sons, Samuel O. Walker and Edward S.1 Before the trial a stipulation was entered Walker, his only heirs at law. The defend- into, by and between the attorneys of the ant Chetlain was appointed administrator. parties to the suit, by which it was agreed In 1875, said heirs quitclaimed their interest that whatever judgment might be recovered in the premises in question to defendant should be satisfied out of the funds held by Fargo. In the mean time, defendant Doane Jewett and Small, as the proceeds of the bought up nearly all the claims against the mines, and from property belonging to Marestate, and subsequently said premises were tin O. Walker at the time of his death, and sold at administrator's sale, and were struck that the individual property of Throop and off to defendant Rand for $5,000; and on the McClelland should be released from the lien same day Fargo conveyed his interest in said of such judgment. After the rendition of premises to Carrie Walker, who quitclaimed said judgment an agreement was entered into Rand. Rand took title to said property as to by Thomas Brown, the owner of the judgtrustee for Doane, the latter being the real ment, and Doane, as follows: "Memoranpurchaser of the property. Prior to the exe- dum agreement between Thomas Brown and cution of said deed of trust, Walker had mort- John W. Doane, October 8, 1881. Thomas gaged lots 22, 23, and 24 to the Sears estate. Brown is to foreclose a deed of trust made by This mortgage was foreclosed without mak- Martin O. Walker and wife to Charles E. ing Charles E. Brown, the trustee, or Tucker, Brown, on certain lots at the corner of WaBrown & Co., parties defendant. The equity bash avenue and Randolph street, in the city of redemption of Tucker, Brown & Co., not of Chicago, to secure a judgment therein being cut off by the foreclosure proceedings, mentioned, and which has been rendered by was subsequently purchased by the Sears es- the circuit court of the United States for the tate for $10,500, and those lots were there- northern district of Illinois, this day, against upon released from the lien of the deed of Amos G. Throop and Robert McClelland, and trust. Also, on the 18th day of September, to obtain a decree against Mrs. Walker to 1874, proceedings were instituted in the su- sell the property; said proceeding, however, perior court of Cook county to enforce a me- to be conducted at the expense of said Doane. chanic's lien against said lot 19, and in those (2) John W. Doane is to bid off the lots deproceedings a decree was had, and said lot scribed in said deed, the title to which is now was sold thereunder, and a master's deed was in George C. Rand, for twenty thousand dolafterwards executed, in pursuance of said lars, or to pay that sum for the transfer of sale, conveying said lot to Edward A. Small. the dower right to the owner of the fee, and In May, 1875, negotiations were opened for discharge the same of record. (3) If Brown a settlement of the matters in controversy fails to procure said decree of sale, or to purunder the lease, for the sum of $50,000. chase the rights of dower, and transfer the Mullins, the manager of the mines, to effect same, and discharge the same of record, to such settlement, deposited with Mr. Jewett the owner of the fee, so that the owner is reand Mr. Small, the former being at that time quired to purchase the dower, and discharge the attorney of Throop and McClelland, and the same of record, or so that the dower shall the latter the attorney of the Walker estate, be assigned or assessed, then Brown is to pay the sum of $25,000, said money, as is claimed, towards the dower five thousand dollars, being proceeds of said mines; said sum to be ($5,000,) and Doane is to pay or meet the paid to Tucker, Brown & Co., and the deed balance. (4) In case a sale is made under of trust to stand as security for the remain- such decree of foreclosure of those lots known ing $25,000. Said negotiations failed, and it as the Sears lots,' on Randolph street, and the was then arranged that the money should re-equity of redemption is purchased by Brown, main in the hands of said Jewett and Small, he is to transfer it to Doane for $8,000, at the and should be invested in bonds, and should option of said Doane to take the same or not, ultimately be used in extinguishment of what- or Doane may purchase said lots at said sale ever liability might be established under the for that sum without hindrance from Brown. lease. The former suit not having been re- (5) When Brown receives the bonds or seinstated in the court below within two years curities or funds now held by John N. Jewfrom the time it was remanded by this court, ett, which he shall receive on the delivery of as provided by the statute, a new action in this agreement, and the said sum of twenty covenant was commenced by Thomas Brown thousand dollars, and the sum of eight thouand Henry G. Tucker, surviving partners of sand dollars, at the option of said Doane as the firm of Tucker, Brown & Co., June 1, to the eight thousand dollars, the judgment 1877, in the circuit court of the United States against McClelland and Throop is to be enfor the northern district of Illinois, against tered satisfied, and it is not to be enforced Throop, McClelland, and Mullins, as surviv-against any other property described in said ing partners,--Cutting, also, being dead,--to deed of trust. (6) Said suit for foreclosure recover damages for breaches of the covenants is to be commenced and prosecuted by Brown of said lease. Only Throop and McClelland with diligence, and proceedings completed were served with process, Mullins being a non-resident of the state. On the 8th day of October, 1881, a judgment was rendered in said suit in favor of the plaintiffs therein for $92,171.32, and costs of suit.

