« ForrigeFortsett »
ceed 2 per cent., for educational purposes, and de- | 1857, and amendments thereto." Approved clares that it does not repeal or change special acts March 31, 1869. 3 Priv. Laws 1869, p. 407. in relation to schools, does not authorize the board of education of the city of Bloomington, a corpora-And it is insisted by the defendant that it tion created by special act, to compel the city au- has no powers except such as are conferred thorities to levy any tax beyond the amount au by these acts, while on the other hand it is thorized by such special act.
deemed that the powers of the board as to Original petition for mandamus.
the amount of money it may demnand have Isaac N. Phillips, for petitioners. A. E. been enlarged by an amendment to the genDe Mange, for defendants.
eral act in relation to schools, enacted in
1879. Section 8 of the Act of 1857, as CRAIG, J. This is a petition for manda- amended in 1865, limits the amount the mus, brought in the name of the people, on board may demand to 1 per cent. on the asthe relation of the board of education of the sessment. The section is as follows: “It city of Bloomington, to compel the city coun- shall be the duty of said board, on or before cil of the city of Bloomington to levy an ad- the first Monday of April in every year, to ditional tax of $15,448.53 to defray the ex- make a report in writing to the city council penses of the public schools within the city of all moneys received, how and for what for the year eniling April 1, 1890. There is
purpose expended, with the proper vouchers, no controversy between the parties in rela- and give such other information in relation tion to the farts. The amount required by to said schools as they may deem important, the boaril of education, and by the board pre- specifying in said annual report the amount sented to the city council for its action, em- of money necessary to be raised by taxation braced the following itenis:
to defray the expenses of said school system; Printing...
$ 300 00 and the city council shall, annually, upon the Water tax.
282 00 coming in of such report, and within thirty Telephone rent... Fuel
2,000 00 days thereafter, proceed to levy a tax suffiJanitor's salaries..
3,450 00 cient to meet such expenses, to be levied and Salary of superintendent and secretary 1,800 00 collected as the other taxes of said city: proEstimated interest on temporary loans.. 1,000 00 Heating apparatus..
viiled said tax shall not exceed ten mills on Repairs....
1,500 00 the dollar,” etc. It is plain that, unless the Supplies..
500 00 the power to demand a greater levy than 1 School buildings.
per cent. has been conferred by some subseMiscellaneous expenses..
400 00 Furniture...
200 00 quent legislation, the city of Bloomington, in Teacher's salaries,
37,000 00 making a levy of 1 per cent., did all it could
be required to do. No special act of the leg. $50,443 00
islature is relied upon, but reliance is placed The amount of the taxable property within upon general laws bearing upon the question, the city of Bloomington, as ascertained by passed since the adoption of the constitution the last assessment, upon which the per cent. of 1870. was to be computed to raise money for school On the 1st day of April, 1872, the legispurposes, was $3,499,447. The city council, lature passed an act entitled "An act to esin its ordinance making a levy of taxes for tablish and maintain a system of free schools.' school purposes, made a levy of 1 per cent. This was a general law, containing 98 secon the assessment, which would raise the tions. All acts inconsistent with it, and all sum of $34,994.47 only; and, as before ob- general laws previously enacted, were reserved, this proceeding was instituted to pealed. Of course, this act did not repeal the compel a levy of an additional amount suffi- charter under which boards of education like cient to make up the $50,443 first demanded the relators in this case were acting. Secby the board. The board of education of the tion 43 of this general act provided that for city of Bloomington is a corporation created the purpose of establishing and supporting by the laws of the state, and it possesses such free schools for not less than five nor more power, and such only, as has been conferred than nine months in each year, and deupon it by the legislature of the state. The fraying all the expenses of the same of every board derived its existence from the follow-description; for the purpose of repairing and ing acts of the legislature: “An act to estab- improving school-houses; of procuring furnilish and regulate a system of public schools ture, fuel, etc., and for all other necessary in the city of Bloomington," approved Feb- incidental expenses,- the directors of each ruary 16, 1857. Pub. Laws 1857, p. 226. district shall be authorized to levy a tax an“An act to provide amendments to the nually upon all the taxable property of the Bloomington school law." Approved Febru- district, not to exceed 2 per cent. for educaary 16, 1865. 2 Priv. Laws 1865, p. 271. tional and 3 per cent. for building purposes. “An act to amend an act entitled . An act to es. Of course, a bare reading of this section as tablish and regulate a system of public schools enacted is enough to convince any person in the city of Bloomington,' approved Feb- that no additional power was conferred on ruary 16, 1857.” Approved February 22, boards of education or a city council in ref1867. 3 Priv. Laws 1867, p. 26. “An act to erence to raising money. Indeed, it has no refamend an act entitled 'An act to establish erence whatever to those corporations. The and regulate a system of public schools in the section confers powers upon the directors of city of Bloomington,' approved February 22, 'each district,-a body well known, and one,
