the pendency of a bill to set aside a will, under which the vendor claimed authority to sell and convey: Held, that each party was bound to perform in the order stated,—that the doing of the preceding act required the performance of the succeeding act by the other, and that one party might waive the doing of the preceding act by the other, and proceed to the performance of the succeeding act.</p>

<p>Appeal from the Comity Court of St. Clair county; the Hon. John B. Hat, Judge, presiding.</p>

George W. Stipp, Judge, presiding. This was a petition for partition, brought by Angenette J. Peavey, in which she claims title in fee to an undivided one-fourth of certain lands formerly owned by one J ames Haward.

<p>Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Adams county; the Hon. Charles J. Scofield, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Bock Island county; the Hon. John J. Glenn, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;—> heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.</p>

<p>1. Trusts and trustees—protecting trust estate—equitable lien in favor of trustee. The fact that a person becomes the trustee of another, •of property bought by taking an assignment of the contract oí pinchase, to hold the same in trust, will not preclude him from afterward advancing money, at the request of the cestui que trust, to prevent a declaration of forfeiture of the contract of purchase; and if the trustee makes such advance with, or even without, the request of the cestui que trust, and thereby prevents a loss of the property, he may take the title, with the consent of the cestui que trust, and hold it as security for the money so advanced by him, and have an equitable lien on the property therefor.</p> <p>2. While it may be that a trustee holding the title to a lot in trust for another would be prevented, from his position as such, from demanding that other claims held by him should be tacked on and secured "upon the property to the injury of the cestui que trust, that would in no wise affect his equitable lien for money necessarily advanced by him to protect and preserve the estate of his cestui que trust.</p> <p>3. Resulting trust—in favor of a wife—of money loaned to the husband. Where a wife, after the passage of the Married Woman’s act of 1861, loans her money to her husband, she will become simply his •creditor, and if the husband invests the money so borrowed in the pin-chase of land in his own name, no resulting trust will arise in favor of the wife.</p> <p>4. Mortgage—a transaction treated as such. Where a purchaser of a lot of ground assigns his contract of purchase to another in trust, .and the trustee advances the purchase money, when due, at the request of the cestui que trust, to save a forfeiture, and the vendor conveys the title to such trustee, and transfers to him the notes given for the price, by consent of the cestui que trust, as a security for the repayment of the .sum so advanced, the transaction will, in equity, be treated as a mortgage, and it wiR not concern the cestui que trust to whom the money is •decreed to be paid,—whether to the trustee or his devisee.</p> <p>5. Will—devise of land held in security for a debt passes a right to collect the debt. If a party holding the legal title to land as a security lor the payment of moneys advanced for the benefit of the real owner, devises the land, the devise will carry whatever right the devisor had therein, to his devisee.</p> <p>6. Witness—competency—party to suit, as against one suing as the representative of a deceased person. "Where A transferred his bond for a deed to B, without consideration, thereby making the latter his trustee, and procured B to make payment of the purchase money, and had the vendor convey the property to B, who died, having devised all his estate to G, and the executor of 0 filed a bill against A and his wife to foreclose the deed as a mortgage, it was held, that A was not a competent witness in his own behalf as to any transaction between himself and B, or to testify in his own interest when called by his co-defendant, his wife.</p> <p>7. Same—credibility—declarations and admissions of one of two parties. A bought a lot and procured B, his trustee, to advance $500, the purchase money, and take a deed in his own name. On a creditor’s bill against A, he set up the fact that B had advanced the money at his request, and took the title as a security for its repayment. B died, having devised all his property to 0, who also died. On bill by the personal representatives of B and 0 to foreclose A’s equity of redemption, filed 4igainst A and his wife, the latter set up in defense that the money paid by B was advanced by him to A, and was the money of A’s wife, and A so testified in the case : Held, that A’s answer to the creditor’s bill was ■competent evidence, as tending to affect the credit to be given to his testimony, his attention having been called to the allegations in the cross-bill.</p> <p>8. Husband and wife—husband’s right to Ms wife’s money. Prior to the Married Woman’s act of 1861, the husband had the right to reduce his wife’s money and personal property into possession, and upon doing so, he would become the absolute owner of the same. A loan of money by a wife to her husband before that act took effect, made him the owner thereof.</p> <p>9. Dediveby of deed—a transaction considered. The holder of the legal title to a lot made a deed to another party, but instead of delivering the same, placed it in escrow in a bank, with this direction over his signature on the envelope containing the deed: “To be delivered in case of my death.” Subsequently the grantor revoked the power to deliver the deed, but allowed it to remain with the bank. After the grantor’s death the grantee obtained the deed by replevin, and had the same recorded. No intervening rights were acquired: Held, that the case must in all respects be treated as if the deed had remained undelivered.</p> <p>10. Evidence—will of deceased party to show transfer of property and ■claim of ownership. A party taking the title to a lot as a security for the purchase money advanced, by his will bequeathed and devised the property to F., subject to the condition that in case one S. (the debtor) should, within one year, pay to F. “such principal and interest as shall, at the time of such payment, be due me on an account now open between us, the principal sum and interest thereon, then I authorize and empower said F. to convey said realty to said S., and in said case I give- and bequeath to said F. such sum of money so paid,” etc. The testator, in his lifetime, made a deed of the property to the wife of S., and left it with his banker, to be delivered in case of his death. On bill to foreclose S.’s equity of redemption, the court admitted this will in evidence, over the defendant’s objection: Held, that the will was competent evidence to show complainant’s title by the devise, and that it was-also competent evidence as tending to sustain the contention that the deed had not been delivered to the wife of S., and was not intended to be delivered except on payment of the open account.</p> <p>11. Same—proof that money paid was that of the trustee paying the same, and not that of the cestui que trust. A, the purchaser of a lot-under a bond for a deed or contract of purchase, assigned his contract to B, who paid nothing therefor, and who gave to A a writing showing-he held the property as trustee, for A’s use and benefit. When the purchase money fell due, B, the trustee, paid the same to the original vendor, and took a deed to himself, by the consent of A, and also took up A’s note given for the price, and retained the same until his death : Held, that these facts afforded prima facie evidence that the money paid by the trustee was his own, and not that of A, the cestui que trust-</p> <p>12. Intebest—on money ad/oanced by debtor’s request. Where A, at the request of B, paid off the note of the latter given for the price of a> lot, and, by consent, took the deed from the vendor as security, and also-took up B’s note, unindorsed, bearing ten per cent interest, and the parties treated the money so paid as an advance on open account, it is error for the court, in finding the sum due from B, to allow any greater rate of interest than six per cent. In such case, B’s liability is on an account, and not on the note so 'paid.</p>

