west quarter of section 5 that lies directly south of the southeast quarter of section 32, which was not included in any of the deeds from Stanley, but which all parties agree should have been included in the deed to Marshall. This latter piece was not surveyed by itself, and it was not ascertained how many acres it contained. The piece in the northeast of section 5 was surveyed by itself, and it was then ascertained that it contained 1.037 acres. Brook also testified that at the time of making the settlement he judged that both pieces contained the same number of acres, and that he stated to Stanley that he was deducting 1.037 acres for the piece in the northwest of section 5. The following diagram represents sections 4 and 5 in township 8 north, range 4 west, and the south half of sections 32 and 33 in township 9 north, range 4 west, upon which the farm of Wyatt Stanley was located. The black portion thereof shows the tract involved in this litigation. The acreage shown on this plat is taken from the sectional map of Henderson county, and not from the survey which was made after the sale of the land: stead of turning on the township line between sections 5 and 33, and running east to the northeast corner of section 5, it runs diagonally from the southeast corner of section 32 to the southeast corner of the northeast quarter of section 5, and cuts off a corner of the northeast quarter of section 5 (the 1.037 acres in dispute), leaving that corner on the east side of the road, instead of on the west side. The township line and the quarter section line through sections 4 and 5 approach each other as they are extended west, and the space between them is greater through section 4 than through section 5. The sectional map of Henderson county, however, shows that the road corresponds with the section lines, and turns directly east on the township line at the southeast corner of section 32, and runs directly east to the northeast corner of section 5, and turns south at that point, which, if correct, would have placed all of the northeast quarter of section 5, including the 1.037 acres in dispute, on the west side of the road. That part of this tract which was east of the east line of the highway was fenced in with the northwest quarter of section 4. At the time of the sale there was no fence separating it from the northwest quarter of section 4, and east of it, on section 4, was a garden. It was purchased by Stanley as a part of a 90-acre tract constituting a farm. It appears from the testimony of the purchasers, of Stanley, and of Waldock, that nothing was at any time said either by Stanley or by Waldock about reserving any part of the land, or excepting this piece from the sale. Seventy dollars per acre was agreed upon as an average price per acre for the farm. This piece was never particularly mentioned during the negotiations, and was a part of the Stanley farm. It was not known by the purchasers, according to their testimony, that Stanley claimed to have retained the ownership of that piece until over eight months after the deeds had been delivered, and after possession of the farm (aside from the tract in dispute, about the possession of which there is a conflict in the evidence) had been surrendered to the purchasers. Apollos W. O'Harra, for appellant. SCOTT, J. (after stating the facts). It is earnestly insisted by appellant that the finding of the decree that the tract of land in dispute was intended by all parties to this transaction to be included in the deed is not supported by the evidence. It will be observed from the foregoing plat that the land in question is in the heart of the farm which was owned by the appellant. Negotiations for the sale of this land were opened between Stanley and J. Cecil Brook at the home of the latter's father, in Henderson county, near the Stanley farm. At that time, according to Brook, Stanley desired and offered to sell his "farm." Shortly after this, J. Cecil Brook and appellee went to look the farm over; and he says, that he might break up some time, and in that event he wanted this for a homestead. Waldock reached a verbal agreement with the purchasers, but said nothing about reserving this tract, and nothing was ever said by either Stanley or his agent about reserving it, and each of the purchasers swears that all the offers made by both Stanley and Waldock were to sell Stanley's "land" or "farm." Appellant says he furnished the purchasers with the description of each piece of the land separately, and the evidence warrants the conclusion that J. Cecil Brook furnished to Kaiser, who wrote the deeds, the descriptions which were written therein. The description contained in the deed to Marshall, which it is sought to correct so that it will convey all the northeast quarter of section 5, reads as follows: "The south fractional part of the northeast quarter of section No. 5, containing 13 acres, more or less," all in township, etc. This language is regarded by counsel for appellant as being significant, and he inquires, why was the word "part" used if it was intended to convey the entire quarter? If the deed contained no description other than this one, it would be void for uncertainty in the description. It conveys absolutely nothing in the northeast quarter of section 5. There is no way of fixing the north line of the land which the grantor attempted to convey. The only conclusion which can certainly be drawn from the