too, which cannot be confounded with a city | powers from, special acts of the legislature. council or a board of education. But in June, Under the special acts a levy of but 1 per 1879, the legislature passed an act, approved cent. is allowed. Section 79 in positive terms June 3, 1879, (Laws 1879, p. 290,) to amend declares that this act--the one containing sections 7, 14, 17, 20, 22, 30, 32, 35, 36, 42, section 43–shall not be so construed as to 43-45, 47, 48, 51–55, 57, 63, 67, and 79 of the repeal or change in any respect any special Act of 1872. Section 43, as amended, read as acts in relation to schools. If section 43 enfollows: “For the purpose of establishing and larges the power of taxation so that a levy of supporting free schools for not less than five 2 per cent. may be made; when only 1 per nor more than nine months in each year, and cent. is authorized under the special charter defraying all the expenses of the same of ev- of the board, then the special acts are changed, ery description; for the purpose of repairing which section 79 declares shall not be done. and improving school-houses, of procuring We perceive no way in which the position of furniture, fuel, libraries, an'apparatus, and relators can be sustained, unless section 79 for all other necessary incidental expenses in may be entirely disregarded. If the relators each district, village, or city,--anything in desired to obtain the supposed benefits arisany special charter to the contrary notwith-ing to the public or to the board of education standing,—the directors of such district, and by being permitted to impose pon the propthe authorities of such village or city, shall erty owners an increased taxation for school be authorized to levy a tax annually upon purposes, section 80 of the general act under all the taxable property of the district, vil- consideration provides a mode under which lage, or city, not to exceed two per cent. for the people of a city like Bloomington, where educational and three per cent. for building the free schools are managed under a special purposes, to be ascertained by the last assess- act, may abolish the organization under the ment for state and county taxes.” In the special acts, and become organized under the amendment of section 43 it will be observed general law for the government of free that the legislature, after the word “dis- schools. But we perceive no way that the trict,” as it appeared in the original section, relators can hold and enjoy the power conincorporated the worils "and the anthorities ferred upon them by the special acts, and at of such village or city.” Now, while there the same time enjoy the rights and privileges may be some uncertainty in regard to what of taxation conferred by the general school was intended by the insertion of these words, law upon that organization, and acting unone thing, however, is certain,-that these der its provisions. If they desire the beneworils did not refer to a board of education, fits conferred by the general law, they must and did not enlarge its powers of taxation. abandon the powers conferred by the special The board of education has never been un-acts. derstood to be the authorities of a village or Much has been said in the argument in recity. On the other hand, it has always been gard to the constitutional duty of the legisunderstood that when these words were used lature to provide a thorough and efficient systhey relerred to the mayor and city council, tem of free schools. That is all well enough; or president of the board and council. In no but the question involved in this case is one event, therefore, did the amended section of power,—the right to impose taxation,empower the board of education to demand and it is quite as important to the citizen to of the city council an additional, or any, levy. know that his property shall not be taken If the city council of Bloomington was, by and sold to pay a tax imposed without authe insertion in the section of the words re- thority of law as it is to know that we enjoy ferred to, authorized to levy 2 per cent., this an efficient system of free schools. Board v. did not authorize the board of education to de- Arnold, 112 Ill. 11, has been cited as an aumand a'levy of that character. If the city thority, but there is nothing decided in that has the power, it is a discretionary one, to be case which has any bearing here. The manused or not as their better judgment may damus will be denied. determine, and not at the whim or caprice of the board of education. But upon an exami.
