Brief for the Appellant.

Webster says, "a village is a small assemblage of houses, less than a town or city, and inhabited chiefly by farmers and other laboring people. In England it is said that a village is distinguished from a town by the want of a market. In the United States no such distinction exists, and small assem

any

blage of houses in the country is called a village."

In the case of The Illinois Central Railroad Company v. Williams, 27 Ill. 49, CATON, Ch. J., says, in a similar case to this:

"Any small assemblage of houses for dwellings, or business, or both, in the country, constitutes a village, whether they are situated on regularly laid out streets or not." Godfrey v. City of Alton, 12 Ill. 30; Marcy v. Taylor, 19 id. 634; Waugh v Leech, 28 id. 488.

If the owners of land agree upon a place and make a survey and lay off grounds for the public use, and make sales in reference thereto, it amounts to a dedication of such ground to the public, although no map was made of the survey.

In the case of The People v. Beaubien, 2 Doug. 256, 276., GOODWIN, J., says, that, "To constitute a valid dedication, there must exist the intention to dedicate clearly evinced by the acts of the owner of the land; that there must be, as was said in the late case of Poole v. Huskisson, 11 Exch. 380, an animus dedicandi, or as Chief Justice DENMAN said in Barraclough v. Johnson (8 Ad. & E., 35 E. C. L. 337), "a dedication must be made with the intention to dedicate;" that while there may be a dedication by acts in pais, without deed, all such acts connected with, or relating to the premises, tending to show the design and object of the dedication which is alleged, may be gone into for the purpose of determining whether there has been a dedication or not." See also Livingston v. City of New York, 8 Wend. 85; Wyman v. Mayor, 11 id. 490; Hunter v. Trustees of Sandy Hill, 6 Hill, 407; Warren v. President, etc., of the Town of Jacksonville, 15 Ill. 236.

It is also well settled that no particular time is necessary to show a dedication; if the act is unequivocal, it may take place immediately. BEARDSLEY, J., in the case of Hunter v. Trus

Opinion of the Court.

tees of Sandy Hill, above cited, says: "No certain period of time is required to prove a dedication of property to public use. It does not depend upon the lapse of time, but upon the intention and the acts of the parties. Twenty years adverse holding may bar a right of entry, and upon it, a grant may be presumed. But time, although cogent evidence of a dedication, is not a necessary ingredient in it. It may be established by acts unequivocal in their character on the part of the owner and the public, although occurring on a single day."

In Woodyer v. Haddan, 5 Taunt. 125, CHAMBRE, J., says: "No particular time is necessary as evidence of dedication; it is not, like a grant, presumed from lapse of time. If the act of dedication is unequivocal, it may take place immediately, as for instance, if a man builds a row of houses on each side of a strip of ground, making it a street, leading into another street, and sells, or lets these houses, it is instantly a highway."

Mr. GEORGE G. BELLOWS, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

We deem it unnecessary to consider more than one point raised on this record, and that is, excluding from the jury the plat of the village of Hinsdale, acknowledged January 1st, 1866, and recorded August 14, of the same year.

We are of opinion the plat should have gone to the jury for two purposes, first, to show the intent by the owners of the land to dedicate certain portions of it for the village streets, and second, to show the extent of the dedication.

So far as we understand the proof, Hinsdale was a village, coming up to the definition of a village, as given by this court, in the case of the Ill. Central R. R. Co. v. Williams, 27 Ill. 49.

We are not entirely satisfied with the second instruction given for the plaintiff. We do not find in the record any evidence the colts got on the road at a crossing of a public road. To instruct the jury to believe from the evidence a fact which is not in evidence, tends to mislead a jury, and should be avoided.

For the reason given the judgment is reversed and the cause remanded for further proceedings consistent with this opinion.

Judgment reversed.

DEVILLO R. HOLT et al.

v.

JAMES H. REES.

1. MORTGAGE-rights of mortgagor and lessees of mortgagee — after payment of mortgage. The payment of a mortgage debt by mortgagor terminates the right of possession by lessee under the mortgagee.

2. EJECTMENT― declaration. A mortgagor cannot maintain ejectment where the title, entry and ouster in the declaration are laid before the date of extinguishment of the mortgage debt. In such case the right of possession only accrues after extinguishment of debt.

