ror. But the court on review said: "The court had a better opportunity of judging as to the probable effect of the improper remarks of counsel than we have, and we can by no means say that any error was committed in granting a new trial."

It is evident that none of these cases are in point. All but the latter one are simply to the effect that the court erred in permitting the objectionable remarks to be made to the jury, and the error of the court in this regard appeared upon the record. In the case of Kinnaman v. Kinnaman the trial judge was, of course, necessarily familiar with the circumstances and the evidence, and so in a position to judge whether a new trial should be granted. If, in this case, the trial judge had granted a new trial for the misconduct of the plaintiff's attorney, it is not likely that this court would have disturbed his ruling. In Jones v. State, 20 Ohio, 34, 47, it was assigned for error that the prosecutor commented injuriously upon the character of the defendant, when the same had not been put in issue and the prosecutor claimed it as a matter of just inference. Hitchcock, J., severely condemned such practices in attorneys, but said: "There is nothing to show that there was any action of the court upon this subject at all. All that appears is the counsel for the prosecution commented upon the character of the accused, and claimed that he had a right so to do. Whether he had such right was not made a question to the court." This recognizes the true rule. The court must have committed error, and this must affirmatively appear from the record.

No case has been found that goes to the extent of holding that remarks of counsel, however improper, necessarily vitiate any verdict that may be rendered in favor of his client, irrespective of the action of the court and the evidence in the case. If upon the law and the evidence a party is clearly entitled to a verdict, it would seem like rather drastic practice to deny him the right to it for the fault of his attorney in addressing the jury. There is a more appropriate mode for punishing an attorney for such professional misconduct than by visiting his fault upon his client, who in right and justice may be entitled to a verdict. On the other hand, it is proper to say that where remarks have been made not germane to the case, and calculated to arouse prejudice, or awaken undue sympathy, the case should be a very clear one on the evidence to warrant the court in disregarding them on a motion for a new trial. If, on a consideration of the whole case, there is room for doubt whether the verdict was rendered upon the evidence, or may have been influenced by improper remarks of counsel, that doubt should be resolved in favor of the defeated party. But, as said, we are not, from the state of the record, in a position to pass upon this question, and the judgment is therefore affirmed.

FOR STREET-RIGHTS OF HEIRS OF GRANT-
OR AGAINST GRANTEES.

land having been made and delivered by a 1. A deed of conveyance for one-half acre of grantor to two grantees upon consideration of $20, as follows: To have and to hold the above granted and bargained premises, with the appurtenances thereof, unto them, the said grantees, or their successors in office, forever, to their own proper use and behoof; but it is expressly to be understood that the said grantees, nor their successors in office, shall not at any time use or occupy the aforesaid premises for any other purpose or purposes than whereon to erect or build religious meeting houses or parsonages, and for cemetery or burying ground, and that the said cemetery or burying ground shall be free and common to and for all religious denominations who may desire to occupy the same for the purpose of interring their dead, under the immediate direction and regulations of the said grantees or their successors in office, but this reservation shall not extend to inhibit or prevent the fencing, planting trees or shrubs, making tombs, monuments, or other ornamental improvements;" and a street having been located by the village upon a strip of said land 30 feet wide, for which the successors of said grantees received $500; and an action having been brought by the heirs of the grantor against the village for the recovery of the value of said strip of land,-held, that said heirs had no title to said strip of land, and no right to the value thereof.

2. That, as said deed had no words of forfeiture or re-entry, the diverting of said lands to uses and purposes other than those expressed in the deed did not, in legal effect, revest title to said lands in the grantor or his heirs. (Syllabus by the Court.)

Error to circuit court, Ashland county.

Action by John Greiner and others against the incorporated village of Ashland. A judgment of the court of common pleas for defendant was reversed on error in the circuit court, and defendant brings error. Reversed. On the 11th day of September, 1838, a conveyance was made by deed, the material part of which, so far as this case is concerned, is as follows: "To All Persons to Whom These Presents shall Come-Greeting: Know ye that we, Martin Greiner and Elizabeth Greiner, of the county of Richland, in the state of Ohio, for the consideration of twenty dollars, received to our full satisfaction of Christopher Mykrantz and John Keller, of the county aforesaid, trustees of the German Lutheran, Presbyterian, and Reformed Congregation of Montgomery and its vicinity, do give, grant, bargain, sell, convey, and confirm unto the said Christopher Mykrantz and John Keller, or their successors in office, the following described tract,

