order to determine whether the lands involved fell within them. Under clause 6 of the article all property belonging to a town, village, or city used exclusively for the maintenance of the poor, and all public buildings belonging to a city or incorporated town, with the ground on which such buildings are erected, not exceeding 10 acres, is exempt; under clause 8 all fire-engines with the building used for the safe-keeping thereof, and the lot on which the building is located, when belonging to any city, town, and village, are exempt. Under clause 9 all market-houses, public squares, or other public grounds used exclusively for public purposes; all works, machinery, and fixtures belonging exclusively to any town, village, or city, and used exclusively for conveying water to such town, village, or city are exempt. We find no other provision of the statute exempting from taxation any other property held or owned by a city or incorporated town, and if there is any other provision it has escaped our attention. No argument is needed to show that lands like the Gage farm, held or owned by a city or incorporated town do not fall within any one of the provisions of the statute above exempting property from taxation. Indeed, we do not understand that counsel for the city claim that the property falls within any one clause of the statute which we have cited; but to use their own language: The position of the city of Chicago in the case at bar is that the property is public land, held by the city exclusively for public purposes. The land represents and takes the place of so much public money. It is held by the city, not in its "social or commercial capacity" as a private corporation, and for its own benefit, but it is held by the municipality in its governmental capacity, as one of the agencies of state government. It is true, the city obtained this property from Gage in payment of money he had appropriated to his own use, which had been raised by taxation; but that fact does not exempt the property from taxation. All property of every description in the state, except such as has been specifically exempted, is required to bear its just proportion of the burden of taxation; and as held in Re Swigert, 119 Ill. 83, 6 N. E. Rep. 469, all laws exempting property from taxation will be subject to a strict construction by the courts when called upon to enforce them, and hence nothing will be held to come within the exemption which does not clearly appear to be so, and all reasonable intendments will be indulged in favor of the state, The difficulty with the position of appellee is that the legislature has nowhere provided that a city or incorporated town may acquire a large tract of land and hold it for years free from taxation. There is a necessity for exempting from taxation the public buildings of a city and the grounds upon which they stand not exceeding 10 acres, but why a large tract of land located remote from the city should be held by a city free from the burdens of taxation for years it may be difficult to understand. City of Chicago v. People, 80 Ill. 384, has been cited as authority, but the case has no bearing here. In that case it was held, where moneys belonging to the school fund derived from sale of sixteenth section are loaned on mortgage security, and the title to real estate is thus acquired on foreclosure of such mortgage, and held in name of the city for school purposes, such lands are not subject to taxation. The decision is predicated on the ground that real estate thus acquired in fact belongs to the state in trust for school purposes, which is expressly exempted from taxation by section 2, supra. Under the stipulation of facts shown by the record, the school funds which went into the lands here involved were not derived from sale of section 16, but arose from general taxation. The fact, therefore, that a portion of the money which paid for the lands was school funds has no bearing on the case. It is also suggested that the funds embezzled by the city treasurer were not and would not be subject to taxation, had they remained in the treasury, and as these lands represent the embezzled funds they are also exempt. But the funds which were in the treasurer's hands, were not placed there to remain as a permanent fund. Those funds were raised to be paid out to defray the

expenses of the city, and of course it was not a fund liable to taxation; but if a city had the power to accumulate a large fund, and hold it from year to year in its treasury, or kept it at interest, no reason is perceived why such fund might not be taxed. These lands have been held for a number of years. It is not claimed that they now or ever will be needed for any municipal use of the city; on the other hand, they are held for profit for the annual increase in price, and we perceive no reason why the city should not pay taxes where lands are so held, in like manner as an individual who purchases and holds lands as an investment. The judgment will be reversed, and the cause remanded for further proceedings consistent with this opinion.

(124 III. 587)

EINSTEIN et al. v. HASKELL et al.

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

APPEAL-REVIEW-TRIAL BY THE COURT.

