Opinion of the Court.

had not reached the station ;" and three of them state positively that he was directed by the conductor, not to pass from the cars at that place. These witnesses, so far as we can see from this record, stand unimpeached, and are entitled to credit. This evidence may, no doubt, be reconciled. Appellee may have been so fully possessed with the idea of getting from the cars, and thus avoid being taken to the next station, that he failed to give ordinary attention to what was said and done at the time. If his mind was greatly preoccupied with such an apprehension, and he was not giving his attention to what others were doing, he might and probably would not hear the warning or directions given by the conductor. The others, however, seem to have been giving proper attention, and state positively that the warning was given, and that they heard it distinctly.

Appellee states that the conductor did not take hold of him, while the latter states that he did, and is fully supported in the statement of Ellen Macken. We are wholly unable to comprehend how so many witnesses could be mistaken as to what they saw and heard. On the other hand, appellee may have been, and no doubt was, badly stunned by the fall, and would be less likely to recall the circumstances, than others not subjected to such a peril. It is more than probable that the conductor took hold of him while he was in the act of falling, and if so, it was natural for appellee to have been entirely occupied with his situation, and the apprehension of its results; under such circumstances it would be remarkable if his attention was attracted to the fact that the conductor had hold of him, or, if noticed at the instant, that he could recall it to memory. The evidence, we think, preponderates largely in favor of the occurrence as detailed by appellants' witnesses.

This case proceeds upon the ground of negligence on the part of appellants. But, when we consider the circumstances, we are unable to see that they have been derelict in any duty. Appellee says he did not hear the name of the station announced, and it was, we presume, not done, as the train had not reached the station. He either failed for want of attention to hear the

Syllabus.

emphatic warning of the conductor, or he failed to regard it. Nor was there any negligence shown in running the train on the side track, to permit the freight train to pass on the main track. The evidence shows that such a course was not unusual, and in this instance it was necessary. And the weight of evidence is, that there was no violent jerking of the train; but if there had been, it was not negligence, as the train had not reached the platform where passengers were expected to get off. Appellee was attempting to pass from the train while. in motion, and at an unusual place. If there was negligence it was on the part of appellee.

The judgment of the court below is reversed and the cause remanded.

Judgment reversed.

SAMUEL LESTER et al.

V.

THE HEIRS OF WILLIAM WHITE.

1. WITNESS-a grantor in a deed — having an interest in suit — incompetent. A grantor in a deed, who has made general covenants of warranty, and that he had power to sell, and that the land was free from incumbrances, is an incompetent witness, without a release, for his grantee, in a suit where the plaintiff claims title through another channel.

2. PRE-EMPTION-right to—not a mere chattel interest. The interest acquired by a pre-emption right is not a mere chattel interest which can be transferred by parol, but requires a written instrument to pass such right or title.

3. SAME may be taken on execution-or on death of owner, descends to the heir. It is a right which may be taken on execution; or upon the death of the owner, it descends to the heir, and will not go to the executor or administrator.

4. SAME-conveyance of- may be compelled in certain cases. One of a number of heirs to such pre-emption right can maintain a bill to compel a conveyance of his interest from one who has received a deed from the other heirs of their interests and the deed of a commissioner appointed by a decree conveying the interest of such heir, he not having sold any interest in such pre-emption right.

Opinion of the Court.

WRIT OF ERROR to the Circuit Court of Marion county; the Hon. H. K. S. O'MELVENY, Judge, presiding.

The opinion states the case.

Mr. B. B. SMITH, for the plaintiffs in error.

Mr. SILAS L. BRYAN, for the defendant in error.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

This was a bill in chancery in the Circuit Court of Marion county, exhibited by Samuel Lester, and Ann Lester, his wife, against William White, to compel him to convey to Ann the one-fifth interest in the east part of the north-west quarter of section 22, in township two (2), north, range two (2), east, in Marion county. During the pendency of the suit, the defendant died intestate, and the suit' progressed against his heirs at law, and such proceedings were had that the bill was dismissed.

To reverse this decision, the complainants bring this cause here, and assign this decision of the court as error, and also that the court admitted the testimony of Abraham Wimberly and Mary Ray, on behalf of the defendants, and against the objections of complainant, to maintain the title of White.