<p>1. Ejectment—attorney’s authority—to institute andprosecute the suit. Under the statute, any written recognition of the attorney’s authority to commence an action of ejectment, duly proved as therein provided, is made presumptive evidence of such authority at the time the suit was brought.</p> <p>2. Where a written recognition of an attorney’s right to prosecute an action of ejectment for lands situate in one county, inserts the name of another county as the place where the suit is to be prosecuted, the naming of the wrong county will be regarded as a clerical error, and will be rejected as meaningless. Authority to prosecute such a suit necessarily implies authority to prosecute it in the county where the land lies.</p> <p>2. Same—amendment of declaration—in ejectment. The circuit court has authority, under section 23 of the Practice act, to allow the plaintiff in ejectment to amend the declaration by changing the parties and correcting the description of the land sued for.</p> <p>4. Same—sufficiency of evidence—as to extent of recovery. Proof of . title in A and B, and a conveyance from B to C, and a deed of trust from 0 to D, and his death, leaving the plaintiffs his only heirs, will not sustain a judgment in ejectment in favor of the plaintiffs for the entire interest in the land. At most, such evidence shows a right of recovery only of the undivided half of the land.</p> <p>5. Same—remittitur in Supreme Court—and entry of judgment for the proper quantity. Where judgment is rendered on the first trial in an action of ej e ctment for a tract of land, on proof of title to only an undivided half in the plaintiff, this court will not allow the plaintiff to enter a remittitur, and take judgment for the undivided half of the land.</p> <p>6. Appeals—reviewing facts—in ejectment. On an appeal in an action of ejectment, this court must review questions of fact as well as of law, when properly presented.</p> <p>7. Law and pact—as to effect of a deed. The effect of a deed is a question of law for the court; but whether there is an instrument purporting to be a deed conveying a particular tract of land, is a question of fact.</p>