(130 Ill. 649) nation of section 79 of the same act we think FALOON et al. v. SIMSHAUSER et al. 1 it is apparent that section 43 bad no refer
(Supreme Court of Illinois. Oct. 31, 1889.) ence whatever to proceedings to raise money,
ADVERSE POSSESSION-DEEDS -GRANTEE. where such proceedings were conducted by a
1. Where one who is in possession of a strip of corporate body, acting under a special char- land, together with adjoining land, deeds such adter. That section declares this act shall not joining land, and transfers to his grantee possesbe so construed as to repeal or change in any possession of the grantor may be tacked to that of
sion of the undeeded strip as well as the other, the respect any special acts in relation to schools the grantee, so as to give the latter, at the end of in cities having less than 100,000 inhabitants, 20 years from the time such possession was first or incorporated towns, townships, or dis- taken, a title by adverse possession. tricts, except that it shall be the duty of the to a title, the original owner cannot by taking pos
2. After an adverse possession has ripened inseveral boards of education having in charge session, and then deeding the land to a third perschools, under the provisions of any of the son, convey to the latter any better right than he special acts, to report school statistics to the
himself has. county superintendent, etc. Here the board
1 Reported by Louis Boisot, Jr., of the Chicago of education is acting under, and derives its' bar.
3. A deed to one and his children does not pass house and premises were occupied by a tenany title to a child born after the delivery of the ant when she made the deed ; that she turned deed.
over the lease to Mrs. Simshauser; that the Appeal from circuit court, McLean coun- | latter collected rent from the tenant therein; ty; OWEN T. REEVES, Judge.
that Mrs. Simshauser rented the place for Ejectment by Hannah, Philip, Allen W., two or three years, until the house was torni Benjamin F., Peter P., Mary Belle, Sarah W., down, and that the Simshausers then rentand Henrietta Simshauser against Matthewed the land for a garden, or something of Faloon and Thomas F. Tipton. Judgment that kind; that Mr. Funk had a garden for plaintiffs for an undivided seven-eighths there, and paid the taxes. of the land. Defendants appeal.
It seems, from the evidence, that the house Thomas F. Tipton, for appellants. Will- having become somewhat dilapidated, Philip iams & Capen, for appellees.
shauser, husband of Hannah Simshauser,
had it torn down about 1874. The husband BAKER, J. This was ejectment against in his testimony, in response to a question as the appellants, Matthew Faloon and Thomas to what his wife and children did with the F. Tipton. The premises in controversy house after Mrs. Withers deeded it to them, were a strip of ground beginning at the answered: “We had it about two years, and south-west corner of lot 1, in White's addi- we had so much bother about tenants paying tion to the town, now city, of Bloomington, the rent, and it wanted fixing up, so, after and running thence north to the north line we looked it over, I tore it down." He also of said lot; thence west 29 feet; thence south states that after the house was torn down to the north line of Grovestreet; and thence his boys took the matter out of his hands, east 29 feet to the place of beginning. The and had the premises rented out for a garappellant Tipton exhibited at the trial a title den; and that nobody except them (the Simsin himself, through mesne conveyance, from hausers) were in possession of or made any the government of the United States. The claim to the premises, until the claim made important matter in controversy is whether by appellant Faloon, in 1885. We think it bis right of possession has been barred, in evident, from this testimony, that whatever respect to the rights of appellees, by the op- possession Philip may have had or authority eration of the statute of limitations, which he may have exercised in respect to the tolls, after 20 years' of adverse possession, house, and the land connected therewith, was the right of action for the recovery of lands merely in behalf of his wife and children, and the right to make an entry thereon. Lot and in assertion of their claims of title, and 