language used is that the parties sought to conrey approximately 13 acres off the south side of the quarter, and, as the quarter section contained approximately 142 acres, the conclusion would be that the parties were attempting to convey practically all of the tract in dispute. We do not think that a consideration of this language aids the cause of appellant. To authorize the reformation of a deed between parties on account of a mistake, the mistake must be that of both parties, and must be proved by clear and satisfactory evidence. Cleary v. Babcock, 41 Ill. 271; McDonald v. Starkey, 42 Ill. 442; Sutherland v. Sutherland, 69 Ill. 481; Rexroat v. Vaughn, 181 Ill. 167, 54 N. E. 917. both testify that at this time Stanley offered to sell the disputed tract, for the reason, as to sell the "farm," and made no suggestion about reserving any part thereof. During the negotiations Stanley was several times at the residence of the elder Brook, and there, on at least one occasion, he took the map of Henderson county, and pointed out thereon the land which he owned and desired to sell; it being the same land which the foregoing plat shows that he owned. Stanley himself says that when he first went to see John Brook, and talked with him with reference to the land, he (Stanley) showed him the different pieces on the Henderson county map; and, in this connection, it is important to observe that the disputed tract is not shown on that map as a separate tract, but is included with the remainder of the northeast quarter of section 5, as that map erroneously locates the highway by showing that, coming south to the township line, it jogs straight east to the northeast corner of section 5, and then runs south on the east line of section 5, which would throw this tract west of the highway; and this error makes it appear that this tract is in no way separated from the quarter section. All parties agree that nothing was ever said to either purchaser about reserving or excepting any of the land. Now, if Stanley pointed out the various pieces he was selling on that map and did not speak of excepting or reserving any portion thereof, he must have pointed out a tract which on that map included the small piece of land involved in this litigation. It is true that Marshall said during the negotiations that he was to have the land west of the road, only, but he also says he was to have all the land in section 5; and this inconsistency, we think, is explained by the fact that the Henderson county map was used, and that, treating the highway as being correctly located thereon, all the land in section 5 would be west thereof. Had the highway been where shown by that map, then there would have been no inconsistency in the two statements. But in any event, that inconsistency only went to the way in which the land was to be divided between Marshall and the other two purchasers. If Stanley sold the whole farm to the three, and Marshall was to have only that west of the road, that east of the road would be the property of the other purchasers; and as it now appears from the answer of the other purchasers that in the division among the purchasers, in accordance with which it was attempted to have the deeds made, this tract was to go to Marshall, that inconsistency becomes immaterial. Stanley himself testified that when the negotiations were opened the purchasers wanted to know how much he would take an acre for his land; that this tract now in dispute was a part of his land; that he quoted them a price per acre, and said nothing about any reservation; that afterward he directed Waldock, the real estate agent, to sell them his farm or his land at $70 per acre, but that he told Waldock not Consideration of the evidence in this cause has led us to the opinion that the proof is of the character required to warrant the correction of the deed to Marshall as made by the court on the circuit. We are impelled to this determination of the matter largely by a consideration of the surrounding circumstances. This tract was practically in the center of this large farm, several miles from any town, where neither party would be apt to desire a sale of the farm without including this. Appellant seems to have been a keen business man, possessed of a large amount of property. He was moving to another state, and investing his means there. His statement that he desired to reserve this piece of ground for a homestead in case he should meet with financial reverses seems to us in the highest degree improbable. He did not intend residing on this land succeeding the sale, and it would therefore be liable to the attacks of creditors should he become unable to pay his debts. Its location made it undesirable as a home for a man without other property or means, as it was not situated where its occupant could conveniently engage in any business other than farming the lands which appellant formerly owned, and which he conveyed in this transaction. Again, when the deeds were delivered, payment was made on the basis of the acreage as shown by the county map. From the acreage so shown, the school acre only was then deducted. If appellant was reserving the tract in question, as he now claims, and which he says he always regarded as containing one acre, we think it likely that he would at that time have had that deducted also. Appellant also bases his defense to the bill upon an estoppel. The deed to Marshall, it is conceded by