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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 the amount of money it may demand have

Original petition for mandamus.

Isaac N. Phillips, for petitioners. A. E. been enlarged by an amendment to the genDe Mange, for defendants.

CRAIG, J. This is a petition for mandamus, brought in the name of the people, on the relation of the board of education of the city of Bloomington, to compel the city council of the city of Bloomington to levy an additional tax of $15,448.53 to defray the expenses of the public schools within the city for the year ending April 1, 1890. There is no controversy between the parties in relation to the facts. The amount required by the board of education, and by the board presented to the city council for its action, embraced the following items: Printing..

Water tax...

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$300 00
282 00

261 00

2,000 00
3,450 00
1,800 00
1,000 00
1,500 00

1,500 00
500 00

250 00
400 00

200 00
37,000 00

$50,443 00

eral act in relation to schools, enacted in 1879. Section 8 of the Act of 1857, as amended in 1865, limits the amount the board may demand to 1 per cent. on the assessment. The section is as follows: "It shall be the duty of said board, on or before the first Monday of April in every year, to make a report in writing to the city council of all moneys received, how and for what purpose expended, with the proper vouchers, and give such other information in relation to said schools as they may deem important, specifying in said annual report the amount of money necessary to be raised by taxation to defray the expenses of said school system; and the city council shall, annually, upon the coming in of such report, and within thirty days thereafter, proceed to levy a tax sufficient to meet such expenses, to be levied and collected as the other taxes of said city: provided said tax shall not exceed ten mills on the dollar," etc. It is plain that, unless the the power to demand a greater levy than 1 per cent. has been conferred by some subsequent legislation, the city of Bloomington, in making a levy of 1 per cent., did all it could be required to do. No special act of the legislature is relied upon, but reliance is placed upon general laws bearing upon the question, passed since the adoption of the constitution of 1870.

The amount of the taxable property within the city of Bloomington, as ascertained by the last assessment, upon which the per cent. 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 in the city of Bloomington," approved February 16, 1857. Pub. Laws 1857, p. 226. "An act to provide amendments to the Bloomington school law." Approved February 16, 1865. 2 Priv. Laws 1865, p. 271. "An act to amend an act entitled 'An act to establish and regulate a system of public schools in the city of Bloomington,' approved February 16, 1857." Approved February 22, 1867. 3 Priv. Laws 1867, p. 26. "An act to amend an act entitled 'An act to establish and regulate a system of public schools in the city of Bloomington,' approved February 22,

ture, fuel, etc., and for all other necessary incidental expenses, the directors of each district shall be authorized to levy a tax annually upon all the taxable property of the district, not to exceed 2 per cent. for educational and 3 per cent. for building purposes. Of course, a bare reading of this section as enacted is enough to convince any person that no additional power was conferred on boards of education or a city council in reference to raising money. Indeed, it has no reference whatever to those corporations. The section confers powers upon the directors of each district,-a body well known, and one,

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Under the special acts a levy of but 1 per cent. is allowed. Section 79 in positive terms declares that this act--the one containing section 43-shall not be so construed as to repeal or change in any respect any special acts in relation to schools. If section 43 enlarges the power of taxation so that a levy of 2 per cent. may be made, when only 1 per cent. is authorized under the special charter of the board, then the special acts are changed, which section 79 declares shall not be done. We perceive no way in which the position of relators can be sustained, unless section 79 may be entirely disregarded. If the relators desired to obtain the supposed benefits aris

too, which cannot be confounded with a city | powers from, special acts of the legislature. conncil or a board of education. But in June, 1879, the legislature passed an act, approved June 3, 1879, (Laws 1879, p. 290,) to amend sections 7, 14, 17, 20, 22, 30, 32, 35, 36, 42, 43-45, 47, 48, 51-55, 57, 63, 67, and 79 of the Act of 1872. Section 43, as amended, read as follows: "For the purpose of establishing and supporting free schools for not less than five nor more than nine months in each year, and defraying all the expenses of the same of every description; for the purpose of repairing and improving school-houses, of procuring furniture, fuel, libraries, an apparatus, and for all other necessary incidental expenses in each district, village. or city,-anything in any 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 upon 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 words "and the authorities 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 benewords 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 referred 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 did not authorize the board of education to demand a levy of that character. If the city has the power, it is a discretionary one, to be used or not as their better judgment may determine, and not at the whim or caprice of the board of education. But upon an exami nation of section 79 of the same act we think it is apparent that section 43 had no reference whatever to proceedings to raise money, where such proceedings were conducted by a corporate body, acting under a special charter.