When a case, after being tried by the court without submitting written propositions to be held as law, as allowed by Rev. St. Ill. c. 110, § 42, is appealed to the appellate court, and thence to the supreme court, the latter court has nothing to consider, the decision of the trial court upon the law and that of the appellate court upon the facts being final.

Appeal from appellate court, First district.

Suit by attachment brought by Simon D. Haskell and Henry Brown against Mellors & Son to recover a debt due them. Defendants made no defense, judgment passed by default, and the First National Bank of Michigan City and Einstein & Rosenthal, who had been served with garnishee process, were held liable. From a judgment of affirmance in the appellate court the garnishees further appeal to the supreme court.

Hervey H. Anderson, for appellants. Tenney, Bashford & Tenney, for appellees.

MAGRUDER, J. On October 13, 1884, appellees commenced a suit in attachment in the superior court of Cook county against William Mellors & Son, residents of the state of Indiana, to recover an indebtedness of $2,074.02 for goods sold and delivered. The attachment writ was served upon the appellants as garnishees, the bank having been served October 18, 1884, and Einstein & Rosenthal October 13, 1884. Interrogatories were filed to be answered by the garnishees. The garnishees filed their answers, and the answers were traversed by the plaintiffs. Mellors & Son made no defense to the claim, and judgment by default was rendered against them for the full amount of their indebtedness to the plaintiffs. Upon the issues made by the interrogatories, and the answers thereto, the cause was submitted, by agreement to the court, for trial without a jury. The finding was in favor of the plaintiffs. New trial was refused, and judgment rendered against the bank for $1,683.68, and against Einstein & Rosenthal for $1,540.08, the latter to be satisfied on payment of the former. Upon appeal to the appellate court of the First district, the latter court has affirmed the judgment of the superior court, and the case comes before us upon the appeal of the garnishees from the judgment of the appellate court.

Einstein & Rosenthal, who lived in the city of Chicago, held, as bailees, certain money and property belonging to Mellors & Son. It is claimed that Mellors & Son, being indebted, on October 7, 1884, to the First National Bank of Michigan City, in the sum of $1,780, on their note for that amount, executed to the bank on the latter day a transfer assignment or bill of sale of all the money and effects belonging to them, which were then in the hands of Einstein & Rosenthal, and directed the latter to deliver possession of such money and effects to the bank. On October 8, 1884, Einstein & Rosenthal paid the bank $143.60, which sum was credited on the note for $1,780 on

October 11th, and sold the goods, which they held for the bank after October 7th for $1,540.08, but were garnished before the money was paid over. The $1,540.08 was paid to the bank on October 17th, and credited on the note on October 18, 1884, leaving a small balance still unpaid. On October 8, 1884, Mellors & Son also gave the bank a chattel mortgage on chattels in Michigan City, Ind., to secure what remained unpaid of the $1,780, after applying the Chicago property. On the same day Mellors & Son, in Indiana, and under Indiana law, made an assignment for the benefit of creditors to one Blinks, including in such assignment the property embraced in the chattel mortgage, and leaving out the money and property in Chicago. The question before the trial court was whether the bank was the owner of the money and effects in the hands of the bailees in Chicago, or whether such money and effects belonged to Mellors & Son, so as to entitle appellees to subject them to the payment of their debt through the attachment suit. Involved in the question thus stated was the validity of the transfer from Mellors & Son to the bank, and the assignment to Blinks, and also of the chattel mortgage. We are obliged to hold in this case, as we have held in a number of other cases, that there is nothing before us for our consideration. We cannot consider any of the questions of fact, because they are all settled by the judgment of the appellate court. We cannot consider the questions of law suggested by counsel, because the trial in this case took place before the court without a jury, and no "written propositions to be held as law in the decision of the case,' were submitted to the trial judge in accordance with section 42 of the practice act, (Rev. St. Ill. c. 110, § 42.) This point is made by the appellees, so that we cannot avoid passing upon it, and we must adhere to our former ruling. Where there is a trial before the court without a jury, in order to present a question of law to this court, the party should submit propositions of law to the trial court, as provided for in the section referred to. Association v. Hall, 118 Ill. 169, 8 N. E. Rep. 764.