all parties, is erroneous, and should be reformed so that it will convey that portion of the northwest fractional quarter of section 5 which lies directly south of the southeast quarter of section 32, and the decree so reforms it by directing a conveyance of that land. This tract was wholly omitted from the deed, which does not contain any language by which any attempt was made to convey it. When the land was surveyed. J. Cecil Brook called Stanley's attention to the fact that this tract was omitted, and asked him to convey it to Marshall. Stanley says he replied that he would convey it if the deed did not cover it; and Brook says he first said he would convey it, and then refused. However this may be, it is certain that Stanley and J. Cecil Brook proceeded to settle the shortage in the acreage without this tract in the northwest of section 5 being conveyed. tion line running north on the east side of sections 5 and 32, while the narrow strip of land which composed the north half of section 5 grew narrower as it was followed to the west, so that the portion of the northwest of section 5 which it is agreed was omitted from the deed by mistake was only slightly less in extent than the portion of the northeast quarter of section 5 which is in question would have been had the highway running south along the east side of section 32 continued straight south to the half-section line running east and west through section 5, as it appears to do from the evidence of some of the witnesses, although the plat in the record, by which we have been governed, shows the angle as does the plat above set forth. J. Cecil Brook swears that the 1.037 acres were deducted in figuring the shortage, because the part of the northwest quarter of section 5 above referred to, and which had been included in the survey, was not included in the deed; that, while he did not know its exact dimensions, he knew that the jog west in the north and south lines was the same in the middle of section 5 as at the east line thereof, and that the portion of the northwest of section 5 above described, which should have been included in the deed, was substantially the same in extent as the portion of the northeast of section 5 which lay east of the highway; and that the figures showing the amount of the latter were accordingly adopted. There is no testimony except that of these two men as to which tract they intended to figure out when they deducted the 1.037 acres. While it is true that support is lent to Stanley's testimony by the fact that these figures gave the exact contents of the tract he says was figured out, and were only approximately correct if it was the other tract which was deducted, still, if Stanley is right about the matter, then no deduction at all was made for the portion of the northwest of section 5 in question, but, on the contrary, Brook consented to pay for, and did pay for, that portion of the northwest of section 5, when there could be no pretense that the deed conveyed it, and when he (Brook) knew that the deed did not convey it-a theory which seems improbable, considering the fact that Stanley had at that time, notwithstanding Brook's request, failed to make any conveyance to correct the error in the deed occasion When the survey was made, Stanley had that portion of the northeast quarter of section 5 which lies east of the highway surveyed separately, and it was found to contain 1.037 acres; and, in adjusting the acreage, this amount was added to the school acre, making 2.037 acres which was deducted from the total acreage. Appellant's position is that J. Cecil Brook, who was acting for the purchasers in making this settlement, acted on the theory that this part of the northeasted by the omission of that part of the northquarter of section 5 was not included in the sale, and should not be included in the acreage, and that Stanley refunded to the purchasers for the same at the rate of $70 per acre, and consequently Marshall is now estopped to say that this tract last mentioned should be included in the deed. An examination of the above plat will show that the half-section line running north through the middle of section 5 and through the middle of section 32 has in it the same jog to the west, at the township line, as had the sec west quarter of section 5. In our judgment, the evidence does not preponderate in favor of the contention that the portion of the northeast quarter of section 5 which lies east of the public highway was deducted from the total acreage in figuring the shortage. Where an estoppel in pais is relied upon, the facts out of which it is claimed the estoppel arises must be established by a preponderance of the evidence, and (disregarding other objections to the successful interposition of this defense in this case), as there is no such preponderance here, the doctrine of estoppel cannot be successfully invoked. The decree finds that, when the survey was made, Stanley paid back $72.59 on account of the shortage occasioned by omitting from the deed that portion of the northwest fractional quarter of section 5 which was included in the sale, and decrees that Marshall pay back that $72.59, with interest, and that Stanley and wife, upon payment thereof, execute the deed directed to be made. It is objected that neither bill nor proof supports this finding. As appellant does not question the propriety of the action of the court in reforming the deed by including