Volume 129 — Illinois Reports

Gwynn Gabnett, Judge, presiding. H. W. Allen was for some time engaged in a general grocery business in Belvidere, Boone county, where he resided. He had become indebted to various parties, among others to Du-rand & Co. in the sum of $2117; to Levi Mason, an uncle of his, in the sum of $1400; to Gray, Kingman & Collins in the sum of $439.52; to E. B. Millar & Co. in the sum of $56.80.

<p>Appeal from the County Court of Cook county; the Hon. Elbert H. Gary, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of DeWitt county; the Hon. George W. Herdman, Judge, presiding.</p> <p>November 15, 1855, John P. Mitchell purchased at the United States government land sales, the south half of the south-east quarter and the south-east quarter of the southwest quarter of section 27; and Clifton H. Moore the southwest quarter of the south-west quarter of the same section, in town 19 north, range 3 east; and on February 20, 1856, Thomas J. Bunn was allowed to enter the same lands as a pre-emptor, he claiming to have made settlement and placed improvements thereon, beginning November 8, 1855. February 22, 1856, Thomas J. Bunn and wife mortgaged this land to his father, Lewis Bunn, to secure a loan of $1000, payable in three years, with six per cent interest. Mitchell and Moore contested the right of Bunn to pre-empt the land before the register of the land office, and upon hearing, January 20,1858, the register held that the contestants had failed to make out their case, and sustained Bunn’s entry, and finding that the entries by Moore and Mitchell should be cancelled. They appealed from this decision to the Commissioner of the General Land Office, who reversed the decision of the register, and ordered the entry of Bunn to be cancelled, and that patents issue to Moore and Mitchell for the respective tracts purchased by them. While the case thus stood, on February 1, 1859, a patent was issued to Moore for the south-west quarter of the south-west quarter of said section 27, but none was issued on the Mitchell entry. Shortly after the decision by the commissioner, an appeal was taken by Bunn to the Secretary of the Interior, who, on June 22, 1860, reversed the decision of the commissioner, reinstated the decision of the register, ordered the patent issued to Moore to be returned, and a patent to issue to Bunn for the whole of his entry. Application was made to the Secretary of the Interior, August 23, 1868, to re-open said cause, and for rehearing. The application was denied on the 11th day of September, 1868.</p> <p>In the spring of 1862, Thomas J. Bunn, being desirous of selling the land, and Lewis Bunn wanting his money, offered to sell the land to Bufus W. Bobbins, and Bobbins proposed to purchase the same. It is contended by Bobbins, that before he would purchase he went to Mitchell and asked him if he had any claim on the land, saying, if there was any dispute about the title he would have nothing to do with it. Bobbins testifies, that in answer to such inquiry Mitchell said he had had a lawsuit about the land with Bunn, but that Bunn had beaten him, and that he (Mitchell) did not have any claim on the land, and for him (Bobbins) to go ahead and buy it. Bobbins alleges that on this assurance of Mitchell he bought the land of Bunn and paid the entire purchase money, and that, acting under the advice of counsel, instead of taking a deed at that time from Bunn, he took an assignment of the mortgage from Thomas J. to Lewis Bunn, counsel advising that he had better get his title through the foreclosure of said mortgage.</p> <p>There is considerable conflict in respect of what occurred, but it would seem that Bobbins is corroborated, to a greater or less extent, by the testimony of the two Bunns. Bobbins also claims that Mitchell, at the time of the conversation before •referred to, expressed a willingness to quitclaim any interest he might have in' the property to the Bunns, and that on the day when he (Bobbins) purchased the land of Bunn, taking an assignment of the note and mortgage before referred to, there was present, in possession of one of the Bunns, a deed executed by Mitchell and wife, conveying the property to Bunn, but which, upon the statement by Bobbins that Mitchell had disclaimed any interest in the land, he was advised was unnecessary, and which, acting under the advice of counsel, Bunn then destroyed. The corroboration in respect of said deed comes from Thomas J. Bunn alone, who does not remember anything more than that a paper was present, which, on the back, purported to be a deed from Mitchell and wife to this land. It is shown, however, that some time prior to the sale to Bobbins, conversations took place between Lewis Bunn and Mitchell. In these conversations Mitchell expressed himself as tired of litigating in respect of this land, and offered to quit if Bunn would pay the costs that had accrued in the litigation before the governmental departments. It is also shown that Bunn subsequently paid about $300 costs therein, but it is not shown that they were Mitchell’s costs, and, on the other hand, it is not shown or claimed that Mitchell paid any costs. In respect of the execution of the deed by Mitchell, there is a sharp conflict in the evidence.</p> <p>On April 11,1866, Bobbins filed his bill in the DeWitt circuit court, to foreclose the mortgage from Thomas J. to Lewis Bunn, making Thomas J. Bunn and wife, and Moore, parties-defendant. Moore answered, setting up his title to the forty-acres in the south-west quarter of the south-west quarter of section 27, and disclaiming as to the residue of the land. On April 10, 1868, Robbins, by leave, amended his bill, making David Davis a party defendant, alleging that said Davis claimed title to the south-east quarter of the south-west quarter of said section under a sale on execution against Mitchell, and a deed thereon, and sought to have Davis’ title set aside as a cloud on his title, and also alleging the issue of a patent to Moore, by inadvertence or mistake, for the south-west quarter of the south-west quarter of said section, and sought to compel Moore to convey the title thus acquired, to him, Robbins. Davis and Moore both answered, denying the validity of Bunn’s entry as a preemptor, and claiming that the entries by Mitchell and Moore were valid.</p> <p>At the November term, 1869, the court rendered a decree of foreclosure, in the usual form, against all the land, except the south-west quarter of the south-west quarter of section 27, patented to Moore, and dismissed the bill as to him and as to-said tract. Prior to the rendition of this decree, and on April 8, 1868, Thomas J. Bunn and wife, by their deed, conveyed all said land to Robbins, which said deed was recorded November 10, 1868. On appeal of Robbins to this court, the decree in the case of Robbins v. Bunn et al., before mentioned, was reversed, and the cause remanded, this court holding that the decision of the Secretary of the Interior was conclusive as-to Moore, and that Robbins was entitled to a decree against the whole of the land. (Robbins v. Bunn et al. 54 Ill. 48.) Without further action in the State courts, Moore and Davis, by writ of error, took the case to the Supreme Court of the United States, where the writ was dismissed for want of jurisdiction, that court holding there was no final judgment in this court. (18 Wall. 588.) In the meantime, the cause was re-docketed in the circuit court of DeWitt county, and such proceedings had, that on March 17, 1874, a decree was entered in favor of Bobbins, in accordance with the opinion of this court. Moore and Davis appealed from that decree to this court, and the decree of the court below was affirmed. Moore and Davis then sued out a writ of error from the Supreme Court .of the United States to this court, on which writ of error the judgment of this court was reversed, and the entry of Bunn held to be invalid and the entry of Moore and Mitchell good. (6 Otto, 530.) On the remanding order being filed, this court reversed its former ruling and the decree of the circuit court, and remanded the cause. Prior to the entry of the decree last mentioned in the circuit court, and on March 7,1874, a patent was issued by the United States to Thomas J. Bunn for all of said land, being the south half of the south-east quarter and the south half of the south-west quarter of said section 27, and on May 16, 1874, Thomas J. Bunn and wife, by their quitclaim deed, conveyed all their right and title in the premises to Bobbins.</p> <p>On December 25,1874, Mitchell died, leaving a widow and three children, his only heirs-at-law. Mitchell was at no time made a party to the bill of Bobbins, or in anywise connected of record with that litigation. After the decision of the Supreme Court of the United States holding the Mitchell entry valid, and on March 3, 1879, Clifton H. Moore and Vespasian Warner procured a quitclaim deed from the widow and heirs of Mitchell for the south half of the south-east quarter of said section 27.</p> <p>Before the purchase by Moore and Warner, March 3,1879, Bobbins borrowed of William L. Gilbert and Henry Gay $500, and to secure the payment of the same, made, executed, acknowledged and delivered his deed of trust to Hudson Burr, trustee, on the said south half of the south-east quarter of section 27, which loan matured May 1, 1879, with interest. The date of this trust deed from Bobbins to Burr, was April 30, 1878, and which was recorded the same day.</p> <p>August 6, 1879, Davis filed Ms cross-bill, seeMng to set aside the patent to Bunn -as to the south-east quarter of- the south-west quarter of said section 27. September 11, 1879, Moore and Warner obtained leave of the court to intervene and answer, and also to file their cross-bill. On the day following, (September 12,) Bobbins amended his bill by striking out so much thereof as pertained to the south half of the south-east quarter of section 27, leaving only so much of the bill as sought to foreclose said mortgage on the south half of the south-west quarter of section 27. The effect of this amendment was to leave in controversy the south-west quarter of the south-west quarter of section 27, patented to Moore, and the south-east quarter of the south-west quarter,—the tract claimed by Davis.</p> <p>On October 1,1879, Moore and Warner filed their cross-bill, in which they charge that Mitchell was never made a party to the original bill,, and never appeared in the cause; the conveyance, by his widow and heirs, to them, of the eighty acres, the south half of the south-east quarter of said section 27, and showing the invalidity of the Bunn title, and praying that the title and interest held by each of the respondents to said tract might be conveyed to them, and that all deeds and patents purporting to convey said eighty-acre tract of land to Bunn, and from Mm to the other defendant, etc., be cancelled and set aside. The answer of Bobbins to this cross-bill, among other things, set up in defense the twenty-years’ Statute of Limitations, possession and payment of taxes under color of title for seven successive years, and the declarations and statements of Mitchell in his lifetime, whereby Bobbins was induced to purchase from Bunn, etc., as an equitable estoppel, and also that said Mitchell had made a deed to Bunn, which was alleged to have been lost or destroyed. The answer of Gilbert and Gay adopts the answer of Bobbins as their own, and sets up in addition their loan to Bobbins and his deed of trust on the premises securing the- same, in good faith relying upon the record and possession by Bobbins, and their right to foreclose as against Bobbins, etc.</p> <p>On the hearing, December 15, 1882, Bobbins dismissed his original bill. Thereupon the respondents to the cross-bill of Davis came into open court and admitted the right of Davis to the relief asked therein, and a decree was rendered on the cross-bill of Davis accordingly, affecting only the south-east quarter of the south-west quarter of said section 27. The cause was then heard on the cross-bill of Moore and Warner as to the eighty acres the south half of the south-east quarter of section 27, the answers of Bobbins, Gilbert and Gay thereto, replications, and the proofs, from which the court found all the material allegations of said cross-bill to be true, and rendered a decree setting aside the patent to Bunn for said tract of land, as having been illegally and fraudulently obtained, and ordered respondents, Bobbins, Gilbert and Gay, to convey all their interests in said land to Moore and Warner, and that Bobbins pay the costs. Bobbins, Gilbert and Gay bring the case to this court by writ of error, and seek to reverse the decree of the court below so far as it rendered relief upon the cross-bill of Moore and Warner.</p>

