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Opinion of the Court.

This was an action by Francilia M. Hotchkiss against Alvin S. Wadhams. The opinion of the court gives a sufficient statement of the case for an understanding of the points discussed and decided.

Mr. HENRY C. WHITNEY, for the appellant.
Mr. R. W. BRIDGE, for the appellee.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

This suit was originally commenced before a justice of the peace of Cook county. Appeal was prayed from the judgment there rendered, to the Superior Court of Cook county, where judgment was given in favor of the plaintiff, from which this appeal is prosecuted.

We think the statute, itself, furnishes a complete answer to the objection urged in consequence of the change of the name of the plaintiff before the justice of the peace. It provides: “the justice may, at the request of either party, at any time before the trial, amend the summons and other papers in the case, so as to make the same conform to the true names of plaintiff and defendant; but this section shall not be construed to allow any proceeding against a person not served with process and not appearing.” (Gross' Stats. of 1872, p. 238, $ 38.)

The law does not require that the justice of the peace shall make a record showing a request, and by whom made; nor does it require that the request shall be in writing and preserved with the papers in the case. It is sufficient that he does make the change in the name of the party, when requested by either party. Here, he made the change, and the record of the judgment being in the name to which the change was made, authorizes the presumption that it was done before the trial. The appellant appeared, and contested the case upon its merits, without, so far as the record shows, making any objection to the change in the name of the plaintiff, and recovered judgment against her for $1. We must presume the change was by her request; and she had the unquestioned right to appeal froin the judgment thus rendered against her.

Opinion of the Court.

The appeal was prayed to the Superior Court of Cook county, and so the bond was, which was filed with the justice; but op some inadvertence, the papers were filed in the office of the circuit clerk, and the case was docketed on the record of that court. When the mistake was discovered, the circuit court ordered that the case be transferred to the Superior Court, which was accordingly done, and the case was then docketed in that court.

It is insisted, the circuit court acquired jurisdiction of the case, by the filing of the papers in that court. We do not concur in this view. The law gave appellee the right to select which court she would appeal to, and having made the selection, both parties were bound by it. Appellant should have followed the appeal to the Superior Court, and he was under no obligation to look after it elsewhere.

The case is very different from the one supposed by counsel, where suit is commenced and jurisdiction acquired by the court. There was no jurisdiction here, in the circuit court, because the appeal was to a different court, and the papers were filed there by mistake. No summons was issued, or was necessary; and no steps were taken by appellee, which can be held to have estopped her from having the case tried in the Superior Court.

It would probably have been more regular for the circuit court simply to have stricken the case from its docket, when appellee could have filed the papers in the Superior Court; still, the course pursued, practically, amounts to the same thing. The court disavowed its jurisdiction, parted with all control over the case, and jurisdiction was taken by the proper court.

The objection that Judge Sibley could not hold a branch of the Superior Court is not tenable. He was one of the circuit judges oť the State, and we have elsewhere held, it was competent for them to hold terms of the Superior Court, and that it is not objectionable that more than three branches thereof are being held at the same time.

Judgment affirmed.

Statement of the case.

80 440! 128 296

JAMES PRATT et al.

V.

HORATIO 0. STONE et al.

1. TRUST—equitable rights under, barred by laches. Where a party claiming land under a secret trust, on the ground of having paid the purchase money through a brother, to whom a conveyance was made, makes no active assertion of his claim for nineteen years, and gives no notice to others purchasing of his brother, and the purchaser causes a portion of the premises to be platted and laid off into lots, and makes sales, and in the meantime the property increases largely in value, such party, and those claiming under his equity, will be estopped and barred in equity from enforcing the secret trust, by their laches and the lapse of time.

2. SAME-failing to give notice and assert right. Where the holder of the legal title to land disposes of the same, and the purchaser afterwards brings suit in equity for a specific performance, and one claiming a secret resulting trust fails to repudiate the sale so made by the holder of the legal title, or intervene to protect his rights, and neglects to notify those claiming under such purchaser of his rights or intention to repudiate the sale, it would be inequitable to allow him, and his wife claiming under him, to assert their claim to the land after the lapse of nineteen years from the creation of the secret trust.

3. PURCHASERwhen protected from secret trust. A party purchasing land, the title coming through one holding the legal title of record, without notice of any secret trust claimed to exist under a verbal agreement with the holder of the legal title, will be protected against the claim under the trust.