contain

ing one-half acre of land. To have and to hold the above granted and bargained premises, with the appurtenances thereof, unto them, the said Christopher Mykrantz and John Keller, or their successors in office, forever, to their own proper use and behoof;

but it is expressly to be understood that the said Christopher Mykrantz and John Keller, mor their successors in office, shall not at any time use or occupy the aforesaid premises for any other purpose or purposes than whereon the erect or build religious meeting houses or parsonages, and for cemetery or burying ground, and that the said cemetery or burying ground shall be free and common to and for all religious denominations who may desire to occupy the same for the purpose of interring their dead, under the immediate direction and regulations of the said Christopher Mykrantz and John Keller, or their successors in office, but this reservation shall not extend to inhibit or prevent the fencing, planting trees or shrubs, making tombs, monuments, or other ornamental improvements." The acknowledgment shows that the wife signed the deed "for the purposes therein specified." The land was used as a cemetery until the year 1857, when the council of the village prohibited interments, and thereafter it was used as a parsonage for the Lutheran Church. In the year 1875 the then trustees of the Lutheran Church made a quitclaim deed to the village of Ashland for a strip of land about 30 feet wide along the south side of said half acre, for the sum of $500; and the village accepted the deed, and opened a street on and along said strip, and agreed that the parsonage should be exempt from assessment for the first improvement and sidewalk of the street. A proceeding in appropriation had previously been had, but the value of the land assessed by the jury was not paid by the village. The grantors in the deed of 1838 having died, their heirs, on the 24th day of June, 1895, commenced an action in the court of common pleas to recover from the village the value of said strip of land so devoted to street purposes, and offered in their petition to convey said street to the village upon being paid its value, $750. A demurrer was filed to this petition, and, the same having been overruled, an answer was filed, admitting the incorporation of the village, the deed of 1838, the use of the strip of land as a street, and denying all the other allegations of the petition. A jury was waived, and the case was tried to the court, and judgment rendered for the village. A motion was made for a new trial, which was overruled, and exceptions taken, and a bill of exceptions containing all the evidence, including the deed of 1838 and the quitclaim deed of 1875, was allowed and made part of the record. Upon petition in error, the cireuit court reversed the judgment, upon the grounds that the court erred in overruling the motion for a new trial, and that the findings and judgment of the court were contrary to the law of the land, and against the evidence in the case. Thereupon the village filed its petition in error in this court, seeking to reverse the judgment of the circuit court, and asking for aflirmance of the common pleas.

BURKET, J. (after stating the facts). The deed of conveyance in question was for the consideration of $20, the fair value of the half acre at the time of the making and delivery of the deed. The legal effect of a deed, upon such consideration, is different from that of a deed where there is no consideration, other than the purposes for which the conveyance was made. In the one case the grantee acquires the estate for value paid therefor, and in the other it comes to him without price, and in both there may be a stipulation that the estate is to be used only for particular purposes. When value is paid for the estate, such stipulation is construed to be a covenant running with the land, in the nature of a trust, for the uses and purposes expressed in the deed of conveyance; and, in case of a breach of the trust, a court of equity will, in a proper action, decree the performance of the trust by confining the uses of the estate to the uses and purposes expressed in the deed. In such cases the restricted use of the estate becomes a part of the consideration, and is consented to by the grantee; and it is no hardship on him and his assigns to be compelled to observe the covenants contained in the deed. But in such cases a breach of the covenant restricting the uses and purposes to which the estate is to be devoted does not have the legal effect to forfeit the estate, and reinvest the title in the grantor, his heirs or assigns. To have such legal effect, there must be words of forfeiture or re-entry in the deed. Watterson v. Ury, 5 Ohio Cir. Ct. R. 347, and cases cited (that case was affirmed by this court 32 Wkly. Law Bul. 420); 2 Washb. Real Prop. (5th Ed.) p. 5. Whether a stipulation in a deed of gift, or in a will restricting the uses to which the estate is to be devoted, is only a covenant, or is a condition subsequent, is not involved in this case, and is not here decided.

