prescribed by the provisions of section 10, par. 60, art. 6, of the same act. The power possessed by these meetings cannot be exercised by the electors by casting ballots at an election called and held in the different voting precinets in the town. The attempt to exercise the powers vested in the town meeting by a special election held in the different voting precincts of the town was illegal, and the tax levied by virtue of such election is void, and, in the eye of the law, void taxes are unjust and uncollectible. As to said item of $690.77, designated as town taxes in the application of the appellee collector, the judgment will be reversed.

The judgment as to each item of taxes will be reversed, and the cause will be remanded, with directions to the trial court to sustain objections to these taxes. Reversed and remanded, with directions.

PEOPLE ex rel. MUNSTERMAN, County Collector, v. MCDOUGAL et al. (Supreme Court of Illinois. Dec. 16, 1903.) TAXATION - DRAINAGE COMMISSIONERSVALIDITY OF LEVY-METHOD OF LEVYEVIDENCE-BURDEN OF PROOF.

1. The farm drainage act (Hurd's Rev. St. 1901, p. 712), providing that the commissioners of a drainage district may levy a tax sufficient to "keep the work, or any part thereof, in repair," does not authorize them to levy a tax to clean out, deepen, and change the bottom of a drain.

2. Where drainage commissioners levied a tax of $25,000, evidence in proceedings to collect it that $24,200 of the levy was for a purpose not anthorized by statute threw on the collector the burden of showing that the balance was authorized.

3. The determination of drainage commissioners that a tax is for repairs, within the farm drainage act (Hurd's Rev. St. 1901, p. 712), authorizing them to levy a tax for that purpose, is subject to review by the courts.

4. The record of drainage commissioners and the certificate of a tax levy by them under the farm drainage act (Hurd's Rev. St. 1901, p. 712), authorizing a levy for repairs for the ensuing year, were deficient where they did not state that the levy was for repairs for the ensuing year.

5. A tax levied under the farm drainage act Hurd's Rev. St. 1901, p. 712), for repairing drains, should be extended on the tax books of the township collectors, and warrants for its collection issued to them, not to the county col'lectors.

Appeal from Iroquois County Court; Frank Harry, Judge.

Application by E. H. Munsterman, county collector of Iroquois county, for judgment against the lands of C. J. McDougal and others for the amount of a delinquent tax. From a judgment sustaining objections thereto, an appeal is taken. Affirmed.

J. W. Kern, State's Atty., Carey & Saum, and Morris & Hooper, for appellant. Ernest Severy and A. F. Goodyear, for appellees.

SCOTT, J. This was an application made by the county collector of Iroquois county to

the county court of that county at the June term, 1903, for judgment against the lands of appellees for the amount of a delinquent drainage tax levied on November 1, 1902, by the commissioners of special drainage district No. 1 of Onarga, Douglas, and Danforth townships, in Iroquois county. The tax levied upon the entire district was $25,000. For the purpose of collecting this tax the county clerk spread it upon the land in the district in the manner hereinafter specified, the tax being extended on the records of the county collector, and a warrant for the collection thereof issued from the office of the clerk to the county collector, and the taxes involved in this suit were returned delinquent by the county collector. Objections were filed in the county court by appellees. Upon trial, judgment was entered by the county court sustaining the objections, and the cause comes to this court by appeal.

The district contains approximately 16,500 acres of land. In completing the work as originally planned, a little more than 21 miles of ditch was made and left open. This open ditch was from 5 to 14 feet in depth and from 6 to 12 feet wide at the bottom. This district is organized and exists under the farm drainage act (Hurd's Rev. St. 1901, p. 712), and the work of providing the drainage in accordance with the original plan was practically completed in the autumn of 1888, at a total expense, including the cost of tile purchased, of approximately $95,000. Prior to June, 1888, for the purpose of determining what proportion of the expense of the drainage system the land of the various owners should bear, the land was classified in accordance with the statute. This classification was made on the basis of the benefits that would be derived by the land, both from the open ditch and from the tile that was to be put in. The open ditch is the main channel in the district. Tile drains carry the water from the lands of the various proprietors into the open ditch, and this open ditch carries the drainage out of the district. In 1892, $1,098 was levied and raised for repairs in this district, and each year since a repair tax has been levied and collected, which has run in amount from $493 to $700 per annum. In the autumn of 1902 the main ditch throughout its entire extent, except the mile thereof next its outlet, had become filled up, so that the openings of the tile emptying into it had become covered with mud. For the purpose of cleaning out this deposit in the bottom of the ditch, and also for the purpose of deepening the open ditch throughout that portion of its length where this deposit existed, the commissioners levied a tax of $25,000. The certificate of levy was made on November 10, 1902, and filed with the county clerk on the next day, and was as follows:

