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lar question arose, it is said: “The defend- situated in survey 743, claim 93.” Defendants had put in evidence * * the tes- ants Hardy and Demut filed a plea of not timony of the subscribing witnesses, given guilty. English was defaulted. The case when the will was admitted to probate, and was tried by the court without the interventhis was prima facie evidence of its validity. tion of a jury, and judgment rendered in This testimony raised a presumption of the favor of defendants. Plaintiff appeals. competency of the testator, which would be The only evidence offered by plaintiff to valid until disproved by counter-testimony. prove title in himself was a tax-deed, the It placed upon the plaintiffs in error the bur- judgment, certificate of purchase, and affidaden of showing the incompetency of the tes- vit for deed, on which it was based, in each tator by proof sufficient to overcome the of which the description is as follows: “Part prima facie case made for him."

of survey No. 743, claim No. 93,-31.35 In view of the principle established by these acres. The part of survey No. 743 is in no authorities, it is plain that the instruction as manner designated, and the deed is therefore to the burden of proof was calculated to mis- void for uncertainty. People v. Railroad Co., lead the jury. Conceding that the burden of 96 Ill. 369; Lancey v. Brock, 110 Ill. 610. proof, in the first instance, devolved upon The proceeding under which the deed was obthe defendant to sustain the will, after be tained was for the same reason also void. had put in evidence the will, and the testi- People v. Reat, 107 Ill. 581; Pickering v. Lomony of the subscribing witnesses, given max, 120 Ill. 297, 11 N. E. Rep. 175. when the will was admitted to probate, the The affidavit on which the deed issued was burden of proof no longer rested on his shoul- fatally defective for other reasons; especially ders. It was then the duty of the jury to de- in that it failed to state the facts relied on as termine whether the testator possessed the showing service of notice on the occupants of necessary testamentary capacity from the the lands purchased. The language of the weight of all the evidence introduced by the affidavit is “that this affiant served, or caused respective parties. The instruction did not, to be served, written or printed, or partly however, leave the jury free to determine written and partly printed, notices of purthe question from the weight of the evidence, chase at said tax-sale, upon Thomas Patrick but directed them that the burden still rested and William Hayden and Frank English, the upon the defendant who asserted the validity only persons in actual possession or occuof the will. This imposed a higher degree of pancy of said piece or parcel of land or lot.” proof on defendant than the law required. Here is uncertainty in every essential. Who În Wilbur v. Wilbur, 21 N. E. Rep. 1076, served the notice, how it was serveil, whether (decided at the present term,) a similar in- written or printed, or partly written and struction was held to be erroneous, and we partly printed, as well as when it was served, refer to that one for a fuller expression of are facts upon which the affidavit furnishes our views on the question. For the error in- no light whatever, and they are facts which dicated the judgment will be reversed, and by section 217, c. 120, Rev. St., must be parthe cause remanded.

ticularly stated. Price v. England, 109 Ill.

394; Davis v. Gossnell, 113 Ill. 121; Wallahan (129 Ill. 646)

v. Ingersoll, 117 Ill. 123, 7 N. E. Rep. 519; BRICKEY 0. ENGLISH et al.1

Gage v. Reid, 118 lll. 35, 7 N. E. Rep. 127. (Supreme Court of Illinois. Oct. 31, 1889.) The judgment of the circuit court is affirmed. TAX-DEEDS.

The cost of additional abstract by defendants 1. A tax-deed for part of a certain survey, with in error should be taxed to plaintiff in error. out describing the part, is void for uncertainty. 2. Under Rev. St. Ill. c. 120, $ 217, which requires

(130 Ill. 62) an applicant for a tax-deed to make affidavit particularly stating the facts relied on as showing INDIANAPOLIS & ST. I Ry. Co. 0. PEOPLE.? service of notice to the occupants, an affidavit “that this affiant served, or caused to be served,

(Supreme Court of Illinois. Oct. 31, 1889.) written or printed, or partly written and partly

RAILROAD COMPANY_TAXATION-ESTOPPEL. printed, notices,” is fatally defective for uncer A railroad company, which has omitted tainty.

some of its property from the schedule of property

returned by it to the county clerk for assessment Error to circuit court, Monroe county; by the state board of equalization, is estopped from AMOS WATTS, Judge.

asserting, that such omitted property cannot be A. G. Gordon and W. H. Horine, Jr., for have been included in such schedule.

assessed by the town assessor because it should plaintiff in error.