APPEAL from the Circuit Court of Cook county; the Hon. E. S. Williams, Judge, presiding.

This was a bill in chancery by James Pratt and Emily J. Pratt, his wife, against Horatio 0. Stone, William Golding, Fanny Reynolds, Charles Hobbs, George Brandt, Charles G. Smith, Berthold Lowenthal, Patrick Coney, Asahel 0. Bassett, Julian G. Iverson, Martin 0. Head, John N. Ridgely, Leo Silverman, William Kleuger, Henry C. Murly, Hugh H. Edwards, Edward P. Town, Michael McGovern and A. M. Pence. The nature and object of the bill is fully stated in the opinion.

Opinion of the Court.

Mr. JESSE O. Norton, for the appellants.

Messrs. MONROE, BISBEE & Gibbs, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

Appellants filed their bill in chancery in the Cook circuit court, against appellees, to obtain a deed of conveyance for certain real estate in and near to the city of Chicago. The bill charges that, on the 18th day of May, 1852, Stephen Bronson owned, in equity, the property in controversy, and that John Deniston held the legal title for his use; that complainant James Pratt agreed with Bronson for its purchase for $2089, of which $489 was to be paid on the delivery of a deed, the balance to be paid in installments. Pratt made an arrangement with his brother, Amos Pratt, to join him in the purchase. James was to pay the first installment, they to give their joint notes for the balance, and each was to pay onehalf.

The bill alleges that Jaines gave to his brother Amos the money to make the cash payment, and the promissory notes signed by him; that Amos completed the purchase, paying the money and delivering the notes, and received from Deniston a conveyance, in his own name.

About the 25th of September, of the same year, Amos, by written agreement, sold the premises to Clement H. De Wolf, for Calvin DeWolf, for the sum of $4050, to be paid in installments. The purchaser was to pay all taxes, and in case of default in payment, Pratt was authorized to declare the instrument void at his option.

In September, 1853, Amos Pratt assigned all of his interest in the agreement between him and De Wolf, to Warren Packer. The assignment was to secure Packer for a loan of $2666.66. The indebtedness was incurred in the purchase of lands from Packer. The papers were left with Brown & Hurd, of Chicago, and if payment was made, the agreement was to be returned to Pratt, but if not, then to be delivered to Packer, and he to be authorized to sell the same at public auction, and

Opinion of the Court.

appropriate a thousand dollars to himself, as liquidated damages.

Pratt failed to pay, and the agreement was delivered to Packer, and on the 28th day of January, 1854, he sold the same at public auction, and Horatio 0. Stone became the purchaser at $1000. He had previously agreed to bid that suin. Packer, on this sale, transferred all of Pratt's rights to Stone. It is charged that, before he purchased the agreement of Packer, he had purchased of DeWolf the 15-acre tract at $4225, paying $225 in hand, and was to pay the balance to Pratt. On such payments being made, De Wolf was to con

vey to Stone.

It is charged that, on the 4th of February, 1854, De Wolf conveyed the 15-acre tract, by special warranty deed, to Stone, without payment to Pratt or De Wolf. It is alleged that these proceedings were ineffectual to convey this tract, inasmuch as in the notice of sale by Packer, this tract was described as being in section 24, when it was, in fact, in 34; that on the 26th day of September, 1855, Stone caused this tract to be platted and laid out into lots.

It is also alleged that Amos Pratt, on the 7th of October, 1853, deeded this 15-acre tract to Jeremiah Pratt, stating to him that one-half thereof belonged to James Pratt, and that Jeremiah has at all times since admitted that he holds such rights, and that he held one-half in trust for James.

The bill further alleges that Stone, in December, 1856, filed a bill against Amos and Jeremiah Pratt for a specific performance, but on a hearing the bill was dismissed; that on an appeal from that decree to this court, it was affirmed; that in August, 1861, Clement H. De Wolf, for the benefit of Stone and Calvin De Wolf, as it is alleged, filed a bill for a specific performance against Amos and Jeremiah Pratt, Horatio 0. Stone and others, setting forth all of the agreements, sales and conveyances, and praying that the Pratts be required to convey; that on a hearing, the circuit court dismissed the bill; that no appeal was prayed or taken, nor was any writ of error ever sued out of this court, but the attorney for complainant ob

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