beyond this, would be to give to a contract of war- in excess of the amount involved in the original ranty all the attributes of a contract of insurance. transaction, as the damages claimed in these acThe two contracts are very different in their scope

tions." and obligations, and contemplate very different The fraud which would justify a recovery in this consequences from their breach. The nist prius case commensurate with the value of the goods case of Sanborn v. Henning, reported in Ainerican lost from the safe, would not be the mere assertion Law Register, N. S. 457, presented very nearly the that the safe was burglar-proof, or would resist same controverted questions, and the same con- the assaults of burglars for any specified time. That dict of testimony as are found in this record. may have been the expression of an opinion honThe case resulted in a verdict for defendant, estly entertained. Integrity of purpose and fraud doubtless on a failure of the jury to find fraud or do not co-exist. Bad faith is necessary to mainbad faith on the part of the seller. The very simi- tain the claim to the larger damages. Το lar case of Walker v. Milner, was tried in London make good this feature of the claim, there about the same time, before Lord C. J. Cockburn, must have been an assertion as fact of that but we have no access to a report of that case. which the seller knew to be false, or & reckan ahle note to the American case, reviewiug ess, false affirmation that the safe was burglarboth trials, is the following language: “An under- proof, when the seller did not know whether the taking against all possible force and skill of all assertion was true or false, or, a knowledge on the future burglars is so much much more like a con- part of the seller that the safe was not burglartract of insurance than one of warranty, that we proof, and a failure to communicate that knowldoubt whether such an undertaking would even be edge, when he knew that the purchaser was conheld by the courts to be created by general words tracting for the safe as burglar-proof, and tho of warranty. A warranty has reference generally purchaser must have trusted these representations, to the character and qualities of the thing war- and been misled by them. One of these categories ranted, not to the acts of third persons. But a must be shown, to entitle the plaintiff to the larger contract of insurance does provide against perils damages claimed. of robbers, as well as perils of the elements. A The sale in this case was made by an agent, and contract of insurance, however, implies a premium the suit is against his principal. We have above paid for the risk assumed, in proportion to the laid down the rules for determining whether the amount of the risk, and also a fixed term of insur- act of the agent in this case is the act of the prinance. All these elements were wanting in the cipal. Even if it should be shown that the agent contracts of warranty set up in the

was authorized to warrant the safe as burglarbefore us. There is great force, however, in proof, this would not conclude the principal, unless the position that a manufacturer who sells a safe, one of the forms of fraud abov described can be as & fire-proof or burglar-proof safe, thereby carried home to the principal, thus making him a represents that its securities against fire or burg- | guilty participant in Stewart's fraud; or, unless it lary are as complete as the experience of those en- be shown that the principal, with a knowledge of gaged in the business can make them. But it also the fraud perpetrated by the agent, received and follows, that as soon as the warranty is construed retained the fruits of such frauduleut sale. Any as one, not of absolute, but only of comparative thing short of this will leave the liability to acsecurity, then the manufacturer is let in to show count on the agent alone. that the purchaser can only ask as much security The first and second counts of the complaint are as he is willing to pay for.

sufficient, for they charge on the defendants themIn the English case, there does not appear to selves, knowing and intentional misrepresentations have been any point raised as to the measure of in making the sale, that the safe would resist for damages. Both court and counsel seemed to have twelve or twenty-four hours the most skilful at- assumed that if the plaintiff was entitled to re- tempts of burglars to enter it. The third count cover, he was entitled to recover the value of his has the further defect that it fails to connect aplost property, 6,0001. This point, however, would pellants with the alleged fraud of the agent. appear to have been sharply contested in the case Reversed and remanded. in New York, and plaintiff's counsel did not claim that he was entitled to anything more than the difference between the value of the safe purchased and that of such a safe as the representations en.

THE DOCTRINE OF FLETCHER v. RYLANDS. titled him to, unless the jury found a fraudulent warranty by the defendants. The general rule is that the parties are deemed to contemplate

The case of Box v. Jubb, 27 W. R. 415, 4 Ex. D.

