Jones & Rogers, for appellees commissioners of highways of the town of Cortland.

BOGGS, J. Union drainage district No. 3, of the town of Virgil, in Kane county, and the town of Cortland, in De Kalb county, excavated a ditch across a public highway on the town and county line between said towns, and determined that a bridge across said ditch was necessary for the use and protection of the ditch. In the opinion of the board of commissioners of the district the cost of constructing such bridge should, under the provisions of section 40% of the act entitled "An act to provide for drainage for agricultural and sanitary purposes," etc., approved June 27, 1885 (2 Starr & C. Ann. St. 1896, p. 1552, c. 42, par. 147), be paid by said towns of Virgil and Cortland. The commissioners of said drainage district, as in pursuance of the proviso to said section 402, caused notices to be served on the commissioners of highways of said towns, respectively, to build the bridge. The highway commissioners failed or refused to provide the bridge, and the drainage commissioners caused a bridge to be constructed over the ditch at a cost of $426.05. The drainage commissioners thereupon began an action in debt in the circuit court of De Kalb county against the said towns of Virgil and Cortland to recover against said towns, jointly, for the amount so expended by them in building the bridge. The defendant the town of Virgil made default, and the town of Cortland filed the pleas of nil debet, nul tiel corporation, and a special plea, in substance that the town of Virgil and the town of Cortland had allotted the highway on the line between said towns in such manner that it became the duty of the town of Virgil, under said allotment, to construct all bridges on that portion of the highway which was intersected by the ditch of the drainage district, and that the allotment appeared in the public records, and that the appellant district had due notice thereof. The cause was by agreement submitted to the court without a jury upon a stipulation of facts. Among other propositions of law presented to the trial judge to be held or refused as the law of the case, each of the litigants presented propositions calling upon the court to decide as to the constitutionality and validity of said section 402, on the provisions whereof the appellant district based its right to recover in the action. The court held as correct the propositions which declared the section in question to be constitutional and valid, but sustained the third plea presented by the town of Cortland as constituting a good defense for said town, and rendered a judgment against the town of Virgil in the sum of $426.05. From this judgment the appellant district prosecuted an appeal to the appellate court for the Second district. The drainage district, in the appellate court, assigned upon the record as for error the refusal of the trial

court to hold a proposition of law, in substance, to the effect that the alleged allotment of the several portions of the highway in question between the said two towns did not operate, in law, to relieve the town of Cortland from liability in the action, and assigned other errors not important here to be noted. The town of Cortland applied to the appellate court for, and was granted, leave to assign cross-errors upon the record, and under such leave assigned as for error the action of the circuit court in refusing to hold the propositions of law presented by it to the effect that said section 402 is unconstitutional, and also that the court erred in holding the propositions presented in behalf of the drainage district, ruling that said section is a constitutional and valid enactment. In this appeal we can review the decision of the appellate court only upon errors there properly assigned and over which the appellate court had jurisdiction to pass. Indiana Millers' Fire Ins. Co. v. People, 170 Ill. 474, 49 N. E. 364. If the validity of the statute was properly in issue before the trial court, and was involved in the cause upon the errors and cross-errors assigned in the appellate court, the appellate court was without power to entertain jurisdiction of the cause and should have dismissed the appeal to that court. The cause was submitted to the appellate court, and judgment was entered by that court reversing the judgment of the circuit court and remanding the cause, with directions to dismiss the cause at the cost of the drainage district. The drainage district applied for and was granted a certificate of importance, and has prosecuted its further appeal to this court.

Counsel for appellant in the brief filed in this court, by way of argument and citation of authorities, seek to support the position that said section 40%1⁄2 is not in contravention of any constitutional provision, but is a valid and enforceable enactment. Counsel for the appellee the town of Cortland combat this view, and offer argument and cite authorities to support their contention that the enactment in question is unconstitutional and invalid. The brief of counsel for appellant in reply devotes five pages to the further discussion of the validity of the section. An examination of the record discloses that the question of the validity of the statute in question is raised for decision. It is clear, if the section is invalid, the appellant district has no legal right to recover. Whether the section is in contravention of the provisions and limitations of the constitution, and therefore invalid, is a question upon which the appellate court had no power to pass. The appellate court was wanting in jurisdiction to entertain the appeal herein, or to enter any judgment therein. The judgment of the appellate court must be reversed, and the cause remanded to that court, with directions to dismiss the appeal. Chaplin v. Commissioners, 126 Ill. 264, 18 N. E. 765; Perry v. Bo

Reversed and remanded, with directions.

