ADVERSE POSSESSION-COLOR OF TITLE-JUDICIAL SALES-FRAUD-EVIDENCE. 1. Though a deed made under a void decree fails to pass absolute title, in the absence of fraud it constitutes color of title, under which the grantee may acquire title by limitations. 2. Good faith in the acquirement of a deed will be presumed, in the absence of evidence, and, in order to overcome this presumption, a design to defraud the person having a better title must be shown. 3. The fact that a contract of purchase of land was a verbal one, and that the decree enforcing the contract might have been reversed for error, and that the court acted without jurisdiction, does not show bad faith in acquiring title, the grantee not being bound to know the legal effect of a verbal contract for land, or that a decree enforcing it was erroneous. Appeal from circuit court, Shelby county; Samuel L. Dwight, Judge. Bill by Mary Ann Barker against Perry Sexson. There was a decree for complainant, and defendant appeals. Reversed. Hamlin & Kelley, for appellant. Thornton & Richardson, for appellee. CARTWRIGHT, J. Free Sexson died, intestate, about February 22, 1843, seised of the lands involved in this case, and leaving Polly Sexson, his widow, and 11 children, his heirs at law. After his death, Isaac Free Sexson, one of the children, died in infancy, intestate, and the interest of that child in the premises passed to the mother, Polly Sexson, and the brothers and sisters, as heirs at law. Another of the heirs, Churchwell H. Sexson, died, intestate, in February, 1852, two months before the birth of appellee, his only child, who inherited his interest. Polly Sexson, the widow, conveyed by deed to Perry Sexson, appellant, who was one of the heirs, the share in the lands which she inherited from her infant child, Isaac Free Sexson, and all the other heirs, except appellee, also conveyed by their deeds their respective interests in the premises to appellant. Appellee began this suit in 1896, by filing her bill for partition, and for an accounting of rents and profits. Appellant answered that he acquired the share claimed by appellee under a decree for the specific performance of a contract for the purchase of the same made by him with Churchwell H. Sexson, appellee's father, and a conveyance by a master in chancery, in pursuance of said decree, on April 9, 1853; that he had been in actual, adverse, and notorious possession of the real estate from that day, and had made valuable improvements thereon; and that he had paid the taxes while so in possession under said deed. There were other defendants to the bill, but it was dismissed as to them on the hearing, and there was a decree in favor of appellee for the partition of the premises. It was proved at the hearing that the defendant, Perry Sexson, in the fall of the year 1851, made a verbal contract with complainant's father, Churchwell H. Sexson, for his interest in the lands for $65, which was all that the interest was worth at that time. About one-fourth of the purchase money was paid in cash, but Churchwell H. Sexson died before the balance was paid or a deed made. After his death, defendant filed his bill in chancery against complainant, for the specific performance of that contract. A guardian ad litem was appointed for complainant as defendant in that suit, and the court, having heard the proof, entered a decree for the specific performance of the contract, and the execution of a deed by the master in chancery upon the payment of $47.50, the balance found to be due. The money was paid to the master, and the deed executed. Defendant was appointed guardian of complainant, and held the money as such until her majority, when he paid it to her, with interest, in October, 1870, amounting to $81.16, and settled his account as her guardian. After the death of Free Sexson, his widow, Polly Sexson, continued to live in the old homestead on the premises. Defendant moved on the land in November, 1857, and lived in a small house which he built until 1860, when he exchanged houses with his mother, and moved into the old homestead. Complainant lived with her grandmother, Polly Sexson, until her marriage, when 16 or 17 years of age, and she then went to live with her husband. About the year 1872 or 1873 the widow abandoned housekeeping, and became a member of defendant's family, and so remained until her death, in 1887. Defendant built a new house in 1876 on the premises, and lived on the land continuously, and paid the taxes from 1857 until the commencement of this suit, in 1896. Complainant lived near the lands for 20 years before filing her bill, during all of which time defendant was in possession and claiming ownership. It will only be necessary to consider the defense of color of title and payment of taxes for seven years while in possession of the premises. There is no doubt that