76, is one of a very interesting and difficult class. The such damages, as the creditor may suffer from the

class might be termed, by way of a compendious desnon-performance of the obligation in respect to ignation, "sic utere tuo " cases, from the fact that it is the particular thing which is the object of it, and with respect to them that an ancient and solema im. not such as arise collaterally. The damages may postor (the maxim commencing with these words) most be enhanced, it is true, where the conduct of the frequently comes to the front. The case of Box v.Jubb party in fault is fraudulent, when property has

was as follows: The defendants possessed a reservoir been sold for a particular use, and in other cases;

with sluices connected with a main drain or waier

course from which the reservoir was supplied, and but we know of no case where for a breach of war

with sluices by which the surplus water was returned ranty damages have been held recoverable, so far into this drain at a lower level. The combined effect

of the emptying of a reservoir, belonging to a third person, upon the defendants' premises, and of an obstruction in the drain below them, was to force water through the sluices into the defendant's reservoir, and so cause an overflow thence on the plaintiff's land. In an action for damage nccasioned thereby, it was shown that the defendants had no control over the main drain or the other reservoir, and no knowledge of the circumstances that caused the overflow, and that the sluices were maintained so as to prevent overflow under ordinary circumstances. It was held that the defendants were not liable.

This case to some extent resembles that of Nichols v. Marsland, 23 W. R. 693; L. R. 10 Ex. 255; 4 Cent. L. J. 319, as to which upon a previous occasion we made some remarks. The contention of the plaintiffs in both cases was an attempt to carry the doctrine of Fletcher v. Rylands, L. R. 3 H. L. 330, a step further. In both cases it was held that the doctrine of Fletcher v. Rylands was not applicable. The result tends to show that some of the expressions used in the judg. ment of Mr. Justice Blackburn in Fletcher v. Rylands, in the Exchequer Chamber, and adopted in the House of Lords (expressions which have become houshold words, if the term is admissible, in the law courts with regard to cases of this nature), may be applied so as to have too wide a bearing if taken apart from the facts to which in that case they related. It is necessary to state shortly the facts of Fletcher v. Rylands in order to make what we have to say intelligible. In that case A was the lessee of certain mines; B was the owner of a mill. B desired to construct a reservoir, and employed competent persons-an engineer and a contractor-to construct it. A had worked his mines up to a spot where there were certain old passages of disused mines; these passages were connected with vertical shafts which communicated with the land above, and which had also been out of use for years, and were apparently filled with marl and the earth of the surrounding land. When the water was introduced into the reservoir it broke through some of the shafts, flowed through the old passages, and flooded A's mine. It was held that A was entitled to recover damages from B in respect of this injury. In the House of Lords it was taken that the engineer and contractor had been guilty of negligence; but the decision in the case does not seem to have turned on that, but on the principles enunciated by Mr. Justice Blackburn in the Exchequer Chamber. In the court of Exchequer a good deal of the judgment had turned on the distinction between trespass and case, and the necessity of negligence to form a cause of action when the damage was not caused by an act in itself wrongful. But Mr. Justice Blackburn put the case on broader grounds. He said, “We think the true rule of law is that the person who, for his own purposes, brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and i? he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse bimselt by showing that the escape was owing to the plaintiff's default, or, perhaps, that the escape was the consequence of vis major, or the act of God; but as nothing of the sort exists here, it is unnecessary to inquire what excuse would be sufficient. The general rule as above stated seems on principle just. The person whose grass or corn is eaten down by the escaping cattle of his neighbor, or whose mine is flooded by the water of his neighbor's reservoir, or whose cellar is invaded by the filth of his neighbor's privy, or whose habitation is made unhealthy by the fumes and noisome vapors of his neighbor's alkali works, is damnified without any fault of his own; and it seems but reasonable and just that the neighbor who has brought something on bis property which was not naturally then harmful to

others,so long as it is confined to his property,but which he knows will be mischievous if it gets on his neighbor's, should be obliged to make good the damage which ensues, if he does not succeed in confining it to his property. But for his act in bringing it there, no mischief could have accrued, and it seems but just that he should at his peril keep it there so that no mischief may accrue, or answer for the natural and anticipated consequences. And upon authority, this, we think, is established to be the law, whether the things so brought be beasts, or water, or filth, or stenches."