<p>Appeal from the Appellate Court for the First District;—■ heard in that court on appeal from the Probate Court of Cook county; the Hon. J. C. Knickerbocker, 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. O. H. Hobton, Judge, presiding.</p>

<p>Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Kane county; the Hon. Isaac Gf. Wilson, Judge, presiding.</p> <p>This was a bill to redeem from an instrument absolute on its face, but alleged to be a mortgage. The circuit court, on hearing, decreed that the bill be dismissed. That decree was, on appeal to the Appellate Court for the Second District, reversed, and the cause was remanded to the circuit court, with direction to enter a decree in conformity with the opinion then filed. The case is sufficiently presented in the opinion of the Appellate Court by Mr. Justice Smith, which is as follows:</p> <p>“This was a bill brought hy John Lynch, appellant, against D. B. Jackson and others, appellees, to redeem from a mortgage certain premises described, and for an accounting as to rents and profits.</p> <p>“The facts, as disclosed by the record, are these: o Prior to the 21st day of August, 1877, John Lynch, and S. L. Jackson, the father of D. B. Jackson, had business transactions, resulting in Lynch becoming indebted to Jackson upon different promissory notes, some of them secured upon the property now in controversy. These notes had become past due, and were doubled up on one or two occasions, and renewed, and constantly growing, and no part of principal or interest being paid until on August 21, 1877, they reached the sum of $1850, principal and interest. Samuel L. J ackson then notified Lynch that he would wait no longer for his money, and that it must be at once paid, or he would throw him out of the property covered by the mortgage in thirty days. Jackson proposed to Lynch to deed him the property in satisfaction of the debt. Lynch declined to do it, begging further time, which J ackson positively refused to give. Lynch and Jackson spent the whole of the twenty-one days of August trying to adjust the matter. They finally came together, and it was agreed that Lynch and his wife would execute an absolute deed for the premises to Jackson, and that Jackson would obligate himself to re-sell the property to Lynch at the expiration of two years, on condition of Lynch paying up the $1850, with interest. This contract, thus executed, was as follows:</p> <p>“ ‘Articles of agreement made this 21st day of August, in the year of our Lord one thousand eight hundred and seventy-seven, between Samuel L. Jackson, of the city of Aurora, Kane county, Illinois, party of the first part, and John Lynch, of the same city, county and State aforesaid, party of the second part:</p> <p>“ ‘ Witnesseth, that the said party of the first part hereby covenants and agrees that if the party of the second part shall first make the payments and perform the covenants hereinafter mentioned on his part to be made and performed, the said party of the first part will convey and assure to the party of the second part, in fee simple, clear of all incumbrances whatever hereafter accruing, by a good and sufficient warranty deed, the following lot, piece or parcel of land, viz., situated in the city of Aurora, Kane county and State of Illinois, and described' as follows: Commencing at a point twenty-two feet northerly from the south-easterly corner of lot No. 6, in block 5, of the original plat of West Aurora, as recorded, and running westerly sixty feet at right angles with River street; thence northerly along the east line of lands heretofore belonging to W. V. Plum, twenty-one feet; thence easterly to River street; thence southerly twenty-one feet to the place of beginning,—and being all and the same this day deeded from the said John Lynch and his wife to me, the said Samuel L. Jackson, and being the store and lands on said River street. And the said party of the second part hereby covenants and agrees to pay to said party of the first part the sum of one thousand eight hundred and fifty-two dollars ($1852) two years from the date of these presents, with annual interest at ten per cent per annum, according to the tenor of one certain promissory note executed by said John Lynch, and payable to the said party of the first part two years after date thereof, with annual interest at ten per cent per annum, dated the 21st day of August, 1877, and for the same sum above mentioned, to-wit, the sum of $1852. And in case of the failure of the said party of the second part to make said payments of interest or principal, or perform any of the .covenants on his part hereby made and entered into, this contract shall, at the option of said party of the first part, be forfeited and determined, and the party of the second part shall forfeit all the payments by him made on this contract, and such payments may be retained by the party of the first part in satisfaction and liquidation of all damages by him sustained. And it is further mutually covenanted and agreed by and between the said parties, that said party of the first part shall take, keep and retain the possession, occupancy and control of said lands and premises during the continuance of this contract, with a right to rent or lease the same. And it is further mutually agreed, that the said party of the first part shall pay all taxes due, past due and to become due on said premises, and also make all necessary repairs on said lands and premises, and shall, from the rents received from the same, pay and liquidate such repairs and taxes, and apply any surplus upon the note above described; and for any surplus of expenses for repairs and taxes over the rent that may be received, the party of the second part shall be liable to the party of the first part as a further indebtedness under this contract, to be paid, with ten per cent interest thereon, at the expiration of the time expressed for the payment of the principal of said note. And it is also mutually agreed, that the party of the first part may get the premises insured for his own benefit, to the amount not to exceed $1500, during said two years, and the costs and expenses of which shall be a further indebtedness under, and subject to, the terms of this contract.</p> <p>“ ‘It is mutually agreed that all the covenants and agreements herein contained shall extend to and be obligatory upon the heirs, executors, administrators and assigns of the respective parties. S. L. Jackson, [L. S.]</p> <p>John Lynch. [L. S.]’</p> <p>“This contract and the deed and notes were all signed and delivered at the same time, and was all one transaction. It is manifest that the contract was a mere defeasance to the deed, and that the deed, though absolute in form, was intended only as a security for the debt, and was but a mortgage. The terms of the contract are so clear and conclusive upon that point that no discussion could make it plainer. The law upon this subject is so well settled that the citation of authorities in its support seems but a useless ceremony, and we shall content ourselves with the citation of a single case,—Snyder v. Griswold, 37 Ill. 216. Indeed, we do not understand appellees as making any serious contentions that this was not a mortgage. They rest their defense upon the ground of laches and estoppel. S. L. Jackson took possession, made repairs, paid the taxes and received the rents. At the end of two years Lynch failed to pay the note. Neither he nor S. L. Jackson gave the matter any attention. Jackson remained in possession until his death, which occurred about one year after the note became due. About a month before his death he made a will, dividing his property up among his children, and gave this property in dispute to his son, D. B. Jackson, who immediately went into possession, and remained in possession, treating the property in all respects as his own until this suit was brought.</p> <p>“Appellant, Lynch, filed this agreement of defeasance for record immediately after it was made and delivered to him. Taking the property as a gift, and chargeable also with notice of what the recorded contract contained, D. B. Jackson holds the property precisely as his father held it, and can claim no exemptions or rights in relation to the property which his father could not have claimed. This contract notified him, that he was holding and improving the property and collecting rents as a mortgagee, whose duty it was to apply all above repairs and taxes on appellant’s note. He went into possession under this mortgage, and remained in possession with full legal knowledge of the obligations to apply all in excess of taxes, interest and repairs, on this note. He can not claim that he was innocently and ignorantly making these improvements, and that appellant was standing by and permitting him to improve his property without informing him of his rights. Appellant contracted in this defeasance that his note might be paid by the rents unless Jackson elected to declare a forfeiture on failure to pay the note. There is no proof that such a forfeiture was ever declared. It is a maxim of the law, that ‘once a mortgage is always a mortgage until it is satisfied.’ Miller v. Thomas, 14 Ill. 428.