That section declares this act shall not be so construed as to repeal or change in any respect any special acts in relation to schools in cities having less than 100,000 inhabitants, or incorporated towns, townships, or districts, except that it shall be the duty of the several boards of education having in charge schools, under the provisions of any of the special acts, to report school statistics to the county superintendent, etc. Here the board of education is acting under, and derives its

an efficient system of free schools. Board v. Arnold, 112 Ill. 11, has been cited as an authority, but there is nothing decided in that case which has any bearing here. The mandamus will be denied.

(130 Ill. 649)

FALOON et al. v. SIMSHAUSER et al. 1 (Supreme Court of Illinois. Oct. 31, 1889.) ADVERSE POSSESSION-DEEDS GRANTEE.

1. Where one who is in possession of a strip of land, together with adjoining land, deeds such adjoining land, and transfers to his grantee possespossession of the grantor may be tacked to that of sion of the undeeded strip as well as the other, the the grantee, so as to give the latter, at the end of 20 years from the time such possession was first taken, a title by adverse possession.

to a title, the original owner cannot by taking pos2. After an adverse possession has ripened insession, and then deeding the land to a third person, convey to the latter any better right than he himself has.

1 1 Reported by Louis Boisot, Jr., of the Chicago bar.

deed.

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 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 toru Benjamin F., Peter P., Mary Belle, Sarah W., down, and that the Simshausers then rentand Henrietta Simshauser against Matthew ed 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. Thomas F. Tipton, for appellants. Williams & Capen, for appellees.

BAKER, J. This was ejectment against the appellants, Matthew Faloon and Thomas F. Tipton. The premises in controversy were a strip of ground beginning at the south-west corner of lot 1, in White's addition to the town, now city, of Bloomington, and running thence north to the north line of said lot; thence west 29 feet; thence south to the north line of Grove street; and thence east 29 feet to the place of beginning. The appellant Tipton exhibited at the trial a title in himself, through mesne conveyance, from the government of the United States. The important matter in controversy is whether his right of possession has been barred, in respect to the rights of appellees, by the operation of the statute of limitations, which tolls, after 20 years' of adverse possession, the right of action for the recovery of lands and the right to make an entry thereon. Lot 6, in Gridley's addition to Bloomington, lies west of lot 1, in White's addition to Bloomington, and this strip of ground now in question, 29 feet w de, lies between them. In 1852 one Jesse Adams was in possession, under paramount title, of the east half of lot 6, of 56 feet off of the west side of lot 1, and of the strip of 29 feet, and fenced all these pieces of land in one inclosure, and erected & brick house on the strip in dispute; that being about the center of the combined premises. He remained in possession until September 7, 1858, when he executed a deed to Allen Withers, in which the premises conveyed were described as the east half of lot 6, in Gridley's dition, and 56 feet off of the west side of lo 1, in White's addition, and put said Withers in possession of the house, and of the whole of the premises. Withers retained possession of the entire inclosure, occupying it by his tenants, and claiming to be the owner of it all until his death, in 1864. He left a will by which he devised his whole estate to his wife, Sarah B. Withers. Mrs. Withers occupied the entire premises by her tenants, she claiming to be the owner of the same until August 8, 1871, when she conveyed by deed to "Hannah Simshauser and her children, * * * and their heirs and assigns." This deed also described the premises conveyed as the east half of lot 6, in Gridley's addition, and 56 feet off of the west side of lot 1, in White's addition. Mrs. Withers put her grantees into possession. Mrs. Withers states in her testin:ony that the

It seems, from the evidence, that the house having become somewhat dilapidated, Philip Simshauser, husband of Hannah Simshauser, had it torn down about 1874. The husband in his testimony, in response to a question as to what his wife and children did with the house after Mrs. Withers deeded it to them, answered: "We had it about two years, and we had so much bother about tenants paying the rent, and it wanted fixing up, so, after we looked it over, I tore it down. He also states that after the house was torn down his boys took the matter out of his hands, and had the premises rented out for a garden; and that nobody except them (the Simshausers) were in possession of or made any claim to the premises, until the claim made by appellant Faloon, in 1885. We think it evident, from this testimony, that whatever possession Philip may have had or authority he may have exercised in respect to the house, and the land connected therewith, was merely in behalf of his wife and children, and in assertion of their claims of title, and in conformity with their relative interests as supposed to be fixed by the deed they held, and in no sense under claim of a personal and individual right in himself. It is also manifest that the consecutive possessions of the strip of ground 29 feet wide, held by Mr. Withers, Mrs. Withers, and the grantees, in the conveyance of August 8, 1871, were supposed to be under and by virtue of the deeds made by Adams and by Mrs. Withers, respectively.