(198 Ill. 479)

HEATON et al. v. GAINES. (Supreme Court of Illinois. Oct. 25, 1902.) DEED AS MORTGAGE-EVIDENCE-OFFER IN

ANSWER-EXTENDING TIME.

1. Evidence in suit to have a deed declared a mortgage, and to redeem therefrom, held insufficient to show the deed to be a mortgage.

2. Complainant not establishing his claim, the court has no authority to extend the time in an offer by defendant, in his answer in a suit to have a deed declared a mortgage, to sell for a certain amount, the transaction to be closed on or before a certain time.

Appeal from appellate court, Second district. Suit by Rachel Ann Heaton and others against Homer Gaines. From a judgment of the appellate court (100 Ill. App. 26) reversing a decree for complainants, they appeal. Affirmed.

This is a bill filed on December 20, 1899, in the circuit court of Knox county, by the appellants, Rachel Ann Heaton, widow of Edward Smith Heaton, deceased, and Thomas C. Heaton, Ella Craver, Lina W. Himes, and Eva Collinson, children and only heirs at law of said Edward Smith Heaton, against the appellee, Homer Gaines, for the purpose of redeeming 280 acres of land in said county from an alleged mortgage, in the shape of an absolute deed, charged to have been caused to be executed by the said Edward Smith Heaton in his lifetime, and on December 21, 1883, to the appellee, Gaines; appellants asking for an accounting, and offering to pay what should be found to be due to the appellee upon such accounting. Appellee filed an answer deny. ing the material allegations of the bill. Replication was filed to the answer, and references were had to a master in chancery to take testimony and report his conclusions. The master took testimony and made a report. The cause was heard upon exceptions to the master's report, and the circuit court entered a decree that the appellants pay to appellee on or before November 1, 1901, the sum of $11,242.34, with interest from the date of the decree at the rate of 5 per cent. per annum, and that upon such payment the appellee should execute a deed of said premises to the complainants, and that thereupon said mortgage upon said premises should be decreed to be redeemed and canceled; and it was further decreed that, upon failure of appellants to pay said sum and interest, complainants should surrender the possession of the premises to appellee, and all of their right, title, and equity of redemption should be cut off and foreclosed, and the master should execute a deed to appellee, conveying their interest to him in said premises. An appeal was taken from the decree so enter

and the appellate court has entered a judgment, reversing the decree and remanding the cause, with directions to the circuit court to dismiss the bill for want of equity. The present appeal is prosecuted from such judg ment of the appellate court.

The bill alleges that Edward Smith Heaton in his lifetime secured a loan of Homer Gaines of $8,863 on December 1, 1883, and, to secure the payment of the same on that day, caused, by an absolute deed of conveyance of that date, to be conveyed to appellee in fee simple said 280 acres of land, being described as follows: The E. 1⁄2 of the S. W. 14 and the W. 1⁄2 of the S. E. 4 and the N. W. 4 of the S. W. 4 of section 4, and the E. 2 of the S. E. 4 of section 5, in township 12 N., range 4 E. of the fourth P. M., in Knox county, which deed was on December 27, 1883, filed for record in the recorder's office of said county; that said deed, though absolute on its face, was merely a security for the payment of said money, and that, upon payment thereof, appellee was to reconvey the premises to Edward Smith Heaton, or his heirs; that said Heaton was at the time of making the said deed, and for a long time theretofore had been, and from that time up to the time of his death on June 19, 1899, had been, and was, in possession of said lands; that, since his death, appellants, as his widow and heirs, have been and are in possession thereof; that on April 1, 1893, said Edward Smith Heaton sold to Sarah E. King said E. 1⁄2 of the S. E. 4 of section 5, and appellee, at Heaton's request, conveyed said property to said King, and received therefor $4,000 in cash, to be applied upon the indebtedness of said Heaton to appellee; that, without the knowledge of Heaton or appellants, appellee on January 5, 1896, executed to one Zelotes Cooley a mortgage to secure $4,000 on the E. 2 of the S. W. 4 and the W. 1⁄2 of the S. W. 4 and the W. 1⁄2 of the S. E. 1⁄4 of said section 4, recorded in said recorder's office on January 25, 1896; that said Heaton in his lifetime did not receive said sum of $4,000, nor have appellants ever received any portion thereof; that Edward Smith Heaton did not know of said mortgage in his lifetime, and the knowledge of the same has only come to the appellants recently; that appellee received and applied said sum of $4,000, borrowed of said Cooley, to his own use; that said Heaton, while alive, paid to appellee large sums of money, almost equal to the sum alleged to have been borrowed by him from the appellee, so that his indebtedness to the appellee at his death was very small, etc.