</p> <p>“If this property had once passed into the hands of a stranger, for a valuable consideration, without actual or constructive notice of this defeasance, then very different questions would arise. But here the constructive notice to appellees, of the rights of appellant, is clear, and the strong probabilities are that he had actual notice of the nature of the transaction between his father and appellant. But constructive notice is as effectual to protect appellant’s right as actual notice. Appellee’s position, then, as well as that of his father before him, was simply that of a mortgagee in possession,—nothing more, nothing less,—the father with actual contract knowledge of that fact, and the son, being but a volunteer, took it chargeable with its burthens in his father’s hands, with the added constructive knowledge the record gave him,—that the only rights he had in the property were those of a mortgagee, and that under the defeasance he might declare a forfeiture and foreclose the mortgage, or he might waive the forfeiture and continue in possession, under the terms of the defeasance, until the note, with its accruing interest, was paid with the surplus rents over taxes and repairs, and then surrender back the premises to appellant. This, in our judgment, was the clear legal effect of that defeasance.</p> <p>“Finding, as we do, that this was a mortgage, the only remaining question for us to determine is, has anything intervened to prevent appellant having the. right to redeem. The appellees urge that he has lost this right by his delay in bringing his bill, and by estoppel. In this State no definite rule was ever laid down as a limitation of time upon the right of mortgagors to redeem from mortgagees in possession, until the case of Locke v. Caldwell, 91 Ill. 417, came before the Supreme Court, in 1879. Prior to that time the cases involving that question seemed to be determined, not so much upon any statute of limitations, as upon the circumstances and equities surrounding each particular case.</p> <p>“In the case above referred to, of Locke v. Caldwell, the court holds that the law of limitations as to the right of a mortgagee to foreclose, and that of a mortgagor to redeem, are mutual. The question there arose as to the right of a mortgagor to redeem a certain town lot, and also certain other lands, upon a bill filed for that purpose. The court uses this language: ‘It is the well settled general rule, that twenty years’ possession by the mortgagee without account or acknowledgment of any subsisting mortgage, is a bar to the equity of redemption, unless the mortgagor can bring himself within the provisions of the Statute of Limitations. (Demarest v. Wynkoop, 3 Johns. Ch. 129.) In Harris v. Mills, 28 Ill. 44, this court has held, that when the note secured by the mortgage was barred after sixteen years, the mortgagee would also be barred. The general rule which has been stated as to twenty years’ possession by the mortgagee barring the equity of redemption, is reciprocal, and the mortgagee be equally barred by the lapse of time.’</p> <p>“In this case the court quotes with approval the language of Chancellor Kent in Moore v. Cable, 1 Johns. Ch. 386, where he declares the rule to be, that twenty years’ actual possession by the mortgagee is necessary to bar the equity of redemption in the mortgagor. And the same doctrine was held in Bollinger v. Choteau, 20 Mo. 89. There a bill to redeem was filed thirty-six years after the mortgage was made, and sixteen years had elapsed after the mortgagee had taken possession. ‘In general, the respective rights of the mortgagee and mortgagor, with regard to foreclosure on the one hand and redemption on the other, are treated as mutual—that is, the existence of the former is held to involve that of the latter, and vice versa; and the fact that the one can not be legally enforced, under the circumstances, is regarded as sufficient to preclude a claim for the other. It is said the right to redeem and foreclose are reciprocal and commensurable. 2 Hilliard on Mort. sec. 2.’ And in this same ease the court refused to apply the doctrine of statenus and laches, which was there urged, as it is urged here, under the rule laid down in 2 Story’s Eq. Jur. sec. 1520, as being a defense peculiar to courts of equity, and founded upon mere lapse of time and the staleness of the claim, in cases where no statute of limitations directly governs the case.</p> <p>“We understand the above case of Locke v. Caldwell, from which we have quoted, as holding that the right of redemption is not barred by a less time than the right of foreclosure,— which, under the statute in force when the note in question here was made, would be ten years. This bill was filed in a little over five years after the note was due.</p> <p>“Counsel for appellees cite us to a great number of cases where equitable relief has been denied on the ground of laches, and to many cases where the right to redeem has been refused for the same reason. It is said that Bush v. Sherman, 80 Ill. 160, is an authority against appellant. In that case the mortgagor executed a trust deed, with a power of sale, and then voluntarily went into the great rebellion, and joined himself to the enemies of his country, and while absent the premises were sold under the power. When he returned, after the war, he filed a bill to set aside the sale, alleging that the power was not executed in strict conformity with the deed of trust. There was no question of the right of redemption involved. The court held that his delay was inexcusable for the purpose of setting aside a sale for mere irregularity.</p> <p>“In Cleaver v. Green, 107 Ill. 68, it was held that five years’ lapse of time would bar a right to set aside a sale made under a trust deed, with a power of sale, for mere irregularities in the sale. No question of the right of redemption was made, further than that such right would result from setting aside the sale.</p> <p>“In Beach v. Dyer, 93 Ill. 295, the bill was to declare a trust and enforce specific performance, and complainant’s laches was held a bar.</p> <p>“In Williams v. Rhodes, 81 Ill. 572, the bill was to set aside an execution sale after the lapse of five years, and the relief was denied on account-of the lapse of time.</p> <p>“In Maher v. Farwell, 97 Ill. 56, the bill was filed, as in the case at bar, to redeem from an alleged mortgage, in the shape of a deed absolute on its face. The bill set up a parol agreement, made about the time of the conveyance between Maher and Farwell, to the effect that a deed absolute should be made to Farwell, and that upon the payment of a note of $1700, which Farwell held against Maher, the land should be conveyed back to Maher. The bill to redeem was filed some thirteen years after the date of the deed and the alleged parol agreement, and the relief was denied. The court, in that case, seems to place the chief ground for refusing the relief prayed for, on the failure of Maher to prove his bill by clear and satisfactory evidence after so great a lapse of time. It is true, -the court says that Maher had shown no sufficient reason for -the long and extraordinary delay in bringing his suit, and until the facts connected with the transaction had faded from the memory of the witnesses, or the witnesses died or left the country. So far as can be gathered from this ease, the attention of the court had not been called to its previous deliberate judgment in Locke v. Caldwell, 91 Ill. 417. The remark as to the lapse of thirteen years seems to be incidental to the main point of the decision holding that the parol defeasance was not sufficiently proven, and that it was dangerous to place too much weight on the memory of witnesses after the lapse of so many years. These observations of the court could have no application where the defeasance was in writing and under seal, and where there could be no question about the fact of the defeasance being made, as in the case before us. That and this case, in that important respect, are wholly different.</p> <p>“But aside from the grounds upon which we have so far considered the case, and found that appellant has the right to redeem, we are not disposed to hold that appellant would not have the right to redeem from the mere lapse of time. It is evident, from the record, that his financial condition made it difficult, if not impossible, for him to raise so large a sum of money, and that for him to have made application to redeem without the money to do so would have been an idle ceremony. He might well rest on the presumption that his debt was being paid by the rents, and that it was much better for him to let it remain in that condition until the debt was paid, than for him to repossess himself of it, and again begin the struggle to pay the debt himself, which he had so successfully failed to-do before he executed the-mortgage and let the mortgagee into possession. We think the delay was not so great or unreasonable, under the circumstances, as to justify a court of equity in now withholding the right to redeem on the mere ground of laches, even if there were no better ground upon which to place-the right to redeem. <=</p> <p>“For the reasons above given, we think the court erred in. dismissing complainant’s bill. The decree will be reversed, and the cause remanded, with directions to the court to set aside the order dismissing the bill, and to grant a decree allowing complainant to redeem, and to refer the case to the master to state an account of the amount due on the note, and also-of the rents and profits received by the appellees, together with taxes and insurance paid, and the reasonable and necessary repairs made, and at the end of each year to credit the note with the surplus, if any, of rents over taxes, insurance and necessary repairs, etc., or for each succeeding year. If there is any balance found due complainant he will be entitled to a decree for that amount, and if there be any balance found due appellant he will be entitled to a decree against the party having had possession of the property, for such balance.”</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>Appeal from the Appellate Court for the Second District;— heard in that .court on appeal from the Circuit Court of Ogle county; the Hon. C. W. Upton, Judge, presiding</p>