v.22N.E.no.24-64

within five years, and, if not completed within that time, he is to be considered to have failed as aforesaid, and shall at the end of that time cancel and discharge of record the judgment of the United States circuit court,

The cause was heard in the superior court on pleadings and proofs; and upon such hearing a decree was rendered, finding the facts in substance as above set forth, and also finding that defendants Charles Fargo, Samuel O. Walker, Edward S. Walker, and Augustus L. Chetlain have received no rents or profits from said premises, and are not liable for damages for the detention of the complainant's dower; that John W. Doane and George C. Rand received no rents and profits and made no use of said premises prior to the erection of said buildings thereon; that no demand was made for dower prior to the filing of the bill herein; and that they are not liable for damages for the detention of said dower prior to the filing of the bill; that John

northern district of Illinois, in favor of Brown | sums of money in satisfaction of taxes and and against McClelland et al., and the same assessments on the lots in question, and also shall be no longer a lien against any proper- in redemption of said lots from tax-sales, ty mentioned in said deed of trust, except the and other charges thereon. Also, that said Sears property. (7) On the signing of this Doane has improved said lots by erecting memorandum, John N. Jewett is to deliver thereon large and expensive buildings. the funds or bonds in his custody, except $1,000 for Mullins, to said Brown, with the exception of $5,000, which he is to retain and hold as security for the payment of the $5,000 herein mentioned, if Brown shall be required to pay the same. This is to be binding upon the heirs, administrators, and assigns of both parties hereto. THOMAS BROWN. I hereby ratify the above contract, and agree to carry out its terms without any expense to said Doane. THOMAS BROWN. By W. C. GOUDY, his Attorney." The time mentioned in the sixth paragraph of the foregoing instrument for completing the foreclosure proceedings was, by mutual agreement of the parties to said instrument, extended for a further period of 5 years, making 10 years in all. On the 8th day of November, 1881, John N. Jew-N. Jewett is not liable to the complainant for ett and Edward A. Small transferred to Thomas Brown, the owner of the judgment, bonds which had been purchased with the funds deposited with them, to the amount of $22,375.75, retaining a sufficient sum to discharge certain charges and expenses, and the further sum of $5,000 for the purpose stipulated in said agreement.