the deed to the defendant from the master in chancery constituted color of title, and the only controversy between the parties is whether it was acquired in good faith. The good faith of the defendant is a question of fact, and, in the absence of evidence to the contrary, it will be presumed. Bad faith will not be presumed, but must be established by proof. McConnel v. Street, 17 Ill. 253; McCagg v. Heacock, 34 Ill. 476; Brooks v. Bruyn, 35 Ill. 392; Morrison v. Norman, 47 Ill. 477; Stumpf v. Osterhage, 111 Ill. 82. In order to overcome this presumption, the evidence must show a design to defraud the person having a better title, and in this case there is an absence of evidence tending to prove that fact. There is nothing in the testimony which casts any suspicion of fraudulent intent upon the defendant or his motives, or that tends to show any design on his part to defraud the complainant in any manner. The contract was made with complainant's father, and the price agreed upon was the full value of the interest purchased. Defendant carried out the contract in good faith, and the only ground alleged by counsel for imputing bad faith to him consists of certain objections to the proceedings in the suit for specific performance. These objections are not sufficient to show bad faith. It will not suffice for that purpose to point out that the contract was a verbal one, and subject to a defense for that reason, or that the decree might have been reversed because the evidence was not preserved in the record, or that the court acted without jurisdiction. The fact that a deed fails to pass an absolute title is not material, and the fact that it is made under a decree which was erroneous, or even void, in the absence of fraud, will not affect the defense under the statute of limitations. Huls v. Buntin, 47 Ill. 396; Hinkley v. Greene, 52 Ill. 223; Reedy v. Camfield, 159 Ill. 254, 42 N. E. 833. It is claimed that the cases of Wettig v. Bowman, 39 Ill. 416, and Dalton v. Lucas, 63 Ill. 337, establish the doctrine that defendant was bound to know the law, and to know that the verbal contract for the land could not be enforced, and that the decree for its enforcement was erroneous, and therefore he was guilty of bad faith in so acquiring the deed. Such a doctrine would abrogate the statute, and require the party claiming its benefit to establish a valid title, and in the case of Davis v. Hall, 92 Ill. 85, it was said that the apparent teachings of the opinion in Wettig v. Bowman, supra, had not been adhered to in the later cases. The decision in Dalton v. Lucas was based on the prior case of Wettig v. Bowman, but, if given full effect, it could not influence the decision in this case. That case involved a knowing and intentional omission by a purchaser at a tax sale to give a notice required by the statute, and thereby keep the owner in ignorance of his rights, and it has no application here. The decree of the circuit court is reversed, and the cause is remanded to that court, with directions to dismiss the bill. Reversed and remanded. PEOPLE ex rel. DUNN v. HIGBEE, Judge. (Supreme Court of Illinois. April 21, 1898.) BILL OF EXCEPTIONS-EXPIRATION OF TERM OF OFFICE OF JUDGE-SETTLEMENT BY SUCCESSOR. Where a bill of exceptions, indorsed and approved as correct by opposite counsel, was presented to the judge who presided at the trial, within the time fixed by the order of the trial court, but who permitted his term of office to expire without having signed and sealed it, it was the duty of his successor, within the time so allowed, to settle such bill. Original proceeding, on the relation of James A. Dunn, to compel Harry Higbee, judge of the circuit court of Pike county, to sign and seal a bill of exceptions. Writ awarded. W. E. Williams and W. H. Crow, for petitioner. PHILLIPS, C. J. This is an original proceeding in this court to compel the respondent to sign and seal a bill of exceptions. At the April term, 1897, of the circuit court of Pike county (Jefferson Orr, judge of the circuit court, presiding), James Dunn was indicted, tried, and convicted of the crime of murder, and his punishment fixed at confinement in the penitentiary for the term of 14 years. A motion for a new trial was entered and overruled on the 27th day of May, 1897, whereupon judgment was rendered upon the verdict, and the relator was sentenced to the penitentiary at Chester for the term fixed by the verdict of the jury. The court extended the time to file a bill of exceptions, on the said 27th day of May, for 40 days, within which time the transcript of the record, with a bill of exceptions, was completed by the official reporter, and delivered to the counsel for petitioner, who presented the same to the attorney who prosecuted the case, who, after some changes therein, indorsed and approved the bill of exceptions as