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Pontiac, and have it recorded. It is difficult to understand why Franklin Oliver should be so desirous of recording a deed conveying to a son between whom and himself there existed such a feeling of hostility that very tract of 400 acres which he had been so anxious to get on October 21st in exchange for the 765 acres. He did not take away the deed of 845 acres which he had made to his wife to have that recorded. She recorded it herself, a few days after. He could have had no possible interest or object in carrying off, and agreeing to record, a deed to Revilo. The theory of an exchange of lands, and the conveyance of the 400 acres to Franklin in pursuance of such exchange, explain the consideration which the latter received for deeding away the 845 acres. Nothing else furnishes an adequate explanation of his parting with the 845 acres, in view of the state of feeling which then existed between the parties.
McDowell, an attorney, swears that Revilo once asked him “if he could not get the old man's land away from him by having two deeds, one over the other, in some way, when the old man read the same, and then, when the old man came to sign the same, slip it or change it, so that he would in fact sign a deed different from the one he had read.'
Sears swears that old Mr. Oliver once said to him, in speaking of the exchange of the 845 acres for the 400 acres, that “he thought they were playing sharp on him; that she had deeded 400 acres * * to Revilo, and he thought their calculation was for Revilo to get his deed on record first.” If two deeds, each conveying the 400 acres, were made out, one to Revilo and one to the old man, with the intention of showing him the latter, in order to get him to convey the 845 acres, and then of substituting the former in its place, the plan would seem to have miscarried, as the old man took possession of the deed to himself.
The testimony introduced by defendant in error to explain the mode in which he recovered the deed to himself, which, he says that his father carried off on October 25, 1879, cannot be regarded as conclusive upon that subject. John L. Oliver, who lived in the same house with his mother and his brother, Revilo, and was interested on their side of the controvery, says that in June, 1880, his father requested him to go to his trunk, and get a certain letter; that, while looking for the letter, he found a package of papers, and, upon examining them, discovered this deed to Revilo; that he took the deed from the package, and kept it in his own possession, without saying anything to Revilo or his mother about it until November, 1884. His testimony seems wholly improbable. During these four years he lived three years in the house with his mother and brother. The original bill was filed in this cause on September, 1880. He was among the parties to the litigation during the whole of its progress. He confesses that he told falsehoods in regard to his possession of the deed. He swears that in the summer of 1880 his father asked him several times “if I didn't get a paper out of his trunk, and I told him .No.'” He again says: “A good many asked me if I knew anything about the deed, and I always told them I didn't know anything about it, the same as I told
Several witnesses swear that, after the production of the deed in question, they asked John L. Oliver about it, and he always denied that he ever had or saw any such deed, and claimed that he knew nothing about any deed to Revilo.
The memory of Minnerly, in regard to the transaction, is so much at fault that his testimony throws but little light upon it. In regard to his statements, as given upon the first hearing, we made the following observations in Oliver v. Oliver, 110 Ill. 119: “The evidence of the only other person present when the deed was executed (the justice of the peace) throws but little light on the transaction. He did not read the deed, and cannot say who the grantee named in the deed was. From the conversation, he understood that complainant was the purchaser. But this evidence we do not regard as having much
bearing on the question." His deposition has been taken in Texas, since the case was last before this court, and he now says that he “never took the acknowledgment of but two deeds,-one to Revilo from his mother, and one from Oliver, Sr., to Mrs. Oliver.” In this, however, he is evidently mistaken for the following reasons: The original bill charged that the deed recorded by Franklin Oliver, Sr., was the same deed which had been executed by Mrs. Oliver to her son Revilo, and that, before recording it, Franklin had erased Revilo's name, and inserted his own, so as to make himself appear as the grantee on the record. The amended bill takes a different position. It charges that the whole of the deed which was recorded was a made up and forged deed, and that the genuine deed to Revilo has been discovered.