any of the funds received by him; and that he has rightly transferred said funds in the manner above stated. It was thereupon ordered that the original amended and supplemental bills be dismissed as to Charles Fargo, Samuel O. Walker, Edward S. Walker, Augustus L. Chetlain, and John N. Jewett, and that they recover their costs. It was further In the suit in the federal court which re- found that the $22,375.75 paid by Jewett to sulted in the judgment above mentioned, the Brown and the $5,000 retained by Jewett in pleas which were held to be good by this pursuance of the agreement between Doane court on the appeal from the former judg- and Brown, and also the $10,500 received by ment were not interposed by the defendants. Brown for the release of his equity of redempThe action, which was originally in covenant, tion in the Sears lots, should be credited on was by leave of the court changed to assump-the judgment above mentioned recovered in sit, and the only plea filed was the general the circuit court of the United States; and issue. The record of the trial and judgment is, in substance, that by stipulation of the parties a jury was waived, and the cause was submitted to the court for trial upon the issue; and that the court, having heard the evidence, and being sufficiently advised in the premises, found the issue for the plaintiffs, and assessed their damages at $92,171.32; and that judgment was thereupon rendered upon said finding for that sum and costs. The evidence adduced at the hearing of the present case tends to show that the only evidence offered on the trial of said suit at law in the federal court upon the question of damages related to the amount of coal actually taken from the mines in question by the Carbon Hill Coal & Mining Company, and that the damages assessed consisted only of the royalties upon the coal actually mined by said company at the rate stipulated for in the lease, with interest thereon at the rate of 6 per cent. per annum. No evidence was offered in relation to the alleged failure of the lessees to take out the amount of coal stipulated for, and no damages were awarded for any breach of that covenant of the lease. The evidence also tends to show that John W. Doane, both before and after the filing of the original bill in this suit, paid out large

that upon applying such credits there remained due on said judgment the sum of $71,493.15. It was thereupon decreed, that the complainant, Martha A. Walker, is entitled to an assignment of dower in said lots 16, 17, 18, 20, and 21, subject to the amount due upon said judgment, and also subject to the claim of said Doane to be reimbursed for a portion of his disbursements made in removing the liens for taxes and other charges on said lots, but that she is not entitled to dower in the improvements made upon said premises by said Doane; also that her right to dower in said lot 19 had been barred and cut off by the proceedings in the matter of said mechanics' liens, and the sale of said lot thereunder. It was further decreed that said complainant, said George C. Rand and John W. Doane, or one of them or some person on their behalf, pay to the executors of Thomas Brown, deceased, said sum of $71,493.15, within 30 days of the entry of said decree, or that said lots 16, 17, 18, 20, and 21 be sold by the master in chancery, "and that at such sale said John W. Doane or Martha A. Walker be allowed to bid for said premises, according to the provisions of the agreement herein before set forth between Thomas Brown and John W. Doane." And it was further ordered that the

master make report of his action in making | Co. v. Watson, 105 Ill. 217; Sanford v. Kane, such sale, and that until the coming in of 127 Ill. 591, 20 N. E. Rep. 810. such report the case be reserved for such fur- The record, however, is before us on writ ther order and decree as may appear to the of error to the superior court, and in that court to be equitable and just, and in accord-proceeding various portions of the decree of ance with the findings of said decree. that court are assigned for error. The asFrom certain specified portions of said de-signment of error to which the arguments of cree the complainant appealed to the appellate court, but that court dismissed the appeal on the ground that the cause involves a freehold, and that the court, therefore, had no jurisdiction. From the judgment of the appellate court the complainant has appealed to this court, and assigned the order of dfsmissal for error. Concurrently with said appeal the complainant has sued out of this court a writ of error to the superior court, and by stipulation of the parties the transcript of the record of that court, which was taken to the appellate court, and which, upon the appeal from the latter court, was, in pursuance of the statute, brought here without transcription, may stand and be treated as the proper return to the writ of error. In the proceeding by writ of error various provisions of the decree of the superior court are assigned for error.

Isham, Lincoln & Beale, for appellant. W. H. & J. H. Morse and W. C. Goudy, for appellees.

counsel are mainly directed relates to that portion of the decree which makes the dower estate of the complainant subject to the Tucker, Brown & Co. deed of trust, and holds that the judgment for $92,171.32 recovered by the surviving partners of the firm of Tucker, Brown & Co. against Throop and McClelland in the circuit court of the United States for the northern district of Illinois is secured by said deed of trust, and is a lien upon the premises in question superior to the complainant's right of dower. The proper solution of the question thus raised must depend, in a very large degree, at least, upon the construction to be placed upon the terms of the deed of trust. The circumstances under which said deed of trust was executed fully appear in the statement which precedes this opinion, but they may be more succinctly stated as follows: Prior to the execution of said deed, Walker, Throop, McClelland, and others composing their firm, had become liable to Brown, Tucker & Co., as was claimed by the last-named firm, in a large sum of money, upon the covenants of the lease of the Ohio coal lands, both for the royalties of rents reserved and for damages for a failure to mine the amount of coal stipulated for in the lease. While this liability existed, or while it was being incurred, Throop and McClelland assigned their interest in the lease and in their firm to Walker, and Walker and the remaining members of his firm entered into an agreement with Throop and McClel