therein the part of the northwest of section 5 which was owned by Stanley, the error in this respect. if any exist, is a harmless one. It insures to the appellant the return of his money. The action of the court below in apportioning the costs is assigned as error. Nothing is said in support of this assignment, except that appellant should not have been required to pay any part of the costs. It does not appear to us that the chancellor abused his discretion in making this apportionment. The decree of the circuit court of Henderson county will be affirmed. Decree affirmed. PERRY v. PEOPLE ex rel. HANBERG, County Treasurer. (Supreme Court of Illinois. Dec. 16, 1903.) MUNICIPAL CORPORATIONS-IMPROVEMENTS— 1. A judgment confirming an assessment based on an ordinance sufficiently describing the improvement to challenge the attention of the court to the determination of its sufficiency is not void, and cannot be collaterally attacked. 2. An ordinance for the improvement of a street, providing that, for a specified distance, the street should be graded within nine inches of the established grade, and that on the roadbed thus formed a layer of limestone of specified size should be laid, covered with specified screenings, and on these screenings a layer of limestone of specified size and depth, rolled with a roller of certain weight, and further providing for the manholes and catch-basins, although it omitted to designate the width of the street to be paved, sufliciently described the proposed improvement to invest the court, in proceedings for confirmation of an assessment based thereon, with jurisdiction to determine its legal sufficiency. Appeal from Cook County Court; O. N. Carter. Judge. Action by the people, on the relation of John T. Hanberg, county treasurer and ex officio collector, against Cornelia S. Perry. From a judgment for relator, defendant appeals. Affirmed. Browning & Shepard, for appellant. Robert Redfield and William M. Pindell (Edgar Bronson Tolman, Corp. Counsel, of counsel), for appellee. 1. See Municipal Corporations, vol. 36, Cent. Dig. § 1150. BOGGS, J. To the application of the appellee collector filed in the county court of Cook county for a judgment against certain city lots belonging to the appellant, for a delinquent special assessment, the appellant presented the objection that the ordinance relied upon to authorize the assessment was void. The objection was overruled, and judgment awarded the collector as prayed in the application, and the appellant has perfected this appeal. The ordinance provided for paving FortyFourth street, in the city of Chicago, from the west line of St. Lawrence avenue to the east line of Grand Boulevard, with macadam, and for curbing the same with limestone curbing; and the objection is that the ordinance is rendered void because the width of the street to be paved is not stated in the description given of the proposed improvement in the ordinance. Had this objection been preferred to the application for judgment confirming the assessment, it would have been sustained, for, while the ordinance seems in other respects to contain a full and complete description of the improvement, the width of the street to be macadamized is omitted from the description. But the appellant permitted a judgment to be entered confirming the assessment, and the question which now arises is whether she may in this collateral proceeding still avail herself of the right to urge the objection. If the ordinance, because of the failure in the description of the improvement to specify the width of the street to be paved, was a nullity, and the county court was for that reason lacking in jurisdiction to entertain the application of the city, and to enter judgment confirming the assessment, then the objection might be urged in the collateral proceeding for judgment against the property of the appellant for unpaid assessments of benefits under the judgment of confirmation. An ordinance which does not attempt to comply with the requirement of the statute that it shall contain the description of the improvement is a nullity. If an ordinance on which an application for a judgment of confirmation is based contains sufficient allegations descriptive of the proposed improvement to challenge the attention of the court, jurisdiction attaches in the court to judicially determine as to the legal sufficiency of the description; and the decision and judgment of the court thereon, however erroneous, is not void, nor can it be attacked as for error in a collateral proceeding. Figge v. Rowlen, 185 Ill. 234, 59 N. E. 195; Shepard v. People ex rel., 200 Ill. 508, 65 N. E. 1068; Walker v. People ex rel., 202 Ill. 34, 66 N. E. 827. In the ordinance here under consideration, the requirement of the statute that a description of the improvement should be set forth was not ignored. It provided that the street, for a specified distance, should be graded to within nine inches of the established grade, and that on the roadbed thus formed should be spread a layer of broken limestone, crushed to a speci fied size, and upon the same should be laid a layer, of a specified depth, of limestone screenings, completely filling interstices, and the same should be flooded and rolled with a roller of a specified weight, and "upon this said first layer of broken limestone and screenings shall be spread a layer of the best quality of broken limestone, crushed to a size so as to pass