Error to county court, St. Clair county; WILKIN, J. This is an action of ejectment JOHN B. HAY, Judge. by plaintiff in error against defendants in er This was a proceeding by James D. Baker, ror, to recover certain lands in Monroe coun- collector of St. Clair county, to obtain judgty, this state, described in the declaration as ment for delinquent taxes for the year 1886

commencing at the S. E. corner of survey against real estate described as “total real 743, claim 93; thence along easterly line,” etc.; estate other than track, Schedule D, lot 5a, giving metes and bounds, and concluding: survey 780, 18 acres.” Plaintiff in error obContaining 31.35 acres, more or less, and jected, on the ground that said real estate

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

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

was "a part of, and included in, the right of returned as railroad track, and so assessed; way between East St. Louis terminals of said and it was sought by the proceeding below to company.” On the hearing the collector ob- subject it to double taxation, the local assessjected to the introduction of testimony in ors having assessed it as real estate other support of said objection, on the ground that than railroad track. In attempting to bring said defendant company was estopped to urge this case within the scope of these cases it is the same in this proceeding because the sched- said: “Although this land is not included in ule returned by it to the county clerk of said the return of the company of its railroad county, in accordance with the provisions of track, that return is not binding on the state section 41, c. 120, Rev. St., did not contain board of equalization, as that board is given a statement of the property on which said tax power and authority, by committee or otherwas assessed, a copy of which schedule was wise, to examine persons and papers, (section filed with the objection. This schedule, by 109, c. 120;) and it is, of course, to be preits heading, states that in accordance with sumed that they discovered the omnission, and the provisions of the statute the company assessed the road an additional sum per mile “makes return of its property for taxation on account of this property.” The fallary of by schedule as follows: Schedule marked this position consists in the unwarrantable •A' shows the property designated by law assumption that we will presume, in the abrailroad track. * Schedule marked sence of all proof, that the state board did • B,'

rolling stock. * * letect the false return of the company, and Schedule marked C,' tools. * * * Sched- did make an assessment of property which it ule marked D’ shows all real estate, other did not schedule for assessment, and that the than railroad track, belonging to or con- company can have the benefit of that pretrolled by this company, its location, and sumption to relieve it from the payment of a listed value.” To this caption schedules tax assessed in conformity with its return. marked "A," "B," and "C" are attached. It was the duty of the company to make a Schedule D does not appear. To this return true return of its property, and both the state the vice-president and assistant secretary of board and the local assessor had a right to the company make affidavit, stating “that act upon the supposition that it had honestly the foregoing schedules, marked · A,'·B,' discharged that duty; and the assessor was • C,' and • D,' contain, and are a full, true, fully authorized, and it was his duty, to make and correct exhibit of, all the property owned the assessment for which the judgment beor controlled by said company which is lo- low was rendered. There is nothing whatcated in the county of St. Clair, state of Illi- ever in this record tending to show, nor did nois.” The objection to the offered proof plaintiff in error offer to prove, any fact from was sustained, and judgment rendered in which it could be inferred that the tax in favor of the collector, from which this writ question is unjust, or that it has been deof error is prosecuted.

prived of any right secured to it, as the ownE. C. Rhoads and John T. Dye, for plain- er of the property assessed, by law. Mere tiff in error. M. W. Schaefer, for defendant formal objections to taxes, not affecting unin error.