correct. Afterwards, and on the 17th day of June, the bill of exceptions was presented to Jefferson Orr, who indorsed the same, "Presented this 17th day of June, 1897. Jeff. Orr, Judge," but, although frequently requested by counsel for the relator, afterwards refused to sign and seal said bill of exceptions, and based his refusal on the fact that his term of office had expired. The election for circuit judge was held on the first Monday of June, 1897, and the said Jefferson Orr was not a candidate for the position, but Harry Higbee was elected judge of the circuit court; and after said Jefferson Orr refused to sign the said bill of exceptions, alleging as a reason that his term of office had expired, the counsel for relator requested Harry Higbee, as successor in office as circuit judge to Jefferson Orr, to sign said bill of exceptions, who, doubting his authority and jurisdiction in the matter, refused to sign the same. To the petition so filed in this court, respondent, Harry Higbee, as judge of the circuit court, appeared, and answered that he was not the judge before whom the case was tried; that he entertained doubt as to his jurisdiction, and as to his right and authority, under the law, to sign the bill of exceptions; that the bill of exceptions was duly presented to the trial judge within the time fixed by the trial court for presenting the same, and while he was yet judge of the circuit court; and that the same had been indorsed as correct by the respective counsel in the cause, and submits himself to the pleasure of the court. The question presented on this petition and answer is: Has the successor to the trial judge the power to settle and sign a bill of exceptions, and is he legally bound to do so? It is clear that the relator did all in his power to have a transcript, containing the bill of exceptions, duly signed, sealed, and settled by the trial judge who presided at the trial at the time of his conviction, and if a successor to a judge whose term of office has expired, or who has resigned or died, has not the power to settle a bill of exceptions, a party to a suit must be prejudiced in his right to a review of the case on appeal or error, or the court must grant a new trial regardless of the fact of the existence of error on the trial. In People v. McConnell, 155 Ill. 192, 40 N. E. 608, appellee being one of the judges of the circuit court of Cook county, we said with reference to the settling of a bill of exceptions (page 201, 155 Ill., and page 610, 40 N. E.): "Without extended discussion of the question and citation of authorities which may be found, we are of opinion that, under the modern practice in our courts, the better rule, and the one sustained by perhaps the weight of more recent authority, is that the succeeding judge presiding in the same court has power to decide a motion for a new trial, and to grant or overrule the same, and enter such judgment or order as shall to justice appertain." The invention of the system of stenography has made it possible to preserve the testimony of witnesses, and the objections and exceptions thereto, and the motions made in the progress of the trial, with a great degree of accuracy. The benefit resulting from this system has induced legislation in this state by which an official report of the testimony is provided for in the several nisi prius courts by stenographers appointed for that purpose, which enables the facts to be so preserved that any successor to a trial judge may settle and determine a bill of exceptions by the various methods, other than recollection, provided for the settlement of a bill of exceptions by the trial judge himself. The trial judge or his successor may use, not only the stenographic report, but may hear witnesses for the purpose of determining what was actually the evidence. As said in People v. McConnell, (on page 202, 155 Ill., and page 610, 40 N. E.): "Every facility possessed by the trial judge, except that of personal recollection, is within the power of his successor in office presiding in his place and stead, and no reason can be perceived or exist why the judge to whom the application is made may not in like manner advise himself, and by like means arrive at a correct determination, of what a bill of exceptions should contain." Numerous authorities are cited in that case as sustaining this proposition. The objection that the successor who so settles a bill of exceptions did not see and hear the witnesses can have no effect in the determination of the question. The fact that a judge sees and hears the wit nesses, and observes their manner of testifying, may be taken into consideration in an appellate tribunal in determining how the ac tion of the judge is to be considered in weighing testimony; but, as has been frequently held, where evidence is taken in the form of depositions, and