Wendel and the mother had deceased before the bringing of this suit. Much of the testimony in the record is of declarations made by them, which was received subject to objection. The declarations of the mother, evidently, were not competent. Whether those of Wendel were it is not material to consider; for, if they be received, we would regard them as being, in their preponderance, rather against than in favor of appellant.

The only witness who had actual knowledge on the subject was appellee, who did the negotiating for the purchase, and was present when the purchase of the farm was made, and the purchase money paid. He testifies positively that no money of appellant went into the purchase, but that all of the purchase money was furnished by Wendel, Lena, and himself; and he contradicts all the testimony of appellant's witnesses with respect to his declarations. Lena, one of the parties to the purchase, and who had all the means of knowledge that one could have who was not present and saw the purchase money paid, testifies positively that Wendel, Peter, and herself furnished all of the purchase money for the farm. After having lived on the farm for many years with Wendel and Peter and her mother, and after getting married, she sold out her interest in the farm to Joseph, and when she comes to sell she sells, not a one-fourth interest, but a one-third interest. Appellee and Lena do not concur with appellant in her statement that she left the money to be invested in any land, but say that appellant simply left the money in Wendel's hands, not wishing to take it to Cincinnati. It was natural that Wendel, Peter, and Lena, being practical farmers, and Peter unmarried, and having lived some time in this country, should together buy a farm, and go and live upon it with their mother, and carry it on together. Appellant, living in Cincinnati, and carrying on the millinery business there, would not be likely to wish to engage in farming in Cook county, in this state, or to invest in a farm there. The point is made that the shares of Wendel, Peter, and Lena in their father's estate were not sufficient for the purchase of the farm, and that to make up the amount of $3,360, the purchase money, appellant's share was required, and it must of necessity have constituted a part of the purchase price. It appears by uncontradicted evidence that Wendel and Lena had, besides their share in their father's estate, about $1,500 savings from their upward of 20 years of service in Germany, from the time of the death of the father to the year they came to America. Peter says he had some property and money besides his share. This would seem to make out sufficient money which Wendel, Peter, and Lena had for making the purchase without there being occasion for the use of any of appellant's money for the purpose. After leaving Sheboygan, appellant returned to Cincinnati, and did not appear in Cook county until some nine years afterwards. The testimony is that about $500 a year profits were realized from the farm. If appellant's money had been invested in this farm, and she was the owner of a one-fourth interest in it, it is natural there would have been during these nine years some communication in writing pertaining thereto; that there would have been inquiries made and letters to her having some reference to the matter; but not a line in writing in any way referring to the subject is shown in the evidence. It appears that appellant had large money transactions with her brother Wendel, and that she had in his hands a large amount in money. She had a settlement with him in 1876, and received a deed from him of two houses and lots in Chicago for $7,500 each, subject each to a mortgage of $2,500, and of the east half of a certain 10 acres of land near Chicago. This property was considered as one-half of the land received by Wendel in exchange for a mill property in Minnesota. At the time, appellant executed a release to Wendel. The release is lost. A disinterested witness, who was present at the time, says the settlement was not confined to the mill property, but embraced money appellant had in Wendel's hands, and is explicit in the statement that the release given was one in full of all claims and demands against Wendel. Appellant says v.17N.E.no.1-3

the settlement related to the mill property they had owned together in Minnesota, and was confined thereto; that the release did not embrace this land matter. This bill was not filed until after the death of Wendel and the mother, and was filed 30 years after the transaction of the purchase of the farm. There was an oral examination of the witnesses in the court below, and of course that court had a better opportunity than we have to judge of the credibility of witnesses.

We have not attempted to give or to discuss in any detail the voluminous evidence in this record. We have but referred to portions of it, stating some considerations naturally arising therein. The whole testimony has been carefully considered, and we must content ourselves with stating our conclusion therefrom. Upon an examination of the entire evidence in the case, we cannot say the decree is so clearly against the evidence as to require its reversal by a court of review, and it must therefore be affirmed.

(Supreme Court of Illinois. May 9, 1888.) TAXATION-TAX TITLES-VACATION-REIMBURSEMENT OF HOLDER.