The judgment of the appellate court is affirmed.

(125 Ill. 85)

HARDING v. Gibbs.

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

VENDOR AND Vendee-OPTION TO PURCHASE-NOTICE.

The parties to a lease indorsed upon it an agreement that the lessee should have the privilege of purchasing the premises during the first year, on certain terms therein stated; but that if the lessor should have an offer for the property, 10 days' notice thereof should be given to the lessee, who should have the privilege of buying at such offer, and if he did not decide to purchase, the lessor should have the privilege of selling. Within the year the lessor sold the property, and, after the deed was given, notice of the offer signed by the lessor was served on the lessee, who made no election to purchase. Held, that this terminated the lessee's option, and that he could not thereafter maintain a suit for specific performance.

Appeal from superior court, Cook county; G. GARNETT, Judge, George R. Grant and C. H. Morse, for appellant. Pliny B. Smith and Walter B. Gibbs, for appellee.

SHELDON, C. J. This was a bill for specific performance of an agreement for the sale of certain real estate. Frederick C. Gibbs, on March 25, 1885, took a lease from Uzziel P. Smith of the premises in question for the term of five years from May 1, 1885. At the same time there was indorsed on the lease an agreement, signed by both parties, that during the first year of the tenancy the lessee was to have the privilege to purchase the premises at the sum of $9,500, of which $2,250 was to be paid in cash; $2,250 on or before one year after date of delivery of a warranty deed, to be secured by note and trust deed, and the balance by the assumption of a note and trust deed already on the premises for the sum of $5,000. But if the lessor should have an offer

for the property, 10 days' notice thereof was to be given to the lessee, and he was to have the privilege of buying at said offer. Said price in any event not to exceed $9,500, and if the lessee did not decide to purchase the property, the lessor should have the privilege of selling the same. But if the lessee should decide to purchase, he should be allowed 30 days to close the purchase; and in the event of the lessor having an offer for the property after the expiration of the first year, the lessee was to have the first privilege of buying at said offer. George F. Harding offered Smith for the property $9,500, assuming the mortgage and canceling some indebtedness, the balance, $100, to be paid in cash. Harding took the property on those terms. A quitclaim deed of the property, bearing date April 1, 1885, was made to him by Abner C. Harding, who held the legal title to the property in his name in trust for Smith. On May 9, 1885, a written notice, signed by Smith, was served on Gibbs that Smith had an offer of $9,500 for the property, and Gibbs did not make any election to purchase the same. A previous notice had been given some two or three weeks before, having signed to it the name of Smith by Harding. On February 15, 1886, Gibbs made a tender to Harding of the money and note and trust deed provided for in the contract, and offered to assume the $5,000 mortgage then on the premises, and demanded a deed from Harding, which the latter declined to execute on the ground that Gibbs' option had been determined by the notice of May 9th. Gibbs then filed this bill against Smith & Harding for the specific performance of the contract. The superior court granted the relief prayed, and Harding took this appeal.

There is essentially no dispute as to the facts in the case, and the justification of the decree is rested by appellee's counsel on but the one point; that the notice of the offer of purchase of the property should have been given by Harding instead of by Smith. As there had been a deed of the property made by Smith to Harding before the giving of the notice, it is insisted that by such conveyance all right in the property passed from Smith and vested in Harding; that at the time of the giving of the notice Smith had no right or interest with respect to the property, but that it was all in Harding, and that he alone could give the notice. At the time Harding took his conveyance of the property he also took an assignment of the lease between Smith and Gibbs, with an agreement indorsed thereon, signed by himself, that he does not accept the assignment of the lease except upon the understanding and agreement that Smith shall give Gibbs notice of his offer for the property, and his purchase shall not be effectual until Gibbs' right to buy shall terminate under such notice. It is said Gibbs had no notice of the agreement. This may be. It does not appear by the record that he had, and we will consider the case irrespective of this agreement. There was here but an option to purchase. The obligation was on only one side. Smith was obliged to sell, but Gibbs was not bound to purchase. Where the contract is in any wise unilateral, as in the case of an option to purchase, any delay in the party in whose favor the contract is binding is looked at with especial strictness. Fry, Spec. Perf. § 733. Smith was willing to give Gibbs the privilege of buying the property during the first year of his tenancy, but he was not willing to lose the opportunity of making a sale during that time. So he does not give Gibbs an absolute option of purchase within one year at the price named, but gives the option with this express proviso, that if during the year Smith should have an offer for the property, and should notify Gibbs of it, that Gibbs should thereupon have 10 days in which to make an election whether he would purchase the land upon the terms offered by such third party, and that if he should elect to so purchase, he should have 30 days in which to close the transaction. If, however, he did not so elect, then Smith was to be at liberty to sell the property. To avail himself of this option, required strict compliance on the part of Gibbs. The precise condition had occurred here which terminated this option. There was an offer to purchase, notice by Smith to Gibbs of the offer,