<p>1. Contbacts-—unilateral contract—question of mutuality•—of elements essential to its binding effect. A promise for a promise is not a good consideration unless there is mutuality, so that each party may hold the other to the performance of his engagement. But it does not follow that a contract in writing, to be complete, must show such mutuality on its face.</p> <p>2. In the case of a unilateral contract, the party making the promise is bound to nothing unless the promisee, within a reasonable time, engages to do, or else does or begins to do, the thing which is the consideration of the first promise. Until such engagement, or such doing, the promisor may withdraw his promise, because there is no mutuality, and therefore no consideration for it.</p> <p>3. But after an engagement on the part of the promisee which is sufficient to bind him, then the promisor is bound also, because there is then a promise for a promise, with entire mutuality of obligation. So if the promisee begins to do the;, thing in a way which binds him to complete it, there is also a mutuality of obligation. And if, without any promise whatever, the promisee does the thing required, then the promisor is bound, on the ground that the thing done is itself a sufficient and complete consideration, and the original promise to do something if the other party will do something, is a continuing promise until the other party does the thing required of him.</p> <p>4. A promise lacking mutuality at its inception becomes binding on the promisor after performance by the promisee, and other proof of assent on his part is not necessary. It is. sufficient if the required act is performed by him.</p> <p>5. Where one party gives another a written promise or offer to sell his bonds at a given price, or make them realize the promisee such price upon the latter doing certain other things, proof of an express acceptance of the offer is not necessary to bind the promisor. Performance or part performance by the promisee, in such a way as to compel him to complete it, is sufficient.</p> <p>6. Where a party was induced to do certain work, and accept in payment $50,000 of municipal bonds, upon the written agreemen t of a third person to sell the bonds for the former for a given sum on certain conditions, and if they should sell for less, to make up the deficit, and have all that might be realized above that sum for his services in selling, it was held, that the party so promising to sell for the amount stated could be held liable in either of three ways: First, by the other party engaging, within a reasonable time, to perform the contract on his part as to the conditions; second, by beginning such performance in a way that would bind him to complete it; and third, by actual performance.</p> <p>1. Same—parol evidence to show performance. Where a party promised another, in writing, to sell for the latter certain municipal bonds within a specified time after they were placed in his hands, with certain evidences of their validity, for a certain per cent of their face value, and make up the deficit in case of a sale for less, and to have any excess above that price for his services, it was held, that parol evidence of the performance of the conditions by the promisee was competent.</p> <p>8. Measure oe damages—breach of contract for sale of securities at a stipulated price. The market value of property is resorted to for the purpose of obtaining the compensation to be paid to the injured party for a breach of contract, for the reason it is presumably the true value. If there is no market value, the real value is to be ascertained from such evidence of value as is attainable. The real value of municipal bonds may be shown by proof of the highest attainable selling price.</p> <p>9. So in an action for the breach of a contract, in which the defendant guaranteed the sale of bonds at a certain price, when they sold for less than the price guaranteed, the court instructed the jury, that if they found for the plaintiff, to allow him the difference between the highest attainable selling price and the amount guaranteed by the defendant, with interest at six per cent from the time fixed for the sale by the parties: Held, that there was no error in the charge.</p> <p>10. Same—interest—as an element of damages—on neglect to make sale ■of securities for (mother. Where a person employed to sell municipal bonds guarantees a sale at a certain price within a given time after they come to his hands, and they are sold for a less price, which was the highest attainable one at the time of the sale, the owner of the bonds will be entitled to recover of the guarantor the difference between the selling xn-ice and that guaranteed, with six per cent, interest on the difference from the time the sale should have been made.</p> <p>11. Guaranty—principal and agent—sale of securities—notice. Where an agent employed to make sale of bonds guarantees a sale within a given time at a certain price, and fails to perform on request, the princrpal may sell the bonds at the best xirice he can get, without notice to the agent, and hold him for the difference in the price, with interest.</p> <p>12. Limitations—whether a contract is verbal or written If an agreement, as set forth in writing, is so indefinite as to require resort to xiarol testimony to make it complete, it will be treated as an oral contract, in applying the Statute of Limitations.</p> <p>13. Where one party alone signs a written agreement to do a certain thing when the xiromisee shall do some other act or thing, if the latter relies alone upon his engagement to perform on his part, the contract will be treated as oral, and the cause of action will be barred in five years; but where he relies upon actual xierformance, the cause of action will be barred only within ten years.</p> <p>14. It does not follow because proof of performance is necessary to hold the promisor liable uxion his unilateral written contract, that such contract is xiartly in parol.</p> <p>15. Instbuction—must be based on evidence. An instruction based on a hypothesis, wholly unsupxiorted by the evidence, is properly refused.</p> <p>16. Hew tbial—newly discovered evidence. To obtain a new trial on the ground of newly discovered evidence the xiarty must show due diligence to discover and xiroduce the new evidence, and it must be decisive in its character, and not merely cumulative.</p>