justly the right of the citizen, cannot be al

lowed to defeat judgments for their collecWILKIN, J., (after stating the facts as tion. Chiniquy v. People, 78 Ill. 570; Purabove.) It is not claimed that lot 5a, survey rington v. People, 79 mil. 11. The attempt 780, was included in the schedule marked here is to escape the payment of a just tax “A.” There is nothing in the record tending through an irregularity (if, indeel, there is to show that it was not included in Schedule an irregularity) resulting from the negliD, and therefore the presumption that it was gent or wrongful act of the property owner. returned as real estate other than railroad We think the court below properly applied track must obtain. It is not pretended that the doctrine of estoppel in excluding the of. it was assessed by the board of equalization, fered evidence. Its judgment will be afor that any tax whatever has been paid on it firmed. for the year 1886. The proof offered on the hearing, and excluded, was to the effect that

(130 Ill. 225) this lot was in fact railroad track, and used

MALAER et al. v. HUDGENS. 1 by the company as such. Its competency is (Supreme Court of Illinois. Oct. 31, 1889.) based on Railway Co. v. Miller, 72 Ill. 147;

PARTITION-RESALE-APPEAL-JURISDICTION, Railroad Co. v. People, 98 Ill. 357; and Peo

A supplemental decree in partition, order. ple v. Railroad Co., 116 III. 181, 4 N. E. Rep. ing a resale of the land for the payment of costs, 480. All that is decided in these cases and does not, when there is no controversy over the the case of Railway Co. v. Goar, 118 Ill. 134, original decree of partition, involve a freehold, 8 N. E. Rep. 682, is that property situated as 89, giving the right to appeal directly to the su

within the meaning of Rev. St. Ill. 1889, c. 110, $ this is claimed to be may be treated as rail-preme court in suits involving a freehold. Maroad track, within the meaning of the rev-GRUDER, J., dissenting. enue act; and that when used by a railroad

Error to circuit court, Johnson county; 0. company as such, and so scheduled, it is

A. HARKER, Judge. properly assessable by the state board of equalization, and not by local assessors. In

1 Reported by Louis Boisot, Jr., of the Chicago each of the cases cited the property had been 'bar.

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Clemens & Warder, for plaintiffs in error. | for all of said lands; and an order was made