"We, the undersigned, commissioners of special drainage district No. 1 of Onarga, Douglas and Danforth townships, in the county aforesaid, do hereby certify that we re

quire the sum of twenty-five thousand dollars ($25,000) for the purpose of cleaning and repairing the ditches of said district; therefore, we do hereby levy said sum of twentyfive thousand dollars ($25,000), and request the clerk of said Iroquois county to extend and charge the said amount of twenty-five thousand dollars ($25,000) against the several pieces and parcels of lands and lots in said district, including sub-district No. 1 of Onarga township, according to the rate or ratio heretofore established and approved."

In making this levy the commissioners sought to proceed under section 70 of the farm drainage act (Hurd's Rev. St. 1901, p. 735), which provides that it shall be the duty of the commissioners, on or before the 1st day of December of each year, to file with the county clerk a statement of "the amount, if any, necessary to be levied to keep the work, or any part thereof, in repair for the year next ensuing," and the amount of any deficiency in the payment for repairs theretofore made, "and the clerk shall compute the pro rata share which each tract or parcel of land or property in said district, assessed for benefits, will have to pay to raise said respective amounts, which pro rata share shall be in the same proportion as the assessment for the construction of said work."

The tile which drain the lands of the objectors empty into the open ditch in the last mile of its course, so that their lands would, in fact, not be benefited by the proposed expenditure of the $25,000. Moreover, in the classification of the lands upon which the proportion of the expense of the construction of the original work which each tract should bear was determined, and upon which this $25,000 levy was distributed upon the lands of the district, the benefits taken into consideration were not alone those resulting from the open ditch, but likewise those resulting from the tile drainage. It will be perceived that not only was the $25,000 to be expended in a manner that would be of no benefit to the property of the objectors, but they were required to contribute to it on the basis that the construction or improvement of the tile drainage was to be provided for in its expenditure. It will be observed that section 70 authorizes the levy of this tax only for the purpose of raising such an amount as may be "necessary to be levied to keep the work, or any part thereof, in repair for the year next ensuing," and for the payment of any deficiency there may be in the amount of money raised in other years to pay for repairs which were made in such years. Νο such deficiency is shown here, and the clause authorizing taxation to meet a deficit of that character will not be considered in this case.

The certificate recites that the levy is "for the purpose of cleaning and repairing the ditches of said district." In accordance with the statute, the statement should have been that it was for repairs. Where the work of repairing includes that of putting open ditches

in their original condition, it may perhaps be argued that repairing includes cleaning, and that the word "cleaning," in the certificate, was therefore superfluous. We are inclined to think, however, that it was not so understood by the commissioners in making the levy. On the 18th of November, 1902, seven days after the certificate of levy was filed, the commissioners entered into a contract for the work for which they proposed to pay with this levy. That contract provided for cleaning out the open ditch, except the lower mile thereof, and deepening it throughout the same portion of its length to a depth greater than that which it originally had. The amount that its depth was to be increased beyond the original depth is uncertain from the testimony. One of the commissioners estimated it at three or four inches. The bottom of the ditch was also to be changed in another respect. As originally made it ran on a level for several hundred feet, then dropped down slightly and continued on a level again, and then again dropped down, and so on throughout its entire length. Under the contract of November 18, 1902, the bottom of the open ditch was to be given a gradual slope from its head to the place where the work was to terminate, one mile above its outlet. This contract provided for the doing of all the work that was to be done, except the cleaning and deepening of the ditch where it runs through the city of Gilman. This part of the ditch was excepted from the contract for the reason that the work under the contract was to be done by steam dredges, and there were arches built over the ditch in the city of Gilman through which the dredges could not pass, making it necessary to do the work in that city by some other method. The contract price for the work that was to be done with the dredges was some amount slightly in excess of $23,000, while the engineer estimated the total expense of the proposed work of cleaning and deepening, including the work to be done in the ditch through the city of Gilman, at $24,200. At the time this case was heard in the court below the work of cleaning and deepening the ditch was progressing in the manner above described, and it appeared from the testimony of one of the commissioners that such work was the work they had in contemplation in the autumn of 1902, and for which they made the levy in question.