and failure of Gibbs to make an election to purchase at the price offered within 10 days after the notice. The fact that there had been a deed made under the offer was of no consequence to Gibbs. His was the superior right, and the exercise of his option within the time limited would have avoided the conveyance which had been made. The conveyance rather strengthened the case of appellant. It showed not only an offer to purchase, but demonstrated that the offer was a real one. Had there been but a mere offer to purchase, there might have been doubts as to its genuineness. Whether the notice was given by Smith or Harding seems but a matter of so merely a technical character that it should not have favor in a court of equity. There is no substantial equity in it. The terms of the agreement required the notice to be given by Smith, as it was; but, whether given by Smith or Harding, Gibbs knew there was a chance to sell the land, and his plain duty under the agreement was to exercise his option at once within the 10 days, and not let pass the opportunity to make a sale of the land. He could not consistently with any principle of fair and honest dealing, under the contract which he had made, destroy the opportunity of making a sale, wait until the expiration of the year to see if there might not be an increase in value of the land, and then exercise his option to purchase. We conceive too, that Smith had the right, under the agreement, to give the notice, in order to the protection of his interest under the agreement. If only the purchaser from him, where there had been a sale, could give the notice, then, on the purchaser's omission to give the notice, Smith might lose the benefit of such sale, as Gibbs could avoid it by the exercise of his option thereafter.

The decree of the superior court will be reversed, and the cause remanded for further proceedings in conformity with this opinion.

(125 I11. 82)

ELLIS v. ROCK ISLAND & M. C. R. Co.

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

EMINENT DOMAIN-MEASURE OF DAMAGES-IMPROVEMENTS.

Where a railroad company, under agreement with one in possession of land under a mortgage lien, and other claims apparently valid, and supposed to equal the value of the property, was to receive a deed as soon as the lienor's title was perfected, and in good faith took possession, built its road-bed, side tracks, depot buildings, stock-yards, etc., and another was afterwards discovered to have a superior title, on proceedings by the company to condemn the property the owner is not entitled to its value as enhanced by the improvements.

Appeal from circuit court, Mercer county; T. T. GLUM, Judge.

J. C. Pepper and George W. Spahr, for appellant. Henry Curtis, for appellee.

MULKEY, J. In the spring of 1887, the Rock Island & Mercer County Railroad Company commenced proceedings, under the eminent domain act, in the Mercer county circuit court, to condemn for right of way, depot grounds, etc., a part of a certain tract of land belonging to the appellant, Thomas B. Ellis. After settling the pleadings, which were unusually prolix, the cause was heard before the court and jury, resulting in a finding and judgment in favor of Ellis, and against the company, for $1,050. Ellis brings the record here, and asks a reversal on a number of grounds. The greater portion of the matter which has found its way into the record throws but little light upon the real issue in the case; and it might therefore, with profit to all parties, have been dispensed with altogether. As in most cases of this kind, the main question is, how much shall the petitioner pay to the land-owner as compensation for the land actually taken, and what, if anything, on account of damages to the portion not taken? The company does not deny its liability, but simply questions its extent.