<p>Appeal from the County Court of Iroquois county; the Hon. H. G-. Bovie, Judge, presiding.</p>

<p>1. Conveyances—separate contract as to payment—the deed and contract construed together. A father conveyed his farm to his son on July 30, for the expressed consideration of $5000, of which one-half was paid down. On the 5th of August following, the son gave the father, for the balance due, his obligation to pay the latter $175 per annum during his life, and as much more as might be necessary to the father’s support and comfort, containing a proviso, however, that the total of such payments or advances should not exceed $2500, and interest thereon : Held, that the contract of the son, and the deed to him, though bearing different dates, were parts of the same transaction, and should be construed together, as they both related to the same subject matter, and were based upon the same consideration.</p> <p>2. Same—contract as to payments—construed—as to liability being discharged after payment in part. A father conveyed land to his son for the expressed consideration of $5000. The son paid $2500 in cash, and gave his written agreement to pay the father, as an annuity, the sum of $175 during the life of the latter, and such further sums as might be necessary to minister to his comfort or satisfaction, but it was therein provided that the total of all such payments and advances should not exceed $2500, and interest thereon. The yearly payments were made during the father’s life, amounting to $1410: Held, that the son was not liable to the father’s estate for the balance of the $2500, or pinchase price, and that his liability was discharged by performance of his written agreement to pay the annuity during his father’s lifetime.</p> <p>3. Same—consideration—as expressed in the deed—whether conclusive. A deed, by expressing a consideration, does not necessarily import that such sum is to be paid by the grantee to the grantor in any event, so as to fix an indebtedness independent of a cotemporaneous agreement of the parties fixing the mode of payment and determining the amount which shall ultimately be paid. It is competent for the parties to agree upon a different consideration, or to agree that the consideration recited in the deed shall be payable only conditionally, and if they do so, and reduce their contract to writing, the same conclusive presumptions will arise as in other cases,—that all the terms of their contract are embodied in the writing.</p>

Writ of Error to the Circuit Court of Will county; the Hon. Charles Blanchard, Judge, presiding. This is an action of ejectment, commenced by Mary E. Sternberg, against Hiram Gould, George Gould and Charles Gould, claiming in fee the north half of the south-east quarter of section 9, in township 32, etc. Pending the suit, Charles Gould died, and his administratrix, Clara Gould, was made party defendant.

Appear from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. A. N. Waterman, Judge, presiding.

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. E. W. Clifford, Judge, presiding.</p>

Writ of Error to the Appellate Court for the First District; —heard in that court on writ of error to the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.

<p>Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Peoria county; the Hon. S. S. Page, Judge, presiding.</p>

<p>1. Pledge—sale of thepledge—before and after maturity—demand of payment—notice to redeem. Ordinarily, when a pledge of property is made to secure the payment of indebtedness, the pledge can not be sold until after the debt is due and demand is made to redeem, and notice is given of the. intention to sell.</p> <p>2. Parties may, however, by contract, agree that in certain contingencies the pledge may be sold before the debt is due, or that it may be sold without previous notice, etc. But in such case, what is the contract must be determined from the language used, and not from a consideration of what would best subserve the interests of the creditor, for the law has no greater regard for his interest than it has for that of the debtor.</p> <p>3. The rule at common law was, that the pledgee must give notice to the pledgor to redeem, before he could sell. The purpose of this notice was to terminate the indulgence and require the pledgor to protect his property, while notice of the sale is to invite competition and secure the best price attainable by a sale.</p> <p>4. Where the sale is only to be made in the event of failure to make payment at the maturity of the debt, it may'be that the pledgor is not entitled to a demand of payment. But when the pledgee elects to sell the pledge before the debt is due, because of the happening of a contingency provided for by agreement, the pledgor is entitled to notice to redeem, and that the pledgee will not wait till the maturity of the debt. A sale without notice, in such case, will not pass the pledgor’s right of redemption.</p> <p>5. Same—sale before maturity—in case of depreciation of pledge “in market value”—worthless stocks. The makers of a promissory note deposited in pledge with the payee certain certificates of shares in a corporation, and also a life policy of insm-ance of one of the makers of the note, calling for $5000. The certificates of stock proved to be counterfeits, and worthless. The contract of the parties provided, that on default of payment of the note at maturity the pledgee might sell the pledge, and also, “in the event of said security, or any part thereof, depreciating in market value,” that the pledgee might, either before or after maturity of the note, sell the pledge, either at public or private sale, and waive any and all notice of the sale to the pledgors: Held, that the words “depreciating in market value,” had no reference to the security of the certificates of stock, for, being worthless, their value could not depreciate; and that a sale by the pledgee before the maturity of his debt did not pass the absolute title, but that the pledgors might redeem the same by payment of the note when due.</p>