The levy of this tax was made at a meeting of the commissioners held November 1, 1902. The record of that meeting shows the tax to have been levied "for cleaning out and repairing the ditches." During the same month the commissioners made report of the financial condition of the district for the year ending October 31, 1902, in which is included the following statement: "At the regular meeting, November 1, 1902, the commissioners made a levy of $25,000 for the purpose of deepening and cleaning out the ditches of this district." It is thus apparent that the commissioners, in making this levy, attached to the terms

"cleaning" and "repairing" a much wider significance than can be given the term "repair" under section 70, above cited, and it is also apparent that the commissioners were without authority to make this levy, under that section, for the purposes for which it was made, except such portion of the levy, if any, as was necessary to keep the work, or any part thereof, in repair for the year next ensuing." It is certain from the record in this case that the $24,200-the amount of the engineer's estimate was not levied for any purpose within the meaning of section 70. We think the evidence offered by objectors was suffielent to cast upon the county collector the burden of showing that the remaining $800 was authorized by that statute, and, as appellant failed to offer any evidence showing that any part of the tax was necessary for repairs for the ensuing year, the action of the court in sustaining the objection that the commissioners were without power to make the levy was proper.

Appellant cites the case of Ottawa Glass Co. v. McCaleb, 81 Ill. 556, in support of the proposition that "the commissioners, acting within the scope of their authority, are the judges as to whether or not the tax in question is a repair tax, and their judgment in the matter is not subject to review." if this statement of the law were correct, it would reileve the courts of the burden of determining whether the tax was a valid one. We find on examination, however, that the authority cited does not warrant the conclusion which counsel for appellant have drawn therefrom. In that case a bill had been filed to restrain the collection of taxes against the Ottawa Glass Company, for the reason, as charged. that the State Board of Equalization, which had assessed the capital stock and franchises of the company, had no constitutional warrant to make the assessment, and for the reason that the assessed value, as fixed, was excessive in amount and was so high as to be oppressive. In determining the matter the court said, in refusing to interfere on the ground that the assessment was too high (page 563): "Hence the legally constituted board of equalization have acted within the scope of their authority, and if they have reasoned incorrectly and erred in judgment we have no power to review and correct their action. They are empowered by law to fix the value of the property of corporations for taxation, and we can afford no relief, even if the rules that govern them are not such as commend themselves to our notions of the best means of ascertaining such value." will be seen that the case referred to falls far short of sustaining the doctrine that the courts are bound by the statement of the commissioners made in their record and in the certificate of levy that the tax was for "cleaning and repairing." On the other hand, in the case of O'Day v. People, 171 Ill. 293, 49 N. E. 504, where school directors had levied a tax "for building purposes," this court found, on con69 N.E.-7

It

sideration of the evidence introduced in the court below, that the tax so levied was levied for purposes which were not building purposes, and reversed the judgment for such taxes without remanding the cause; and the same investigation was made and approved by this court in Wabash Railroad Co. v. People, 187 Ill. 289, 58 N. E. 254.

The statement of the drainage commissioners in their certificate that the tax levied is a tax for repairs is not conclusive, and where it is shown that it is not a tax for that purpose it cannot be sustained as a repair tax under said section 70.