the benefit of seeing and hearing the witness and observing his manner on the stand does not exist with the trial court, no weight is attached to any fact in question except that derived from the evidence itself. Where a bill of exceptions is settled, signed, and sealed by a judge who did not hear the evidence, that fact may be made to appear by the certificate of the successor to the trial judge, and the case determined by an appellate tribunal on the facts in the record, without any weight being attached to the fact of the trial judge having seen and heard the witnesses. The bill of exceptions in this case having been indorsed as correct by the counsel, we fail to see that anything could have enlightened the mind of the successor in office upon the question of what occurred on the trial, and it was his duty to hear and determine the question and settle the bill of exceptions; and this, whether it be regarded as a ministerial or judicial act. The writ will be awarded. Writ awarded. RANSDELL v. BOSTON et al. (Supreme Court of Illinois. April 21, 1898.) WILLS-VALIDITY OF BEQUEST-TITLE ACQUIRED. 1. A bequest was made to executors in trust for the use of testator's son until such time as he should become unmarried, in which event he was to have the land in fee, but, if he died without being divorced and childless, the land was to go to other devisees. Held not contrary to public policy nor void. 2. A bequest was made to executors in trust for the use of testator's son until he became unmarried, and in that event the land was to go to him in fee simple. Held that, even if the condition were void, the title in fee could not vest in devisee until the performance of the condition precedent. 3. A bequest was made to executors in trust for testator's wife, and, in the event of her death, one-half of the money and lands so bequeathed should be vested in the son should he become unmarried prior to the wife's death. Held that, even if the condition were void, the devisee would not be entitled to a decree for the personal property, since his title depended upon an expectancy. Error to circuit court, Morgan county; C. Epler, Judge. Bill by John P. Ransdell against Louisa Boston and others. Judgment for defendants, and plaintiff brings error. Affirmed. Plaintiff in error filed his bill in the court below to set aside certain conditions in the last will of his father, Eli C. Ransdell. The facts alleged in the bill material to a decision of the case are as follows: Eli C. Ransdell died, testate, August 28, 1880, leaving, him surviving, Ann Ransdell, his widow, plaintiff in error, John P. Ransdell, his son, and Louisa Boston, his daughter, the latter having a son, William Boston, and a daughter, Olga May Robinson. On July 10th prior to his death, he executed, in due form of law, his last will and testament, which was duly admitted to probate. By the first clause of that will he directed the payment of all his just debts. By the second he gave to his wife lot 161, in Jacksonville, Ill., for life, and at her death to be disposed of as afterwards stated, and also certain personal property to be owned by her absolutely. By the third he gave the daughter, Louisa, 80 acres of land in Morgan county for life, and at her death to go to her children in equal parts; also the benefit of $1,000 for her life, the same to go to her children at her death, in equal parts. The fourth and fifth clauses, being those upon which the bill is based, are as follows: "Fourthly. I give, devise, and bequeath to my executors, as trustees, as hereinafter stated, the west half of the southwest quarter of section number twenty-nine (29), the east half of the east half of southeast quarter of section number thirty (30), and the west half of the east half of the southeast quarter of section number thirty-one (31), all in township fifteen (15) north, and range nine (9), in Morgan county, Ill., being one hundred and sixty (160) acres, in trust, however, to permit my son, John P. Ransdell, to take and apply the rents, issues, and profits of the same, or to use and occupy the same without rent, if he shall so elect, until such time as he, the said John P. Ransdell, shall become sole and unmarried; and, upon the happening of that event, my said executors, or the survivor of them, trustees as aforesaid, shall release and convey the title to said lands to the said John P. Ransdell in fee; but if the said John P. Ransdell shall die never having had the bonds of matrimony dissolved between him and Julia Ransdell, his present wife, and he shall die childless, then said lands so bequeathed in trust, as last aforesaid, shall be held in trust for the other devisees under this will; but, if the said John P. Ransdell shall die having issue, the said real estate last aforesaid shall belong to said issue in equal parts, excluding the said Julia