Humiston, Keeling & Co. v. Wheeler, 175 Ill. 514, 51 N. E. 893.

A number of objections have been urged against the rulings of the trial court in admitting and rejecting evidence, all of which are extremely technical, and none of which, in our judgment, constitute reversible error; and, while we have considered them all, we deem none of them of sufficient importance to merit special comment, with the exception of the one urging that the court erred in refusing to permit Warren Ittner, who, it was claimed, was a stockholder of the appellant, to narrate a conversation had with the deceased shortly after the injury. If Ittner was a stockholder of the appellant at the time of the injury, under the repeated decisions of this court (Thrasher v. Railroad Co., 25 Ill. 393; Machine Co. v. Keifer, 134 Ill. 481, 25 N. E. 799, 10 L. R. A. 696, 23 Am. St. Rep. 688; Commission Co. v. Sessel, 193 Ill. 153, 61 N. E. 1075) he was incompetent to testify against the appellee, who was suing as the representative of James Askew, deceased. The question whether the witness was a stockholder was left in doubt, and it does not appear that the evidence was held incompetent by reason of the fact that he was a stockholder. In any event, as there was no offer made by counsel, and no statement of what he expected the witness would answer, and the record is entirely silent as to what appellant expected to prove by the witness, it does not appear that the appellant was injured by reason of the rejection of the testimony. For aught that appears, the conversation sought to be elicited from the witness was immaterial, unimportant, or in favor of appellee, and therefore valueless to appellant. To overcome the presumption that the ruling of the trial court was right, the bill of exceptions must affirmatively show that error was committed. What appellant claims the answer would be, must be made to appear, before it can be determined that it was prejudicial error to exclude the answer.

The appellant complains of the action of the court in giving the first, second, third, and fourth instructions offered by the plaintiff and in refusing to give to the jury the twelfth instruction asked for by the defendant. The criticism made upon the first, second, and third instructions is that they each lay down abstract propositions of law, and do not apply the law to the case on trial. We do not think them subject to such criticism. They each state the law correctly, and are based upon the evidence, and advise the jury as to legal principles relative to the case proper for the jury to consider with reference to the evidence as to certain facts upon which the jury were requested to pass. Tube Co. v. Polobinski, 192 Ill. 113, 61 N. E. 451. It is not error to give an abstract proposition of law to a jury as an instruction, if it will not mislead them. Johnson v. People, 197 Ill. 48, 64 N. E. 286.

It is said of the fourth instruction, it is wholly meaningless. While it is bunglingly drawn, we do not think the jury were misled by it. The effect thereof was to advise the jury that, if they found the defendant guilty, then, in estimating the pecuniary loss, if any, which the widow and minor children of the deceased had sustained by his death, they might take into consideration the value of the future support and maintenance of the widow and minor children, and the value of the services of the deceased in the attention to, and care, superintendence, and education of, his minor children, of which they have been deprived by his death. This court, in Railroad Co. v. Weldon, 52 Ill. 290, and Railroad Co. v. Austin, 69 Ill. 426, held that the subject-matter of this instruction was proper for the consideration of the jury in fixing the amount of their verdict.

The subject-matter of defendant's twelfth instruction was fully covered by the seventeenth, eighteenth, nineteenth, and twentieth instructions given for the defendant. It is not error to refuse an instruction when other instructions given contain the same principles. McMahon v. Sankey, 133 III. 636, 24 N. E. 1027.

We find no reversible error in this record. The judgment of the appellate court is affirmed. Judgment affirmed.

(199 Ill. 50) STANDARD OIL CO. v. CITY OF DANVILLE.

(Supreme Court of Illinois. Oct. 25, 1902.) MUNICIPAL CORPORATIONS — ORDINANCES STORAGE OF COMBUSTIBLES-APPEAL -CONSTITUTIONAL QUESTIONS.

