Reports of Cases at Law and in Chancery Argued and Determined in the Supreme Court of Illinois

RIGHT OF ENTRY. IN WHOM IT EXISTS. Continued.

while the conditions are maturing, as a tenant at will, and occupy as such; but such permission cannot be transferred to his grantee. Dean v. Comstock, 173. ROADS. See PUBLIC HIGHWAYS.

SALES.

SALES OF PERSONALTY — THE TITLE THERETO.

1. Where the vendor has no title, and herein, where the vendor has acquired title fraudulently. It is a general rule of law that no man can, by his sale, transfer to another the right of ownership in a thing wherein he himself had not the right of property. Fawcett, Isham & Co. v. Osborn, Adams & Co. 411.

2. There is an exception to this rule, for the sake of sustaining the currency, in the instances of cash, bank bills, checks and notes payable to bearer or transferable on delivery, in the ordinary course of business, to a person taking it bona fide, and paying value for it. Ibid. 411.

3. Another exception obtains in England, in the case of title acquired by sale in market overt of stolen property. Ibid. 411.

4. But we have no Saxon institution of markets overt in this country, which controls or interferes with the application of the common law. A purchase of goods, in the ordinary way, in a commercial city, in open market, can have no other effect here than mere private sales in England. So that any sale of stolen goods does not divest the title of the owner. Ibid. 411.

5. Possession of personal property is one indicium of ownership, and is prima facie evidence of title in the thing, and when to that is added proof of an actual sale and delivery to him having such possession, by the real owner, though by fraudulent pretenses, a subsequent sale by such purchaser to a bona fide purchaser, without notice of any fraud in the alleged sale and delivery to his vendor, has been held to confer title upon such subsequent bona fide purchaser. Ibid. 411.

6. And effect would be given to such a sale as against the true owner, when the latter not only suffers the vendor to have the possession, but also delivers to him documentary evidence, and thus, by the possession and tho documents with which the real owner has endowed him, enables him to hold himself out to the world as the true owner. If, in such case, any loss happens, he who has thus clothed the vendor with the power to deceive, ought to bear it. Ibid. 411.

7. But a mere naked possession in the vendor will not prevail against the true owner, who may follow his property and reclaim it wherever found. Ibid. 411.

8. There being, upon the sale of personal property, an implied warranty of title, the vendee has his action against the vendor if his title proves deficient. The buyer must then take care that he is not deceived by dealing for a pretended title, or that his vendor is able to respond in damages for any loss which may happen to the vendee. Ibid. 411.

9. So, as this case, where F., I. & Co., merchants and dealers in leather in the city of New York, furnished hides to W. H. & F. S., tanners in the country, to be by them manufactured into leather, and returned to the former firm, under a contract of such character that the ownership in the hides and leather

SALES. SALES OF PERSONALTY-THE TITLE THERETO. Continued.

remained all the while in the parties furnishing the hides, one of the firm of tanners, while the leather was in their possession solely for the purpose indi cated, shipped away a quantity of it in a clandestine manner, without the knowledge or consent of the owners, to the city of Chicago, and there, through an agent, sold it in the ordinary way of business, in open market, at a fair price, to parties who had no knowledge of the manner in which the vendor acquired the possession, or notice of the rights or claim of the owners, it was held, no title passed to the vendees as against the real owners. Fawcett, Isham & Co., v. Osborn, Adams & Co. 411.

AUCTION SALES.

10. Preventing competition. After an injunction had issued restraining a mortgagee from selling a portion of the premises under the power of sale contained in the mortgage, the mortgagee and the party procuring the injunction made a secret agreement that the sale should be made, the latter should bid off the premises at a given sum, and the injunction suit should be dismissed. The sale took place, the injunction being still pending, and the premises were bid off as agreed upon. Held, that such an agreement, being secret, tended to prevent competition in bidding, and the sale could be avoided by one holding the fee simple title subsequent to the mortgage, who desired to redeem. Mapps v. Sharpe & Co. 13.

Who may and may not become purchasers. See VENDOR AND PUR CHASER, 1, 2, 3, 4.

SALES TO PROHIBITED PERSONS.

11. May be avoided. Where an assignee of a mortgagee becomes a pur chaser at a sale had under a power given in the mortgage, it is not necessary, in order to avoid the sale, to show that wrong has resulted, as the law will not recognize such a bidder as capable of becoming a purchaser. Ibid. 13. SALE UNDER FORECLOSURE OF MORTGAGE.

12. How far a satisfaction of the debt. A mortgage was given upon several tracts of land. Upon the death of the mortgagor, his devisees sold and conveyed one of those tracts. Afterwards, the mortgage was foreclosed in equity without the subsequent purchaser being made a party to the suit. All the lands were sold, en masse, by the master under the decree of foreclosure for the whole amount of the debt. It was held, the sale was void as to the tract so purchased from the devisees, their grantee not being a party to the suit for foreclosure, but as to the residue of the lands, was valid, and operated to satisfy the debt, and discharge the tract held by the grantee of the devisees from the mortgage. Ohling et al. v. Luitjens, 23.

JUDICIAL SALES, GENERALLY.

13. When void. If a fee bill should be improperly issued against the unsuccessful party for costs made by the successful party, and a sale of land had under the process, the fee bill being void, the sale made under it is also void. Neal v. Blanchard et ux. 503.