approving such report. This writ of error BAKER, J. Alexander Hudgens filed his was sued out of this court on the 14th day of Vill in the Johnson circuit court against the November, 1888, and by it the record was plaintiffs in error, Constantine Malaer and brought directly from the circuit court to Mahala Springs, asking the partition of cer- this court. The assignments of error are as tain real estate. At the December term, follows: “(1) The decree of the court be1878, of the court, plaintiffs in error were low at its April term, 1882, for the sale of defaulted, and a decree pro confesso entered the lands described for the costs of the sui, The court found that defendant in error was was a nullity, and void. (2) The court bethe owner in fee of an undivided eight-tenths low erred in its order at the November term, of the lands, and that each of the plaintiffs 1883, approving the master's report of sale in error was the owner in fee of an undivided of the lands in question, under the void orone-tenth of said lands, and decreed parti- der of the court at the April term, 1882. tion, and appointed commissioners to make (3) The court below erred in its order at the the same. The commissioners reported, November term, A. D. 1884, approving the showing the lands were not susceptible of master's report of deed to C. N. Damron, undivision, and placing values upon the several der the sale based upon the void decree of tracts, which amounted in the aggregate to sale at the April term, 1882. (4) The court $1,400. At the same term of the court this below erred in not setting aside the sale of report was approved, and the lands decreed to the master in chancery, reported at the Nobe sold; and the terms of the sale, as fixed vember term, A. D. 1883, of said court. (5) by the court, required that 10 per cent. of the The court below erred at its November term, purchase money should be paid in cash, and A. D. 1884, in failing to cancel at that time the residue in 12 months,—the deferred the master's sale of said lands, when called to payment to be secured by note, with per- act upon the master's report of a deed to C. sonal security, and a mortgage on the prem- N. Damron. By reason whereof the plainises. At the November term, 1879, the mas- tiffs in error pray that the decree of the court ter in chancery reported that he had struck below at its April term, A. D. 1882, be off said lands, on January 27, 1879, to Alex- declared null and void, and the action of ander Hudgens, for $933.33], but said Hud- said court thereafter, at its November term, gens had failed to comply with the terms of 1883, and at its November term, 1884, conthe sale. The court thereupon ordered the firining and approving of the action of the master to resell the same. On March 23, master thereunder, be reversed,” etc. 1881, a written notice, signed by the master, There is no doubt a freehold was involved was served on Hudgens, that unless he made in the partition suit, and in the decree rengood his bid on or before the 1st day of the dered at the December term, 1878, of the cirApril term of the court, 1881, he (the mas- cuit court; but no error is assigned which ter) would make application to have the claims that that decree was erroneous, or challands resold. At said April term an order lenges the fact that the rights, titles, and inwas entered, reriting such notice, and order- terests of the parties were as therein detering the master to readvertise and sell as pro- mined. The sole objects of the present writ, vided in the decree of 1878, and ordering that and of the assignments of error, are to call all additional expenses and costs occasioned in question the validity of the decree of the by the default of Hudgens should be taxed to April term, 1882, for the sale of the lands him. At the April term, 1882, an order was “to satisfy the costs,” and of the order made made reciting the sale to Hudgens for at the November term, 1883, approving the $933.333; bis failure to comply with the master's report of the sale of the premises, terms of sale; and that he had been notified in and of the order made at the November term, writing, more than 10 days before the first 1884, approving the master's report of the day of the term, to comply with said terms execution of a deed based on such sale. The of sale; and ordering, adjudging, and decree- rule is that, although a freehold may have ing that said lands be sold by the master in been involved in the suit, and in the decree chancery."to satisfy the costs.' At the No- therein rendered, yet, if no objetion is taken vember term, 1883, of the court, the master to that part of the decree relating to the freereported that in pursuance of the decree ren- hold, an appeal from, or writ of error that dered at the April term, 1882, he had, on the brings up, another part of the same decree, 10th day of July, 1883, struck off and sold having no relation to the question of freehold, the whole of said lands to C. N. Damron, will not lie to bring the record directly from subject to the right of redemption, for $35; the circuit to the supreme court. Cheney v. that being the amount of costs. An order Treese, 113 111. 444; Walker v. Pritchard, 121 was entered on November 22, 1883, approv- I. 221, 12 N. E. Rep. 336. A freehold is ing this report; and the cause was continued not involved, within the meaning of the for final report. At the November term, statute, (Rev. St. Ill., Ed. 1889, c. 110, § 89,) 1884, the master reported he had, in pursu- giving an appeal directly to, or writ of error ance of the decree rendered at the April term, directly from, this court, from or to the trial 1882, executed and delivered on the 15th day court, where the litigation may, on certain of November, 1884, to C. N. Damron, in de contingencies, result in the loss of a freehold, fault of redemption, a deed of conveyance' but which will not necessarily have that ef

fect, or where the freehold may be directly to compel it to establish a station and stop its affected by the judgment or decree, unless trains at a town on its line at which it has not

been in the practice of receiving and delivering payment is made or some act done to arrest passengers and freight, under Act Ill. 1877, $ 1, the sale of the land, or discharge a lien there-12 Starr & C. St. 1924,) which provides that alí on for the payment of money. In order that railroad companies are required to build and mainthere should be a right of immediate appeal tection of freight, “ where such railroad companies

tain depots for the comfort of passengers and proto, or writ of error from, this court, the title are in the habit of receiving and delivering pasto the freehold must be directly put in issue. sengers and freight, at all towns and villages on: Railroad Co. v. Watson, 105 11. 217. A free the line of their roads having a population of five hold is involved, within the sense and con- population than 500.

hundred or more,” though such town has a larger templation of the constitution and the statute, 2. Where a petition for such mandamus alonly in cases where either the necessary result leges that such town is situated on the line of the of the judgment or decree is that one party seven miles apart, and has over 1,800 inhabitants;

railroad about midway between two other towns gains and the other loses a freehold estate, or that many of them desire to travel on such road; where the title is so put in issue by the that there are various manufacturing and other pleadings that the decision of the case neces- enterprises in the town, that in order to procure

transportation on the road the inhabitants are sarily involves à decision of such issue. San- obliged to go and to carry their freight to a town ford v. Kane, 127 Ill. 591, 20 N. E. Rep. 810. three and one-half miles distant; and that the acThe court, in decreeing in April, 1882, that commodation of the public in and near said town the lands should be sold for the payment of freight depot therein,-a demurrer thereto should the costs that had accrued in the cause, and be overruled, as mandamus will lie at common in subsequently approving of the reports of law. the master, did not adjudicate upon any issue