1. Under Hurd's Rev. St. 1899, c. 24, art. 5, § 1, subd. 65, giving a city power to regulate and prevent storage of combustible or explosive material, an ordinance making it unlawful to keep or store explosive oils within the space of 1,000 feet of any dwelling house, storeroom, building, baru, shed, or other like structure, in a quantity greater than 5 barrels, of 50 gallons each, is not unreasonable and void as applied to a plant in operation before any other buildings were erected in the neighborhood.

2. The general assertion in the brief of counsel on appeal that an ordinance is in contravention of the state and federal constitutions does not raise the question of the constitutionality of the ordinance.

Appeal from appellate court, Third district. Proceedings by the city of Danville against the Standard Oil Company for a penalty for violation of an ordinance. From a judgment of the appellate court (101 Ill. App. 65) affirming a judgment for the city, the company appeals. Affirmed.

Mabin & Clark, for appellant. J. H. Lewman, City Atty., for appellee.

BOGGS, J. In an action before a justice of the peace instituted by the appellee city, judgment was entered against the appellant company in the sum of $25, as a penalty for the violation of section 1 of an ordinance

adopted by the city council of the appellee city, which is as follows: "Section 1. That it shall be unlawful for any person or persons, firm or corporation, to keep or store any petroleum, naphtha, benzine, gasoline, coal oil, or any of the products of petroleum, or any inflammable or explosive oils, within the space of one thousand feet of any dwelling house, store room, building, barn, shed or other like structure, within the corporate limits of the said city of Danville, in a quantity greater than five barrels, of fifty gallons each, at one time." The appellant company brought the cause into the circuit court of Vermilion county by appeal, and a hearing in that court before a jury resulted in a judgment in the sum of $25 against the appellant company. The appellate court for the Third district, on the further appeal of the appellant company, affirmed the judgment of the circuit court. The appellant company has perfected this appeal from the judgment of the appellate court.

As in support of the objections that it did not appear that the ordinance had been published in a newspaper published in the city of Danville, as required by the statute, and that the certificate of the clerk did not bear the corporate seal, counsel for the appellant company cite us to the ordinance, and the certificate of the clerk thereto, as shown in the abstract as prepared by them. The abstract is of the ordinance, and the certificate thereto, as shown in the original record. diminution of that record was suggested in the appellate court, and by leave of that court an additional or amended transcript of the record was filed, which fully removed all these objections. This additional or amended record is not abstracted, and is entirely ignored in the briefs of counsel for the appellant company.

A

The remaining contention is that the court erred in holding the ordinance to be valid and enforceable. The position of counsel may be best disclosed by the following quotation from their brief: "While we have no doubt that the city may pass and enforce reasonable laws for the regulation of such plants, yet we do not believe that they can be oppressive in their character or unreasonable; and we believe that this ordinance is discriminating in its character and ultra vires, and contravenes a private right, and that it is contrary not only to the constitution of the state, but is in conflict with the constitution of the United States." In what respect the ordinance is discriminatory in its character, or with what section or provision of the constitution of the state or of the United States it is supposed to be in conflict, or in what it is supposed to contravene private right, counsel do not suggest in their brief. Nor do they point out or suggest in what respect its provisions are not equally applicable to all persons whom it affects. Nor is it argued that the ordinance is ultra vires for any other reason than that it is, as

counsel allege, unreasonable and unfair. Counsel say it appeared in the proof that the plant of the appellant company was located at its present site in the year 1886, and "that nearly all of the property owners who now complain of the locality of this plant havẹ bought their property and built their homes near this so-called objectionable plant, and yet the burden of complaint by these witnesses went in merely to show that their property had been depreciated in value, which was not proper to be considered in this case, and which question, eliminated from this case, leaves but little or nothing to complain about, except they claim (some of them) that a stench came from the plant when the wind was in a certain direction during extreme hot days, which odor was no worse than the smoke of an engine on a railroad passing through the city. It is unreasonable to say that this plant was entirely free from danger, but we think no more so than a great many things which are permitted to exist within the city without any question. * Under these facts and circumstances, an ordinance which compels this plant to locate a thousand feet from any other building inside of the corporate limits is both unreasonable and unfair,-that it tends to confiscate the defendant's property by driving it outside of the city limits." Counsel further say a large number of witnesses "testified as to the dangerous condition made by the presence of the plant."