BAILEY, J., (after stating the facts as above.) That this case involves a freehold, within the meaning of the statute fixing and limiting the jurisdiction of the appellate courts, cannot admit of serious question. The primary object of the suit was the recovery of a freehold. The original bill was filed by the complainant to obtain her dower in six lots of land in the city of Chicago, of which her husband died seised, and dower, being an estate for the life of the tenant, is a free-land to indemnify them against all liability hold estate. 1 Washb. Real Prop. (5th Ed.) 254; 2 Bl. Comm. 119, 129. It is true that as to five of the lots the complainant's right to dower was not contested, as all the answers admitted her marriage to Martin O. Walker, the death of said Walker, and his seisin of the six lots during coverture; but, as to one of the lots, the answers allege an extinguishment of the complainant's dower by the sale of said lot for the satisfaction of certain mechanics' liens, and the decree sustains the averments of the answers in that respect, and holds that her dower in said lot was thus extinguished. That portion of the decree was assigned for error in the appellate court. Not only, then, was the recovery of a freehold the primary object of the bill, but, as to one of the lots, the complainant's right to such estate was directly put in issue by the pleadings, and was contested upon the hearing, and upon that issue the decision of the court was adverse to her; and her appeal to the appellate court was prosecuted, in part, at least, for the purpose of reversing that decision. It is clear, therefore, that the appellate court had no jurisdiction, and that the appeal to that court was properly dismissed. Railroad

upon the covenants of said lease. Subsequently a suit was brought in the circuit court of Cook county by Tucker, Brown & Co. against Walker, Throop, McClelland, and Mullins, upon the covenants of said lease, and in that suit a judgment was recovered against the defendants therein for $119,637, and costs, from which judgment an appeal was taken by said defendants to this court. While said appeal was pending, Walker became desirous of having his other real estate in Cook county, of which he then seems to have been owning a considerable amount, released from the lien of said judgment; and, to obtain said release, he executed to a trustee, for the benefit of Tucker, Brown & Co., the said deed of trust. In that instrument it was declared that the premises therein described were conveyed to said trustee, in trust, to secure to the owners of said judgment the payment of any execution that might be issued thereon, in case the judgment should be affirmed by this court, and, in case of the reversal of said judgment, to secure the payment of any judgment that might be thereafter ultimately rendered in said suit, "or ultimately rendered in any