The doctrine thus enunciated with regard to the liabilities of a person in respert of dangerous matters brought by him on to his own land must be understood as subject to certain limitations, and, broad and clear as the principle seems, there is somewhat of difficulty about it when tested by reason. To begin with, it is clear that certain exceptions must be made-such, for instance, as those that would come under the head of the exceptions suggested by Lord Blackburn himself-viz., cases where the act of God was the immediate cause of the release of the dangerous matter. Nichols v. Marsland comes under this exception, Again, cases where the damage is caused by the wrongful act of a third party may be exceptions. Lord Justice Bramwell suggested in Nichols v. Marsland the case of damage done by water in a cistern in which a mischievous boy bored a hole. The ground upon which Fletcher v. Rylands is put in Lord Justice Bramwell's judgment in Nichols v. Marsland is this: He says, "Then the defendant poured the water into the plaintiff's mine. He did not know he was doing so, but he did it as much as though he had poured it into an open channel which led to the mine, without knowing it. Here the defendant merely brought it to a place whence another agent let it loose.” Similarly, Lord Justice Mellish, in the same case in the court of appeal, commenting upon Fletcher v. Ryland, says: “If, indeed, the damages were occasioned by the act of the party, without more, as when a man accumulates water on his own land, but, owing to the peculiar nature or condition of the soil, the water escapes and does damage to his neighbor, the case of Fletcher v. Rylands establishes that he must be held liable. But the present case is distinguished from that of Fletcher v. Rylands in this, that it is not the act of the defendant in keeping this reservoir-an act in itself lawful-which alone leads to the escape of the water and so renders wrong. ful that which but for such escape would not have been wrongful.

The effect of the cases would, thus far, seem to be that where a person's act in altering the natural state of things on his land directly injures another's property, he is responsible. We mean by direct injury, one which is the consequence of the act in the necessary course of things, and without the intervention of any but ordinary causes. When the injury is not imme. diate, but other causes intervene, the intervention of which is extraordinary, the damage is too remote-it is not the direct natural consequence of the act done. We see considerable difficulty, as a matter of reason apart from the decisions, in determining the true principle which ought to govern these cases. Apart from the existence of any negligence, we must confess to having felt considerable difficulty with regard to the decision in Fletcher v. Rylands, though we know that that decision has always been considered as one of the greatest authority. A man makes a reservoir on what, ex hypothesi, so far as he knows, he is entitled to sup. pose to be solid ground, and by reason of the exist. ence of artificial subterraneous channels, the water finds its way into a neighboring mine-owners mine. The maker of the reservoir is held responsible, be• cause, though there was nothing prima facie unlaw. ful in his act, he brought something on to his land



June-July, 1879.

which was not there before, and without any fresh intervening cause of an extraordinary nature, but in the natural and necessary course of things, as the land then existed, it escaped on to his neighbor's land and did damage. It is to be observed that it is not as if the passages through which the water escaped were natural passages; they were artificial. Somebody had already altered the natural state of things. So that it would seem to come to this: if a man makes a reserFoit, and afterwards, the mine-owner mines, and the water escapes by reason of his workings into his mine, clearly no action will lie. But if the mine-owner is first in the field, and makes his workings first, then the surface owner can not make his reservoir if the water would escape into the workings of the mine without compensating the mine-owner, even though he did not know, and had no reason to think, that there was any possibility of damage. This is a striking instance of the truth of the philosophical theory that assigns the origin of property to the fact of priority of occupation.