The general assembly delegated to the city power "to regulate and prevent storage of gunpowder, tar, pitch, resin, coal oil, benzine, turpentine, hemp, cotton, nitro-glycerine, petroleum, or any of the products thereof, and other combustible or explosive material." Hurd's Rev. St. 1899, c. 24, art. 5, § 1, subd. 65. The fact that the greater number of residences, business houses, etc., now within 1,000 feet of the plant of the appellant company, were built after the plant had been located at its present site, does not entitle the appellant company to insist that it has become vested with the right to continue to operate its plant, and keep on storage the inflammable, explosive, and offensive oils, liquids, and substances specified in the ordinance. The health, safety, and comfort of the people are the controlling considerations, and prescriptive rights to endanger either cannot be acquired. As the limits of the inhabitable parts of cities extend, establishments that endanger the health, safety, or comfort of the population of such extended portion of the city, and become nuisances, may be required to be removed to other localities. Powder Co. v. Tearney, 131 Ill. 322, 23 N. E. 389, 7 L. R. A. 262, 19 Am. St. Rep. 34. In this instance, however, the city council did not attempt to absolutely prohibit the further prosecution of the business of the appellant company at its present location, but only to regulate the manner or extent in which it should conduct its busi

ness there. The command of the ordinance is not that the appellant company shall no longer conduct its business at its plant, but that not more than 5 barrels, of 50 gallons each, of any one kind of the oils or liquids specified in the ordinance, shall be kept or stored by it within 1,000 feet of any dwelling house, etc., in the city. It appeared from the proofs the appellant company kept stored in its premises, in much larger quantities than the ordinance permitted, oils, liquids, and substances specified in the ordinance; that many of them were highly inflammable, others explosive, and others, or perhaps all of them, emitted a disagreeable and unhealthy odor; and that there were from 300 to 400 dwelling houses, stores, and other buildings, including a railroad depot, within the distance of 1,000 feet named in the ordinance, and within the range of the dangerous influence of the appellant company's plant. Aside from the fact that the greater number of these buildings and residences were erected after the location of the plant of appellant at its present site, and the bare assertion of counsel that the ordinance is unreasonable, there is nothing in the brief of counsel or in the record to indicate in what respect the ordinance is so subject to that objection. The general assembly expressly conferred upon the city power to adopt the ordinance. All presumptions are in favor of its reasonableness, and such presumptions must prevail, nothing to the contrary appearing on the face of the ordinance or from the proofs. People v. Cregier, 138 Ill. 401, 28 N. E. 812; Swift v. Klein, 163 Ill. 269, 45 N. E. 219; 17 Am. & Eng. Enc. Law (1st Ed.) 248.

The mere assertion of counsel that the ordinance is in contravention of either the federal or the state constitution does not raise the question of the constitutionality of the ordinance, so as to impose upon the court the duty of entering into an investigation for the purpose of ascertaining if some constitutional objection may not be found to the validity of the ordinance.

The judgment of the appellate court must be affirmed. Judgment affirmed.

(198 Ill. 437)

INMAN v. SWEARINGEN et al. (Supreme Court of Illinois. Oct. 25, 1902.)

DEED-DELIVERY-EVIDENCE.

1. Where a duly executed deed is found in the hands of the grantee, there is strong implication that it has been delivered, and only clear and convincing evidence can overcome the presumption.

2. Evidence held sufficient to show delivery of an unrecorded deed found among papers of the grantee after her death.

Error to circuit court, Champaign county; Francis M. Wright, Judge.

Suit by George L. Inman against Elizabeth Swearingen and another. From a decree for defendants, plaintiff brings error. Reversed,

Ray & Dobbins and Spencer M. White, for plaintiff in error. F. M. Green & Son and Roy Wright, for defendants in error.