The record of the commissioners and the certificate of levy are each deficient in failing to state, in substance, that the levy is made to keep the work, or some part thereof, in repair for the year next ensuing. Nor was the method pointed out by the statute for the collection of this tax followed. It should have been extended upon the tax books of the township collectors, and warrants for the collection thereof should have issued to the latter officers. We prefer, however, to place our holding on the ground that the commissioners were without power to levy this tax under section 70 of the farm drainage act.

The judgment of the county court will be affirmed.

Judgment affirmed.

FORTHMAN v. DETERS.

(Supreme Court of Illinois. Dec. 16, 1903.) VENDOR AND PURCHASER-MUTUALITY OF CONTRACT-CONSIDERATION-OFFER OF PERFORMANCE-BURDEN OF PROOF-EVIDENCE -SUFFICIENCY MORTGAGE MERGER - ESTOPPEL AGAINST PURCHASERS.

ASSUMPTION PERFORMANCE

1. A contract for the sale of land reciting that the vendors "have sold" the premises to the vendee, and that the vendee "agrees to pay" the purchase money, is binding on both parties, when accepted by the vendee, and will be specifically enforced at his instance, though signed only by the vendors.

2. A contract for the sale of land, made under seal, imports a sufficient consideration.

3. In a suit for specific performance complainant must prove that he has been ready, willing, and eager to perform, and the burden is on him to show a full and complete performance, or offer to perform, on his part.

4. In a suit for the specific performance of a contract for the sale of land, evidence examined, and held to show complainant's willingness to perform and offer of performance.

5. A contract for the sale of land by the heirs at law of the former owner, by which the vendors agreed to give "a good deed free from all incumbrance, with abstract of title up to date," imposed on the vendors the obligation of exonerating the land from the payment of claims allowed against the estate of such former owner.

6. An allegation in a bill for specific performance of a contract for the sale of land, under which the vendee agreed to assume a mortgage thereon, that the vendee had paid the principal and interest due on the mortgage, estops the vendee from asserting a mortgage claim against the property.

7. A finding in a decree for the specific performance of a contract for the sale of land that the mortgage which the vendee had agreed to

pay was paid protects the vendors and their grantee from any liability thereon.

8. Where a vendee in a contract for the sale of land, by which he assumed the payment of a mortgage thereon, took to himself an assignment of the mortgage and unpaid notes, his estate as mortgagee would merge with that of the mortgagor on the conveyance of the mortgagor's interest to him, and thus protect the mortgagor or his vendees from liability on the mortgage.

9. Where a purchaser of property from a vendor in a contract for its sale had full knowledge of the rights of the vendee under the contract, he would be compelled to perform the vendor's contract, and convey to the vendee.

Appeal from Circuit Court, Jasper County; Wm. M. Farmer, Judge.

Bill by Joseph Deters against Theodore Forthman and others. From a decree for plaintiff, defendant Forthman appeals. Affirmed.

This is a bill filed on August 14, 1902, in the circuit court of Jasper county, by appellee, Deters, against Reka Huckstead, Ferdinand Huckstead, Anna Bartels, and appellant, Theodore Forthman, for the specific performance of a contract made by Reka and Ferdinand Huckstead with the appellee to convey to the latter 80 acres of land, to wit, the west half of the southeast quarter of section 8, township 7 north, range 8 east, in said county. The bill not only prayed for a conveyance of said lands from said Reka and Ferdinand Huckstead and Anna Bartels to appellee, but also that a deed subsequently made to appellant, Forthman, should be canceled. The bill was subsequently dismissed as to Anna Bartels. A joint and several answer was filed by Reka and Ferdinand Huckstead and the appellant, to which answer replication was filed. Testimony, oral and documentary, was introduced in open court before the chancellor, and the hearing resulted in a decree in favor of appellee, the complainant below. The present appeal is prosecuted from said decree.