Appellant Tipton's title is derived through a quitclaim deed for the 29 feet, dated October 4, 1876, made by Jesse Adams to appellant Faloon, and a warranty deed from Faloon to himself, dated April 15, 1887. A possession of land, in order to be adverse, need not be under any muniment of title. Adverse possession is a possession inconsistent with the right of the true owner, and depends upon the intention with which it is taken and held; and an actual occupancy of land by one, accompanied by acts of ownership inconsistent with the fact of ownership in another, is presumptively adverse possession. The possession of Allen Withers, and that of his devisee, Sarah B. Withers, were very plainly adverse, in respect to the 29 feet, to the title of Jesse Adams, under which appellants claim, and these possessions continued from September 7, 1858, to August 8, 1871,-a period of 12 years and 11 months. So, also, the possession of appellees, under their deed from Mrs. Withers, was manifestly adverse to the title of which appellants

Appellant urges, however, that where several persons, without privity of estate, successively enter on land as disseisors, their several possession cannot be tacked so as to make a continuity of disseisins, and that, i.. order to give a right to the bar under the statute of limitations, a party seeking to avail of such right must show privity of estate with the prior disseisors by purchase and conveyance of disseisin. It is a sufficient answer to this claim, and to the authorities cited, to show it is essential to establish by a deed that appellees are connected with the adverse possessions of Allen and Sarah B. Withers, to say that the question is not an open 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 this court, and it being a rule of property upon which many titles may depend, such ruling will be adhered to without any re-examination of the conflicting authorities in respect thereto. In Weber v. Anderson, 73 Ill. 439, it was held that a deed is not necessary to transfer the possession of land held adversely to the owner, and that where land is held adversely by different occupants, and one succeeds to the possession of another, the identity and continuity of their possession, in order to make the period required to bar the owner, may be shown by parol evidence. See See also, Schneider v. Botsch, 90 Ill. 577, and other cases there cited.

seek to avail themselves; and it extended | fense, 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 İll. 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 the former owner having been transferred by the statute to the new and adverse owner, such former owner is powerless to convey to the purchaser from him a right of possession which he himself does not have. The appellant Faloon took possession after the rendition of judgment in the first ejectment suit, hereafter mentioned, but he was not put in possession by any writ of possession issued upon such judgment. In Riverside Co. v. Townshend, 120 Ill. 9, 9 N. E. Rep. 65, this court held that when a plaintiff in ejectment shows an adverse possession for 20 years, so that the entry is barred, he is entitled to recover even against a defendant whose posses

Appellant Tipton further insists that he is an innocent purchaser for value from a person in possession having the legal title of record, and should be protected as such. Waiving the contention made by appellees that this claim is wholly unsustained by the facts, it would seem that, even if it has a sufficient basis in the evidence, yet it cannot here prevail.. While the statute of limitations does not have the effect to transfer the title of the true owner, it does transfer his right of possession to the party in adverse possession for the required period. In Hinchman v. Whetstone, 23 Ill. 185, this court said: "Where the statute has tolled both the right of entry and the right of action, the remedy of the owner is gone, and he is precluded from asserting his right, or setting up his title against the party relying upon the statutory bar." And further said: "As against such occupant, and those claiming under him, he can neither use his title for the purpose of recovery or de

with approval the language from Ang. Lim. § 381, that "it is also unquestionable that, where land has been held under a claim to the fee, for the time prescribed by the statute, and an entry is made by the party who has the written title, such party may be dispossessed, by an ejectment brought by him who has so held and claimed."