CARTER, J. This was a bill in chancery filed by George L. Inman, the plaintiff in error, in the circuit court of Champaign county, to remove a cloud from title. It is alleged in the bill that the defendant in error Elizabeth Swearingen on or about August 1, 1893, executed and delivered a deed for lot 1 of block 6 of Grigg's First addition to St. Joseph, Champaign county, Ill., to her daughter Minnie E. Inman, the wife of plaintiff in error, conveying the fee to her daughter, but reserving a life estate to herself; that Minnie E. Inman went into possession of the premises jointly with her mother; that she died January 26, 1899, leaving her last will and testament, by which she devised the premises to her husband, the plaintiff in error; that this will was duly admitted to probate; that, after the death of Mrs. Inman, Mrs. Swearingen made and delivered another deed for the premises to another daughter, Nancy M. Robbins, also a defendant in error, purporting to convey the same property to her, and to reserve a life estate to the grantor, as in the first deed. The first deed was never recorded, and could not be produced on the hearing. The last deed was recorded. The cause was referred to a special master, who reported the evidence, with his conclusions of law and fact, as directed, and recommended a decree in favor of plaintiff in error as prayed in his bill; but the court, on the hearing of exceptions to the master's report, sustained them, and found that the alleged deed from Elizabeth Swearingen to Minnie E. Inman was never delivered, and dismissed the bill.

The testimony of V. J. Gallion, a notary public in St. Joseph, Ill., was that Elizabeth Swearingen, in company of her daughter Minnie E. Inman, went to his office and requested him to write a deed for her conveying the premises in question (a hotel property) to her said daughter, reserving possession of the same for her lifetime. The notary drew the deed, and Mrs. Swearingen executed and acknowledged the same before him, and the deed was left in his custody. His indistinct memory was that it was agreed between Mrs. Swearingen and Mrs. Inman that the deed was to be left in his office. Several months afterwards, Mrs. Inman got the deed. After her death, Mrs. Swearingen asked him if he knew where the deed was. Mrs. Swearingen, in her testimony, admitted that she went to the notary's office and fixed up some kind of a paper, but did not read it, and claimed that the notary gave her the paper right there, and that she took it home, and afterwards gave it to her daughter to keep for her, and that it was kept in George L. Inman's safe; that some time before her death Mrs. Inman returned the paper in the original envelope to her

(Mrs. Swearingen),-that is, what she supposed was the same paper; and that she burned it up, with the consent of Mrs. Inman, who said she did not expect to outlive her mother. Mrs. Mahala Birdzell testified that she was on intimate terms with Mrs. Swearingen, and that several years before Mrs. Inman's death she had a conversation with Mrs. Swearingen, in which the latter told her that she had deeded the hotel property to her daughter Minnie; that it was right for her to have this, as the other daughter had more than her share. Mrs. Mary Gibson, another neighbor, testified that Mrs. Swearingen had talked with her about the hotel property being hers and Minnie's. George Thomas testified that Mrs. Swearingen asked his advice about the matter of settling the property on Minnie, and that he advised her to deed it to Minnie. Mary Hoss testified that about a month after Mrs. Inman's death she was sent for to come to the hotel, and was asked by Mrs. Robbins what Inman had told her about having a deed to the property, and, in the conversation between Mrs. Swearingen and Mrs. Robbins that ensued, the latter asked her mother if it was so that she had made a deed to Mrs. Inman, and Mrs. Swearingen said that she did not know whether she did or not; that she had signed some kind of a paper, but did not know whether it was a deed or not. George L. Inman testified in his own behalf that he first saw the deed in the hotel shortly after it was executed, at a time when his wife and her mother were together looking at it; that his wife kept it in the house, and took it with her, with her mother's knowledge, when he and his wife went to Pennsylvania; that it was kept in his safe as long as he owned the safe; that he saw it last about three days after Mrs. Inman's death, when it was in a plush box in a dresser drawer in the room he and his wife had occupied in the hotel; that when he looked for it afterwards it was gone; that the deed was not recorded because Mrs. Swearingen thought it would make "such a fuss" with Mrs. Robbins if it was; that Mrs. Swearingen repeatedly talked about having deeded the property to Mrs. Inman. He prepared a copy of the deed, to the best of his recollection.