We come to the conclusion that Fletcher v. Rylands must bc sound law, though not without some reluctance and difficulty. The truth is, it is an instance in which, of two parties equally innocent of negligence or intention to trespass on the other's property, one must suffer, and it is, perhaps, not wonderful that it should be difficult to ascertain which it is to be. It seems inev. itable in the nature of things, that the lawful use by one landowner of his property should limit, to some extent, the power of the adjoining owner to do that which per se would be lawful with his property. This is in the nature of a reward to the earlier application of industry and enterprise, and so it is for the public benefit that it should be so. Unless the law were so, there would be no security for the results of enterprise and industry. But, granting this, and allowing that those who alter the existing state of things must be liable to the extent to which the decision in Fletcher v. Rylands applies, it may be said, Why introduce the qualifications applied in the cases of Nichols v. Marsland and Box v. Jubb? It may be argued that a man who takes upon himself to alter the existing state of things must be responsible for all the consequences, even though connected with his act by an unusual cause or causes intervening. A man, for instance, makes a very extensive reservoir; an extraordinary flood comes. If the reservoir had not existed no damage whatever might have happened to his neighbor, but the combined result of the reservoir and the flood is that the neighbor's house is thrown down. Why, in natural justice, should not the maker of the reservoir be as much responsible, in this case, as the defendant in Fietcher v. Rylands? The answer would seem to be, that if a man uses due skill and diligence and reasonable caution, he is entitled to alter the nat. ural state of things, if he does not thereby directly and necessarily injure his neighbor's property, even although the result may, by reason of the intervention of an unusual cause, prove disastrous to his neighbor; and the reasonable ground for his being entitled to do so is, that otherwise the beneficial use of property and the devolopment of its value by enterprise and industry would be unduly restricted. If a landowner could not alter the natural state of things and construct any. thing, without incurring the risk of liability for any damages occasioned by the unlawful act of a third person, or the unusual operation of the forces of nature in connection with such altered state of things, there are few alterations of an extensive nature that a landlord could safely make. Solicitors' Journal.

EVIDENCE – DECLARATIONS - Declarations of a vendor of land as to the fraudulent character of a deed executed by him, made after its execution but while he still remained in possession, are competent evidence against the vendee. Parol proof is admissible upon the identity of land described in a deed executed by a sheriff. Opinion by ASHE, J.-Hilliard v. Phillips.

MECHANIC'S LIEN-WHEN ATTACHES.-1. No "aborer's lien” has the effect of a lien upon lands, unless the notice of the lien is filed in the office of the clerk superior court. 2. The lien for material furnished does not attach on lumber sold, which was not used in the erection or repair of a building, unless it was sold with an understanding that it should be so used. Opinion by ASHE, J.-Lanier v. Bell.

COMMON CARRIER-COXTRACT LIMITING LIABILITY-UNREASONABLE REGULATION.-A commor. car rier can not by a special notice, brought home to the knowledge of the shipper of goods, much less by general notice, nor by contract even, exonerate itself from the duty of exercising ordinary care and pru. dence in the transportation of goods, though it may, by special contract, or notice brought home to the knowledge of the shipper, restrict its liability as an insurer, when there is no negligence on its part. Where the jury finds as a fact, that the common carrier has been guilty of negligence, a stipulation in the bill of lading that the damages must be assessed before the removal of the goods from the station, or that the claim for losses must be made within thirty days, is unreasonable and void. Opinion by Ashe,J.-Capehart v. Seabord R. Co.

ADMINISTRATOR AND GUARDIAN PAYMENT OF DEBTS-SURETIES.- Where an administrator is also the guardian of a ward, to whom his intestate was indebted, whatever sum came into the hands of the ad. ministrator which was applicable to the debt due the ward is immediately transferred, eo instanti, by operation of law, to him as guardian, without any act done by him as administrator, and the sureties on the guardians bond become responsible therefor,to the exoneration of the sureties on the administration bond, Where such administrator erroneously paid over a portion of the fund applicable to the debt due the ward, to the intestate's other creditors, the sureties on the guardian bond can follow such fund into the hands of those who participated in the misapplication. Opinion by SMITH, C. J.-Ruffin v. Green.



July, 1879.

MISREPRESENTATIONS-EVIDENCE.-1. Statements that a railroad co.npany was able to lay its tracks and provide rolling stock and pay all bills contracted, and that the stock was not for sale, and could not be bought anywhere but of the defendant, made by the president of the corporation to one who was about to purchase stock, are statements which the jury would be warranted in finding were representations of facts of which he professed to have knowledge, and not the mark. She was unable to read, but that fact was unknown to the defendant. The bank paid the amount due on said book to a person unknown, who, after the death of the testatrix, presented the book for pay. ment, representing herself to be the person therein named, the bank then believing her to be the original depositor. After the death of the testatrix, and be. fore payment by the bank, the executor published the usual probate citation, addressed to the heirs at law, next of kin, and all persons interested in her estate, to appear and show cause, if any, against the probate of her will; but the bank had no actual notice of her death. In a suit by the executor against the bank to recover said amount, it was held, that the by-laws were reasonable and proper; that the plaintiff's testatrix was bound thereby; that her death was not a fact which the defendant was bound to know; and that the publication of the citation of the probate court was not notice to the defendant as matter of law. Opinjon by COLT, J.-Donlan v. Provident Institution for