Under Sess. Laws Ill. 1885, p. 235, which provides "that any judgment or decree of court setting aside any tax deed procured under this act shall provide that the claimant shall pay to the party holding such tax deed all taxes and legal costs, together with all penalties, as provided by law, as it shall appear the holder of such tax deed or his assignors shall have properly paid, or be entitled to, in procuring such deed," a decree setting aside a tax deed as a cloud upon title, because of insufficiency of the notice of tax sale, upon payment of the amount paid at the tax sale, and all subsequently paid taxes, with interest thereon, is proper, without requiring payment of the amount that would have been required to redeem the property, together with interest thereon.

Appeal from superior court, Cook county; EGBERT JAMISON, Judge. Bill by James S. Pirtle, trustee, against Henry H. Gage. Decree for complainant, and appeal by defendant.

Augustus N. Gage, for appellant.

Smith & Pence, for appellee.

The rule of allowing the amount paid at the sale, and also all subsequently paid taxes and assessments, together with interest thereon, is the proper one. Gage v. Waterman, 13 N. E. Rep. 543; Reed v. Tyler, 56 Ill. 288; Barnett v. Cline, 60 Ill. 205; Reed v. Reber, 62 III. 240; Phelps v. Harding, 87 Ill. 442; Farwell v. Harding, 96 Ill. 32; Wilmerton v. Phillips, 103 Ill. 78; Moore v. Wayman, 107 Ill. 192; Smith v. Hutchinson, 108 Ill. 662; Peacock v. Carnes, 110 Ill. 99; Gage v. Hervey, 111 Ill. 305; Gage v. Nichols, 112 Ill. 269; Carne v. Peacock, 114 Ill. 347, 2 N. E. Rep. 165.

SHELDON, C. J. This was a bill to set aside a tax deed as a cloud upon title, alleging as a reason therefor the insufficiency of the service of notice of the tax sale. The court found that the notice given of the tax sale was insufficient, and decreed the relief sought upon the terms of payment by the complainant to the defendant within 10 days of the amount paid at the tax sale, and all subsequently paid taxes, with interest thereon. We think the court's finding was right as to the insufficiency of the service of notice; but that point is not pressed in the argument, the purpose appearing to be to get a decision of the question whether the court ordered payment of a sufficient sum of money as the condition of relief; appellant's counsel saying: "The decision, then, is upon this question only: Did the circuit court err in granting relief without directing the payment of such sum as would have been required to make a redemption, together with interest thereon?" The tax sale was on October 26, 1880, being for the taxes of 1871 to 1879, both inclusive.

The tax deed was made on June 9, 1883. Gage v. Busse, 102 Ill. 592, is relied upon by appellant's counsel as in support of the affirmative of this question. That case is not quite the present one. There was then a small amount of illegal tax included in the judgment for the sale. The bill to set aside the sale was filed a short time before the expiration of the time for redemption. It was there said: "It is not perceived that equity requires that appellant should be shorn of his rights under the purchase to any greater extent than in so far as they are affected by the amount of taxes erroneously included in the judgment. On that hypothesis the decree ought to have been that complainants be allowed to redeem from the sale by paying the redemption money allowed by the statute, had the judgment and sale been for the proper amount of taxes, which can be readily ascertained by deducting the erroneous taxes from the amount of the judgment." As the sale there was confessedly just to the extent of the most part of the judgment, it seems to have been considered that the proceeding should, in equity, be viewed as in the nature of an application to redeem. There was no reference in the opinion to any previous decision of the court, and, however the decision may be viewed under the circumstances of that case, it was not the intention there to depart from the long line of the former uniform decisions of the court that the condition of the equitable relief granted upon the setting aside of a tax deed should be the payment of the amount paid at the tax sale, subsequent taxes paid, and interest. long list of such decisions is cited in the brief of appellee's counsel. Gage v. Busse we do not regard as an authority sustaining appellant's claim that an amount equal to redemption money should in this case have been required to be paid.