The chief contention is over the delivery of the deed. Taking all the evidence together, a delivery of the deed to the grantee seems to be fairly established. The notary says he gave it to Mrs. Inman. Plaintiff in error states that he had frequently seen the deed in his wife's possession, and found it among her papers after her death. Mrs. Swearingen herself says she gave Mrs. Inman the paper she executed in the notary's office, although she declares that her daughter did not know what its contents were, and that it was kept in the safe of plaintiff in error. It is true, she claims a surrender of the paper and its destruction; but

Inman says that he saw it three days after his wife's death, and the notary says that Mrs. Swearingen, after Mrs. Inman's death, asked him if he knew where it was. If she had destroyed it, as she testified, it does not seem probable that she would have asked the notary where it was. The evidence tended strongly to prove that the grantee had possession of the deed for about six years before her death, with the knowledge and consent of her mother. Where a duly executed deed is found in the hands of the grantee, there is a strong implication that it has been delivered, and only clear and convincing evidence can overcome the presumption. Griffin v. Griffin, 125 Ill. 430, 17 N. E. 782; Dunlop v. Lamb, 182 Ill. 319, 55 N. E. 354.

We are of the opinion that the evidence sustained the allegations of the bill, and that the court erred in sustaining the exceptions to the master's report and in dismissing the bill. The decree will be reversed, and the cause remanded, with directions to enter a decree in favor of plaintiff in error, as prayed in his bill of complaint. Reversed and remanded, with directions.

(198 III. 305)

BEHRENS v. STEIDLEY et ux. (Supreme Court of Illinois. Oct. 25, 1902.) FRAUDULENT CONVEYANCE-EQUITABLE TITLE JUDGMENT LIEN-EVIDENCE

-SUFFICIENCY.

1. Land was conveyed by a father to his daughter's husband, and the latter at the same time executed to him a note for $1,500. Afterwards, during the pendency of a suit for slander against the husband, the land was reconveyed to the father for a named consideration of $3,600, and by him conveyed to the daughter for love and affection. The direct testimony was to the effect that the first conveyance was in the nature of an advancement to the daughter, and that the $1,500 was to secure any possible excess in the advancement over the daughter's proportionate share of her father's estate, and that the latter conveyances were to enable the father to carry out his original purpose. At that time the only lien on the land was a mortgage to secure the husband's debts, and it was afterwards paid by the wife out of her own money. Held, that the evidence justified a finding that at the time of the reconveyance to the father the equitable title was in the daughter.

2. Since the consummation of her equity by the vesting of the legal title was properly secured by her, without fraudulent intent, prior to the acquisition of the judgment lien by the creditors, the conveyances establishing such title were not subject to attack for fraud as to the creditors.

Appeal from circuit court, Macoupin county; O. P. Thompson, Judge.

Action by Adolph H. Behrens, as trustee in bankruptcy, against William A. Steidley and wife. From a decree in favor of defendants, complainant appeals. Affirmed.

D. E. Keefe, for appellant Bell & Burton, for appellees.

WILKIN, J. Appellant, as trustee in bankruptcy of the estate of William A. St idley and Hie W. Weyen, partners in business at Gillespie, Ill., filed his bill in the circuit court of Macoupin county against appellees, William A. Steidley and Mary F. Steidley, to set aside two deeds alleged to have been made with intent to hinder and delay the creditors of said William A. Steidley. The defendants answered the bill, denying the allegations of fraud, and on general replication the cause was referred to the master to take and report the evidence. On the coming in of his report the court found in favor of the defendants, and entered its decree dismissing the bill for want of equity. The complainant prosecutes this appeal.