E. Ransdell from any and all interest whatever in the same. I enjoin upon my son, John, as a duty, that he furnish his mother the necessary firewood and such articles from the farm as she may need, and that he carefully look after her affairs so long as she may live. Fifth. All and singular the remainder of my said real and personal estate I will and bequeath to my executor, William Ransdell, in trust, however, for the following purposes, to wit: To have, hold, and manage and control the same for the use and benefit of my wife, Ann Ransdell, so long as she shall live. Said trustee shall collect the interest annually on the moneys invested, and pay over the same, less the necessary costs and expenses of managing the same; and the rents and profits of all my real estate not specifically de vised shall be paid over to her, or for her use, during her natural life. At the death of my wife, Ann Ransdell, the principal of the fund so directed to be put at interest for her benefit during her life, and all the real estate devised to her for life, and in trust for her benefit during life, shall be held by my surviving executor in trust for the use and benefit of the said John P. Ransdell and Louisa E. Boston, in equal parts, so that they shall share equally in the rents, issues, and profits of the same during life. If the said John P. Ransdell shall during his life be legally absolved from the bonds of matrimony whereby he is now joined in wedlock to Julia Ransdell, then, upon the happening of such event, but not before the death of Ann Ransdell, as aforesaid, the one-half of the residue of my estate herein before devised to my wife for her life, or in trust for her for life, shall immediately vest in the said John P. Ransdell absolutely. If the said bonds of matrimony shall be dissolved between the said John P. Ransdell and Julia Ransdell during the life of Ann Ransdell, said dissolution is not to affect in any way the devise for life to my wife, Ann Ransdell. If the said John P. Ransdell shall not be dissolved from the bonds of matrimony, but remain bound in wedlock to his now wife at the time of his death, then the one-half of said residue of my estate, at the death of my wife, Ann Ransdell, shall go to and vest in his, the said John P. Ransdell's, issue, if any such there be, to the exclusion of the said Julia E. Ransdell, his present wife. If the said John P. Ransdell Ishall die without issue, then the said onehalf of said residue of my estate, after the death of my wife, Ann Ransdell, shall be held by the said William Ransdell, my surviving executor, to and for the use of the said Louisa E. Boston during her natural life, and after death to her children, in equal parts; and the other or remaining half of the residue of my said estate, after the death of my said wife, Ann Ransdell, shall be held by my said surviving executor for the use of the said Louisa E. Boston, with the right for her to receive, use, and apply the annual income arising from the same for and during her life. At her death the same shall vest in the children of her, the said Louisa E. Boston, in fee, in equal parts." The sixth clause empowered his executors named to make, execute, and deliver any and all deeds necessary to be executed in order to carry into complete effect all the provisions of the will, and by the seventh he nominated his brother, William Ransdell, and his wife, Ann Ransdell, to be his executors. It is alleged in the bill that the testator was unduly prejudiced against the wife of complainant, Julia E. Ransdell, and was desirous that he should procure a divorce from her, and, being so influenced, provided in the fourth clause of his will that complainant should have the occupancy, use, rents, and profits of 160 acres of land for life or until the dissolution of said marriage relation between himself and his wife, when said lands should be by the executors conveyed to him in fee; but if he should die without issue, never having had said marital relations dissolved, then the land should descend to his sister, and at her death to her children. By an amendment to the bill it was further alleged: "That said testator, by the fifth clause of the said will, also devised and bequeathed to your orator one-half of certain moneys and land, at the expiration of the life estate of his widow, Ann Ransdell, to be owned and enjoyed absolutely and in fee simple, conditioned upon the dissolution of the marriage relation existing between your orator and the said Julia E. Ransdell; but, if said marriage relation should not be dissolved, then your orator should only have the use and income of the same for life, and at your orator's death, in default of issue, the same should descend to your orator's sister, Louisa Boston, and at her death to her two children." It is then alleged in the bill that the provisions in