June Term, 1879.

expression of an opinion or estimate. Morse v. Shaw, 124 Mass. 59; Homer v. Perkins, 124 Mass. 431; Millitin v. Thorndike, 103 Mass. 387; Litchfield v. Hutchinson, 117 Mass. 197. 2. The plaintiff also offered to prove that at the time of the sale, and for the purpose of inducing him to buy, the defendant falsely stated that he knew there was money enough in the treasury of the company to purchase rolling stock for the road, provide and lay tracks and furnish all necessary equipments: Held, that if the defendant made such representations as representations of fact and not of opinion, then the falsity of the representations might be proved by competent evidence. Opinion by COLT, J.-Teagin v. Irvin.

SEDUCTION-EVIDENCE.-1. In an action for the seduction of a daughter, the plaintiff must prove that he was entitled to the service of the daughter at the time of the injury, and that the ability of his daughter to render service was impaired by the defendant's unlawful act. 2. Evidence that the daughter appeared strong and well before the alleged seduction, and that afterwards she became nervous and excitable and did not appear to be herself, though no pregnancy or disease ensued, will justify the jury in finding an incapacity to work as the proximate effect of the seduction. 3. When the plaintiff has not parted with his right to his daughter's service, it is sufficient to prove that she resides with him and is under age, or that, if she resides and is employed elsewhere, that he has not lost his right to her service. Opinion by Colt, J.-Blagge 0. Ilsley.

TRUST FUND - STATUTE OF LIMITATIONS- EviDENCE–INTEREST.-In an action of contract, the court, sitting without a jury, found that the plaintiff's intestate, who was living out of the State in Sep. tember, 1852, sent to the defendant, who was living here, $900, to keep and invest for the intestate; that defendant received and invested the money in his own name, keeping it separate from other moneys for two or three years, and after that, mingling it with his own money in various investments, and keeping no separate account of the income or principal, and treating it as his own; that defendant never heard from the intestate after the receipt of the money; that there was no direct evidence of any express promise or agreement on the part of the defendant to hold or invest this money for the intestate; that the plaintiff gave bonds and notice of his appointment as administrator in September, 1874, and in the spring of 1876 made demand on defendant for said $900 and its accumulations. Upon exceptions to the rulings of the court, it was Held, 1. That the action was not barred by the statute of limitations. 2. That an express trust in personal property might be created and proved by parol. 3. That the defendant was chargeable with interest before the time of the plaintiff's demand. 4. That the defendant was entitled to show by his own testimony the purpose for which he supposed the money was sent to him, and the understanding with whicb be took it, in order to rebut the inference which the plaintiff sought to have the court draw from the circumstances which he put in evidence. Opinion by SOULE, J.-Davis u. Coburn.

SAVINGS BANK — PAYMENT TO ONE PRESENTING DEPOSIT Book.–The plaintiff's testatrix deposited money in a savings bank, receiving a deposit book which contained by-laws of the bank, declaring that it would not be responsible for loss sustained when a depositor bad not given notice of his book being stolen or lost, if such book should be paid in whole or in part on presentment, and that it did not undertake to be answerable for the consequences of mistake as to identity, if it paid to a wrong party upon the bank book being presented. She also signified her assent and subscribed her name to the same by making her

SETTLEMENT UNDER DUREYS.-A settlement between debtor and creditor must be considered as made under duress, where the creditor has stopped the payment of moneys due the debtor from third parties, and where the debtor is compelled to make it in order to remove the stoppage and thus avert his financial ruin; and if the settlement thus forced was not in accordance with the legal rights of the parties, it may be set aside. Opinion by MARSTON, J.-Vyne o. Glenn.