The material facts are not controverted. The defendants were married in 1875; the wife being a daughter of one Hugh Rice, for many years a resident of Macoupin county, having a large family of children, and being the owner of an estate worth more than $13,000. In 1880 Rice conveyed by warranty deed to the defendant William A. Steidley the 160 acres of land in question, and the latter at the same time executed to him his promissory note for $1,500; but when that note was payable does not appear. The defendants, Steidley and wife, lived on the farm for a number of years; the husband cultivating it some years, and renting it to tenants the remainder of the time. He engaged in the mercantile business with Weyen in 1893. Prior to 1897 he had been sued in the circuit court of Macoupin county by one Burton for slander, and at the September term of the latter year, upon a trial of that case, a verdict was returned against him for $1,000; but a new trial was granted, and the case set for trial to the February term, 1898, at which time it was again tried, and a verdict and judgment rendered in favor of the plaintiff for $400. That judgment was afterwards paid off and satisfied. On January 6, 1898, between the time of the first and second trials, he and his wife conveyed the land in question by mortgage to Adolph H. Behrens, with other lands mortgaged by Weyen, his partner, for $3,904.53, due in one year; onehalf of said amount being the debt of each of said partners. On the same day Steidley and wife executed a deed to her father, Hugh Rice, for the same land; the consideration named in the deed being $3,600; Rice to assume the aforesaid mortgage. On January 29th following, he conveyed the same to his daughter, Mary F. Steidley, in consideration of love and affection and $1. It is the theory of complainant's bill that the conveyance to Rice, and by him to his daughter, were for the purpose of putting the land in the name of the latter to avoid the payment of any judgment which might be obtained against the husband in the slander suit, and that, although that judgment was afterwards paid by Steidley, the effect of the conveyance was to hinder and delay the creditors

of the firm, which afterwards became insolvent and went into bankruptcy. Hugh Rice died in August, 1898. There are other facts in the record not necessary to be stated, in the view we take of the case. The only direct evidence in the record as to the object and purpose of the conveyances comes from the defendants, Steidley and wife. Their testimony is to the effect that the conveyance by Rice to the husband in 1880 was for the purpose of making an advancement to the daughter, and that at the time, not knowing whether his estate would be sufficient to make an equitable and just advancement to her of the full value of the land, he took the note of $1,500 from the husband; that the conveyance back to Rice was for the purpose of enabling him to carry out his original purpose of giving the land to his daughter; and that, after the conveyance to her and the death of her father she paid, out of money received from his estate, her husband's part of the mortgage indebtedness to Behrens. We think the evidence justified the chancellor in finding that the land equitably belonged to the wife, although the legal title was in her husband.

It is well settled in this state that if the equity of the wife in the land was first in time, first in right, and first consummated by the conveyance vesting her with the legal title, that title will be sustained. In other words, where there are opposing equities, the one which first acquires a legal status will be sustained. In Seeders v. Allen, 98 Ill. 468, a bill had been filed by Allen, assignee in bankruptcy of James B. Seeders, to set aside a conveyance made by James B. to his wife, Mary L. Seeders. The statement of facts in that case will show that in principle it is like the one at bar. The court below granted the prayer of the bill, and the appeal was to reverse its decree. We said: "The proofs present no indications of fraud on the part of Mrs. Seeders, or anything said or done by her inviting others to trust her husband upon the supposition that he was the real owner of the land. She never by word or deed held him out as such owner to the world or to any of these [who afterwards became] creditors. She was in equity the owner, and her equitable title was by these deeds properly converted into a legal title, and this before any lien was established against the legal title in the hands of her husband. Her equity was first in time, and therefore first in right, and was first consummated. The intention of Mrs. Seeders to get the legal title in advance of creditors who were seeking it or might seek it was not a fraudulent intent. It was a lawful intent. The land was equitably her own, and, as between her and creditors of her husband, she was equitably entitled to it. This is not a case of a debtor conveying his own estate to his wife to prevent creditors from seizing it." The decree of the circuit court was reversed. We have repeatedly held that, under our statute of