It is now admitted by defendant in error that the deed to Revilo, which John L. Oliver claims to have found, and the deed which was placed on record by old Mr. Oliver, were two separate and distinct instruments. Mr. Cordeal, who had done the recording in the circuit clerk's office at Pontiac for seven years, and is an entirely disinterested witness, swears that he recorded the deed left with him by old Mr. Oliver on October 28th, and examined it critically, and that the certificate of acknowledgment appended to it was in Minnerly's handwriting; that he had seen Minnerly write, and was acquainted with his handwriting. We do not think that defendant in error has established the charge made in his amended bill by a preponderance of the evidence.
The decree of the circuit court is reversed, and the cause is remanded for further proceedings in conformity with this opinion.
(119 Ill. 341)
RIPLEY V. AYER and others.
(Supreme Court of Illinois. January 25, 1887.) GARNISHMENT_INTERVENING CLAIM-EVIDENCE.
On a trial in garnishment of an intervening claim, by a third party, of the funds garnished, an agreement between such intervenor and the garnishee (antedating the suit) by which the intervenor gave the garnishee possession of certain property, which the garnishee agreed to sell, and to devote the proceeds (which constitute the fund garnished) to certain purposes, is relevant, and admissible as against the
garnishee and the garnishing plaintiff. Error to First district.
Schuyler & Kremer, for plaintiffs in error. David Sullivan and James T. Keena, for defendants in error.
SCOTT, C. J. It appears from the transcript of the record in this case that William Ripley and Bradford W. Ripley commenced a suit in attachment against John Monaghan, and that certain parties were served with process as garnishees. The suit progressed to judgment against the attachment debtor. The garnishees answered the interrogatories filed, admitting that certain sums of money were in their hands, and stating the sources from whence derived, and all the facts within their knowledge concerning the title or right to such funds. Afterwards the People's Savings Bank of Michigan, interpleading, claimed the funds admitted to be in the hands of the garnishees as their rightful property. On the trial, the superior court found the moneys belonged to the interpleading claimant, and so rendered its judgment. That judgment was affirmed in the appellate court of the First district, and the attachment plaintiffs bring the case to this court on error.
The only question made in this court is as to the admissibility of certain evidence offered by, and received on behalf of, the interpleading claimant. The cause was submitted to the court for trial without the intervention of a jury, and it seems that much of the testimony, and perhaps all of it, was received by the court subject to any objection that could be raised to it. The evidence objected to consists principally of two exhibits attached to depositions of certain witnesses whose testimony was taken on behalf of the interpleader, and two writings designated as “Bills of Lading.” The latter papers are of no importance one way or the other, and no discussion will be had in regard to them. The exhibits read in evidence are contracts between parties getting out cedar posts and railroad ties, and the provisions of these contracts show how and in what manner the posts and ties were to be got out, by whom, where to be sold, and to whom the proceeds which might be realized from the sales should be paid. It matters little what definition shall be given to either of these exhibits, whether defined as a chattel mortgage or a simple contract. It is plain their provisions show to whom the money to be derived from the sales of posts and ties under such contracts was to be paid. The funds in the hands of the garnishees were moneys derived from the sale of posts and ties. Of this fact in the case no controversy is made. It would seem, therefore, to be evident these contracts were proper evidence to be considered by the court in connection with the other testimony offered on the question whether the funds attached belonged to the interpleading claimant, or to the attachment debtor. In this view there was no error in admitting these contracts in evidence. It was purely a question of fact to whom the funds attached belonged; and by the finding of the issue in that regard by the appellate court against the attachment plaintiffs, as was done by its judgment, this court is precluded by the statute from investigating further that point in the case.
The judgment of the appellate court is affirmed.
(119 Ill. 509)
MURPHY and others v. CITY OF PEORIA.
(Supreme Court of Illinois. January 25, 1887.) 1. MUNICIPAL CORPORATIONS - PARKING AND SODDING CENTER OF STREET-DISCRETION
Under the general power to improve streets, the city council will have a discre
tionary power to sod and park the center of a street, where it is not needed for travel. 2. SAME-SPECIAL ASSESSMENTS-COMMISSIONERS APPOINTED AT PROBATE TERM.