6, in Gridley's addition to Bloomington, lies in conformity with their relative interests as west of lot 1, in White's addition to Bloom- supposed to be fixed by the deed they held, ington, and this strip of ground now in ques- and in no sense under claim of a personal tion, 29 feet w.de, lies between them. In and individual right in himself. It is also 1852 one Jesse Adams was in possession, un- manifest that the consecutive possessions of der paramount title, of the east half of lot 6, the strip of ground 29 feet wide, held by of 56 feet off of the west side of lot 1, and of Mr. Withers, Mrs. Withers, and the granthe strip of 29 feet, and fenced all these pieces tees, in the conveyance of August 8, 1871, of land in one inclosure, and erected in brick were supposed to be under and by virtue of house on the strip in dispute; that being the deeds made by Adams and by Mrs. Withabout the center of the combined premises. ers, respectively. He remained in possession until September Appellant Tipton's title is derived through 7, 1858, when he executed a deed to Allen a quitclaini deed for the 29 feet, dated OctoWithers, in which the premises conveyed ber 4, 1876, made by Jesse Adams to appelwere described as the east half of lot 6, in lant Faloon, and a warranty deed from FaGridley's : Adition, and 56 feet off of the west loon to himself, dated April 15, 1887. A side of lo 1, in White's addition, and put possession of land, in order to be adverse, said Withe.o in possession of the house, and need not be under any muniment of title. of the whole of the premises. Withers re- Adverse possession is a possession inconsisttained possession of the entire inclosure, oc- ent with the right of the true owner, and cupying it by his tenants, and claiming to be depends upon the intention with which it is the owner of it all until his death, in 1864. taken and held; and an actual occupancy of He left a will by which he devised his whole land by one, accompanied by acts of ownerestate to his wife, Sarah B. Withers. Mrs. ship inconsistent with the fact of ownership Withers occupied the entire premises by her in another, is presumptively adverse possestenants, she claiming to be the owner of the sion. The possession of Allen Withers, and same until August 8, 1871, when she con- that of his devisee, Sarah B. Withers, were veyed by deed to “Hannah Simshauser and very plainly adverse, in respect to the 29 her children,
* and their heirs and feet, to the title of Jesse Adams, under which assigns." This deed also described the prem- appellants claim, and these possessions conises conveyed as the east half of lot 6, in tinued from September 7, 1858, to August Gridley's addition, and 56 feet off of the west 8, 1871,-a period of 12 years and 11 months. side of lot 1, in White's addition. Mrs. With-So, also, the possession of appellees, under ers put her grantees into possession. Mrs. their deed from Mrs. Withers, was manifestWithers states in her testin:ony that the ly adverse to the title of which appellants
seek to avail themselves; and it extended | sense, until he shall have destroyed the bar, from August 8, 1871, until some time in the by purchase, limitation, or some other mode year 1885,—a period of almost or quite 14 equally effectual.” When both the right of years. It is not essential there should be entry and the right of action are lost, then proof of oral declarations of claim of title by operation of the statute the party in admade by appellees, but it is sufficient if it verse possession is conclusively presumed to appears they so acted as to clearly indicate be the owner and to be vested with title, and that they did claim title. James v. Railroad such title cannot be cut off and destroyed by Co., 91 ill. 554. It follows that, if these pos- the act of the holder of the former title in resessions can be tacked together, there is an gaining possession by the commission of a adverse possession shown in this case of some tort, and, while so in tortious possession, con27 years, and the bar of the statute against veying to a third party who has no notice of the title of appellants, even though it be the the adverse title, the holder of which has true title, is complete and became absolute been wrongfully and temporarily dispossessed. in September, 1878.
