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Opinion of the Court.

annulled, it would leave the land in appellee, and nothing more than a verbal agreement for the conveyance of the land, and such an agreement would be incapable of enforcement, under the statute of frauds. In such a case it would be but a parol trust, which is prohibited by the fourth section of the act which requires all express trusts to be reduced to writing and signed by the party creating the trust.

If, however, the agreement should be set aside, as manifested hy the written agreement, and the verbal agreement was held to be void, we are at a loss to perceive in what manner appellant became entitled to the land. It seems to have been entered in Harding's name by the express agreement of all parties. Appellant even did not expect that it would be entered in the name of any other person. This being so, a resulting trust was not created simply by the fact that appellant furnished the warrant with which to make the entry. A resulting or implied trust is usually created by the purchase of land with the money of one person in the name of another, without the consent of the owner of the means. In such a case, he may pursue the land for which his money was paid, and treat the holder of the legal title, with notice, as a trustee, and compel a conveyance; such a trust not being within the statute of frauds, it will be enforced in equity. A resulting trust is never created by agreement, but always by implication of law, from such acts independent of agreement by the parties. But a trust created by verbal agreement, being like any other verbal sale of lands, is prohibited by the statute of frauds, and will not be enforced in equity.

The only remedy, then, left to appellant, is by a performance of his part of the written contract, which if not made under his express authority, was ratified and confirmed by him after its execution. And inasmuch as the general government has raised no objections to its validity, the parties are bound for its performance. Appellant having purchased and paid for the tax title, and having made valuable improvements upon the land, under the belief that he was the owner, and having advanced the funds to make the entry, his equities are clear,

Syllabus.

and entitle him to relief, upon his paying the balance of the money specified in the agreement. We are at a loss to see how a case presenting stronger equities could well occur, if appellant should pay the balance of the money specified in the agreement. This being so, the court below should have dismissed the bill without prejudice, so as to have enabled appellant to file a new bill if he chose, for the purpose of obtaining a conveyance under the written agreement.

The evidence fails to establish that degree of mental weakness or infirmity which the law requires to avoid an agreement. It is, no doubt, true, that he had been in poor health, and was perhaps still physically debilitated, but we discover no evidence of mental derangement or imbecility, or even weakness of mind, such as would authorize a court to say that he was incapable of comprehending the nature and effect of his acts, or that implies that he could not comprehend the operation and effect of this contract which he entered into to effect a compro mise, and to save, as far as he could, a portion of his hard earned property. He is not entitled to have the agreement set aside because he was incapable of entering into the contract.

The decree of the court below is modified, so that the bill will stand dismissed without prejudice.

Decree modified

THE CHICAGO AND NORTH WESTERN RAILWAY COMPANY

V.

CHARLES DEMENT.

1. NEW TRIAL -- verdict against the evidence. Although the correctness of a verdict may be doubtful, yet if it is not clearly against the evidenco, or unsupported by it, the finding will not be disturbed.

2. So in an action against a railroad to recover the value of a cow alleged to have been killed by a train, the proof as to the manner in which the cow was killed was, that, when found, she was lying on her back in the railway ditch, between two and three feet from the track, bloated, and the

Opinion of the Court.

blood oozing from her nose. The jury found she came to her death from a pas sing train, and the court, though doubtful of the correctness of their finding, refused to disturb it.

3. INSTRUCTIONS — omissions therein obviated by the proof. Although the instructions, given in such a case for the plaintiff, omit to state that it must be proved that the road had been operated for six months prior to the accident, Fet no harm could result to the defendant for such omission, when it clearly appeared from the evidence that the road had been in use for a much longer period.

APPEAL from the Circuit Court of Lee county; the Hon. W. W. HEATON, Judge, presiding.

The case is stated in the opinion of the court.

Messrs. GoodwIN & WILLIAMS, for the appellant.

Messrs. BARGE & Heaton, for the appellee.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

This was an action brought by the appellee against the appellant, to recover the value of a cow alleged to have been killed by a railway train. The only question in the case is, whether the cow was in fact killed by the train. When found, she was lying on her back in the railway ditch, between two and three feet from the track, bloated, and the blood oozing from her nose. She bore, however, no external marks of injury. The jury found she came to her death from a passing train.

We do not consider this a case in which we can set aside the verdict as unsupported by the evidence. It is certainly singular that the cow, if killed by the train, bore no external marks of violence. But, on the other hand, the place where she was found dead raises a strong presumption, that she had been killed by one of the several trains proved to have passed over the road the night before. Here was a mode by which the death could be explained, and no other cause is shown to have existed which would explain it. The jury probably thought an animal might be so struck by a train that death would ensue from an internal injury, without external marks of vio

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lence, and that the bloated condition of the cow, and the blood oozing from the nose, indicated such injury, and we cannot say they were in error. The question is purely one of fact, the determination of which belonged to the jury, and though doubtful of the correctness of their finding, our convictions are not sufficiently clear to justify us in setting aside the verdict. We cannot say it was clearly against the evidence or unsupported by it, and the case is not therefore of that class in which this court awards a new trial upon that ground.

It is urged that the first and second instructions for plaintiff are defective in not requiring it to be proved, that the road had been operated for six months prior to the accident. No harm, however, can have resulted to the defendant from this omission, as it clearly appears from the evidence, the road had been in use for a much longer period of time. The judgment must be affirmed.

Judgment affirmed.

TOLEDO, PEORIA AND WARSAW RAILWAY COMPANY

V.

SAMUEL WICKERY.

FENCING RAILROADS — injury to stock. Where cattle are injured upon a railroad at a place where the company are required by law to fence the road, and it had been in operation several years without that being done, the company are liable for the damages resulting from such neglect of duty.

Appeal from the Circuit Court of Livingston County ; the Hon. CHARLES R. Starr, Judge, presiding.

This was a suit commenced before a justice of the peace in Livingston county, by Samuel Wickery against the Toledo, Peoria and Warsaw Railway Company, to recover the value of a cow, the property of the plaintiff, alleged to have been killed on the defendants' road, at a place where the law required the same to be fenced, which had not been done although the

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road had been in operation for several years. The cause was removed into the Circuit Court by appeal, where a trial resulted in a verdict and judgment for the plaintiff for the value of the cow. The company bring the case to this court by appeal.

Messrs. Bryan & Cochran, for the appellants.

Messrs. FLEMING, PILLSBURY & PLUMB, for the appellee.

Per CURIAM: We have examined the testimony in this case, and it is conclusive on the point, that the road had been in operation several years, and was not fenced as the statute requires, and that the place where the accident occurred was a point outside of the town, where the law requires a fence.

We perceive no ground for disturbing the verdict, and must affirm the judgment.

Judgment affirmed.

John NIEMEYER

V.
OPHELIA A. BROOKS.

CONTRACTS — when not payable at a particular time demand. Where time of payment is not specified in a contract, the law will presume that it was intended by the parties to be paid in a reasonable time. In such case, a demand before suit is not necessary.

APPEAL from the Circuit Court of Stephenson county; the Hon. BENJ. R. SAELDON, Judge, presiding.

The facts sufficiently appear in the opinion of the court.

Messrs. MEACHAM & COCHRAN, for the appellant.

Messrs. GOODWIN & WILLIAMS, for the appellee.

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

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