Divisibility of property on sales under mechanics' liens. See MECHANICS' LIENS, 1, 2, 3.

Officer cannot become purchaser. See VENDOR AND PURCHASER, 1.

SALES-Continued.

MASTERS' SALES.

Whether they must be confirmed. See MASTER IN CHANCERY, 1.

When the purchaser entitled to a deed. See same title, 1.

Power of court over such sales. See same title, 2.

SALE UNDER POWER IN MORTGAGE.

Will be set aside for unfairness. See MORTGAGE, 13.

SATISFACTION OF A DEBT BY JUDICIAL SALE. See SALES, 12.

SCIRE FACIAS.

WHEN THE REMEDY TO ENFORCE THE DISSOLUTION OF A CORPORATION. See COR

PORATIONS, 13.

SEIZIN.

SEIZIN IN FACT-WHEN NOT NECESSARY.

Where one has executed a conveyance for land to which he, at the time, had no title, but afterward acquires the title, it is not essential that he should have seizin in fact in order that the subsequently acquired title shall inure to his former grantee. King v. Gilson's Adm'x, 348.

COVENANT OF SEIZIN.

When it becomes broken. See COVENANT FOR TITLE.

Measure of damages on its breach. See MEASURE OF DAMAGES, 2, 3. Who may sue for breach thereof. See PARTIES, 6.

SET-OFF.

WHAT IS THE SUBJECT OF SET-OFF and by whom it may be made.

1. Under the English statute of set-off, demands to be set off must be mutual and due in the same right, but where there is an express agreement to that effect, one defendant in a suit against him and others, jointly, may set off his individual claim. Heckenkemper et al. v. Dingwehrs, 538.

2. Our statute is more comprehensive than the English statute, embracing claims and demands of any description as subjects of set-off; at the same time, our court has held that an individual demand cannot be set off against a joint demand in a joint action. Ibid. 538.

3. In an action of debt upon a note under seal, executed by three persons, payable to the order of the plaintiff, "commissioner to sell the real estate of John Nordhouse, deceased," the defendants interposed a special plea setting forth in substance, that on the 15th of May, 1861, the plaintiff agreed with Heckenkemper, one of the makers, that if he, Heckenkemper, would establish in the Clinton County Court a certain account which he claimed to have against the heirs of John Nordhouse, deceased, as their former guardian, and that the County Court would allow the same to the plaintiff, then the plaintiff would give Heckenkemper credit on the note sued on for the amount so established and allowed; and then averred that Heckenkemper did, at the August Term, 1861, of the County Court, establish the account to the amount of $335, and that the County Court did, at the same time, allow the same to the plaintiff, he then being the guardian of the heirs of Nordhouse; which sum, so established and allowed, the defendants asked to be set off and allowed as a credit

SET-OFF. WHAT IS THE SUBJECT OF SET-OFF, ETC.

Continued.

on the note, as by the agreement of the parties; on demurrer, the court was not inclined to consider the plea as technically a plea of set-off, but as setting up an agreement executed by one of the defendants, to the benefits of which all the defendants were entitled as going to reduce the amount of the recovery against them. The facts stated in the plea, if not available as a set-off, must be available as a payment by one of the defendants, of the sum stated, or it must be considered as a new agreement, which has been fully executed. Heckenkemper et al. v. Dingwehrs, 538.

4. Must be a legally existing demand. Though mutual demands may be set off, and damages growing out of the same transaction may be recouped, they can only be set off or recouped where demands legally exist. The Chicago S. Branch Dock Co. v. Dunlap et al. 206.

5. So if one goes upon the land of another, even with his knowledge and consent, but without any special agreement, and excavates a canal which is beneficial to the owner, not being employed or requested, however, so to do, and applies the clay so excavated to his own gain and profit, as in the manufacture of brick, he cannot recover from the owner the value of the labor of excavating the clay, and, therefore, could not set off such labor in an action by the owner for the use and occupation of the land. Ibid. 206. REQUISITES OF A PLEA OF SET-OFF. See PLEADING, 7.

SIGNING ANOTHER'S NAME WITHOUT AUTHORITY.

SIGNING COGNOVIT.

Where the name of an attorney who was authorized to sign a cognovit to confess a judgment, was signed to the cognovit by a third person, without his knowledge, the cognovit was held valid until repudiated by the person whose name was signed to it. Hall v. Jones, 38.

SPECIAL ASSESSMENTS.

THE PROCEEDINGS MUST BE REGULAR.

1. It is a well settled rule, that summary proceedings, such as an application for judgment against land or lots of ground upon a special assessment roll, by which a man's property may be taken from him without his consent, and where there is no personal service of process, must be strictly pursued, and this must be shown on the face of the proceedings. City of Chicago v. Wright et al. 192.

REQUISITES OF ASSESSMENT ROLL.

2. As to benefits and damages. Where application was made for a judgment against land and lots upon unpaid assessments for the grading, paving and macadamizing of certain streets in the city of Chicago, objection was made to the assessment roll because it did not show damages as well as benefits to the property owners, resulting from the proposed improvements, and the objection was held to be fatal to the application. Ibid. 192.

OF BENEFITS AND DAMAGES.

3. Of the character of improvements embraced in the statute. The application in this case was made since the act of 1861, relating to that subject, and it was held, that while before that act the question of benefits and damages to