<p>1. Specific performance—title in litigation. Where, by the terms of a contract, the vendor is required to make the vendee a warranty deed at the termination of certain litigation concerning the title, the former can not object to a decree, on bill for specific performance, requiring him to convey whatever title he has, although his title has not yet been established in the litigation.</p> <p>2. Laches—to defeat a specific performance. Where the purchaser of land in 1863 was let into the immediate possession, and occupied and improved the premises up to his death, in 1867, and his widow and heirs continued in such possession for twenty years or more, it was held, on bill by the widow and heirs for a specific performance of the contract, that the defense of laches could have no application.</p> <p>3. Statute of Frauds—must he pleaded. The Statute of Frauds must be pleaded, to be available as a defense.</p> <p>á. Same—part performance—to take a case out of the statute. The delivery oí possession of land by the vendor, the payment of the purchase money and the making of valuable improvements on the premises by the purchaser and his heirs, will take a parol contract of sale out of the Statute of Frauds.</p> <p>5. Practice—time to object—want of proper parties—in chancery. After a decree for the specific performance of a contract for the sale of land between the parties thereto, it will be too late to raise the question that the representatives of a third party, deceased, are necessary parties, no such question having been raised by demurrer, plea or answer in the court below.</p>

<p>1. Evidence—declarations of person injured—in suit to recover for the injury—whether of the res gestae. In an action against a city railway company to recover damages for personal injury to plaintiff’s intestate, a boy, causing his death, it was claimed that the boy was thrown from a car and run over. After the boy had got up and walked to the sidewalk and had sat down, he stated, in answer to a question as to what was the matter, that the conductor threw him off the car. These statements were admitted in evidence: Held, that the court erred in admitting evidence of such statements, as they were not a part of the res gestae.</p> <p>2. The declarations of a party before his death, not made at the time of the accident in which he received the injury causing his death, nor concurrently therewith, and which fail to explain or characterize the manner in which the accident occurred, are not admissible in evidence.</p> <p>3. The true inquiry is, whether the declaration is a verbal act, illustrating, explaining or interpreting other parts of the transaction o'f which it is itself a part, or is merely a history, or a part of a history, of a completed past affair. In the one case it is competent, in the other it is not.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. John P. Altgeld, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Egbebt Jamieson, Judge, presiding.</p>

<p>Appeal—what questions to be considered—absence of objections or exceptions. The record in an action of ejectment, which was tried by the court alone, showed no exception to the judgment complained of, and the bill of exceptions mentioned no motion for a new trial, and was silent as to objections or exceptions to the finding of the trial court. The errors assigned in the record Were, that the court erred in its finding of facts and entering the judgment, etc.: Held, that on this state of the record the errors assigned raised no question this court could consider.</p>

Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook •county; the Hon. Henry M. Shepard, Judge, presiding.</p>

