idated, and the St. Louis, & Southeastern Railway Company; William F. Whitehouse and Charles W. Opdyke becoming the purchasers, who on January 27, 1881, conveyed the railway so purchased by them to the Southeast & St. Louis Railway Company, organized under an act of the general assembly approved March 1, 1872, (Rev. St. 1874, p. 799,) and this company leased the line of railway so purchased, and conveyed it to the defendant, the Louisville & Nashville Railroad Company. There are two trains which run daily on the Y track from and to the depot in McLeansboro to the depot on the main line one-fourth of a mile from McLeansboro, and connect with the two through day passen-ger trains on the main line running from St Louis to Nashville, and from Nashville to St. Louis, and the afternoon train from the depot last named to the one in McLeansboro connects with the train running to Shawneetown. But there are no night trains so running to connect with the two through night passenger trains on the main line. The object of the writ is to require all the passenger trains on the railroad to stop at the depot in McLeansboro.

The alleged obligation of the defendant to run all its passenger trains to the depot within the corporate limits of McLeansboro, which it is sought to have enforced, is claimed to be one arising under the contract made between the St. Louis & Southeastern Railway Company, and also under the charter of the Evansville & Southern Illinois Railroad Company, of which the former company was the successor, by consolidation. By that contract there was an agreement with the county of Hamilton that the St. Louis & Southeastern Railway company should erect and forever maintain a depot within the corporate limits of McLeansboro, not exceeding one-half mile from the court-house, at which depot all passenger trains running upon said railroad should stop. We attach no importance to the contract afterwards entered into by the county court of Hamilton county, whereby it attempted to release the St. Louis & Southeastern Railway Company from its obligation to run all passenger trains to the depot within the corporate limits of McLeansboro. County courts can only exercise such powers as are conferred by statute, expressly or impliedly. The county court was authorized by the voters of the county only to make the contract which was entered into for the running of trains to the depot within the corporate limits; but it had no authority, as we consider, express or implied, to release that contract. But, although the contract remained binding upon the St. Louis & Southeastern Railway Company, it constituted no lien upon the property of the railroad company, certainly as against a purchaser without notice. Nor did it attach in any way to the real estate of the company so as to make it a covenant running with the land, which would be binding on a succeeding purchaser of the railway.

By virtue of a decree of foreclosure of mortgages which had been executed by the company, the St. Louis & Southeastern Railway, together with all its property, rights, and franchises, was, on the sixteenth day of November, 1880, sold at public auction, and Whitehouse and Opdyke, the committee appointed by the bondholders for that purpose, became

the purchasers of the railway for the sum of $6,500,000. Afterwards Whitehouse and Opdyke conveyed the railway, so purchased by them to the Southeast & St. Louis Railway Company, which had been organized under the general law of the state for the purpose of purchasing, owning, operating, and maintaining this railway, and this company leased the railway to the defendant. The purchaser at the foreclosure sale took the railway free and unincumbered of this personal contract which had before been made by the St. Louis & Southeastern Railway Company with the county of Hamilton. Morgan Co. v. Thomas, 76 Ill. 120; Wiggins Ferry Co. v. Ohio & M. Ry. Co., 94 Ill. 83.

As said in the former case, the purchaser deriving his title from the sale, he took what he purchased subject to no liens or claims save such, if any, as were paramount to the deed of trust under which the sale was made. We find here no such paramount lien or claim; especially so, as the purchaser had no notice of the agreement as to running to the depot. There is no privity between the St. Louis & Southeastern Railway Company and this Southeast & St. Louis Railway Company, under which the defendant holds. The latter is a wholly new and an entirely distinct and independent corporation from the former.

In the case of City of Menasha v. Milwaukee & N. R. Co., 52 Wis. 414, S. C. 9 N. W. Rep. 396, the railroad company had entered into an agreement with the village, now city, of Menasha that, in consideration of the village issuing to the company $60,000 of its corporate bonds, the company, among other things, agreed that it would not extend its tracks and connect the same, within three miles of its depot in the village of Menasha, with any other railway so as to permit the passage of cars from one road to the other. Afterwards, and after the railway company had received the $60,000 of bonds, the railroad was sold at foreclosure sale, and another railroad company, organized for the purpose, purchased it. The court there say:

"The covenant between Menasha and the old company was a personal contract, and binds only that company and its successors and assignees within the restricted meaning of such words; and a purchaser of the property and franchises is neither a successor nor assignee, and is in no way bound by the contracts of the old company except when such contracts are a lien upon its property, or in some other way bind the property or franchise."