The right of possession which once was in Appellant urges, however, that where sev- the former owner having been transferred by eral persons, without privity of estate, juc- the statute to the new and adverse owner, cessively enter on land as disseisors, their such former owner is powerless to convey to several possession cannot be tacked so as to the purchaser from him a right of possession make a continuity of disseisins, and that, i.. which he himself does not have. The appelorder to give a right to the bar under the lant Faloon took possession after the rendistatute of limitations, a party seeking to tion of judgment in the first ejectment suit, avail of such right must show privity of es- hereafter mentioned, but he was not put in tate with the prior disseisors by purchase and possession by any writ of possession issued conveyance of disseisin. It is a sufficient upon such judgment. In Riverside Co. v. answer to this claim, and to the authorities Townshend, 120 Ill. 9, 9 N. E. Rep. 65, this cited, to show it is essential to establish by a court held that when a plaintiff in ejectment deed that appellees are connected with the shows an adverse possession for 20 years, so adverse possessions of Allen and Sarah B. that the entry is barred, he is entitled to reWithers, to say that the question is not an cover even against a defendant whose possesopen one in this state, and that the rule hav- sion, for a less period, is lawful; and quoted ing been years ago determined otherwise by with approval the language from Ang. Lim. this court, and it being a rule of property $ 381, that “it is also unquestionable that, upon which many titles may depend, such where land has been held under a claim to ruling will be adhered to without any re-ex- the fee, for the time prescribed by the stalamination of the conflicting authorities in re- ute, and an entry is made by the party who spect thereto. In Weber v. Anderson, 73 has the written title, such party may be disIll. 439, it was held that a deed is not neces- possessed, by an ejectment brought by him sary to transfer the possession of land held who has so held and claimed.” adversely to the owner, and that where land The declaration filed in this case contains is held adversely by different occupants, and 10 counts. In the first count Hannah Simsone succeeds to the possession of another, hauser, Philip Simshauser, Allen W. Simsthe identity and continuity of their posses- hauser, Lawrence Simshauser, Benjamin F. sion, in order to make the period required to Simshauser, Peter B. Simshauser, Mary Belle bar the owner, may be shown by parol evi- Simshauser, Sarah W. Simshauser, and Hendence. See also, Schneider v. Botsch, 90 rietta Simshauser claim the whole of the Ill. 577, and other cases there cited.
premises in fee. In the second count HanAppellant Tipton further insists that he is nah Simshauser claims an undivided onean innocent purchaser for value from a person eighth part of said premises; and in the in possession having the legal title of record, third, fourth, fifth, sixth, seventh, eighth, and should be protected as such. Waiving the ninth, and tenth counts, respectively, Allen contention made by appellees that this claim W., Lawrence, Benjamin F., Peter P., Mary is wholly unsustained by the facts, it would Belle, Sarah W., Henrietta, and Clarence seem that, even if it has a sufficient basis in Simshauser each, respectively, claims an unthe evidence, yet it cannot here prevail.. divided one-eighth part of said premises. While the statute of limitations does not seems from the evidence that in 1885 the aphave the effect to transfer the title of the 'pellant Faloon commenced ejectment for the true owner, it does transfer his right of pos-, recovery of the premises in dispute against session to the psrty in adverse possession for one Funk, who had rented them from Benjathe required period. In Hinchman v. Whet- min F. Simshauser, and said Funk gave due stone, 23 II. 185, this court said: “Where the notice to said Benjamin F. of the suit, and statute has tolled both the right of entry and in the suit Faloon obtained judgment by dethe right of action, the remedy of the owner is fault. In the present suit, which was tried gone, and he is precluded from asserting his before the court without a jury, the court right, or setting up his title against the party held that Benjamin F. Simshauser relying upon the statutory bar.” And fur- barred by the judgment in the first ejectment, ther said: “As against such occupant, and and as to bin the judgment was that he take those claiming under him, he can neither use nothing by the suit. But the court found his title for the purpose of recovery or de-'the issues for the plaintiffs Hannah, Allen
W., Lawrence, Peter P., Mary Belle, Sarah premises claimed, it shall specify such share W., and Clarence Simshauser, and that each or interest. In this case there is no crossof said last-named plaintiffs was the owner error assigned by Henrietta Simshauser, bein fee-simple of an undivided one-eighth part cause there was no finding and judgment in of the premises, and rendered judgment that her favor for an undivided one-eighth of the each of them “do each severally recover land. It is not perceived that there is any
an undivided one-eighth of the occasion for reversing the entire judgment above-described premises,” etc.
and remanding the cause. The findings and It is strenuously urged the judgment in judgments in respect to the interests of the favor of Clarence Simshauser for an undi- several appellees were several and distinct. vided one-eighth of the land is erroneous, The judgment in favor of Clarence Simsand such contention is undoubtedly well hauser being erroneous, and he having no founded. The deed from Mrs. Withers was, right or title in the premises, is reversed. as we have heretofore seen, to Hannah Sims- The judgments in favor of Hannah Simshauser and her children. While it is neces-hauser, Allen W. Simshauser, Lawrence sary that all the grantees should be sufficient. Simshauser, Peter P. Simshauser, Mary Belle ly described in a deed, yet that rule does not Simshauser, and Sarah W. Simshauser are require such parties should be designated by affirmed. It is ordered that six-sevenths of the usual method of giving their names in the costs of this appeal be taxed to appellants, full, and any other description will suffice and one-seventh of such costs be taxed to which distinguishes them from all others, as Clarence Simshauser. Allirmed in part, and where one is described by his office or by his reversed in part. relation to other persons. 5 Amer. & Eng.