The material facts are substantially as follows: One Christopher Huckstead died testate on November 28, 1901, leaving Reka Huckstead, his widow, and Ferdinand Huckstead, and Anna Bartels (formerly Anna Huckstead), his children and only heirs at law. At the time of his death he was the owner seised in fee of the 80 acres above described, and also of certain personal property, the value of which was afterwards appraised at the sum of $446. His will was made on October 31, 1901, and by the terms thereof he bequeathed to Reka Huckstead, his wife, a life estate in the south half of said 80 acres, with remainder over at her death to his son, said Ferdinand Huckstead. The north 40 acres of the 80-acre tract he devised to his son, said Ferdinand Huckstead. By the terms of the will, as thus stated, the title to the whole 80 acres was in Reka Huckstead, the widow, and Ferdinand Huckstead, the son. No interest in the land was

8. See Mortgages, vol. 35, Cent. Dig. § 706.

devised to Anna Bartels. The will was probated in the county court of Jasper county at the February term, 1902, and one Charles Schmidt, the son of Reka Huckstead by a former husband, was appointed administrator with the will annexed, and qualified as such. In April, 1902, four small claims were allowed against the estate, amounting to $172, and the appraisers fixed the widow's award at $807, the reports of said appraisers being approved by the court March 3, 1302. Personal property was inventoried to the amount of $446.

Prior, however, to the appointment of the administrator, and on January 20, 1902, a written agreement was made between Reka Huckstead, widow of Christ Huckstead, deceased, of the county of Jasper, Ill., party of the first part, and Ferdinand Huckstead, of Effingham county, Ill., of the second part, and Anna Bartels, formerly Anna Huckstead, of Day county, territory of Oklahoma, party of the second part, which written agreement witnessed "that for and in consideration of the stipulation hereinafter mentioned" the said parties of the first and second part "agree as follows: That we have sold to one Joseph Deters, of the county of Effingham, state of Illinois, the estate known as the Christ Huckstead estate, and described as follows:" [Describing the eighty acres as above]-"for the sum of $2,100.00, and that the said Joseph Deters agrees to pay all of said purchase money on the delivery of a good title to the said described land, less $800.00 and $102.72, interest on mortgage and money; making a total deduction of $502.72, and leaving a balance to be paid by said Joseph Deters of $1,197.28; and that the heirs hereby further agree to give possession of the said described land to Joseph Deters on or before March 1, 1903. And we further agree to give purchaser a good deed, free from all encumbrance, with abstract of title up to date. All taxes to be paid by the said heirs for 1902." This written agreement was signed by Reka Huckstead and Ferdinand Huckstead under their respective seals, but was not signed by Anna Bartels, or by the appellee, Joseph Deters. It was acknowledged on January 20, 1902, before a notary public in Effingham county, by Reka Huckstead and Ferdinand Huckstead, and was acknowledged by Anna Bartels on January 24, 1902, before a justice of the peace in Day county, in the territory of Oklahoma, and was filed for record on May 10, 1902.

When Christ Huckstead died there was a mortgage upon the 80 acres in question, executed by the testator and his wife in the former's lifetime to H. P. Wyatt, dated January 28, 1898, to secure a note of the same date for $800, payable five years from February 1, 1898, with interest at six per cent. per annum, payable semiannually, and evidenced by coupon notes, all the notes being payable to the order of said Wyatt. On January 22, 1902, two days after the making

of the contract, the appellee, Deters, took up and paid the mortgage notes, which were assigned and indorsed to him by Wyatt. Upon the hearing below the original mortgage and the principal note and coupons paid by Deters were introduced in evidence before the court. The amount paid by Deters for the notes and mortgage was $902.72, being $800 principal and $102.72 interest.

The contract was made a part of the bill, and the bill averred the complainant's readiness to comply with the agreement; that complainant, Deters, so informed the defendants on May 10, 1902; that on August 12, 1902, complainant applied to Reka and Ferdiband Huckstead, and offered to pay them $1,197.28 on delivery to him of a warranty deed for said land; that they refused to do so; that complainant Deters "on the 22d day of January, 1902, did pay to H. P. Wyatt $972.72, principal and interest on mortgage secured by premises, which sum was a part of purchase price of said premises"; that Reka Huckstead, Ferdinand Huckstead, and Anna Bartels on June 2, 1902, conveyed by warranty deed said 80 acres to Theodore Forthman; that Forthman knew at the time of above contract. The bill prays, in addition to what is above stated, that $1,197.28, the residue of purchase money, be placed to be used in payment of debts of the estate of Christ Huckstead, probated or to be probated, and for other relief.