Under section 5 of the county court act, (1 Starr & C. St. C. 37, par. 118,) commissioners to assess benefits caused by improvements may be appointed at probate
term of the county court. 3. SAME-GRADING, DRAINING, AND SODDING, ONE IMPROVEMENT.
It is not ultra vires for a city council to project in one ordinance an improvement consisting of several parts. Grading, draining, and sodding of a street are held here
to combine to produce the improved street conteniplated by the ordinance. 4. SAME--NOTICE OF ASSESSMENT BY MAIL.
Section 27, art. 9, of the general city and village act, (1 Starr & C. St. c. 24, par. 143,) provides that commissioners to assess benefits from improvements shall notify, by mail, "each owner of premises assessed, whose name and place of residence is known to them." An affidavit by one of the commissioners that he had notified each owner whose name and residence were known to him is insufficient.
Error to county court, Peoria.
Jack & Tichenor and McCulloch & McCulloch, for plaintiffs in error. J.C. Pinckney, City Atty., (H. W. Wells, of counsel,) for defendant in error.
CRAIG, J. This is a writ of error brought by plaintiffs in error to reverse a judgment of the county court of Peoria county confirming a special assessment for the improvement of Hamilton street, in the city of Peoria. The ordinance under which the improvement is proposed to be made provides that the street shall be graded and graveled; that 24 feet in width in the center of the street shall be graded and sodded with good sod; that a sewer shall be constructed in said street of 18-inch vitrified pipe. It is urged that the action of the city council was in violation of its delegated powers—First, in attempting to levy a special assessment for grading and sodding a park in the
middle of the street; second, in attempting to levy a special assessment for the construction of a sewer, the charter providing taxation by districts for that purpose; third, in uniting in one assessment the cost of several improvements which in their nature cannot be united.
As to the first objection, it will be necessary to refer to some of the provisions of the charter of the city. Under section 1, c. 6, of the charter, (2 Priv. Laws 1869, p. 136,) the city council has power to lay out public streets, alleys, lanes, avenues, and highways, and extend, alter, widen, contract, straighten, and discontinue the same, to purchase, lay out public parks, and squares or grounds; third, to cause any street, alley, lane, avenue, or highway to be filled, leveled, graded, paved, curbed, walled, graveled, macadamized, or planked, and keep the same in repair; fourth, to cause cross and side walks, main drains, and sewers, * * and private drains to be constructed and laid; fifth, to fill, grade, improve, protect, and ornament any public square. Section 2 provides: “The expenses of any improvement mentioned in the section (1) shall be defrayed, save as herein otherwise provided, by a special assessment upon the real estate benefited thereby.” In addition to the foregoing, under section 7, c. 4, of the charter, the city council has power to control, regulate, repair, and amend the streets; also to open and vacate; to .establish and alter the grade.
It is obvious from these various provisions that the control of the streets, and the power to improve, is placed in the hands of the city council, and in the exercise of these powers the manner of the improvement must, of necessity, to a large extent, be left to the discretion of that body. It is true that the charter does not, in express words, declare that the city council may grade and sod a portion of the street, but we think it is manifest that such power is included under the general authority to control and improve conferred on the city council by the charter. Where a street is of such a width that the entire street is not needed for the public travel, and the city council deem it wise to sod a portion thereof, instead of graveling the entire street, we see no good reason why they may not properly, under the general power to control and improve, adopt that method of improvement.
As to the second objection. Under clause 4 of section 1, supra, the city council has power to construct sewers, and under section 2 the expenses may be defrayed by special assessment. If, however, there was any doubt in regard to the authority under the special charter, the city of Peoria adopted ar. ticle 9 of the act in relation to cities, villages, and towns; and under this article there can be no question as to the power to construct sewers by special assessment.