ACTION Ox NOTE-LEGAL TERMS NOT CHANGEA. BLE BY PAROL MAKER'S PROMISE TO PAY FOR CO-MAKERS--OFFICER CAN NOT ACT IN ANTAGONISTIC CAPACITIES.—The makers of a note were directors of a railroad, and it was payable to the order of the president of the road, who was also president of a bank to which the note was transferred for value, before malu. rity. The bank sued defendant in assumpsit to recover a balance claimed to be due on the note, of which he was one of the makers. Held, 1. That evidence to prove an agreement that the makers of tbe note should not be personable liable in accordance with the terms thereof, and that it should be paid only out of the assets of the railroad company, was incompetent. 2. A promise made by one of the makers with his co-makers that in consideration of certain contracts being entered into with reference to the construction of the road, he would take certain subscriptions and notes received by the company, and would pay this note and release his co-makers from liability, could not affect their liability where the creditor's consent was wanting. 3. The bank president could not assume to act for the bank and consent to such arrangement so as to bind the bank; for he was liable as co-maker and in. dorser, and could not act in a double and antagonistic capacity. Stevensou v. Bay City, 26 Mich. 46. Opinion by MARSTV, J.-Gallery v. National Exchange Bank of Albi n.

LAND COX RACT- TENDER OF DEED-PROOF OF TITLE - EVINCE THAT MERITS WERE TRIED IN FORMER SUI .-Action for the purcbase-price of lands sold by contr cis, to be paid for in annual installments, all due when suit was brought. The vendor bad tendered the customary warranty deed and demanded payment. Held, 1. That where a contract obligates the vendor, wben the purchase-price is paid, to "execute and deliver” to the vendee “a good and fficient warranty deed," it is enough for the vendor to tender


- deed sufficient in form, without showing that he has peal. The policy contained provisions that logg was at the time a title which the deed would convey. In to be paid sixty days after due notice and proofs of the absence of any showing, the presumption will be the same, and that no suit or action against this comthat the vendee satisfied himself of the title when he pany for the recovery of any claim by virtue of the made his bargain. Dwight v. Cutler, 3 Mich. 566; policy shall be sustainable in any court until after an Allen v. Atkinson, 21 Mich. 361. 2. The evidence does award fixing the amount of claim, unless such suit not show that the merits were not tried in the former shall be commenced within twelve months next after suit brought hy the vendor on the contracts, after the the loss shall occur. The fire, producing the loss, ocinstallments had fallen due, wherein final judgment curred on the 14th of July, 1874, and proofs were made passed against plaintiff. The evidence given, all re- on the 21st of July, 1874. This action was commenced lated to the tender of a deed; but it does not show on the 13th of September, 1875. The action was not that the former case turned upon the want of tender. brought within twelve months after the loss occurred, When the subject-matter has confessedly been in liti

but within twelve months from the expiration of sixty gation before, the evidence that the merits were not days after the loss. WALKER, J., says: “Appellants passed upon must exclude all the hypothesis. Opin

contend that the twelve months did not begin to run. ion by COOLEY, J.-Baxter v. Aubrey.

until the expiration of sixty days after the occurrence of the fire. All persons know that in giving force to laws and contracts of every description, the intention. as therein expressed must govern. According to this

rule we are wholly unable to perceive how the meanSUPREME COURT OF ILLINOIS.

ing of this language can be misunderstood. When did

the loss occur? At the time of the destruction by fire. (Filed at Ottawa, June 21, 1879.]

It is, however, insisted that the clause in the policy that the loss was to be paid sixty days after due no.

tice and proof of the same, limits and controls the af. EJECTMENT-ADVERSE POSSESSION FOR TWENTY ter inserted condition prohibiting the bringing an YEARS – WHETHER TIME RUNS FROM DATE OF action more than twelve months after the loss should DEED OR OF TAKING POSSESSION.-This was eject