Appellee, in his answer, denies that the deed of December 21, 1883, executed by Edward Smith Heaton to himself, was a mortgage executed to secure a loan of $8,863, and avers that said land was purchased by appellee from one M. M. Ford, and that Heaton remained in possession of the same as

appellee's tenant, under contract to pay him an agreed rental, including the payment of taxes, and was in possession as such tenant at the time of his death, and was then indebted for back rents on said premises. The answer charges that the sale to Sarah E. King was made by appellee of his own property in his own right and for his own benefit, and that the mortgage to Cooley was executed by appellee upon his own property and for his own benefit. In the answer, appellee offers, in consideration of the poverty of appellants, that, in case they will pay him the amount invested by him in said lands, including the indebtedness of said Edward Smith Heaton and one T. C. Heaton to him, together with a sum equal to the amount paid by him to M. M. Ford as purchase money, and interest thereon from the date of said purchase at 7 per cent. per annum, together with the costs, appellee would sell and convey said premises to any person who would pay that amount therefor; "any excess paid by such purchaser, respondent | will freely give to complainant, the widow of said Edward Smith Heaton, as commission for her finding a purchaser; the transaction to be closed on or before March 1, 1900."

The proof shows that one N. C. Heaton was the father of said Edward Smith Heaton, who died on June 19, 1899, and that Edward S. Heaton had a brother, named Thomas C. Heaton; the appellant Thomas C. Heaton being the son of Edward Smith Heaton. In 1868 or 1869, or thereabouts, mortgages were executed by N. C. Heaton, T. C. Heaton, and E. S. Heaton upon the 280 acres in question, to one Daniel Fuqua and one Charles C. Sheppard. Subsequently to the execution of these mortgages, N. C. Heaton died, and his heirs, except E. S. Heaton, conveyed said premises to E. S. Heaton and Thomas C. Heaton. Thomas C. Heaton and wife appear to have conveyed their interest in the premises to the said Edward Smith Heaton, except 65 acres in the north part of the E. 1⁄2 of the S. E. 14 of section 5. On January 12, 1878, Edward Smith Heaton and wife conveyed to T. C. Heaton said 65 acres off the north end of the E. 1⁄2 of the S. E. 1/4 of section 5, above mentioned. In March, 1878, E. S. Heaton and wife executed a mortgage to M. M. Ford upon 215 acres of said tract; being all of the same except the 65 acres so deeded to T. C. Heaton. T. C. Heaton and wife in September, 1878, executed a mort. gage upon said 65 acres to appellee to secure a note for $712.11, drawing interest at 10 per cent. Said mortgages to Ford and to appellee were subject to the mortgages executed to Fuqua and Sheppard. Ford appears to have been an agent and attorney for Sheppard. Proceedings were instituted to foreclose the mortgage to Fuqua, and to that proceeding Edward S. Heaton, Thomas C. Heaton, the heirs of N. C. Heaton, and Charles C. Sheppard and M. M. Ford were made defendants. At the foreclosure sale of the