through a two and a half inch ring, upon which shall be spread a layer of well screened and cleaned Joliet bank gravel, so as to fill all the interstices in the limestone, said layer of limestone and gravel to be of an average depth of three inches, after having been thoroughly flooded and rolled with a roller of not less than ten tons' weight. All manholes and catch-basins shall be made to conform to the established grade of said Forty-Fourth street between said points, said pavement to be laid to conform to the established grade of said Forty-Fourth street between said points. Said work to be done under the superintendence of the department of public works." The width of the street to be paved was omitted, but the proposed improvement was so far described as that the county court, in the proceeding for a judgment of confirmation, was called upon to consider and judicially determine as to the sufficiency of the description. Jurisdiction thereof attached in the county court to decide judicially whether or not judgment of confirmation should be entered, and its decision is not open to collateral attack. The defect in the description should have been availed of in the proceeding for a judgment confirming the assessment. Not having been there presented, the judgment rendered in that proceeding conclusively precludes an investigation in a collateral proceeding of the question whether the ordinance, in mere matter of detail in the description of the improvement, was in all respects good and sufficient. The judgment of the county court is affirmed. Judgment affirmed. JONES v. CITY OF CHICAGO. (Supreme Court of Illinois. Dec. 16, 1903.) MUNICIPAL CORPORATION-PUBLIC IMPROVEMENT-ASSESSMENT-OBJECTIONS-BENEFITS-HEARING-EVIDENCE. 1. Where a landowner, on the hearing of objections to an assessment on his property, claimed that a certain lot which was not assessed would be benefited by the improvement, and offered evidence to that effect, it was proper for the court to permit the attorney of the owner of the latter lot to appear and introduce evidence tending to show that it would not be benefited, no new issue being raised by the appearance of the attorney, and it being on the motion of the attorney for the city that the attorney for the other lot owner was allowed to appear. 2. Where a certain lot did not abut on a street for the paving of which assessments were made, but was separated from such street by railroad tracks, and was used as a freight teamyard, and the entrance to which was not from the street which had been improved, a finding that it was not benefited by the paving of the street was proper. 3. Where, on the hearing of objections to an assessment for the paving of a street, it appeared that the street was a natural and con venient course of ingress and egress to and from the property, and there was conflicting testimony as to whether the lot would be benefited by the assessment, it could not be said, on appeal, that the finding of benefits was errone ous. 4. On a hearing of objections to an assessment for the paving of a street, testimony as to what benefits would be derived by a business conducted on certain assessed property was properly excluded. 5. On a hearing of objections to an assessment for the paving of a street, it was error to permit a witness who had not given any opinion on the subject of benefits to be asked on crossexamination whether he recalled any instances where property was worth more after the street was paved than before. 6. The error was not of such importance as to justify reversal of judgment confirming the assessment. Appeal from Cook County Court; R. A. Russell, Judge. Appeal by William A. Jones from a judgment confirming a special assessment to pay for certain improvements of Noble Street, in the city of Chicago. Affirmed. Tyrrell & Fellingham, for appellant. Frank Johnston, Jr. (Edgar Bronson Tolman, Corp. Counsel, and Robert Redfield, of counsel), for appellee. CARTWRIGHT, J. This is an appeal from a judgment of the county court of Cook county confirming a special assessment to pay for plastering curb walls, curbing with sandstone curbs, grading, and paving with asphalt, Noble street, in the city of Chicago, from Milwaukee avenue to North avenue. Lot A, the property of appellant, is situated at the north end of the proposed improvement, with an east frontage of 530 feet thereon, and a north frontage of 250 feet on North avenue. The lot was assessed $3,198, to be paid in five equal installments of $629.60. Appellant appeared and filed objections to the assessment on his property, among which was one that the assessment was levied upon part only of the property especially benefited. When this objection came on for hearing, the appellant claimed that lot B, owned by the Chicago & Northwestern Railway Company, which was not assessed, would be benefited by the improvement, and offered some testimony to that effect. court then, against the objection of appellant, permitted the attorney of said company to appear and introduce evidence that lot B would not be benefited. The action of the court is assigned as error. The railway company did not file any pleading, and the court did not assume any jurisdiction over it. The issue between the city and appellant was whether lot B would be benefited by the inprovement, and no new or different issue was raised by the appearance of the attorney for the railway company. Appellant cannot The |