<p>1. Cbiminal law&emdash;murder&emdash;what constitutes. If there be an old quarrel between A and B, and they are reconciled, and then, upon a new and sudden falling out, A kills B, this is not murder; but if it is made to appear that the reconciliation was but pretended or counterfeit, and that the hurt done was upon the force of the old malicej it is murder. The act shall be attributed to passion produced by provocation, and not to the old grudge, if it appears the old grudge had ceased.</p> <p>2. Same&emdash;provoking an assault&emdash;with intent to kill the assailant. Whether a person accused of having committed murder formed a deliberate purpose to kill the deceased, and went to the house of the latter and insulted his wife with the design of inciting the deceased to an attack, so as to have a pretext for killing him in the conflict, is a question within the exclusive province of the jury to determine from the evidence.</p> <p>3. Same&emdash;self-defense. On the trial of one upon the charge of murder, in a case where the deceased sought the accused at his own house, entered the same in a violent manner and attacked him, the wife of the deceased accompanying him and joining in the attack, theyboth using deadly instruments in their assault, it is the province of the jury to determine whether the occurrences which took place in the prisoner’s house were such as to justify the plea of self-defense, when considered by themselves, without reference to anything which had happened prior to the beginning of the fight.</p> <p>4. Same&emdash;threats. Where provocation intervenes a threat of a prisoner and the killing by him, it is not a conclusive presumption of law that the killing was in pursuance of the threat, and not upon the passion produced by the subsequent provocation. It is for the jury to say whether the act of killing, in such a case, was the result of present provocation, or of deliberate intent to kill, previously formed.</p> <p>5. Whether a homicide was committed in pursuance of threats previously made, or in self-defense against an attack made upon him in his own house, is a question for the jury; and it is proper for them to take into consideration all the circumstances under which the threats were made, with a view of determining whether or not they were the expressions of a deliberate purpose or design to kill, or whether they were b ut the ebullitions of a sudden passion, followed by reconciliation.</p> <p>6. Upon the trial of a charge of murder, the prosecution proved that a month or two before the killing, which took place on an attack of the deceased upon the defendant, the latter, while somewhat intoxicated, said, “he would not leave the place or town before he killed” the deceased : Held, that in determining the degree of malice implied in the threat, it was proper for the jury to take into consideration the facts that the defendant was more or less intoxicated at the time; that he and the deceased were in the habit of quarreling one day and becoming friends the next day; and that before the killing they had become reconciled, and were on friendly terms on the day of the killing.</p> <p>7. In the same case, the prosecution proved, by another witness, that on the day of the killing the prisoner showed the witness a revolver, and said he was going to shoot the deceased that night, because he owed him two dollars and had refused to let his wife have fifty cents. The prisoner testified that he told the witness that deceased wanted to fight one B., and said, “Well, he (deceased) insulted me several times the same way, and if he comes to me again that way I am going to smash him;” that witness said, “Let him go,—-you know how he is," and that he (the prisoner) said, “I am not going to do anything unless he attacks me again, as he has done several times heretofore:" Held, that in determining the degree of malice implied from this threat, the jury were authorized to consider the explanation made by the prisoner, and to give to his explanation such weight as they might think it entitled to, and also the fact that such threat made but a slight impression on the_ witness.</p> <p>8. A threat to defend one’s self in the event of being attacked, does not imply the same malice and evil intent as a threat to kill, unaccompanied by any qualifying words.</p> <p>9. In the same case, defendant’s counsel asked the court to instruct the jury that they had the right to take into consideration all the circumstances under which the threats were made, in determining the weight to be given to them, and in deciding the question whether or not they were the expression of a predetermined and well-defined intention on the part of the accused to kill the deceased: Held, that the refusal of the instruction was error.</p> <p>10. The defendant’s'cotinsel offered to prove that the prisoner had been previously attacked by the deceased with a hatchet, and had had the deceased bound over to keep the peace, which the court refused to-admit: Held, that this proof should have been admitted, not for the purpose of excusing the subsequent conduct of the prisoner, but as tending to explain the threats, and as tending to confirm the prisoner’s, own account of the nature and character of those threats.</p>

<p>Appeal from the Appellate Court for the First District.</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. Altg-eld, Judge, presiding.</p>

/ Appeal from the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Williamson county; the Hon. David J. Baker, Judge, presiding.

Dobbance Dibell, Judge, presiding. On the 24th of December, 1881, the De Steiger Glass Company made its promissory note to the appellee, for $5200,. due ten days after date, with eight per cent interest. Also, on January 10, 1882, its other promissory note, for $35,000, due one day after date, and then executed and delivered its two powers of attorney, and attached the same to said notes, authorizing judgments to be confessed thereon at any time thereafter.

<p>Appeal from the Circuit Court of Cook county; the Hon. Frank Baker, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Bureau county; the Hon. Charles Blanchard, Judge, presiding.</p>

Writ ok Error to the County Court of Cook county; the Hon. Richard Prendergast, Judge, presiding. The Chicago Dock Company is a corporation engaged in the dock and warehouse business in Chicago. The Lyman Manufacturing Companj’, managed by Sherman & Marsh, stored wire in the warehouse of the dock company, for which warehouse receipts were issued, but which were subsequently taken up and delivery orders issued instead.

Writ oe Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Kankakee county; the Hon. Owen T. Beeves, Judge, presiding.

Writ of Error to the Superior Court of Cook county; the Hon. Gtwynn Garnett, Judge, presiding. This was a bill in chancery, brought by Peter Wolf against Joseph Oswald, to remove certain obstructions from a private way which the complainant claims to have over the lands of the defendant. Issues were duly formed by answer and replication, and the cause being heard on pleadings and proofs, a decree was entered in favor of the complainant.

<p>Appeal from the Appellate Court for the First District.</p>

<p>Appeal from the County Court of Cook county; the Hon, Bichabd Prendergast, Judge, presiding.</p>

<p>1. Insolvent debtors—jurisdiction—transfer of property prior to an assignrnent—jurisdiction to determine its validity—in the county court or in a court °f chancery. Where a failing or insolvent debtor, a few days before making an assignment for the benefit of creditors, conveys land to a third person in payment of a debt, the county court has no jurisfiction, on petition by the assignee, to declare such conveyance fraudulent, as being made in contemplation of making the assignment, and thus give his grantee an unauthorized preference'. This can be done by proper parties only in a court of equity.</p> <p>2. Whether a conveyance of land and a transfer of a draft or check by an insolvent debtor to another was made after the debtor had decided to make an assignment, and for the purpose of preferring the prior grantee to other creditors, is a question or issue triable only in a court having general equitable jurisdiction.</p> <p>3. If an insolvent debtor, on the eve of making an assignment for ihe benefit of creditors, and after making up his mind to do so, should prefer one creditor by making a conveyance or transfer of property to him, and then assign his other property, the remedy must be sought by the creditor sought to be defrauded, by appropriate steps in a court •of equity to enforce the equality contemplated by the statute.</p> <p>4. Same—equitable jurisdiction of county courts. County courts in this State have no general chancery powers, and none are conferred by the Assignment act. They may, however, exercise both legal and equitable powers to execute and carry out the provisions of that act.</p>

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

<p>1. Death of defendant—pending suit—judgment afterward—void or ‘voidable. If jurisdiction be obtained of the person of a defendant in his lifetime, by service of process or appearance, a judgment against him after his death is not void, but only voidable. And while such a judgment can not be attacked collaterally, it maybe reversed on error, if the fact of the defendant’s death appears from the record; if not, the judgment may be vacated, upon motion, in the court where it was rendered.</p> <p>2. Same—former decision. In Life Association v. Fassett, 102 Ill. 315, the question was not before this court whether a judgment against a defendant, rendered after his death, was void or voidable, and so much of the opinion as holds it void is obiter dictum, and binding on no one.</p> <p>3. Same—remedy to set aside such jvidgment. The rendering of judgment against a deceased defendant after plea filed is an error in fact, which, by section 67 of the Practice act, may be reached and corrected, upon motion, at any time within five years. A motion in the trial court to vacate such a judgment is a direct proceeding, and calis in question its legality, and it is error to refuse such motion when it is made to appear that the defendant was dead when the judgment was rendered.</p> <p>4. Judgment—against several—vacated as to one, must be as to all. "Where one of the defendants in a suit has died before the trial and ■entry of judgment for the plaintiff, if the judgment be vacated as to the deceased defendant it must be as to all the defendants. A judgment for money against several is a unit as to all, and if erroneous as to •one it is erroneous as to all.</p> <p>5. Appeal—what matters to be considered. On appeal from the Appellate Court, an amended or additional record not before that court can not be considered. This court acts upon the record which was before the Appellate Court, and that alone.</p>