We are unable to perceive tbat it controls this ment by appellee against appellant for a certain part condition. We are referred to authorities wbich are of a lot in the city of Chicago. Appellant defends as supposed by appellants' counsel to hold that similar tenant to the heirs at law of one Frantz, deceased. language in other policies means the assured may sue Appellee and the heirs at law of Frantz, deceased, are at any time within twelve months after the sixty days seized in fee simple of adjoining lots, that of appellee reserved by the company to make payment has exbeing numbered four and that of appellant's lessor pired. We have examined the authorities referred to. numbered three. The controversy grows out of a dis- and think they fail to sustain bis position.Affirmed. pute as to the location of the boundary line between -Johnson. v. Humboldt Ins. Co. these lots. One M originally owned both lots. In 1846

INJUNCTION-COLLECTION OF TAX-FRAUDULENT he made a contract of sale of lot three to one H, who

ASSESSMENT-IRREGULAR ASSESSMENT XO GROUND is since deceased, and placed H in possession of the

FOR EQUITABLE RELIEF-CERTIFICATE OF APPELlot. H did not finish making payment for the lot and

LATE COURT-This is an appeal from a final order of the receive a deed therefor until several years after, but

Appellate Court for the First District, reversing the dehis possession, claiming to be owner under his contract

cree of the Superior Court of Cook County, and dismisswith M commenced in 1846, and was continued un

ing the bill, which had been filed in the latter court by broken in him until his death, and after his death in

appellants, praying an injunction to restrain the collecbis heirs at law until transferred to Frantz, and pos.

tion of a portion of personal property taxes for the year session was in him and his heirs continuously, until the bringing of this suit in 1868-a period of more

1876, assessed against appellants. The only ground of

relief under the bill is that of fraudulent assessment of than twenty-one years. Before M sold, there was

the property taxed at too high a rate. The only question a fence on what was supposed to be the dividing line between lots three and four, which fence has remained

of doubt arising is upon the effect to be given to the

certificate of the appellate court as to its finding of in the same place. Counsel for appellee insist that

facts. The order reads: • • " And as to our the limitation by reason of adverse occupancy, only

finding of facts, we hereby certify that we find the facts commences to run from the date of M's deed to ,

as charged in the complainant's bill, but that said facts which is less than twenty years before the com

do entitle said complainant to equitable relief.” SHELmencement of this suit. SCHOLFIELD, J., says: “Ap

DON, J., says: pellee's position is untenable. As early as 15 I11. 271, it

“As there is an allegation in the bill

that the assessor fraudulently assessed the property at was said: 'It is enough that a party takes possession

the value he did, it is contended by appellant that, acof premises claiming them to be his own, and that he

cording to the language of the certificate, the appellate bolds the possession for the requisite length of time,

court found the assessment to be fraudulent. If that with the continual assertion of ownership. If he does

were so, and it was to be taken as a fact in the case that not make the entry under proper title, his possession is considered adverse only to the portion actually oc

the assessment was fraudulent, it would follow that it

was error to order a disn.issal of the bill, as this court cupied. In such case he acquires no interest beyond the limits of his enclosure.' See 86 III. 35; 73 Ill. 439;

has declared that a court of equity will entertain a bill 65 III. 499; Washb. on Real Prop. (3d ed.) Vol. 3, p.

to enjoin the collection of a tax when property has

been fraudulently assessed at too high a rate. 24 III. 145, $ 48, et seq." Reversed. Schneider v. Botsch.

489; 76 III. 561; 83 Ill. 602. But we can not give to the INSURANCE-CONDITION IX POLICY BARRING SUIT language as to the finding of facts the effect claimed. AFTER TWELVE MONTHS--WHEN IT BEGINS TO Run. The words used, as we understand, mean that the facts - This was an action in a policy of insurance brought by were found as charged in the bill, but not the concluappellants against appellee. To the declaration ap- sion of law from the facts, viz.: fraud. From the recpellee filed a plea of the statute of limitations, that the ord we find that it fails to show any case of fraudulent suit was not brought within twelve monthy from the assessment, but one only of an excessive valuation, and time the loss occurred, according to the terms and irregularity in the making of the assessment. On tine conditions of the policy. Demurrer interposed and ground only of a valuation being excessive, equity will sustained by circuit court. This was reversed by the not interfere to restrain the collection of a tax. 68 Ill. sppellate court, and now the case comes here on ap- 010; 76 Ill. 398.” Aförmed. Gage o. Evans.

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