It is clear that the deed in question conveyed away all the title to the premises which the grantors had, and that the grantees received all such title (which was the fee), for the uses and purposes expressed in the deed; and, as there are no words of forfeiture or re-entry in the deed, no title whatever vested in the heirs of the grantor, upon breach of the covenant as to the uses and purposes to which the estate was to be devoted. The plaintiffs below therefore had no title to the strip of land upon which the street was located, and could maintain no action for its recovery, nor for the recovery of the value thereof. The consideration paid by the village for the strip of land upon which the street is located belongs to the owners of the half acre of land conveyed by the deed in question; and this is so whether the village acquired the strip of land by purchase, or by proceedings in appropriation

under the statute. Cincinnati v. Babb, 29 Wkly. Law Bul. 284, 36 Wkly. Law Bul. 206. The plaintiff below, having no title to the strip of land in question, and no right to the value thereof, cannot maintain the action, and the demurrer to the petition should have been sustained; but, as that was not done, a judgment should have been rendered in favor of the village upon the pleadings. That not having been done, the common pleas on the trial very properly rendered judgment in favor of the village, and the circuit court erred in reversing that judgment. The deed of 1838 was admitted by both parties, and there was no effort in the pleadings or testimony to set aside or reform it for fraud or mistake. On the contrary, it was conceded by both parties to be in full force, and both claimed title under it. It was also conceded by all that the village was, and had been for a long time, in possession of the strip of land, using it as a public street, and had paid therefor the sum of $500. These facts are controlling, and, being conceded in the pleadings, the court of common pleas should have refused to hear any testimony. The testimony which it did hear was immaterial, and did not tend to disprove the conceded facts. The circuit court erred in applying the law to those conceded facts, and in its construction of the deed. Its judgment must therefore be reversed, and that of the common pleas affirmed. Minnear v. Holloway, 56 Ohio St. 148, 46 N. E. 636. Judgment reversed.

CLARK et al. v. CLARK. (Supreme Court of Illinois. April 21, 1898.) WILLS-EXECUTORS AND ADMINISTRATORS-POWER OF SALE.

Under a will devising all the property of testator, "both real and personal," after the payment of his just debts and funeral expenses, to his widow, "for and during her natural life," and providing that, after her death, whatever remained unexpended should be applied to the payment of legacies to certain of his children, and that, after the payment thereof, the remainder should be divided equally among certain others of his children, and appointing his wife executrix, with power "to sell and convey any and all real estate and personal property, *** using her own discretion therein," a conveyance of certain of the real estate by such executrix, for a nominal pecuniary consideration, "and the further consideration of services rendered and to be rendered," was void for want of power, as the only sale which she could have properly made, in such capacity, was for money, and in the usual course of administration.

Appeal from circuit court, McDonough county; G. W. Thompson, Judge.

Bill by John W. Clark and others against James S. Clark to set aside a deed. From a decree dismissing the bill, complainants appeal. Reversed.

This is a proceeding in chancery, by bill filed in the circuit court of McDonough county by John W. Clark and others, seek

ing to set aside a deed made by Mary Clark to appellee, James S. Clark, conveying certain property in Macomb, Ill. The original bill alleged that the grantor was 78 years old, feeble in body and mind, and that she executed the deed because of the fraudulent and undue influence of the grantee. By an amendment to the bill it was alleged that the grantor was without power to make said conveyance. From the bill, and exhibits filed therewith, it appears that the land in controversy was owned by John P. Clark, husband of Mary Clark, at the time of his death; that by a will, which has been duly probated, he disposed of all his property as follows: "First. After the payment of all just debts and funeral expenses, I give, devise, and bequeath to my wife, Mary Clark, all my property, both real and personal, for and during her natural life. Second. After the decease of my said wife it is my will that whatever remains unexpended of my estate shall be divided as follows: To my children Jacob P., Daniel, Reuben R., James, Rhoda Davis, wife of Edward Davis, Charlotte Beck, wife of Mac Beck, Sarah Parrish, wife of Charles Parrish, each $100; to Elizabeth Applegate, wife of Elias Applegate, $150; to Mary Emmons, wife of John Emmons, $150. After the payment of the foregoing legacies, it is my will that the remainder of my estate be divided equally among my following named children, viz. L. D. Clark, Silas Clark, John W. Clark, and: Margaret Johnson, wife of John Johnson.. Lastly, I hereby nominate and appoint my said wife, Mary Clark, to be executrix of this my last will and testament, and hereby authorize and empower her to sell and convey any and all real estate and personal: property of which I may die seised, using her own discretion therein."