The

It is insisted that the proviso to the act of the general assembly in force July 7, 1885, (Laws 1885, p. 235,) amendatory of section 224, c. 120, Rev. St., requires the payment of such amount to be made. That provision is as follows: "That any judgment or decree of court setting aside any tax deed procured under this act shall provide that the claimant shall pay to the party holding such tax deed all taxes and legal costs, together with all penalties as provided by law, as it shall appear the holder of such deed or his assignors shall have properly paid, or be entitled to, in procuring such deed, before such claimant shall have the benefits of such judgment or decree." It is claimed

that the term "penalties" embraces the amount of redemption money. The amount paid for redemption from a tax sale is not styled a “penalty” in the provision of the statute for redemption from a tax sale. There are penalties spoken of in the revenue act; as, in the order of sale, that "the court shall give judgment for such taxes and special assessments and penalties as shall appear to be due. Those penalties may satisfy the term "penalties" used in this proviso, without making it necessary to resort to the money paid on redemption, to find application for the term. The penalties to be paid by this proviso are penalties which the holder of the tax deed or his assignors shall have paid, or be entitled to, in procuring the tax deed. Money paid on redemption is not money paid by the tax-sale purchaser, or which he was entitled to, in procuring his tax deed or otherwise. It is money paid by the landowner, and paid not to procure but to prevent a tax deed. It is not money the tax-sale purchaser was ever entitled to have. The provision of the statute respecting redemption is that "real property sold for taxes may be redeemed at any time before the expiration of two years from the date of sale by payment of the amount for which the same was sold, and 25 per cent. thereon if redeemed before the expiration of six months from the day of sale; if between six and twelve months, fifty per cent.; if between twelve and eighteen months, seventy-five per cent.; and if between eighteen months and two years, one hundred per cent. on the amount for which the same was sold. The person re deeming shall also pay the amount of all taxes and special assessments accru. ing after the sale paid by the purchaser, with ten per cent. interest thereon."

This is the amount, it is claimed, which was required to be paid here by the above proviso of the statute of 1885. We do not so think. It would not seem reasonable to require the land-owner to pay such amounts in order to have set aside a tax deed upon his land which had been wrongfully obtained. It would be equitable that he should refund to the tax-sale purchaser the amount paid upon the purchase and all taxes, charges upon the land, paid by the latter, with interest; and we think that is all which the statute requires to be paid; that the statute really does no more than to enact what this court had decided should be paid as the condition of having a tax deed set aside. Had it been the intention that the land-owner should pay an amount equal to the sum which would have had to be paid upon a redemption of the land from the tax sale, it would have been quite easy to have so said in plain terms, instead of expressing such purpose in the blind and roundabout way of this statute. The decree must be affirmed.

(124 Ill. 506)

O'MELIA et al. v. MULLARKY.
(Supreme Court of Illinois. May 9, 1888.)

1. DEED-EFFECT-EXECUTED USE-TRUSTS.

One M. conveyed a certain piece of land in trust for defendants and others, the title to vest absolutely in fee-simple after the death of E., but so to vest only upon the express condition that said E. should, during his life, have a home upon said land, and good and sufficient support therefrom, and also the control and management thereof. Subsequently one of the grantees conveyed all his title and interest in the land to plaintiff. Such grantee died some six years before E. Held, that the trust was an executed use, and E. took a legal estate for life, with remainder in fee to the grantees as tenants in common; and hence, at the time of the conveyance to plaintiff, his grantor held in fee a proportionate share in the land, which passed to plaintiff.

2. PARTITION-EVIDENCE-TITLE.

In a suit for partition, where all parties claim through a common grantor, plaintiff is not required to prove the source of such grantor's title.

Appeal from circuit court, Stephenson county; WILLIAM BROWN, Judge. U. D. Meacham and L. Stoskopf, for appellants. John C. Kean, for appellee.

MULKEY, J. On the 3d day of March, 1885, the appellee, Anthony Mullarky, exhibited his bill in the circuit court of Stephenson county against the appellants, Margaret O'Melia, Patrick O'Melia, and John Glynn, praying for the partition of certain real estate particularly described in the bill,-twofifths of which is alleged to belong to the complainant, two-fifths to Margaret O'Melia, and the remaining one-fifth to Patrick O'Melia; and all claim in feesimple. On the hearing, the court found their respective interests to be as stated in the bill, and a decree of partition was entered accordingly. The propriety of that decree is the question presented by this appeal.