Fuqua mortgage, 160 acres of the tract, to wit, the W. 1⁄2 of the S. E. 4 and the E. 1⁄2 of the S. W. 4 of section 4, were sold to Fuqua, and a certificate of sale was issued to him, which certificate of sale was subsequently assigned to one Martin Spencer; and on December 25, 1880, a master's deed was executed, conveying said last-named premises to Martin Spencer, which deed was recorded on April 23, 1883. Subsequently proceedings were also instituted by Charles C. Sheppard to foreclose the mortgage to him, and Edward S. Heaton and Thomas C. Heaton and Ford were made defendants to that mortgage. At the foreclosure sale under the Sheppard mortgage, the remaining 120 acres of the land, to wit, the N. W. 4 of the S. W. 4 of section 4, and the E. 1⁄2 of the S. E. 4 of section 5, were sold to Charles C. Sheppard; and on March 27, 1883, a master's deed, conveying said last-named premises, was executed to Charles C. Sheppard. By deed dated May 1, 1883, Jane A. Spencer, widow, and Judson Spencer, sole heir, of Martin Spencer, conveyed to Milton M. Ford the E. 1⁄2 of the S. W. 4 of section 4, and the W. 1⁄2 of the S. E. 4 of section 4, being 160 acres of the tract in question. By deed dated November 20, 1883, and recorded December 27, 1883, Charles C. Sheppard and wife conveyed to said Ford the remaining 120 acres of said tract, to wit, the N. W. 4 of the S. W. 4 of section 4, and the E. 1⁄2 of the S. E. 4 of section 5. By deed dated December 21, 1883, M. M. Ford and his wife conveyed to Homer Gaines, the appellee, the whole of said 280 acres as above described, and here in controversy. A mortgage for $6,500 was executed by appellee, Gaines, and wife, to Zelotes Cooley, on January 5, 1891, due five years after date, conveying the whole of the 280 acres in question, which mortgage was released on January 25, 1896. On January 5, 1896, another mortgage to secure $4,000 was executed by Gaines and wife to Cooley, due five years after date, on the 200 acres of land in section 4, which mortgage was released on January 4, 1901. The record also shows that a judgment was rendered on October 16, 1882, for $618.37 and costs in favor of one Simon Collison against Edward S. Heaton and others, upon which several executions were issued, and all were returned unsatisfied.

Shumway & Rice, for appellants. Williams, Lawrence & Welch and F. H. Gaines, for appellee.

MAGRUDER, C. J. (after stating the facts). In order to sustain the allegations of the bill in this case, it must be shown that the deed of December 21, 1883, executed to appellee, though absolute in form, was in fact a mortgage to secure an indebtedness from Edward Smith Heaton to appellee. The deed was not executed by Edward Smith Heaton, under whom appellants claim their right to redeem,

but it was executed by M. M. Ford to the appellee. There is no satisfactory evidence to show that M. M. Ford, when he conveyed the property to appellee on December 21, 1883, held the title as mortgagee, holding an indebtedness against Edward Smith Heaton, and subject to the right of the latter to redeem the property upon the payment of a mortgage indebtedness. If the deed from Ford to appellee was merely the transfer of a mortgage indebtedness by Ford, mortgagee, so as to make appellee a mortgagee as the assignee of Ford, then it must appear that Ford held the title as security for an indebtedness to himself. The relation of debtor and creditor between Edward Smith Heaton and Ford at the time of the execution of the deed by the latter to appellee is not established by the proofs in the case. Mortgages had been executed by Edward Smith Heaton and his brother and father to Fuqua and Sheppard. These mortgages had been duly and legally foreclosed, and the title had passed by masters' deeds to Martin Spencer and Charles C. Sheppard, as purchasers at the masters' sales, or as assignees of the certificates of sale executed to the purchasers. There is no proof that, when Spencer and Sheppard obtained their deeds from the master, they held such deeds as security for an indebtedness existing to them from Edward Smith Heaton. On the contrary, by the foreclosure sales all the title of Edward Smith Heaton in the premises was foreclosed and barred, and passed to Spencer and Sheppard. Edward Smith Heaton no longer had any interest in the property after the foreclosure sales and the execution of the masters' deeds. When, in the spring and fall of 1883, the widow and heir of Martin Spencer, and Charles C. Sheppard and wife, deeded these premises to M. M. Ford, Ford took the title free from any right of redemption in Edward Smith Heaton, so far as the record shows. The equity of redemption of Edward Smith Heaton had been cut off by the masters' sales and deeds. Certainly, on December 21, 1883, when Ford, holding the legal title, deeded the premises to the appellee, Homer Gaines, appellee became the owner of the property upon the face of the record. It is true that a deed absolute upon its face may be shown by parol to be a mortgage. But the proof showing this fact must be clear, satisfactory, and convincing. The law presumes, in the absence of proof to the contrary, that a deed is what it purports to be; that is to say, an absolute conveyance. The burden of proof is upon the party claiming such an absolute deed to be a mortgage to sustain his claim by evidence sufficient to overcome this presumption of the law. Keithley v. Wood, 151 Ill. 566, 38 N. E. 149, 42 Am. St. Rep. 265; Helm v. Boyd, 124 Ill. 370, 16 N. E. 85; Burgett v. Osborne, 172 III. 227, 50 N. E. 206.