Appeal from circuit court, Madison counformed to try the title to the freehold, nor ty; Amos WATTS, Judge. was it the necessary result of the decree and

Geo. Hunt, Atty. Gen., for appellant. Wise sale that either party either gained or lost a & Davis, for appellee. freehold estate. In fact, leaving out of consideration the partition decree of 1878, which SCOTT, J. The petition in this case was is not brought here by this writ for review, exhibited by the attorney general in the cirthere was in the proceedings in the cause no cuit court of Madison county in the name, place or room for a contention between the and on behalf, of the people against the Chiparties to the suit in regard to the title to the cago & Alton Railroad Company, praying that freehold. If any contention in respect to the the company be compelled, by a writ of manfreehold has arisen, as the result of the de- damus, to establish a passenger and freight cree of 1882 and subsequent orders, it is not depot in the town of Upper Alton, upon the between plaintiffs in error and defendant in St. Louis, Jacksonville & Chicago Railroad, error, but between them jointly and a third owned, operated, and controlled by respondparty,—the purchaser at the master's sale; and ent, at a suitable and convenient point, to that contention was not at issue or deter- accommodate the public and all persons demined in this cause, and such purchaser is siring transportation for freights or passennot a party to this record, or brought before gers to and from such town, and to stop its us as a terre-tenant, or otherwise. The writ trains, freight and passenger, or a sufficient of error herein should have been sued out number thereof to accommodate the public, of the appellate court. For want of jurisdic- and discharge freight and passengers theretion in this court to review the decree and at when so requested. orders brought here by this writ, and pass Undoubtedly railroad companies, unless upon the errors assigned, the writ is dis- controlled by charter contracts, or by some missed.

general law on the subject, are permitted

much freedom of judgment or discretion as MAGRUDER, J., (dissenting.) I do not to the operation and equipment of their lines concur. The suit is a partition suit. A of road, and in the location and maintenance freehold is involveil. The costs are merely of depots, and in the adoption of the various incidental to the main issue. In cases inconveniences for the public. That freedom volving a freehold, the appeal should be to to act for the best interests of the public in the supreme court, and this is true whether such matters is lodged in the president and the decree disposes of the costs incurred in board of directors. Where there is a failure the suit, or of some other question therein. from mere captiousness or other cause to so Appeals in the same case should go to the exercise the powers with which they are insame court, and not to different courts. vested by law as to accommodate the pub

lic at business centers or elsewhere, or where (130 Ill. 175)

there is such an abuse of their powers as PEOPLE ex rel. Hunt, Attorney General, v. works a public wrong, the general rule is CHICAGO & A. R. Co.

the remedy must be obtained through legis

lation. The courts, either law or equity, are (Supreme Court of Illinois. June 16, 1888.)

seldom, if ever, able to afford the requisite RAILROAD COMPANIES-STATION AND TRAFFIC AC-relief. In respect to the matter of locating

COMMODATIONS—MANDAMUS. 1. Where neither the charter of a railroad Co., 64 III. 414: “Railroad companies, in or

depots this court said in Marsh v. Railroad company nor any other statute prescribes the rules for locating its stations, mandamus will not lie der to fulfill one of the ends of their creation,