Egbebt Jamieson, Judge, presiding. At the June meeting of the Chicago Driving Park Association, the association advertised to give a purse of $300 to a •class of horses known as “gentlemen’s roadsters, ” to be owned in Cook county, and to be driven by the owner: An entrance fee of $15 was charged, which was to be added to the purse .•given by the association, and the whole to be divided into four prizes, the horse taking three heats to receive fifty per cent of rthe purse;…

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

Cyrus Epler, Judge, presiding. This was a. bill in equity, brought by John V. Farwell and others, in the firm name of John V. Farwell & Co., against Gerhard Becker and Elbert W. Shirk, to compel contribution in respect to certain judgments rendered in the State of Iowa.

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. Richard S. Tuthill, 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. Joseph E. Gary, 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. E. W. Clifford, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.</p>

Henry M. Shepard, Judge, presiding. Patrick J. Sexton executed two leases to Frank F. Cole, the first hearing date March 6,1885, and demising the four upper floors of the building situated on the north-west corner of VanBuren street and Fourth avenue, in Chicago, with right of way, etc.; and the second bearing date May 1,1885, demising the basement of the same building.

George W. Stipp, Judge, presiding. Albert Adler, administrator of William Beuck, deceased, brought this action in the Will circuit court, against the Chicago and Alton Eailroad Company, to recover damages for the death of the deceased, charged to have been caused by the negligence of the company. The injury of which Beuck died was received at a public crossing in the city of Joliet.

<p>Appeal from the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Marion, county; the Hon. Amos Watts, Judge, presiding.</p>

<p>1. Infants—decrees against them—impeachment thereof. A decree against an infant is absolute in .the first instance, but may be attacked and impeached either for fraud or for error of law apparent upon the face of the record, by original bill filed for such purpose, at any time before the infant attains majority, or within the period after majority allowed by law for the prosecution of a writ of error for the reversal of such decree.</p> <p>2. Do wee—apportionment—as among several heirs—and in what proportion, as to the entire estate. On bill for the partition of 367J acres of land between two heirs, and the assignment of the widow’s dower, the commissioners set off to the adult heir 165 acres and 202J acres to the infant defendant, and gave the widow dower in the whole tract set off to the infant, and left the adult heir’s part free from dower: Held, that the proceedings showed manifest error on their face, and that such error afforded good ground for impeaching the decree, on bill filed by the infant heir in proper time after attaining her majority.</p> <p>3. Amendment of kecobd—as not obviating error already committed. "Where the report of commissioners appointed to make partition of lands and set off dower therein, shows, on its face, substantial error, a motion to amend the record so as to show an approval of the report, on a bill by one of the parties to impeach the proceedings for error, may well be refused, as in such case the amendment proposed would not cure the defect or obviate the error in the original proceedings.</p>

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

Gwynn Garnett, Judge, presiding. On the 8th day of October, 1883, one Horace P. Fletcher and Eldred C. Williams entered into the following agreement: “This agreement, made on this 18th day of October, 1883, by and between Horace P. Fletcher, of the city and county of San Francisco, State of California, and Eldred C. Williams, of the city of Boston, county of Suffolk, State of Massachusetts: “■Witnesseth, that whereas, the said Williams is possessed of the sum of $20,000,…

<p>1. Practice—directing what the verdict shall be—whether allowable. On the trial of a cause the court instructed the jury, that if they believed, from the evidence, that the plaintiff, by agreement, took certain stallions of defendant to stand during the spring season, for the compensation of one-half of what should be realized from them, and that plaintiff stood said h orses for the defendant, and that there was realized out of said transaction a certain amount of money, then the plaintiff was entitled to recover one-half of said amount shown from the proof, “and on this question the jury shall find for the plaintiff.” The defendant claimed that plaintiff was to receive only one-third of the sum realized, and there was evidence to that effect: Held, that the latter clause of the instruction was erroneous, as it left the jury no discretion but to find this issue for the plaintiff.</p> <p>2. Same—improper remarks of counsel, in argument, to the jury—no ruling in the trial court. In the closing argument to the jury, plaintiff’s counsel made remarks, prejudicial to the defendant, not authorized by any evidence. Defendant’s counsel objected to the remarks, and the court promptly said, “Counsel will confine his remarks to what is in the record,” but made no ruling sustaining what had been said: Held, that the record presented no question involving the improper remarks, the court having made no ruling as to their propriety.</p> <p>3. Instruction—when great accuracy required. Where the evidence is conflicting, and the case is one which, upon the proof, may be decided either way, it is very important that the instructions of the court should be accurate, so that the jury may not be misled, but left free to arrive at a correct conclusion, from the evidence.</p>

<p>Appeal from the County Court of Clark county; the Hon. Henry Gasaway, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Kane county; the Hon. Isaac G-. Wilson, 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. Gwynn Garnett, Judge, presiding.</p>

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

<p>Appeal from the County Court of Cook county; the Hon. Richard Prendergast, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Vermilion, county; the Hon. Edward P. Vail, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.</p>

<p>1. Administbatob’s sale—prior acquired title—estoppel as to parties-Where a person is made a party defendant to an administrator’s petition for an order to sell land to pay debts, and fails in that proceeding to set up or assert any title in himself, he "will be estopped from asserting title acquired prior to such proceedings, as against the purchaser at the administrator’s sale.</p> <p>2. The real purpose of requiring all persons who are in the occupancy of the land, to be made parties to an administrator’s application for leave to sell lands, is to relieve, as far as possible, the title to the land from uncertainty; and while the county court, in such a proceeding, could not, prior to the act of June 15,1887, adjust conflicting claims of title, it might, as far as practicable, advise the purchaser of the nature- and character of the title to be acquired at the sale.</p> <p>3. Same—presumption—as to proper parties. In the absence of any proof to the contrary being preserved in the record of an action of ejectment by a purchaser at administrator’s sale, against the widow of' a deceased claimant, it will be presumed in favor of the judgment in the action of ejectment, that the heirs of such deceased claimant were-made parties to the proceedings by the administrator, in the county court, for the sale of his intestate’s land to pay debts, so as to estop them from setting up any prior acquired title.</p>

C. B. Smith, Judge, presiding. This was a suit in assumpsit, brought by John H. Dougherty against Herald Catlett, to recover the consideration of a certain oral contract for the sale and surrender by the plaintiff to the defendant of an equitable interest in certain lands.