The objection to their testimony was well taken, for the reason given on the hearing, that they had executed a deed for this land to White, with covenants of general warranty, and that they had power to sell it, and that it was free from incumbrances. The exhibits in the cause show the fact, that they had executed such a deed, and it was the foundation of defendant's title. Of course they had such an interest as to render them incompetent, without a release.

It appears this tract of land was claimed by John Morgan in his life-time, under the pre-emption clause of the act incorporating the Illinois Central Railroad company, and proved in his name, but it was discovered, after the company had executed a deed, that the wrong tract had been conveyed, and the proof made for a tract not the one Morgan improved and lived 30-44TH ILL.

Opinion of the Court.

upon. Accordingly, new proofs were made as to the true tract, and a proper deed was executed by the company to John Morgan, dated before his death, White paying the purchase money, he having a title bond from all the heirs at law of Morgan, except Ann, the complainant. White, having received a deed from all the heirs of Morgan except the complainant Ann, filed a bill in chancery against complainants, to compel them to execute a deed for her interest in the land, setting forth, in the bill, that Abraham Wimberly, before Morgan's death, had purchased the improvement of Morgan, and had conveyed the same to him, White; and to this bill the trustees of the Central railroad were, at a subsequent term, made defendants, and such proceedings were had that complainant, White, dismissed the bill as to these complainants, Samuel and Ann Lester; and, the trustees defaulting, White took a decree, declaring the deed to John Morgan void, and requiring the trustees to make a deed to him, or, in default thereof, that a commissioner should be appointed for that purpose, which was done, and a deed made to White by a commissioner. Soon after which, complainants tendered to White fifty dollars, and demanded a deed from him for Ann's share, which he refused, and this bill was filed for a conveyance.

The defendant in his life-time answered the bill in full, avowing therein that Abraham Wimberly was the real owner of the pre-emption, and that he had purchased it of Wimberly and paid him for it, and alleges he was advised by his counsel to take the deed from Morgan's heirs for the land.

The question is presented by these pleadings, was this preemption right a chattel interest merely, which would pass by parol, or such an interest in land as to require a writing to prove a transfer? The court below held it was a chattel interest merely, and dismissed the bill.

We are of opinion this right is not a mere chattel interest. The pre-emption laws grant to the pre-emptor an estate in land upon conditions which become absolute upon the performance of those conditions. McConnell v. Wilcox, 1 Scam. 344; Isaacs v. Steel, 3 id. 97; Bruner v. Manlove, id. 339. It has been

Opinion of the Court.

said by this court in subsequent cases, that the interest acquired by a pre-emption right is not an estate within any definition known to the common law. It is not an interest in the legal title, but merely a right of occupancy for the time being, with the privilege of purchasing at some future period, at the stipulated price; such interests, however, are regarded by the courts of this State as property, which may pass by deed or other transfer (Delauney v. Burnett, 4 Gilm. 454; May v. Symms, 20 Ill. 95), and is liable to be taken and sold on execution, and of passing to an assignee under a decree of bankruptcy. Turney v. Saunders, 4 Scam. 527; French v. Carr, 2 Gilm. 664.

The interest in the land acquired by the pre-emption is such an interest as descends to the heir at law, and does not go to the executor or administrator, and so it appears the defendant, White, treated it, by taking first a bond from all the heirs except this complainant Ann, and afterward a deed for the land from all of them with the exception named. Had Morgan lived to take the deed executed by the railroad company to him, there could be no doubt of Ann Lester's right to one-fifth as one of his five heirs at law.

The defendant, White, holding under a deed executed by a commissioner under an order of court, the effect of which it is insisted divested the title out of the railroad company and vested it in White, it could only be to the extent of his conveyance from the heirs; and, as Ann Lester did not convey her interest, and White's deed includes that interest, justice and equity would require that it should be released and conveyed to her, on payment of her proportionate share of the purchase money with interest thereon.

The decree of the court below dismissing the bill is reversed, and the cause remanded for further proceedings consistent with this opinion.

Decree reversed.