other suit that may be hereafter brought, | mine the proper parties to a suit at law upon and founded on the covenants contained in the covenants in a lease. In such suits the the indenture of demise set forth in the covenantees are the proper plaintiffs and the pleadings in said suit, and upon which cov- covenantors the proper defendants; and, in enants the said suit or action is founded." case of the death of a part of the plaintiffs, Said judgment pending on appeal in this or a part of the defendants, the suit must be court was reversed, and the suit in which it prosecuted and the judgment recovered by was rendered was abandoned, and no further or against the survivors. If Walker had judgment was rendered therein. Walker in lived, he would undoubtedly have been a necthe mean time died, and the surviving mem-essary party to the judgment within the rebers of the firm of Tucker, Brown & Co. quirements of the deed of trust. That is so thereupon brought another suit in the fed- because he would have been a necessary party eral court upon the covenants of said lease to such judgment by the rules of the comagainst Throop, McClelland, and Mullins, the mon law. As he was dead, his surviving surviving members of Walker's firm, and co-obligors were the proper parties defendant in that suit the judgment in controversy was to a suit on the covenants of the lease; and recovered. for that reason they were the proper parties The contention is that the last-named defendant to the judgment within the meanjudgment is neither within the terms nor ing of the deed. It cannot be doubted that if meaning of the deed of trust, and should the suit which was pending on appeal in this therefore be held to be no incumbrance upon court at the time the deed of trust was exethe complainant's right of dower. The inter-cuted had been reinstated in the court below, pretation which the complainant seeks to put and prosecuted to final judgment, such judgupon the above-quoted language of the deed ment would have been within the terms of of trust is that the "other suit" referred to the deed of trust. But as Walker died while must necessarily be a suit to which Walker the appeal was pending, the final judgment or his legal representative is a party, and in that suit would necessarily have been renthat the judgment in such suit, in order to dered against his co-obligors alone. It would be within the terms of the deed of trust, have been in favor of precisely the same must be technically a judgment against plaintiffs, and against the same defendant, Walker, or his legal representative. It seems who were parties to the judgment actually very plain to us that this contention cannot recovered in the subsequent suit in the fedbe sustained. To do so would manifestly eral court. The first suit was brought by necessitate the interpolation of terms which the members of the firm of Tucker, Brown the parties did not see fit to insert in their & Co. against Walker, Throop, McClelland, deed. It is not provided in the deed that the judgment to be secured should necessarily be a judgment against Walker, or his legal representative, so as to be binding, as a judgment, upon him or his estate; the only limitation being that it should be a judgment ultimately recovered in the suit then pending, or in some suit to be thereafter brought, founded upon the covenants contained in the lease. The grantors had an undoubted right to give their deed of trust as security for such indebtedness as they saw fit to designate, and to prescribe the conditions upon which the security should become operative. We must therefore take the deed as we find it, and ascertain the nature and description of the indebtedness secured from the language the grantors have seen fit to employ. By securing the then existing judgment, or, in case of its reversal, such judgment as should be But it is claimed on behalf of the complainultimately rendered in the same suit, or such ant that even if her right of dower was origjudgment as might be ultimately rendered inally subject to the lien of the deed of trust, in any other suit founded on the same cause of it has since become discharged from such lien. action, they manifestly secured, and intended As bearing incidentally upon the question to secure, the cause of action itself, the se- here raised is the further proposition which curity to become available and enforceable is insisted upon by the complainant, and only after its validity and amount should be which we will first consider, that she exeultimately established by a judgment in the cuted said deed of trust in the character of pending suit, or in some other suit to be there- surety for her husband, and that her rights after brought, founded upon the same cause are to be determined in accordance with the of action. As the grantors did not under-rules of law applicable to that relation. The take to say who should be parties to the deed of trust appears to have been executed judgment, that was necessarily left to be by both Martin O. Walker and the complainsettled by those rules of law which deter-ant; but, as the instrument contains no per

and Mullins; Cutting, one of the members of Walker's firm, being then dead. When the second suit was brought, Walker, and a part of the members of the firm of Tucker, Brown & Co. were dead, and the suit was therefore brought by the surviving members of the firm of Tucker, Brown & Co. against Throop, McClelland, and Mullins. Mullins, it is true, was not served with process, and did not appear, and no judgment was rendered against him; but that circumstance, so far as we can see, has no bearing upon the question under consideration. The judgment was rendered against Throop and McClelland; and, they being the only defendants against whom, under the rules of law, a judgment in said suit could be rendered, it was clearly such judgment as was contemplated by the deed of trust.

sustaining the demurrer. There was no decision that said pleas were true in fact, or that they could be sustained by evidence. Those questions were left entirely open, and subject to contest by the parties on any subsequent trial. It may be observed that, while said pleas were sufficiently broad to answer the entire action, they were really intended, as we gather from the arguments of the complainant's counsel in this case, to apply especially, if not wholly, to that portion of the plaintiff's demand which was based upon alleged breaches of the covenant