APPEAL from the Circuit Court of Cook county; the Hon. E. S. WILLIAMS, Judge, presiding.

The case is sufficiently stated in the opinion of the court.
Messrs. BARKER & TULEY, for the appellant.

Mr. JAMES L. STARK, Jr., for the appellec.

Mr JUSTICE LAWRENCE delivered the opinion of the Court:

This was an action of ejectment brought by Rees against Holt and Calkins. The following state of facts appeared upon the trial: Rees being the owner of the premises in controversy, on the 1st of September, 1857, executed to Swift, a mortgage to secure the payment of certain bonds described therein, and payable to the order of Swift. The unpaid bonds were subsequently assigned to Joy & Clapp, and the interest being unpaid, it was agreed between them and Rees in the spring of 1862, that they should rent the premises and collect the rents, to be applied on the interest. Under this arrangement they leased the premises to the defendants for one year, the lease terminating on the 1st of May, 1863. At the expiration of this

Opinion of the Court.

lease they again leased the premises to the defendants for the term of three years. This lease was inade without the knowledge of Rees, and when apprised of it he complained to Joy & Clapp of its length. Mr. Joy testifies Rees never assented to the second lease, but always objected to it. On the 22d of August, 1865, Rees paid in full the debt secured by the mortgage, and the mortgage was released. He then brought this suit to recover from the lessee the possession of the premises, and the court below rendered judgment in his favor, from which the defendants prosecuted an appeal.

This case is not difficult of decision. The condition of the mortgage having been broken, the legal title had vested in Swift, the mortgagee. He could have turned the mortgagor out of possession, and if let into possession could have retained it until payment of the debt. The assignment of the bonds to Joy & Clapp transferred his equitable interest in the mortgage. So far as concerned Rees they held the rights of Swift and stood in his shoes. Rees could evict a stranger it is true, but when he seeks to evict them they fully protect themselves by showing the mortgage from Rees to Swift, and that they are in under that mortgage, by the implied authority from Swift arising from the assignment of the bonds. They thus connect themselves directly with the legal title in the hands of Swift, and have the same right to set it up as against Rees which Swift himself would have. This would be true if they entered for condition broken in the name of Swift, and it is certainly not less true when the mortgagor has voluntarily given them the possession as the equitable assignees of Swift and owners of the mortgage.

But while Joy & Clapp were entitled to the possession until payment of the mortgage, it is equally clear that with such payment, and in the absence of any agreement to the contrary, their right terminated. The payment extinguished all their rights, and the legal title, which had vested in Swift as mortgagee was, on the 22d of August, 1865, released by him to Rees. Joy & Clapp having thus lost all claim to the possession, their tenants, the present defendants, would occupy no

Syllabus.

better position. They acquired under their lease no greater right or interest in the land than their lessors possessed. They accepted the lease with full knowledge that it was the right of Rees at any time to pay the mortgage and thus terminate their estate. It is not pretended that Joy & Clapp had any power over the premises, beyond that which devolved upon them from the mere fact of having been let into possession. It is not claimed that Rees ever consented to the lease for three years, or authorized a lease for any specific time. The only authority to lease that could be implied from the arrangement between the parties, would be an authority to make a lease terminable upon the payment of the mortgage. If Joy & Clapp could make a valid lease for three years without the consent of the parties, they could have made one for twentyfive years, and thus have deprived the mortgagor of all substantial right to his estate.

We must, however, reverse this judgment on a technical ground. The title, entry and ouster are laid in the declaration as committed on the 3d day of May, 1865, while the mortgage was not extinguished until the 22d of August, 1865. On the day laid, the right of possession was not in the plaintiff. On the authority of Wood v. Morton, 11 Ill. 548, this was a fatal objection to the recovery. We must, therefore, reverse the judgment, and remand the case with leave to the plaintiff to amend his declaration.

Judgment reversed.

ELIZABETH BELTON, Administratrix of Estate of Samuel J. Belton, deceased, and JAMES YATES, Surviving Partner of Samuel J. Belton,

V.

CALEB B. FISHER.

1. JUDGMENTS-conclusiveness of. A judgment of a sister State which, by the laws thereof, is conclusive on the parties, is equally so, when sued on in this State.