On March 22, 1897, Mary Clark undertook to convey the premises known as her home stead, in Macomb, to James S. Clark by the following deed, which is the instrument sought to be set aside in this proceeding:

"Know all men by these presents, that I, Mary Clark, of Macomb, McDonough county, Illinois, as executrix of the last will and testament of John P. Clark, late of said county, in consideration of $100 to me in hand paid and the further consideration of services rendered and to be rendered by James S. Clark, have and by virtue of the power in me vested as such executrix by said last will and testament do hereby sell and convey unto the said James S. Clark all the rights, title, and interest which the said John P. Clark, at the time of his death, had in and to the following described real estate, to wit: Lot one (1) and the north one-half (1⁄2) of lot four (4), in block seven (7), Chase's addition to the city of Macomb, McDonough county, Illinois. And the said Mary Clark, personally and as executrix as aforesaid, for and on behalf of the estate of the said John P. Clark, deceased, covenants and

agrees to and with the said James S. Clark, and his heirs and assigns, that at the time of his death he, the said John P. Clark, was lawfully seized in fee of said premises, and that same was free and clear of all incumbrances, and that his said estate shall and does hereby warrant and defend the title to said premises against the claims of all persons. The grantor reserves possession of said premises during her natural life. witness whereof said Mary Clark, personally and as executrix as aforesaid, has hereunto set her hand and seal this 22d day of March, A. D. 1897.

her

"Mary X Clark. [Seal.]"

mark

In

The defendant filed his answer, denying the charges of fraud and undue influence as well as the allegations of the amended bill. Upon a hearing the bill was dismissed for want of equity. Complainants now prosecute this appeal.

Pontius & Mickey, Neece & Son, and Baily & Holly, for appellants. T. B. Switzer and H. G. Agnew, for appellee.

WILKIN, J. (after stating the facts). The appellants insist the court below should have granted the relief prayed in the bill as amended-First, on the ground that the grantor, Mary Clark, under the provisions of her husband's will, had no authority to make the conveyance in question; second, that, even if she had such authority, her act in this ir stance did not come within the scope of her authority; and, third, that the conveyance was procured by the fraud and undue influence of the grantee. Appellee contends that the question of grantor's authority to make the deed is the only one properly before this court for review.

It will be seen by the terms of the will, after the payment of testator's just debts Mary Clark was given the property of testator, "both real and personal, for and during her natural life." Then, after her death, whatever remained unexpended was to be applied to the payment of legacies to certain of his children, and after the payment of the legacies the remainder was to be divided equally among the complainant John W. Clark and others named.

It is said by appellee that the last clause of the will appointing his mother executrix, and empowering her to sell and convey "any and all" of testator's real estatè and personal property, "using her own discretion," authorized her to make the deed in question, and it seems his contention is that an absolute power of disposition was coupled with the life estate of the wife. We do not think this proposition can be maintained. It is clear that by the first clause the wife was given only an estate for life. By the last clause she was made executrix of the will and given certain powers, but her power of sale under that appointment was that of an

executrix, and was no greater than would have been the power of any other person who might have been named as executrix. Had the testator intended her to have more than a life estate, he would have made it apparent in the clause limiting her enjoyment of the estate. The power of sale as an executrix was a wise provision. The will, upon its face, shows that the testator contemplated the payment of his just debts, and this might necessitate the sale of part or all of his property.

Having only the power to sell as an executrix, the inquiry then is, was the deed of Mary Clark such a sale as came within the scope of her authority? The consideration, as stated in the deed, was $100, "and the further consideration of services rendered and to be rendered by James S. Clark." Testimony is introduced to show that the services contemplated by the language thus used was the care of the grantor as long as she should live. This, we think, was an act unauthorized by her power. The only sale which she could have properly made, in her capacity as executrix, was one for money, and in the usual course of administration of her husband's estate.

This case, in principle, is not unlike that of Griffin v. Griffin, 141 Ill. 373, 31 N. E. 131. There the testator devised to his wife real estate for and during her natural life, "with the same right to sell the same for her support and maintenance that I would have if living," limiting the remainder to his children. An attempt was made by the wife to sell it to a son in fee, in consideration that he would take care of her the remainder of her life. It was there held that the sale, even for her support and maintenance, must be a sale for a stipulated sum in money. We said (page 388, 141 Ill., and page 135, 31 N. E.): "This was not a good execution of the power to sell the land for the support and maintenance of Mary Griffin. The sale and conveyance were a fraud on the rights of the devisees of the remainder in fee. It was a perversion of the power given by the will, and not a bona fide exercise of that power. It was not within the reasonable contemplation of the power that the land should be sold thereunder for the purpose of paying the debts of the life tenant incurred for purposes other than her support and maintenance. Nor was it within its contemplation that the land should be sold otherwise than in the usual and customary manner, for a stipulated sum in money and with some reference to its value. That which John Griffin authorized his wife to do was 'to sell' his real estate, i. e. dispose of it for an equivalent in money. It would hardly be contended that if Mary Griffin, immediately upon the death of her husband, had conveyed all the lands, under the power, to a person who agreed to support and maintain her during life and bury her when dead, it would be a valid conveyance within the

purview of the power; and it does not help the matter that she refrained from so doing until she was over ninety years of age and stood with one foot in the grave. There was no error in setting aside and canceling the deed to him," the grantee. The principle there announced applies with greater force to the case at bar, the widow in this instance being given no right to sell for her support and maintenance.