The deed from Ford to appellee could not be a mortgage to secure an indebtedness from Edward Smith Heaton, unless it appeared

in some way that Edward Smith Heaton had an interest as owner in the lands thereby conveyed. Without an ownership in lands, there can be no mortgage of them. Payne's Adm'r v. Patterson's Adm'rs, 77 Pa. 136; Carpenter v. Plagge, 192 Ill. 82, 61 N. E. 530; Burgett v. Osborne, supra. Edward Smith Heaton cannot be said to have owned any equity of redemption which was kept alive by any agreement between Ford and the appellee. Heaton had no interest in the property which could sustain a parol agreement by appellee to buy the property for his benefit, and to convey it to him when required. Inasmuch as such an agreement, even if it existed, created an interest in land by parol, it could not be sustained under the statute of frauds. A naked promise by appellee to buy lands in his own name, pay for them with his own money, and hold them for the benefit of Edward Smith Heaton, could not be enforced in equity. Howland v. Blake, 97 U. S. 624, 24 L. Ed. 1027; Stephenson v. Thompson, 13 Ill. 186; Perry v. McHenry, Id. 227; Magnusson v. Johnson, 73 Ill. 156; Caprez v. Trover, 96 Ill. 456; Wilson v. McDowell, 78 Ill. 514. In Magnusson v. Johnson, supra, it was held that where land is sold under a deed of trust, and the title vested in the purchaser, and a third party at the request of the original owner buys from the purchaser, giving his note for the purchase money, and takes a contract in writing for the conveyance of the land to him upon payment of his note, and then agrees verbally with the original owner that, if he will pay the note when due, he may have the land, and the original owner makes no promise to pay, and does not in fact pay, and the deed is executed to the purchaser, his title is absolute, and is not held as a security for the payment of the money paid by him. In Wilson v. McDowell, supra, it was held that where a deed of trust has been foreclosed by a sale under its provisions, and the fee vested in the cestui que trust, a party purchasing from him afterwards cannot be considered as having purchased the deed of trust, to be held as security for the money expended in such purchase, although he may have made a verbal promise to the grantor that he would purchase the land, and convey it to him upon repayment to him of all money expended. Where the equity of redemption has been completely barred, and the life of the ownership has expired, there is nothing left in the property which can be the subject of mortgage.

In our view of the evidence, it is not only shown here that Heaton had no ownership in the lands at the time of the conveyance by Ford to appellee in 1883, but it is further shown that the lands were purchased by appellee for himself of Ford without any previous conversation with Heaton, or previous negotiations with Heaton for such purchase.