(130 Ill. 352) Cyclop. Law, 432, and authorities cited in BENNESON et al. v. SAVAGE.1 notes; Cook y. Sinnamon, 47 Ill. 214; Low
(Supreme Court of Illinois. Oct. 31, 1889.) v. Graff, 80 Ill. 360. In this case Mrs.
MORTGAGES - FORECLOSURE - POWERS-PRINCIPAL Withers and her children living at the time
AND SURETY. the deed was executed and delivered took as 1. Where a bill to foreclose a mortgage securtenants in common. Wilds Case, 6 Coke, 17; ing a note and interest coupons describes the couParkman v. Bowdoin, 1 Sum. 366; 2 Jarm. pons as bearing interest after maturity, and the
mortgage says that interest on the principal noto Wills, 224.
shall be paid "according to interest coupons thereThe evidence of Philip Simshauser shows to annexed,” and such coupons do in fact bear inthat the seven children of himself and wife terest after maturity, there is no variance between
the bill and the mortgage. living at the time Mrs. Withers made the
2. Where a mortgage, given to secure the deed were Allen W., Lawrence, Peter P., debt of one who does not own the land, provides Mary Belle, Sarah W., Henrietta, and Benja- that the bolder of the note may extend the time of min F. The evidence of Mrs. Withers is to payment on the maker's executing coupons for in
terest to accrue during such extension, the holder the same effect, and it clearly appears from of the note may extend it, and fix the rate of interher testimony that Clarence was born about est which such coupons shall bear after maturity, three years thereafter. Of course Clarence without further consent of the mortgagor. did not take by the deed. In case of a grant do not provide for the payment of exchange as the
3. In such case the fact that the new coupons of an immediate estate in possession, the original note does, not being prejudicial to the grantee must be in esse, and a deed of that mortgagor, does not affect the mortgage. kind may be avoided by showing the grantee coupled with an interest, is not revoked by the
4. The power to make such extension, being came into being subsequent to the delivery death of the mortgagor. of the deed. Hulick v. Scovil, 4 Gilman, 5. Where a debtor conveys land to his credit159; Miller v. Chittenden, 2 Iowa, 368; Tied. or, in payment for which the latter gives his note, Real Prop. § 797. The finding and judg-or by suit brought
by third persons, the failure of
and the land is afterwards taken from such credits ment of the court in favor of Clarence Sims- the creditor to apply the purchase price of such hauser for an undivided one-eighth part of land to the payment of the debt does not release the premises was clearly erroneous. Section the debtor's sureties. 27 of the ejectment act (Rev. St. 1874, c. 45,
Error to appellate court, third district. § 27) provides “it shall not be an objection
Bill by William T. Savage against Caroline to a recovery in any action of ejectment that W. Benneson, Ann E. Keller, and Anna any one of several plaintiffs do not prove any Wells to foreclose a mortgage. Defendants interest in the premises claimed, but those bring error. entitled shall have judgment, according to
William T. Savage filed his bill in chantheir rights, for the whole or such part or cery in the circuit court of Adams counportion as he or they might have recovered, ty, against Charles A. Savage and others, if he or they had sued in his or their nanie or to foreclose a certain mortgage, which was names only. And it is provided in the sec- in form a deed of trust. The following ond and sixth clause of section 30 of the same statement, taken from the printed arguact that if it appears that one or more of the ment filed by the counsel for appellants, is plaintiffs bave a right to the possession, and a sufficiently full statement of the pleadthat one or more have not such right, the ings: “The case set up in the bill, in brief, verdict shall specify for which plaintiff the is this: That on March 29, 1873, Charles A. jury find, and as to which plaintiff they find Savage, being indebted to the banking firm for the defendant; and that, if the verdict be for an undivided share or interest in the
Reported by Louis Boisot, Jr., of the Chicago bar.