In this view of the case it is unnecessary to consider whether the issue of undue influence was properly raised by the bill and answer. The conveyance, for want of power in the grantor, is void, and the circuit court erred in not setting it aside for that reason. Its decree will accordingly be reversed, and the cause will be remanded to the circuit court, with directions to enter a decree in conformity with the views here expressed. Reversed and remanded.

MARATTA v. ANDERSON. (Supreme Court of Illinois. April 21, 1898.)

DEEDS-Delivery-Evidence.

After making a deed to his daughter, the grantor said he intended to hold it while he lived; and it was sealed in an envelope, and placed in a drawer. Afterwards, in his absence, the daughter took the deed, made a copy, left it in the envelope, and had the original recorded. The evidence was conflicting as to a delivery of the deed. The grantor destroyed the copy with the envelope, supposing it was the original. Held not sufficient to show a delivery of the deed.

Appeal from circuit court, Lawrence county.

Suit by Charles B. Anderson against Sarah A. Maratta. Decree for complainant, and defendant appeals. Affirmed.

Gee & Barnes, for appellant. Foster & Lewis, for appellee.

CARTWRIGHT, J. The circuit court of Lawrence county decided that a deed made by appellee for the conveyance of 40 acres of land where he lived, to appellant, was never delivered to her, and entered a decree canceling the deed as a cloud on his title, in accordance with the prayer of his bill. The question whether the deed was delivered is the only one raised, and, aside from the dispute on that subject, the facts proved are as follows: Defendant is a daughter of complainant, and she went with him, on May 22, 1893, when he was a widower, to the office of H. W. Bunn, Bridgeport, Ill., where the deed was drawn by Bunn, and complainant signed and acknowledged it. Complainant said that he intended to hold the deed while he lived; and, on his order, Bunn sealed it up in an envelope, on the back of which he wrote, "Deed of Charles B. Anderson to Sarah Maratta." Complainant took the deed, and went away from the office with defendant.

They lived together, and, when they reached home, the deed was placed in a drawer in the house. Afterwards, when she had ceased to live with him, she went to the house in his absence, and took the deed out of the drawer, and made a copy of it, which she put back in the drawer in a sealed envelope, and took the original away, and had it recorded, shortly before complainant was married again. Complainant afterwards burned the copy with the envelope, supposing it was the original deed.

On the question of delivery, defendant testified that complainant gave her the deed on the way home, and said that, if anything happened to him, she should have it recorded; that she handed the deed back to him, and, when they got home, he gave her the key; and she put the deed in the drawer; and that he said she could have it recorded. Defendant's daughter also testified that complainant gave the deed to defendant on the way home, and told her that if she saw anything was going to happen, or if she saw fit to have the deed recorded, to have it done. Complainant denied that he ever delivered the deed, and claimed that it was surreptitiously obtained by the defendant, and he testified that the daughter was not present when the alleged delivery took place on the way home. There was testimony of declarations made by each party which were inconsistent with their testimony on the trial; and in such a conflict in the evidence, as well as in view of the expressed intention of the complainant when the party left the office when the deed was drawn, we are not able to say that the conclusion arrived at in the circuit court was wrong. The decree will be affirmed. Decree affirmed.

ILLINOIS CENT. R. CO. v. CITY OF
EFFINGHAM.

(Supreme Court of Illinois. April 21, 1898.) MUNICIPAL IMPROVEMENTS-SUFFICIENCY OF ORDINANCE.

1. A city ordinance providing for the improvement of a street, among other things, by tiling, failed to specify the nature, locality, or description of the tiles. Held insufficient to support a judgment for a specific tax.

2. A committee estimating the cost of improving a street as provided for by ordinance has no discretion to omit from the estimate any part of the improvement, so as to remedy an insufficient description in the ordinance.

Appeal from Effingham county court.

Action by the city of Effingham against the Illinois Central Railroad Company. Judgment for plaintiff. Defendant appealed. Reversed. Wood Bros., for appellant. Thos. E. Gilmore (E. N. Rinehart, of counsel), for appellee.

CARTWRIGHT, J. The city council of the city of Effingham passed an ordinance June 24, 1897, providing that Jefferson street, in