It is next contended that, aside from contracts, the obligation which is here sought to be enforced is imposed by the charters of the St. Louis & Southeastern Railway Company and the Evansville & Southern Illinois Railroad Company from the use of the words "to" and "from" in their respective charters; that of the former being to build railway "thence to McLeansboro, thence to Equality," etc.; and that of the latter being "to build a railway from the town of McLeansboro," etc. The conditions of running to and from McLeansboro did not require the railroad to come within, or to start from within, the corporate limits of McLeansboro; still less to and from a particular place within such corporate limits. We consider that those conditions would be satisfied by the railroad coming to, or running from any point at, the boundary line of the corporate limits on either side of the town. The prayer here is for a writ of mandamus

commanding the defendant company to run all its passenger trains "to stop at said depot in the town of McLeansboro to receive or put off passengers," said depot being the depot built within the corporate limits of McLeansboro, within one-third of a mile of the court-house there. Surely there cannot be derived from these charter provisions of running to and from McLeansboro the obligation to run trains to this particular designated spot within the corporate limits of McLeansboro.

The writ prayed for must be denied. Mandamus refused.

SCOTT and SCHOLFIELD, JJ., dissent.

(116 Ill. 194)

COCHRAN v. FOGLER.

Filed January 25, 1886.

ESTOPPEL-RES ADJUDICATA-PREMATURE ACTION OF FORCIBLE DETAINER, BY FORECLOSURE PURCHASER, FOR POSSESSION-WRIT OF ASSISTANCE NOT BARRED. Where a foreclosure purchaser was denied possession of the premises, and thereupon brought an action of forcible detainer therefor, before a justice of the peace, and failed therein, but at that time had not complied with the provision of the decree requiring him to produce the master's deed and certified copy of the order of court confirming the master's report, which requirement he afterwards complied with, such judgment by the justice of the peace is no bar to his subsequent application for a writ of assistance.

Appeal from appellate court.

Archroft & Stillman, for appellants.

Carroll & Folger and J. M. Truitt, for appellee.

TUNNICLIFFE, J. At the September term, 1882, of the circuit court of Fayette county, the appellee, as administrator of the estate of Samuel Folger, deceased, obtained a decree for the foreclosure of a mortgage given by appellant and his wife to said Samuel Fogler in his life-time. The decree found the amount due appellee to be $2,567.55, and, in default of payment, directed the master in chancery to sell, and apply the proceeds to the payment of the costs, attorney's fees, and amount due appellee. The land was sold by the master, and bid in by appellee for $2,786.42, and, not having been redeemed, a deed was made to him, in pursuance of the decree, on the twenty-first of February, 1884. Appellant and his wife resided on the land at the time of the sale and prior thereto, and have continued to do so ever since. On the ninth of May, 1884, appellee made a demand in writing upon appellant for the possession of the premises, and on the nineteenth of the same month began a suit for forcible detainer before a justice of the peace to obtain possession of the land. Upon the trial of this action, the justice found the appellant not guilty of wrongfully withholding the possession of the premises from appellee, and that appellee was not entitled to the possession thereof, and rendered judgment against appellee for costs, which was not appealed from. After the trial of the case before the justice, appellee made application to the circuit judge at chambers for a writ of assistance to place him in possession of the land by reason of the foreclosure

proceedings, and of the order of the court in the decree of sale, which is as follows:

"And it is further ordered, adjudged, and decreed that, upon the execution and delivery of the conveyance or conveyances as aforesaid, the said purchaser or purchasers, his or their representatives or assigns, be let into possession of the portion of said mortgaged premises so conveyed to him or them, and that any of the parties in this cause who may be in possession of said premises, or any portion thereof, * * * on the production of the master's deed of conveyance, and a certified copy of the order of this court confirming the report of said sale, shall surrender possession thereof to such purchaser or purchasers, their representatives or assigns, and on refusal so to do, will be considered in contempt of this court."

Appellant resisted this application, and interposed the proceedings in the forcible detainer suit as a bar thereto. The circuit judge ordered the writ of assistance to issue, from which order appellant appealed to the appellate court for the Fourth district, and that court affirmed the order of the circuit judge, and appellant brings the case to this court.