As to the third objection, that three distinct improvements are united in one, we do not regard the point as well taken. It is true that the ordinance provided for graveling the road, sodding the center of the street, and a sewer under the street, but we do not regard these as separate and distinct improvements, as was that in Weckler v. Chicago, 61 Ill. 142, but the three things required to be done are but constituent parts of one improvement. The three elements required, when all united, made the improved street contemplated by the ordinance. A projected improvement may often contain several elements, but when they are all united they constitute a single whole,-one improvement. Such is the case here. The improvement consisted of three elements, but, when the work is all done, there is but a single improvement.
It is next urged that the appointment of commissioners is void, because made at a probate term of the court. This position is predicated in East St. Louis v. Wittich, 108 Ill. 450, where it was held that the proceeding on application to confirm a special assessment must be had at a law term of the county court. We do not think the case cited has any bearing on the question involved here. Section 21 of chapter 24 of the Revised Statutes of 1874 provides that the city council may order a petition to be filed in the county court. Section 22 specifies what the petition may contain. Section 23 provides that, upon the filing of such petition, the court shall appoint three commissioners. As to what term of the county court the commissioners shall be appointed at the statute is silent, and we see no reason why they may not be appointed as well at a probate as any other term of the county court. If, however, there was room for controversy upon the question, section 5 of the act of March 26, 1874, conferring jurisdiction on the county court, (Starr & C. St. 718,) would seem to be conclusive. The section, after conferring jurisdiction on the county court of all probate matters, proceedings for the collection of taxes, and assessments, and other matters, concludes as follows: “All of which, except as hereinafter provided, shall be considered as probate matters, and be cognizable at the probate terms hereinafter mentioned." Under this section of the statute the county court was expressly authorized to appoint the commissioners at a probate term, although the final hearing on application to confirm may be required at a law term, under sections 31 and 32 of article 9 of the statute in relation to cities, as held in the case cited.
On the final hearing in the county court, wherein a judgment confirming the assessment was entered, seven of the plaintiffs in error, Mrs. Norris, Pitt, Belle C. Tapping, August Seibold, W. G. Buchanan, E. G. Calligan, Daniel J. Calligan, and William J. Dobbins, did not appear, and as to them it is contended that the notice given by the commissioners was not sufficient to authorize the court to proceed to judgment. Section 26, art. 9, c. 24, Rev. St., requires the commissioners to make an assessment roll in which shall appear the names of the owners. so far as known. Section 27 makes it the duty of the commissioners to give notice of such assessment, and the term of court at which a final hearing will be held, in the following manner: “They shall send by mail to each owner of premises assessed, whose name and place of residence is known to them, a notice of a specified form." Section 28 prescribes the proof of such notice as follows: "On or before the final hearing, the affidavit of one or more of the commissioners shall be filed in said court, stating that they have sent, or caused to be sent, by mail, to the owners whose premises have been assessed, and whose name and place of residence are known to them, the required notice.” The proof of a compliance with the statute, as to service of notice, was the affidavit of one of the commissioners, as follows: "Herbert F. Day, one of the commissioners appointed by the county court of Peoria county, in the matter of the special assessment for the improvement of Hamilton street from the north-west side of Monroe street to the east side of North street, being duly sworn; says that he has this day mailed to each of the owners of the premises assessed as per the foregoing assessment roll, whose names and place of residence was known to affiant, a notice, of which a trúe and correct copy is hereto attached, and marked • Exhibit B.'” It is manifest that this is not a compliance with the statute. The statute evidently requires a notice to be sent to each owner whose name and place of residence may be known to anyone or either of the commissioners, and an affidavit by one of the commissioners that he mailed a notice to each owner known to him does not show that notice was mailed to the owners whose names and residences was known to the other commissioners. For aught that appears, the other two commissioners may have known the name and residence of every owner whose property was assessed, while the commissioner making the affidavit may not have known one-tenth of the owners' names and residences. Each owner whose name and residence may be known to any one of the commissioners is entitled to notice, and the affidavit, in order to give the court jurisdiction, should show a compliance with this provision of the statute. As to those who appeared and filed objections to the confirmation of the assessment, their appearance was a waiver of any and all defects in the notice; but those who did not appear the court had no jurisdiction to proceed against, on account of the defect in the notice.