<p>1. Trial by jury—in criminal cases—constitutional guaranty—waiver of jury—whether allowable, so as to confer jurisdiction upon the judge. By the constitution of the State, the common law right to a trial by jury in criminal cases is guaranteed, and declared to be inviolable, and the statute requires that, except as therein provided, all trials for criminal offenses shall be conducted according to the course of the common law. It thus seems that the power to conduct criminal trials in any other mode than that which prevailed at common law is necessarily excluded.</p> <p>2. So in a prosecution for a felony, when the plea of not guilty is entered, the right to a jury trial can not be waived by the accused, so as to confer upon the court jurisdiction to try, convict and sentence the defendant without the intervention of a jury.</p> <p>3. It is true, a defendant in a criminal case may waive a trial by jury by plea of guilty. But while he may waive a trial by jury, he can not, by such waiver, confer jurisdiction to try him by a tribunal which has no such jurisdiction by law.</p> <p>4. A jury of twelve men being the only legally constituted tribunal for the trial of an indictment for a felony, it necessarily follows that the court or judge is not such tribunal, and that in the absence of a .jury he has, by law, no jurisdiction. If he attempts to sit as a substitute for a jury, and perform their functions in such eases, his act must be regarded as nugatory.</p> <p>5. Court—for trial of criminal cases—of what officers it must consist. The Criminal Court of Cook county, and the circuit courts, when properly constituted for the trial of criminal cases, and especially for the trial of felonies, consist not merely of a judge, but also of a clerk, a sheriff, a State’s attorney and a jury. The judicial functions brought into exercise in such trials are parceled out between the judge and the jury, and so long as there is no law authorizing it, the functions to be exercised by the jury might just as well be transferred, by agreement of the parties, to the clerk or sheriff, as to the judge.</p> <p>6. Jurisdiction—by consent. It is a maxim in the law, that consent can never confer jurisdiction; by which is meant that the consent of the parties can not empower a court to act upon subjects which are not ■submitted to its determination -and judgment by the law. The law ¡ ■creates courts, and, upon considerations of public policy, defines and limits their jurisdiction, and this can neither be enlarged nor restricted by the act of the parties.</p>

Wbit of Fbrob to the Criminal Court of Cook county. At the March 'term, 1888, of this court, motion was made to this court, in the words following: “And now comes the plaintiff in error Samuel Fielden, and the plaintiff in error Michael Schwab, and the plaintiff in error Oscar W. Neebe, and each for himself says, that in a certain entry upon the records in the above entitled cause, purporting to have been entered on the 14th day of September, A. D. 1887, there is error, and…

<p>1. Taxation and tax titles—levy of a tax by a village to pay town officers. An incorporated village has no power to levy a tax for the payment of the salaries of town officers, and if a village does levy snch tax ’it will be illegal, and will render the judgment in which such tax is included, and a tax sale thereunder, void.</p> <p>2. Same—notice of tax sale and time of redemption—its requisites, under the statute. The statute expressly requires the notice of a tax sale, which may be served or published, to state when the land was purchased, in whose name taxed, the description of the land, for what year taxed or specially assessed, and when the time of redemption will expire; and a. notice which omits any one of these requirements will be absolutely void.</p> <p>3. Same—notice—whether it may include more than one tract. It will not vitiate a notice of the tax purchase and when the redemption will expire, that more than one tract or lot may be included in such notice. The statute being silent on this subject, the purchaser or his assignee may exercise his own judgment on the subject.</p> <p>4. Same—service of notice—upon whom-^who is an “occupant." The placing of a few stacks of hay by a person on a tract of land actually occupied by another, and inclosing the stacks by boards to protect them from the rains, there being no agreement to pay rent, the owner and occupant, however, consenting to the placing of the stacks on the land, is not sufficient to put the owner of the hay in the actual possession or occupancy of the land or any part thereof, within the meaning of section 216 of chapter 120 of the Revised Statutes, entitled “Revenue,” and a purchaser of the land for taxes is not required to serve a notice of his purchase on such person stacking his hay on the premises.</p> <p>5. Same—tax sale of several tracts—in what order to he made. The statute requires the collector, on the day specified in the notice for the sale of lands for taxes, to offer for sale, separately and in consecutive order, each tract of land, or town or city lot, on which the taxes, special assessments, interest or costs have not been paid. The collector has no power to disregard this mandate of the statute, and if he does so, a sale can not be sustained.</p> <p>6. Where the collector,' however, in addition to the general list for taxes proper, has special lists in certain towns fpr delinquent special assessments, he may, in the case of a town where there are two lists, in his discretion, take up either list first and then sell under the other list, and this will not be to disregard the direction of the statute.</p> <p>7. Same—judgment for taxes—how far conclusive. Section 224 of the Revenue act does not make the judgment against the lands for taxes conclusive as an estoppel that the taxes included therein were legal taxes. It shuts out, all objections that might have been urged against the judgment, except in cases of payment, or when the land was not liable to the tax or assessment,—and this embraces illegal taxes.</p>