The only questions presented are whether the proceedings in the forcible detainer suit were a bar to the granting of the writ of assistance, or was a matter of such a character, arising since the rendition of the decree, regarding the delivery of the possession of the premises to appellee, as to make it unjust and erroneous for the circuit judge to have awarded the writ. It appears from the evidence in the case that at the time of the commencement of the forcible detainer suit the appellee had not produced to appellant the master's deed of conveyance, "and a certified copy of the order * * * confirming the report of said sale," as required by the decree of sale. We are of opinion that the action of forcible detainer was not a bar to appellee's right to apply for and obtain this writ. That suit could not bar any right not then in existence, and in regard to which no issue was made before or tried by the justice in that proceeding. Appellee had no right to apply to the circuit judge for this writ until he had complied with the decree by presenting to appellant the master's deed of the premises, with a certified copy of the order of the court confirming the report of the sale. Until he had done this his right to the possession under the decree had not accrued..

The case of Flowers v. Brown, 21 Ill. 270, relied upon by appellant, is not an authority to show that the writ of assistance was improperly granted in this case. In that case the mortgagor, after the decree of sale, had entered into a contract for the purchase of the mortgaged premises, had obtained further time for payment, had paid part of the purchase money, and the mortgagee, the complainant in the foreclosure suit, had promised to make a deed upon payment of the balance, and, having thus acquired a new right to hold the premises, it was held erroneous to issue a writ to turn him out of possession until his right to a specific performance could be determined. In that case new facts had arisen after the decree, which would have rendered it unjust and inequitable to execute that part of the decree which required the mortgagee to surrender the possession. In this case nothing has occurred since the decree which gives to the mortgagor any just grounds for withholding from appellee, the possession of the premises. His right to redeem the prem

ises from the sale had expired, and his only pretense for retaining the possession is based entirely upon the supposed advantage which the decision of the justice in the forcible detainer suit gives him. This, as we have seen, is more imaginary than real, and affords no grounds for preventing a court of chancery from executing its decree as right and justice demand.

As was said in Aldrich v. Sharp, 3 Scam. 261:

"It is a well-established principle that when a court of chancery obtains jurisdiction of the subject-matter of a suit, it will retain the jurisdiction to the end, that complete justice may be done between the parties. It has the power to decree a sale of the mortgaged premises, and thereby pass the title to the purchaser, and will put him in possession instead of driving him to his action of ejectment. It would be but partial justice to adjudicate upon the rights of the parties, and vest the title in the purchaser, without affording a remedy to carry the adjudication into full effect. The court, having the power to dispose of the title, has the right to control the possession."

And it cannot be objected that the case is no longer lis pendens after a decree and sale, and a conveyance executed, because the court of chancery is not functus officio until the decree is executed by delivery of possession. Kessinger v. Whittaker, 82 Ill. 22; Jackson v. Warren, 32 Ill. 340. We find no error in the record, or merits in the appellant's case, and the judgment of the appellate court is therefore affirmed.

(115 Ill. 412)

WEINGAERTNER and others v. PABST and others.
Filed January 25, 1886.

SPECIFIC PERFORMANCE-CONTRACT TO SUPPORT, IN CONSIDERATION OF PROMISE
TO CONVEY.

Specific performance will not be decreed unless the complainant clearly shows a substantial performance on his part. In this case, which was a bill to enforce a contract to convey in consideration of a contract to support the other parties to the contract during their lives, and pay certain sums to their other heirs, the complainant fails to prove performance in either of these respects, and a decree for specific performance is reversed

Error to Monroe.

E. P. Slate, for appellants.

Winkelman & Ricket, for defendants.

SCOTT, J. The bill in this case is for specific performance, and was originally brought by Melchior Pabst against the widow and heirs at law of John D. C. Weingaertner, deceased. Afterwards the bill, by leave of court, was amended so as to make the children of the original complainant by his wife, Dorothea, since deceased, complainants with himself. In the amended bill it is alleged that John D. C. Weingaertner, since deceased, was the owner of the real estate in controversy, and that some time in the year 1871 decedent, who then resided on the premises with his wife, Dorothea, being anxious to establish a permanent home for himself and wife, both of whom it is alleged were old and feeble in health, requested the original complainant, Melchior Pabst, who was then their son-in-law, having before that time married their daughter, and his wife, Dorothea, to take possession of the premises, consisting of v.5N.E.no.2-25