T. M. Shaw, Judge, presiding. This was an action on a certificate of the Canton Mutual Benevolent Society, on the following agreed facts: “First—That said defendant is a corporation organized under the laws of the State of Illinois relating to corporations not for pecuniary profit, and not an insurance company, as defined by the statute under which the said company was organized, its object being to. give financial aid and benefit to the widows, orphans and heirs or devisees…

<p>Appeal from and writs of error to the Appellate Court for the First District;—heard in the court on appeals from llie Circuit Court of Cook county; the Hon. M. F. Ttjley, Judge, presiding.</p>

<p>1. Description in a deed—sufficiency. Any description adopted in a, deed by which the premises intended to be conveyed may be established and identified, is sufficient.</p> <p>2. Same—extrinsic evidence in aid of description. In placing a construction upon the description of land in a deed, extrinsic facts may toe resorted to for the purpose of determining what was intended.</p> <p>3. If the language of the deed is applicable to several persons, to several parcels of land, or the terms be vague and general, parol evi-dence is admissible of any extrinsic circumstance tending to show what things were intended by the party, or to ascertain his meaning in any other respect.</p> <p>4. In this case, a deed of trust described the premises “as situate in C., county of Cook, and State of Illinois, to-wit, lots 9,12 and 13, in block 11, and streets. The plat of 0., aforesaid, was recorded in the-recorder’s office of Cook county, aforesaid, in book 143 of maps, p. 99, to which reference is made for a more particular description of the premises.” The plat showed a street on the west of the lots, called. “Michigan Terrace,” lying between the lots and a right of way of a railway company. The extrinsic evidence showed that the street had been, vacated by the legislature, and that the grantor owned such street, and. had no other lots and street situated in a similar condition: Held, that these facts were sufficient to show that the trust deed passed the land, between the lots and the railroad, which was formerly a street.</p>

Gwenn Garnett, Judge, presiding. Appellant filed his bill in the Superior Court of Cook county, against Annie Kropik, John Kropik, her husband, John Mlabek, Thomas Mlabek, James Mlabek and Thomas Yosicky, for partition of lot 29, in block 2, in Dobbins’ subdivision, etc., in Cook county.

<p>1. Allegations and proofs—should correspond. It is the general rule, that in all cases, civil or criminal, the evidence must be confined1 to the points in issue; but there is a greater reason for strictly enforcing the rule in criminal cases than in civil cases.</p> <p>2. No fact which, on principles of sound logic, does not sustain or impeach a pertinent hypothesis, is relevant, and no such fact should therefore be admitted as evidence on the trial, unless otherwise provided by some positive prescription of law.</p> <p>3. This rule excludes all evidence of collateral facts, or those which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute, for the reason such evidence tends to draw away the minds of the jurors from the point in issue, and excite prejudice, and mislead them, and because the adverse party, having no notice of such course of evidence, is not prepared to rebut it.</p> <p>4. Evidence in criminal cases—proof of other offenses. It is a general rule, that evidence of a distinct, independent, substantive offense can not be admitted on the trial of the defendant for another and different offense, unless it clearly appears that such evidence tends in some way to prove him guilty of the crime for which he is being tried.</p> <p>5. To make one criminal act evidence of another, a connection between them must have existed in the mind of the actor, linking them together for some purpose he intended to accomplish; or it must be necessary to identify the person of the actor by connection which shows that he who committed the one must have done the other. If the evidence be so dubious that the court does not clearly perceive the connection, the benefit of the doubt should be given to the accused, instead of suffering the minds of the jury to be prejudiced by an independent fact, carrying with it no proper evidence of the particular guilt.</p> <p>6. "Where the facts and circumstances amount to proof of a crime other than that charged, and there is ground to believe that the crime charged grew out of it, or was in any way caused by it, such facts and circumstances may be proved to show the quo animo of the accused.</p> <p>7. Evidence of the commission of a crime other than the one for which the defendant is being tried, is admissible when the object is to prove guilty knowledge, as, in a prosecution for passing counterfeit money; or to prove an act was not accidental or done by mistake, as in a case of poisoning or embezzlement; or to prove motive, as on the trial of a husband for the murder of his wife, in which case, in the absence of direct evidence, proof of his adultery with another woman has been held competent; or in cases where the prisoner says he did not do the act, and supports his denial with the assertion that no motive existed within him for the commission of the crime; or to refute some anticipated defense.</p> <p>8. On the trial of one for murder, by shooting, it appeared that the person killed had shortly before the homicide married the prisoner’s former wife; that the prisoner came to the house of the deceased while the family were at dinner, and fired two shots at the deceased as he was rising from the table, one or both of which killed him; that he then threatened to shoot the wife, and after pursuing her to prevent her getting away, and bringing her back to the house, he, about a half hour after the shooting, and after some conversation and moving about, compelled the wife of the deceased go with him into a house, where he ravished her. All the evidence in respect to the rape, and the circumstances thereof, was objected to by the defendant, but the court .admitted the same. There was no other evidence connecting the two acts,—the homicide and the rape: Held, that the court erred in allowing evidence of the rape to go to the jury.</p> <p>9. It was insisted that the evidence of the subsequent rape was proper, for the purpose of showing a motive for the homicide; but the court held, that while, in oases of doubt as to whether the party charged ■did the criminal act, proof of motive was important and proper, yet as the People had shown the deliberate shooting by the accused under circumstances showing both express and implied malice, proof of motive was unnecessary to a conviction, and that while the prosecution doubtless had the right to add to that proof, there was error in admitting the evidence of the rape when it was not necessary, as it was highly calculated to inflame and prejudice the jury, who, under the law, had the right to fix the punishment at imprisonment, or the death penalty.</p>

<p>Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.</p>

<p>1. Practice—specific objection—as a waiver of all other objections. A specific objection to evidence based solely upon a particular fact, is strictly a waiver of all objections based upon other facts not specified or relied on. This rule is based upon the equitable consideration, that if the other objections had been made it might have been in the power of the party offering the evidence to obviate them.</p> <p>2. A certified copy of an ordinance, when offered in evidence, was objected to on the specific ground that it was not signed by the mayor and city clerk of the city. The charter provided three modes by which ordinances passed might become operative : First, by the approval of the mayor, evidenced by liis signature; second, by a majority vote of the council on reconsideration, after being returned by the mayor, with his objections; and third, by being retained by the mayor more than five days: Held, that the objection was properly overruled, as it did not cover all the modes by which the ordinance might have become operative.</p> <p>3. In such case, if it had been objected that the ordinance had not gone into effect in either of the modes provided by the charter, the party offering the same might have been able to show that it had been passed over the mayor’s veto, or that it had become operative by his retaining it more than five days without signing it.</p> <p>4. Obdutaitoe—mayor’s certificate—of its proper office. The signature of the mayor, when he approves an ordinance, is no part of the ordinance itself, any more than are the minutes of the proceedings of the city council in which is recorded the vote by which the ordinance was passed. It is merely the evidence of his approval.</p> <p>5. Same—how authenticated—what it must show on its face. While, under the charter of the city of East St. Louis, an ordinance can have no validity until it has been passed by the council, and then placed in the mayor’s office, and afterward approved and signed by him, or retained without action beyond the prescribed period, or passed over his veto by a call of the ayes and noes, yet the ordinance need not bear on its face the evidence of all or any of these proceedings, except, of course, when it is signed by the mayor such signature will necessarily appear.</p> <p>6. Under a city charter, which provides that “all ordinances and resolutions of the city may be proven by the seal of the corporation,” etc., a copy of an ordinance certified to be such by the city clerk, and authenticated by the corporate seal, is competent evidence tending to show that the ordinance had been duly passed by the city council, and hadgoneinto effect in some one of the modes prescribed bythe charter.</p> <p>7. Heomobííoe—what constitutes negligence—as a conclusion of law. What constitutes negligence is ordinarily a question of fact for the jury. There may be conduct, however, so clearly and palpably negligent that all reasonable minds, without hesitation or dissent, would so pronounce it. When that is so, the inference of negligence may properly be said to be a necessary one, and such conduct may be treated as negligent per se.</p> <p>8. Same—omission of statutory duty by railway company. The omission of a railway company to perform its statutory duty in relation to ringing a bell or sounding a whistle on approaching a highway crossing, resulting in injury to another, is negligence per se, or as a conclusion of law. A statute commanding an act to be done, creates an absolute duty to perform the act, and the duty of performance does not depend upon and is not controlled by surrounding circumstances.</p> <p>9. Same—contributory and comparative negligence—care required at highway crossings. An instruction embodying the proposition of law that a party’s going upon a railroad track at a point where it crosses a highway or street, without looking or listening for approaching trains, is negligence per se, and that such conduct, in case of an injury at such crossing, constitutes such contributory negligence as will bar a recovery therefor, is properly refused, in an action against the railway company to recover for the injury.</p> <p>10. But when the question arises upon a state of facts on which reasonable men may arrive at different conclusions, the fact of negligence can not be determined until one or the other of these conclusions has been determined by the jruy. Negligence can not be conclusively established by a state of facts upon which fair-minded men may well differ.</p> <p>11. It is doubtless a rule of law, that a person approaching a railway crossing is bound, in so doing, to exercise such care, .caution and circumspection to foresee danger and avoid injury as ordinary prudence would require, having in view all the known dangers of the situation; but precisely what such requirements would be, must manifestly differ with the ever-varying circumstances under which such approach may be made.</p> <p>/ 12. No invariable rule, however, can be predicated upon the mere fact of failing to look or listen; but a jury, properly instructed as to the legal duty in respect to care and caution of a person approaching a railway crossing, must draw from such act, in connection with all the attendant circumstances, the proper conclusion as to whether he is guilty of negligence or not.</p> <p>13. The neglect or failure of a person approaching a railway crossing to look or listen for an approaching train, is mere evidence on the question of contributory negligence, like any other to be submitted to ■the jury. To omit looking and listening when neither can be of any avail, as, when the track is hidden from sight, or other sounds drown the noise of the cars, is not contributory negligence. The omission to take such precautionary steps does not necessarily, and as a question of law, constitute negligence, but is proper to be considered by the jury as evidence bearing on the question, as one of fact.</p> <p>14. Verdict—special finding—whether it will control general verdict. On the trial of an action by an administrator, against a railway company, for the killing of the plaintiff’s intestate by a collision at a street crossing, in which was involved the question of the defendant’s negligence and also that of the deceased, the defendant asked the court to submit to the jury the question whether the deceased could have seen or heard the defendant’s train approaching the crossing if he had looked or listened for it before he drove or went on the crossing, at the time he received the injury, which the court refused to give without modification ; Held, that the question, as proposed, called for a finding as to mere evidentiary facts, none of which, if found either way, could have had any controlling effect upon the general verdict.</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. Kirk Hawes, Judge, presiding.</p> <p>This was assumpsit, originally brought by Elizabeth Kielgast, administratrix of the estate of Otto Wilhelm Kielgast, deceased, against the appellant, to recover upon a policy of life insurance on the life of the intestate. The policy was dated July 22, 1884, and contained, among other things, a condition that if, within three years of said date, the insured should die by any act of self-destruction, whether voluntary or involuntary, whether sane or insane, the contract of insurance should become null and void. The insured died January 17, 1885. The material facts appear in the opinion of the court.</p>