It appears that James Mitchell, by deed bearing date January 19, 1867, conveyed and quitclaimed the land in question in trust for Bridget Mullarky, Margaret O'Melia, (one of the defendants,) James Mullarky, John P. Mullarky, and Ellen Mullarky, heirs at law of Mark Mullarky, deceased, and the title to said lands to vest absolutely in fee-simple in said above-specified heirs at and after the death of Edward Mullarky, the uncle of said heirs, but so to vest upon, and only upon, the express condition that said Edward Mullarky shall, during the whole remaining term of his natural life, have a home upon said lands, and a good and sufficient support therefrom, and also the control and management thereof; it being the express understanding and condition hereof that the title and interest of said lands shall only vest in said abovespecified heirs of Mark Mullarky upon the death of the said Edward Mullarky, in case he is provided with a home upon and a support from said lands during his life." On the 20th of November, 1867, the above-mentioned James

Mullarky, by his deed of that date, conveyed all his title and interest in the land to appellee. On the 28th of January of the following year, John P. Mullarky, another of Mark Mullarky's heirs, conveyed to appellee all his interest in said land; making altogether two-fifths. The interests of the appellants, as heretofore stated, is not controverted, so that the only question to be determined is whether the above-mentioned conveyances are sufficient to establish appellee's claim of title. It is further objected that "there is no evidence in the record from whom or from what source James Mitchell derived his title to the land." There is nothing in this objection. The making of such proof, under the circumstances, was not required. All the parties claim through a common source, namely, James Mitchell; and it is admitted in the answer that at the time of his conveyance he was the owner in fee of the premises. It is also contended that appellee took nothing by the deed from James Mullarky to himself, for the reason that he died some six years before Edward Mullarky, the tenant for life, and consequently, as is claimed, before any estate vested in him. This objection is founded upon a misapprehension of the true character of Mitchell's conveyance. It assumes that the heirs of Mark Mullarky mentioned in Mitchell's deed took merely a contingent trustestate, whereas the supposed trust is clearly an executed use under the statute. By virtue of that deed, Edward Mullarky took a legal estate for his own life, with remainder in fee to the heirs of Mark Mullarky as tenants in common. Of course, their estates were also legal vested estates. The deed imposed no duties upon Anthony Mullarky, either with respect to the beneficiaries or the estate conveyed; hence he took under it what is known as a "dry trust" merely, or, in other words, he acquired but a momentary seizin to serve the use which the statute executed by transferring the legal estates to the beneficiaries named. Such being the legal effect of the deed, it follows that at the time of James Mullarky's conveyance to appellee the remainder in fee of one-fifth of the land was in him, and consequently passed by his deed to appellee.

It is further claimed that John P. Mullarky was a minor at the time of his conveyance to appellee, and that as soon as he attained his majority he revoked it. We do not think the proofs justify the claim. A number of other objections are raised in appellant's brief, but they are so manifestly without merit that we decline to discuss them. The decree will be affirmed.

(125 111. 72)

PENNSYLVANIA Co. v. SLOAN.

(Supreme Court of Illinois. May 9, 1888.)

1. PARTIES-MISNOMER-EVIDENCE.

In an action for injuries sustained through negligence of defendant's servants, the original summons named as defendant the P., Ft. W. & C. R. Co., and was sued out within the statutory period after plaintiff's injury. Subsequently, but after the expiration of the statutory period, defendant was substituted upon the record. Under the issue raised by defendant's plea of the statute, evidence was introduced on the part of plaintiff to the effect that, several years before the injury, the P., Ft. W. & C. R. Co. had been sold out under a decree in foreclosure, and thereafter ceased to do business, and simply retained its organization for the purpose of closing up its affairs; that the road was subsequently leased to defendant, and that the latter was operating the road at the time of the accident, and when suit was brought, but that the cars on the track at that time were marked "P., Ft. W. & C. R. R., as were also the sign-boards, locomotives, and windows of the freight and ticket offices; that the agent upon whom the original summons was served, was the general freight agent of defendant company. Held, that this evidence was competent, as tending to show that defendant company was the real party defendant in the suit begun by the original summons.

2. LIMITATION OF ACTIONS-PLEADING THE STATUTE.

A plea of limitation to the whole amended declaration will not raise the point that a count added by the amendment introduces a new and outlawed cause of action.