<p>1. Master and servant—respondeat superior—generally. Where the relation of master and servant exists between a city railway company and a person whose act may be the cause of an injury to another, the company will not be liable," if the servant, in causing the injury, is not acting within the scope of his employment; but the master will be responsible, when the servant acts within the general scope of his employment, for acts done while engaged in his master’s business, with a view to the furtherance of that business, by which injury is caused to another, whether negligently or wantonly committed.</p> <p>2. Same—ejecting passenger from street car—without due care on the part of the servant. If a person is a trespasser upon a street railway car, or is unlawfully riding thereon without the payment of fare, and the conductor undertakes to remove the intruder, he must act in a prudent manner, and exercise due care for the safety of such person; and if he fails to do so, and in consequence thereof such person is injured, the railway company will be liable for the injury.</p> <p>3. CoNTBsnuAN'OE—absence of witnesses. Certain witnesses of a defendant, duly subpoenaed, failed to appear when he had finished his other evidence, and he asked time to procure the absent witnesses. The court refused to delay longer than fifteen minutes. On motion for a new trial, the defendant, by affidavit, showed these facts, and the materiality of the testimony of the witnesses, but failed to show that the absence of the witnesses was not by his consent: Held, that for this omission alone the defendant failed to make a proper showing.</p>

<p>Writ op Error to the County Court of Du Page county; the Hon. Charles A. Bishop, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Kankakee county; the Hon. Alfred Sample, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Mubbay F. Tuley, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Livingston county; the Hon. N. J. Pillsbuby, Judge, presiding.</p>

<p>1. Practice—directing what the verdict shall he. If there is evidence on the part of the plaintiff tending to prove the issues involved, it is not proper to take the case from the jury by an instruction to find for the defendant. ”</p> <p>2. Where a right of action fairly depends upon the effect or weight of testimony, the case is one for the consideration and determination t of the jury, under proper directions as to the principles of law involved. It should never be withdrawn from them unless the testimony be of such a conclusive character as to compel the court, in the exercise of . a sound judicial discretion, to set aside a verdict returned in opposition to it.</p> <p>3. Fellow-servants—question of fact for the jury. In an action against a railway company, to recover for the death of a conductor on the defendant’s road, caused by the negligence of another servant in charge of a semaphore, the defendant asked, and the court gave, an instruction embodying the rule as to the liability of a master to one servant for an injury caused by the negligence of a fellow-servant, which was numbered. 1. The defendant asked the court to submit this question : “At the time of the accident causing S.’s death, did the usual duties of S., and T., the semaphore attendant, bring them habitually together, so that they could exercise a mutual influence upon each other promotive of proper caution?” The court submitted the same, with this addition: “So as to make them co-employes in the same line of employment, as explained in defendant’s instruction No. 1 Held, no error in the modification of the question, as it did not require the jury to pass upon the law.</p> <p>4. Verdict—general verdict, and special findings—whether inconsistent. A special finding of a jury that the employes of one of the defendant railways, in charge of its train when it crossed the track of another road, were not guilty of negligence that materially contributed to the injury, is not inconsistent with a general verdict finding both the defendants guilty of negligence contributing to the injury, where the negligence charged and proved was, that the agent of both companies defendant failed to properly manage the semaphore and so signal as to prevent a collision, such agent not being an employe having charge of the train.</p> <p>5. Instruction—as to a question of fact. Where there is proof, in an action against two railway companies, that an agent, guilty of negligence, was employed and paid by both companies, and operated a semaphore or signal in the interest or service of both companies, it is proper to refuse an instruction that such agent was not the agent of one of the companies, but was that of the other company.</p>