The declaration filed in this case contains 10 counts. In the first count Hannah Simshauser, Philip Simshauser, Allen W. Simshauser, Lawrence Simshauser, Benjamin F. Simshauser, Peter B. Simshauser, Mary Belle Simshauser, Sarah W. Simshauser, and Henrietta Simshauser claim the whole of the premises in fee. In the second count Hannah Simshauser claims an undivided oneeighth part of said premises; and in the third, fourth, fifth, sixth, seventh, eighth, ninth, and tenth counts, respectively, Allen W., Lawrence, Benjamin F., Peter P., Mary Belle, Sarah W., Henrietta, and Clarence Simshauser each, respectively, claims an undivided one-eighth part of said premises. seems from the evidence that in 1885 the appellant Faloon commenced ejectment for the recovery of the premises in dispute against one Funk, who had rented them from Benjamin F. Simshauser, and said Funk gave due notice to said Benjamin F. of the suit, and in the suit Faloon obtained judgment by default. In the present suit, which was tried before the court without a jury, the court held that Benjamin F. Simshauser was barred by the judgment in the first ejectment, and as to him the judgment was that he take nothing by the suit. But the court found 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. Affirmed in part, and where one is described by his office or by his reversed in part. relation to other persons. 5 Amer. & Eng. Cyclop. Law, 432, and authorities cited in BENNESON et al. v. SAVAGE.1 notes; Cook v. 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 the deed was executed and delivered took as tenants in common. Wilds Case, 6 Coke, 17; Parkman v. Bowdoin, 1 Sum. 366; 2 Jarm. Wills, 224.

The evidence of Philip Simshauser shows that the seven children of himself and wife living at the time Mrs. Withers made the deed were Allen W., Lawrence, Peter P., Mary Belle, Sarah W., Henrietta, and Benjamin F. The evidence of Mrs. Withers is to the same effect, and it clearly appears from her testimony that Clarence was born about three years thereafter. Of course Clarence did not take by the deed. In case of a grant of an immediate estate in possession, the grantee must be in esse, and a deed of that kind may be avoided by showing the grantee came into being subsequent to the delivery of the deed. Hulick v. Scovil, 4 Gilman, 159; Miller v. Chittenden, 2 Iowa, 368; Tied. Real Prop. § 797. The finding and judgment of the court in favor of Clarence Simshauser for an undivided one-eighth part of the premises was clearly erroneous. Section 27 of the ejectment act (Rev. St. 1874, c. 45, § 27) provides "it shall not be an objection to a recovery in any action of ejectment that any one of several plaintiffs do not prove any interest in the premises claimed, but those entitled shall have judgment, according to their rights, for the whole or such part or portion as he or they might have recovered, if he or they had sued in his or their name or names only." And it is provided in the second and sixth clause of section 30 of the same act that if it appears that one or more of the plaintiffs have a right to the possession, and that one or more have not such right, the verdict shall specify for which plaintiff the jury find, and as to which plaintiff they find

for the defendant; and that, if the verdict be for an undivided share or interest in the

AND SURETY.

(130 Ill. 352)

1. Where a bill to foreclose a mortgage securing a note and interest coupons describes the couPons as bearing interest after maturity, and the mortgage says that interest on the principal note shall be paid "according to interest coupons thereto annexed," and such coupons do in fact bear interest after maturity, there is no variance between the bill and the mortgage.

2. Where a mortgage, given to secure the debt of one who does not own the land, provides that the holder of the note may extend the time of payment on the maker's executing coupons for interest to accrue during such extension, the holder of the note may extend it, and fix the rate of interest which such coupons shall bear after maturity, without further consent of the mortgagor. 3. In such case the fact that the new coupons do not provide for the payment of exchange as the original note does, not being prejudicial to the mortgagor, does not affect the mortgage. coupled with an interest, is not revoked by the 4. The power to make such extension, being death of the mortgagor.

5. Where a debtor conveys land to his creditor, in payment for which the latter gives his note, or by suit brought by third persons, the failure of the creditor to apply the purchase price of such land to the payment of the debt does not release

and the land is afterwards taken from such credit

the debtor's sureties.

Error to appellate court, third district.

Bill by William T. Savage against Caroline W. Benneson, Ann E. Keller, and Anna Wells to foreclose a mortgage. Defendants bring error.

William T. Savage filed his bill in chancery in the circuit court of Adams county, against Charles A. Savage and others, to foreclose a certain mortgage, which was The following in form a deed of trust. statement, taken from the printed argument filed by the counsel for appellants, is a sufficiently full statement of the pleadings: "The case set up in the bill, in brief, is this: That on March 29, 1873, Charles A. Savage, being indebted to the banking firm

1 Reported by Louis Boisot, Jr., of the Chicago bar.

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