The appellants, who were the complainants below, put the appellee on the stand,

and made him their own witness. Therefore no question arises as to the competency of the evidence of appellee. Appellee swears that he purchased the lands from Ford for the amount which Ford claimed to have invested in the lands. He says that his object in purchasing Ford's interest in the land was to save the amount which was due to him from Thomas C. Heaton, and for which indebtedness from Thomas C. Heaton to himself he had held a mortgage, subject to the Fuqua and Sheppard mortgages, upon the 65 acres deeded to Thomas C. Heaton by Edward Smith Heaton. The amount invested by Ford in the property was figured up between himself and appellee, and ascertained to be $8,890.45. Appellee swears that he executed to Ford his two notes,-one for $5,500, and the other for $1,000; making $6,500 in all. The record shows a mortgage executed by appellee upon the property for the amount of $6,500. He also swears that he turned over to Ford three notes, secured upon other property owned by him,-one for $1,000, one for $510, and one for $853.30,-and that he paid Ford $27.15 in cash; thus making up, with the $6,500 so raised by mortgage, the sum of $8,890.45. All the facts and circumstances go to sustain the correctness and truthfulness of the testimony thus given by appellee. The only evidence introduced by appellants to the contrary consists of conversations claimed to have been heard by appellants, or some of them, between appellee and Edward Smith Heaton, in which appellee is alleged to have admitted that Heaton was his debtor, and that he held a mortgage upon the land, and did not claim the ownership of it. Certain entries, also, made in the books of Ford, who had died before the trial, are referred to as indicating that the relation of debtor and creditor existed between Heaton and Ford and between Heaton and appellee. This testimony is vague and unsatisfactory, besides being of questionable competency. While the declarations of a grantor with reference to his title may possibly be admissible against the grantee where such declarations are shown to have been made prior to his deed, yet the statements of the grantor after he has conveyed the land cannot be binding, in any sense, upon his grantee. Bentley v. O'Bryan, 111 Ill. 53. Even, however, if these book entries were competent testimony, a careful examination of them in connection with the rest of the evidence in the record goes to show that Heaton's interest in the land had been foreclosed, and that the lands were sold by Ford, as owner, to the appellee, and that the appellee purchased them for himself.

In order to establish the fact that a deed absolute upon its face is a mortgage, it must appear that a debt existed, due from the person claimed to be mortgagor to the person claimed to be mortgagee. "It is an essential element of a mortgage that some obligation should exist to be secured." Rue v. Dole, 107 Ill. 275; Freer v. Lake, 115 Ill.

662, 4 N. E. 512; McNamara v. Culver, 22 Kan. 661. The evidence in the present case does not show that there was any indebtedness existing from Heaton to appellee, which it was the intention of the parties to secure by the deed of December 21, 1883.

Appellee swears that he made an arrangement with Heaton, after his purchase of the land, by the terms of which Heaton was to remain upon the land as his tenant, and was to pay him, as rent for the farm, an amount equal to 7 per cent. upon the money he had invested in the land, and also the taxes. Appellee had been a merchant in the neighborhood where Heaton lived, and had sold him goods from time to time. He was a friend of Heaton and of his family. He sold out his store and retired from business, and went to Iowa to live in 1881, and lived there ever after that time. His books show payments made from time to time, in the form of drafts sent to Iowa, by Heaton, but there is nothing to show that these amounts so paid were not for rents. The entries in these books do not show upon their face, as is claimed by appellants, that they were paid as interest upon an alleged indebtedness from Heaton to appellee, nor does the other proof show that they were paid as interest. Appellee was a friend of Heaton, and the latter often admitted that appellee was kind to him, in permitting him to remain upon the land. He did remain upon the land until the time of his death in June, 1899. The evidence tends strongly to show that the relation which existed between Heaton and appellee after the execution of the deed on December 21, 1883, was that of tenant and landlord, and not debtor and creditor. On the 15th day of September, 1894, Heaton took out a policy of insurance upon the dwelling house, barn, sheds and other buildings upon these premises. In his application to the agent of the insurance company, Heaton stated that appellee was the owner of the farm, and that he was tenant. Heaton signed the application, or caused his wife to sign it for him, in the name of "Homer Gaines, applicant, by E. S. Heaton, agent." In the application thus signed, the following question is asked: "Are you the sole and undisputed owner of the property to be insured?" and is answered, "Yes." Therein also the following question is asked: "Are the buildings to be insured, or containing property to be insured, occupied by the applicant or tenant?" and was answered as follows: "Tenant." At another time, Heaton was sued before a justice of the peace by a man who had done some work for him upon the farm, and he defeated the suit by swearing that the farm was owned by appellee, and that he was acting merely as agent for appellee in his possession and operation of the farm. The evidence also shows that appellee tried to sell the farm to different parties, and put it into the hands of a real estate agent to sell for him, and advertisec it for sale in the newspapers, all of which