The answer admits that Reka and FerdiBand Huckstead entered into a written agreement to sell the land, but denies that Anna Bartels joined in it, and denies that Deters was a party to it, or in any way connected therewith, and denies that he covenanted to pay $2,100 or any sum for the land; denies that he was ready and willing to comply, and avers that he refused to become the purchaser of said real estate, and only showed a willingness to purchase the land after it had been sold to Forthman; denies that Deters paid Wyatt $972.72, principal and interest of mortgage, as part of the purchase price of said premises, but avers that he purchased said mortgage debt, and caused the same to be assigned to himself, and is now the owner thereof, unsatisfied and unpaid, and capable of being enforced against said real estate. The answer admits the conveyance of the land to Forthman, and avers that, Deters not being a party to the agreement, the same could not be enforced at law or in equity against him; that there was no mutuality or reciprocity of obligation created by said agreement between Deters and the defendants below.

On April 13, 1903, the court by its decree found that the land was devised as above stated to Reka and Ferdinand Huckstead; that the agreement of January 20, 1902, was entered into between said Reka and Ferdiand Huckstead and Anna Bartels with the appellee, Deters; that said agreement was filed for record May 10, 1902; that Deters

had tendered Reka and Ferdinand Huckstead $1,197.28, after having paid the mortgage and interest mentioned in the contract amounting to $902.72; that the defendants below refused to make deed to Deters; that on February 3, 1902, Charles Schmidt was appointed administrator with the will annexed of the estate of Christopher Huckstead, deceased; that the only real estate inventoried was the premises in controversy; that Deters had offered to deposit $1,197.28, to pay off and release claims against estate, in the hands of any person defendants below would designate; that the defendants refused the offer; that June 2, 1902, Reka and Ferdinand Huckstead conveyed the premises to Theodore Forthman; that Forthman purchased the premises with knowledge of Deters' rights; and it was therein decreed that the agreement be specifically performed; that Reka and Ferdinand Huckstead execute to Deters warranty deed for the land, and deliver the same, with abstract of title, to the clerk of the court on or before August 1, 1903; that Theodore Forthman also convey the premises to Deters on or before August 1, 1903; that, if conveyances are made, Deters, within one day after August 1, 1903, pay the clerk $1,197.28; that the clerk shall keep the money until premises are released from all claims allowed against said estate; that, if Deters is compelled to discharge said liens, then that the sum of money which he is compelled to pay for that purpose be deducted from the amount deposited with the clerk, and the balance, if any, be paid to Forthman; that if Reka or Ferdinand Huckstead or Theodore Forthman pay said claims, then the clerk shall pay to Forthman said sum of money so deposited with him; that, in the event of an appeal by the defendants or any of them, Deters need not pay said sum of $1,197.28 to said clerk until the final determination of the case; that if defendants execute the deed as required, and deposit the same with the clerk, and pay off said claims, then the clerk shall deliver the same to Deters upon payment by him of said sum of $1,197.28, and the clerk shall pay said $1,197.28 to Forthman; that if the defendants comply with said decree, and Deters neglects to comply on his part, he shall, at the election of the defendants, be held to acquiesce in said Reka and Ferdinand Huckstead's failure to perform said contract, and shall not be entitled to a specific performance, or any damage for nonperformance; that the defendants Reka and Ferdinand Huckstead pay complainant's costs. By the terms of the decree the court reserved for future consideration the matter of ascertaining whether Reka and Ferdinand Huckstead removed the liens of the claims allowed against the premises in controversy in the estate of the deceased, and how much, if anything, Deters may be compelled to pay to remove the same.

An appeal has been taken from the decree rendered by the circuit court by the present