sonal covenant on the part of the grantors, | cover any judgment to which the security of or either of them, to pay the indebtedness se- the deed of trust could apply. A brief examcured, the relation of surety, if such was the ination of the record will demonstrate that relation assumed by the complainant, must such was not the effect of the decision; the result wholly from the fact that she, by join- question decided being as to the legal suffiing with her husband in the execution of the ciency of certain pleas interposed by the dedeed of trust, mortgaged her own property fendants in the court below, and which had or property rights as security for her hus- been held insufficient on demurrer. In the band's indebtedness. The only right in the trial court the defendants had pleaded cerpremises conveyed by the deed which she tain pleas in bar, setting up (1) an eviction could possibly claim at the time that instru- of the lessees by the lessors from a portion of ment was executed was an inchoate right of the demised premises; (2) an unlawful dedower. The circumstances of this case, how-tention from the lessees by the lessors of a ever, as they appear to us from the record, portion of the demised premises; and (3) a are such that we are not called upon to de- plea of set-off of the rental value of the premcide whether a wife who, for the mere pur-ises so detained from the lessees. To these pose of relinquishing her inchoate right of pleas a demurrer was sustained by the trial dower, joins with her husband in the execu-court, and the question decided by this court tion of a mortgage given to secure his debt was that said pleas presented a good defense thereby becomes, in any legal sense, his sure- to the action, and that the trial court erred in ty. The record, as we are compelled to construe it, seems to show that at the time the complainant signed and acknowledged the deed of trust she had, as against the parties secured, no right of dower whatever. The deed of trust, and its acknowledgment by Martin O. Walker, both bear date nearly a month prior to the marriage of the complainant with said Walker. There is no evidence in the record, beyond what is furnished by the instrument itself, showing the date of the delivery of the deed to the grantees; and under these circumstances the legal presumption must prevail that it was deliv-as to the amount of coal which should be ered on the day of its date. Hardin v. Crate, 78 Ill. 533; Hardin v. Osborne, 60 Ill. 93; Deininger v. McConnel, 41 Ill. 227; Jayne v. Gregg, 42 Ill. 413; Darst v. Bates, 51 Ill. 439. Adopting that presumption, as, in the absence of countervailing evidence, we must, it follows that at the date of the complainant's marriage with Walker the deed of trust had already been executed and delivered, and that she acquired by her marriage no right of dower which was not subject and subordinate to the deed. She had, therefore, nothing to convey or relinquish. The fact that the parties, apparently, out of superabundant caution, saw fit, after her marriage, to have her also execute the deed, and have her and her husband join in a new acknowledgment of it, added nothing whatever to its legal effect. As she therefore relinquished no legal interest in the premises conveyed, either present or prospective, there is no basis for the contention that in executing the deed she assumed the position, or acquired the rights, of a surety.

mined. On this subject, counsel say: "It is probable that there was some indebtedness to Tucker, Brown & Co., to be measured by the amount of coal actually taken from the mines. The contest was against what seemed an unconscionable use of the covenants of the lease, under which payment was claimed for the full royalties reserved upon coal which had never been mined at all." And counsel claim that more than $60,000 of the first judgment was made up of damages so computed. The evidence before us tends to show, and we think satisfactorily shows, that the judgment now in controversy is entirely made up of royalties upon coal which had been actually mined, and interest on the sum thus found due, and that no damages whatever were given for royalties on coal not mined, that portion of the plaintiffs' claims, as it seems, having been abandoned. might, perhaps, be suggested, if necessary, that while said pleas, if sustained by proof, would, by the technical rules of the common law, constitute a defense to the plaintiffs' Eliminating that claim, then, from our claim even for their royalties upon the coal consideration, upon what ground can it be actually mined, still the defense would be one pretended that the complainant's dower has which would not specially commend itself to been discharged from the lien of the deed of the conscience of a court of equity. The evtrust? It is insisted, in the first place, that idence shows that the annual rental value of the decision of this court on the appeal from the portion of the demised premises detained the first Tucker, Brown & Co. judgment was from the lessees did not exceed $500, while an adjudication that there was in fact a com- the annual royalties on the coal mined were plete defense to Tucker, Brown & Co.'s ac- nearly $15,000. Now that the plaintiffs tion upon the covenants of said lease, and, have established their claim to said royalties consequently, that they had no right to re-by the judgment of a court of law, a court

It