<p>1. Taxation—railroad track—by whom, to be assessed-r-and what included therein. Land held by a railroad company for a right of way is required by law to be assessed for taxation by the State Board of Equalization, and not by the local assessor. This rule is not limited to the right of way of the main track, but embraces the right of way of all the side-tracks, switches and turn-outs as well. An assessment of such property by the local assessor is void.</p> <p>2. A side-track of a railroad company leading from the main track to a stone quarry, and used for the purpose of procuring stone for ballasting the road, for the purposes of taxation must- be regarded as “railroad track.”</p>

Dorrance Dibell, Judge, presiding. The following statement by the Appellate Court is substantially accurate: This is a proceeding instituted by John Corrigan, appellee, against the steam canal boat “Nunnemaeher,” pursuant to chapter 12 of the Eevised Statutes of Illinois, commonly known as the “Water-craft act.” The cause of action alleged in the petition arose from a collision of the said steam canal boat “Nunnemaeher, ” of above fifty tons burden, owned by the Illinois and…

This was a petition filed in this court, asking the issue of a writ of habeas corpus to the sheriff, etc. The facts sufficiently appear in the opinion of the court.

<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>

Gwynn Gabnett, Judge, presiding. This was a hill filed hy Joseph Gregg, against George M. Hord, for an accounting between them, as partners. The business in which the firm was engaged was that of buying grain in Chicago, and shipping the same to southern markets to fill orders, or for sale on consignment. The business was carried on from November 1, 1881, to May 1, 1886.

Writ oe Error to the Circuit Court of Cook county; the Hon. M. F. Tulet, Judge, presiding. At the January Term 1886 of the Cook County Circuit Court, an Information in the nature of quo warranto was filed against the defendant in error, the National Savings Bank. Thereupon defendant filed its plea, setting up the following special act of the legislature: “An act to incorporate the Kendall County Banking Company; in force March 29, 1869. “Section 1.

<p>!• Estate by the ohbtesy—when it will attach—widow in possession and dower not assigned. In 1846 the owner of land died intestate, leaving a widow, and a daughter as his sole heir. In 1851 the daughter married, and there was issue born of the marriage, but the widow’s was never assigned: Held, that the husband of the heir took an estate by the curtesy initiate upon the birth of issue, notwithstanding the widow’s right of quarantine, as the possession of the widow, under the statutory right to retain the possession of the dwelling house and plantation thereto belonging until her dower should be assigned, was not adverse to the title of the heir by descent.</p> <p>2. Same—seizin in fact—whether essential. A seizin in fact, as distinguished from a seizin in law, prior to the time the estate by the curtesy was abolished by statute, was not necessary in order to vest an estate by the curtesy. In this State actual possession is not essential to the passing of title to real estate by conveyance, will or the Statute of Descents.</p> <p>3. Same—purchaser from tenant by the curtesy—what rights accrue to Mm. If a sale is made by a husband, of land in which he has an estate by the curtesy, of which he has never been in the actual possession, but his immediate or remote grantee takes possession under the purchase, such act will perfect the husband’s title as tenant by the curtesy, and the vendee will have the right to the land during the lifetime of the husband.</p> <p>4. Same—elements and character of estate initiate. The interest of the husband as tenant by the curtesy initiate, prior to the abolition of the estate of curtesy, was a legal estate, which was assignable. It was a freehold during the life of himself and wife, with a freehold in remainder to himself for life, and a remainder to the wife and her heirs in fee.</p> <p>5. Widow’s qtjabantine—abandonment. If a deed be made by a widow, of lands of her husband, whether it operates to convey to the grantee her dower and quarantine rights or not, the surrender of the possession thereunder will be effective as an abandonment of such quarantine rights.</p> <p>6. Deed oe mabbied woman—acknowledgment—how far essential— and its requisites. Under the law of this State as it existed in 1853, the acknowledgment of a deed by a married woman, was an essential part of the execution of the deed; and where the certificate of the acknowledgment thereof failed to show that she was examined separate and apart from her husband, and that the contents of the deed were made known and explained to her, the deed, as to her and her heirs, will be held inoperative and void.</p> <p>7. Evidence—as showing under what title a party claims. Where a defendant in ejectment is in possession of premises, and a source of title is traced to him, it is prima facie evidence that he is in under that title, and it devolves on him to show the contrary.</p> <p>8. Limitations—adverse possession. The possession of land by a tenant for life can not be adverse to the remainder-man or reversioner; and if the life tenant conveys to a third person, by words purporting to pass the absolute property, the possession of the purchaser can not be, dming the continuance of the life estate, adverse to the remainder-man or reversioner, so as to set the Statute of Limitations running against the latter.</p> <p>9. The possession of a tenant for life, or that of his vendee, during the continuance of the life estate, is, in contemplation of law, the possession of the remainder-man or the reversioner; and until such life estate terminates, the remainder-man or reversioner has no right of action, and the Statute of Limitations will not begin to run against a party before his right of action accrues. Until then no laches is imputable to the party holding title.</p>

Writ op Erbor to the Circuit Court of Monroe county; the Hon. Amos Watts, Judge, presiding. This was an action of ejectment, brought by F. W. Brickey, against Frank English. Leave was given to Hardy and Demint, as landlords of English, to plead. The plaintiff sought to recover under a tax deed for the premises.

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

Wbit of Ebbob to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Winnebago county; the Hon. 0. H. Hobton, Judge, presiding.