--the promotion of the public welfare,-should fied in the statute, but it is not averred it is be left free to establish and re-establish their a point on its line of road where respondent depots wheresoever the accommodation of the is “in the practice of receiving and deliverwants of the public may require.” More re- ing passengers and freight;" so the demand cently, in the case of Railroad Co. v. People, made by this petition does not come within 120 ill. 200, 11 N. E. Rep. 347, the general any duty imposed upon respondent by the doctrine on this subject was restated, where provisions of this statute, nor does it appear it was said: “The company, however, is giv- it is made its duty by its original charter, or en, as it should be, a very large discretion in otherwise by law, to “establish a passenger determining all questions relating to the and freight” depot at the point indicated, and equipment and operation of its road. Hence to stop its trains, passenger and freight, for courts, as a general rule, will not interfere the accommodation of the public. It not being with the management of railways in these shown that respondent owes any specific respects except where the act sought to be duty in this respect, imposed by statute or enforced is specific, and the right to its per- otherwise, the right to its performance being formance in the manner proposed is clear so clear and undoubted that it will be enand undoubted." On turning to its original forced by mandamus, the judgment of the charter it is seen that the respondent corpora-lower court denying the writ must be aftion is declared to have the general manage-firmed. Judgment affirmed. ment of its affairs for the complete exercise of

ON REHEARING. its corporate powers, which of course include the right to fix the location and number of

(Oct. 31, 1889.) depots or stations at which it will receive BAILEY, J. This was a petition for a manand discharge freight and passengers on its damus, brought by the people of the state of line of road such as in the judgment of the Illinois, on the relation of the attorney gencompany the public exigency demands. eral, against the Chicago & Alton Railroad

The only act of the general assembly to Company, to compel said company to estabwhich the attention of this court has been di- lish and maintain a station for the receipt rected that seems intended to control this free and discharge of passengers and freight at dom of action or discretion given to railroad Upper Alton, in Madison county. companies in such matters is the act of 1877. The petition alleges that said company is a But that act, it will be seen, does not aid the railroad corporation, organized under the demand made by this petition. It provides laws of this state, and owning, operating, (section 1, Sess. Laws 1877, p. 165) “that and controlling a line of railway in said counall railroad companies in this state carrying ty, known as the “St. Louis, Jacksonville & passengers or freight shall, and they are Chicago Railroad,” and extending from Godhereby required to, build and maintain depots frey, a station in said county, to Wann, also for the comfort of passengers and for the pro- a station in said county, said stations being tection of shippers of freight, where such seven miles apart; that said company is a comrailroad companies are in the practice of re- mon carrier, and operates and runs upon and ceiving and delivering passengers and freight, over said railway two passenger trains daiat all towns and villages on the line of their ly from south to north, and one passenger train roads having a population of five hundred or daily from north to south, and two or more more. As has been seen, the prayer of the freight trains daily in each direction; that petition is that respondent may be compelled about midway between said stations there is “to establish a passenger and freight depot located upon the line of said railway the town in the town of Upper Alton," on the Jack- of Upper Alton, the same being an incorposonville branch of its road, “at a suitable and rated town or village containing over 1,800 convenient point to accommodate the public,” inhabitants; that many persons require the and “to stop its trains, freight and passen- use of said railway in order to be transported ger, or a sufficient number thereof to accom- thereon as passengers to and from said town modate the public.” Should the company be of Upper Alton, and that in said town are required to establish or appoint a station at many merchants, manufacturers, dealers, and Upper Alton for the purpose of receiving and business men, who require the transportation discharging passengers and freight, it would of freight, produce, and manufactures over follow, as a matter of course under the stat, said line of railway to and froin said town of ute, it would be compelled “to build and Upper Alton; "that the accommodation of maintain” a depot at that point if the town the public living in and near to said town of contained a “population of five hundred or Upper Alton, in the transportation of freight more." But this statute does not make it the and passengers to and from said town, reduty of respondent to “establish a depot” or quire, and long have required, that said Chistation at every town or village on the line cago & Alton Railroad Company establish a of its road having a “population of five hun depot and freight-house at said town of Updred or more.” It simply requires it shall per Alton, and stop its trains, both freight "build and maintain depots”-that is build- and passenger, thereat for receiving and disings—for the “comfort of passengers and for charging freight and passengers;" that said the protection of shippers of freight.” This company has acquired, and for many years petition does allege the town of Upper Alton has owned, suitable and convenient grounds contains a population in excess of that speci- for the establishment of a depot and freight

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