said fourth and fifth clauses, being intended by the testator to induce the complainant to secure a divorce from his wife, are void in law, being contrary to good morals and public policy, and, as such, should be so held and decreed. It then sets out that Louisa Boston is the mother of the two children named, who are tenants in fee as remainder-men under the provisions of the will, in the event complainant should die without issue, not having been divorced from Julia E. Ransdell; that complainant is not the father of any child or children living, or of any which have been born since the death of the testator. Louisa Boston, her children, and the husband of the daughter, Joel Robinson, together with John A. Ayers, administrator de bonis non of the estate of the testator with the will annexed, were made parties defendant. The prayer is that, upon a hearing, "the provisions of said will requiring your orator to procure a divorce from his wife as a condition precedent to the enjoyment of the fee of the 160 acres of land be decreed to be absolutely null and void, and that the title to said land be declared to be vested in your orator in fee"; and, by an amendment to the prayer, that he be decreed "the owner in fee of the property devised and bequeathed to him by the fifth clause of said will, subject to said widow's life estate, free from said illegal and immoral provision." There is also a prayer for general relief. Louisa Boston, her two children, and Joel Robinson filed a general demurrer to the bill, which was overruled, and leave given to answer. By their joint and several answer, they admit the allegations of the bill as to the execution of the will and death of the testator; deny that the testator was unduly prejudiced against Julia E. Ransdell, or that he desired the complainant to procure a divorce from her, or that he intended, by the terms of his will, to induce the complainant to secure a divorce; deny that the provisions 50 N.E.-8 of the will are contrary to good morals or public policy; but aver that the same are just and in accordance with sound policy and good morals, and valid and binding upon the complainant and all others; that the claims of complainant are stale, and are and should be barred by lapse of time; that the uses and purposes for which said trust was created by the will were and are lawful; and that said devise to said trustees was and is a valid devise, and the court has no authority to devest said trustees of the title so vested by said devise; and deny any and all other matters not specifically admitted or denied. To this answer a general replication was filed, and the cause referred to a master to take proofs. Upon the coming in of his report, the same was approved, and a decree entered dismissing the bill for want of equity, and from that decree this writ of error is prosecuted. Lyman Lacey, Sr., and Wm. A. Crawley, for plaintiff in error. John A. Bellatti, for defendants in error. WILKIN, J. (after stating the facts). As will be seen by the foregoing statement, the relief prayed in the bill is based upon the allgation that the condition named in the fourth and fifth clauses of the will of Eli C. Ransdell, upon which the complainant should become the absolute owner of the property mentioned, is contrary to good morals, against public policy, and therefore void. In support of the proposition, the rule announced in 1 Story, Eq. Jur. § 291a, and authorities there cited, 2 Redf. Wills, 293, Conrad v. Long, 33 Mich. 78, and Pom. Eq. Jur. § 933, note 1, is relied upon. The language of Judge Story is (having spoken of the law as to devises and bequests in restraint of marriage): "So, also, conditions annexed to a gift the tendency of which is to induce husband and wife to live separate or be divorced are, upon grounds of public policy and public morals, held void." But he says (section 291e): "This whole subject, as to what conditions in restraint of marriage shall be regarded merely in terrorem, and so void, and what ones are valid, is certainly, both in England and in this country, involved in great uncertainty and comfusion." And in section 291d: "The question as to what conditions affecting marriage are valid must depend upon the circumstances of each particular case, and will be very materially affected by the consideration how far the condition was one fairly applicable to the relation of the parties and the peculiar views and situation of the donor and donee." While it must be admitted that the language of the testator used in these clauses of his will impress one with the belief that he desired his son to obtain a divorce from his wife, and that he conditioned his gift to him with a view to encourage that result, there are certain facts and circumstances which go far to sustain the view that his purpose was simply to secure the gift to his son in |