10. By what officer-in Cook county. The county of Cook, under the
constitution and statutes of the State, is to be considered as under town-
ship organization, and therefore the treasurer of the county, as er officio
collector, is the proper person to apply for judgment against delinquent
lands and lots for taxes and special assessments due thereon. The Peo-
ple ex rel. v. Brislin, 423.

POWER OF CORPORATIONS.

To levy taxes. See CORPORATIONS, 11.

DESCRIPTION OF PROPERTY.

For purposes of taxation. See DESCRIPTION, 1, 2.

TAX TITLE.

WHO MAY ACQUIRE.

1. A party having recognized and acted upon a claim of title through
the will of one claiming to own it, and who devised it to his three sons,
by purchasing the interest of one of the sons, under a sale on execution
against him, and by purchase from the heirs at law of another of the
sons, can not be permitted to set up a tax title acquired through a sale
made for taxes to one who was at the time acting as the agent of one of
the tenants in common, and for the benefit of all, to defeat the right of
the other tenants in common to a partition. A tax deed acquired under
such circumstances could have no greater effect than that of the pay-
ment of taxes on behalf of the tenants in common, unless it might be to
stand as a security for the taxes and expenses paid. Bracken et al. v.
Cooper et al. 221.

TENANTS IN COMMON.

POSSESSION BY ONE.

1. For the benefit of all. A party died, claiming real estate, having
paid taxes on it for one or two years, and his executor treated it as be-
longing to the estate, and paid taxes on it so long as he managed the
estate, and after he ceased to manage the estate, a son of the testator,
who was one of his devisees, paid taxes on it for three years, and then
put a tenant in possession, who remained there until another bought him
out, who remained in possession up to the time of filing a bill for par-
tition by the sons and devisees of the latter: Held, that the son of the
testator who took possession of the land was, by reason of such posses-
sion and claim of title, to be taken as the legal owner of the land until
some one appeared who could set up a better right, and he having con-
fessed his possession to be for himself and his brothers, he and they, or
their assigns, were, as respected themselves, to be treated as tenants in
common of the land. Ibid. 221.

TENANTS IN COMMON. Continued.

OUTSTANDING TITLE.

2. Purchase by one tenant. A tenant in common can not purchase
in an outstanding title for his own exclusive benefit as against the in-
terest of his co-tenant. Bracken et al. v. Cooper et al. 221.

3. Where a mortgagee in possession of land died, claiming to own
it, and, by his will, devised it to his sons, and a stranger, by purchase,
became the owner of the interest of one of the sons, and tenant in com-
mon with the others, it was held, that such stranger could not purchase
the equity of redemption of the mortgagor for his own exclusive benefit
as against his co-tenants, but such purchase, if made, would enure to the
common benefit of himself and his co-tenants, at their option. Ibid.
221.

ESTATE BY THE ENTIRETY.

4. Converted into a tenancy in common by divorce of the parties. See
MARRIED WOMEN, 6.

TOWNSHIP ORGANIZATION.

IN COOK COUNTY. See TAXES AND TAXATION, 10.

TRESPASS.

EJECTING ONE FROM PREMISES.

1. Party using more force than is reasonably necessary. Although
a person has the right to eject another from his premises who forcibly
enters the same, or who, being there, uses indecent or abusive language,
or commits an assault upon him, yet, in so doing, he must use no more
force than is reasonably necessary for that purpose, and if he use more
force than is reasonably necessary under the circumstances of the case,
he will be liable, in an action of trespass, for whatever damage is there-
by done. Abt v. Burgheim, 92.

2. In such case, an instruction that the defendant would be justified
in using all the force necessary in expelling the plaintiff, is erroneous
in omitting the indispensable element of the reasonableness of the force
allowed. Ibid. 92.

WHEN LIES AGAINST OFFICER SERVING PROCESS.

3. Expulsion under writ against another. If one not a party to an
action of forcible detainer against a tenant is expelled under a writ of
restitution, and such party is not, in fact, a sub-tenant, but was occupy-
ing the premises with the tenant, or for him, or under his lease, then
such party can not recover in trespass for being dispossessed, when the
court issuing the writ had jurisdiction. Miller et al. v. White, 580.

TRUSTS.

WHEN A TRUST ARISES.

1. Title taken to secure payment of loan. Where a father holds an
equitable title to land, the legal title being in another as a security for

the payment of money, and the son advances the money due, and by
arrangement takes a conveyance from the holder of the legal title, as a
mere security for the repayment of the sum so advanced, which is not
near the value of the land, the son will hold the legal title merely in
trust and as a security, and the equitable title will remain in the father.
Low et al. v. Graff et al. Admr. 360.

2. But if the son purchases the land and advances the money as a
payment for it on his own account, he will take the complete title, both
legal and equitable, notwithstanding he may verbally agree that his
father may have the future use and occupation as long as he lives.
Ibid. 360.

LACHES IN ASSERTING RIGHT.

3. Where a party claiming land under a secret trust, on the ground
of having paid the purchase money through a brother, to whom a con-
veyance 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. Pratt et al. v. Stone et al. 440.

4. Where the holder of the legal title to land disposes of the same,
and the purchaser afterwards brings suit in equity for a specific per-
formance, 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. Ibid. 440.

WHEN TRUSTEES MAY PURCHASE. See PURCHASER, 1.

SECRET TRUST-PURCHASER PROTECTED.

USAGE.

Same title, 2.

AS AFFECTING CONTRACT. See CUSTOM AND USAGE, 1, 2.

VARIANCE.

IN POINTS ON LINES OF ROAD.

When immaterial. See HIGHWAYS, 5.

BETWEEN PLEADING AND PROOF. See PLEADING AND EVIDENCE,
1 to 4.

VENDOR'S LIEN. See LIENS, 5 to 8.

VENDOR AND PURCHASER.

SALE OF LAND.

1. Liability of grantor for failure of title. The grantor of lands, where the conveyance contains no covenants of title, and no fraud is shown, is not responsible for the failure of title to any particular tract conveyed. Niles et al. v. Harmon et al. 396.

VENUE.

CHANGE OF VENUE.

1. Court has no discretion in regard to, in civil cases. If a party, seeking a change of venue, complies with the requirements of the statute in relation thereto, the court has no discretion in the matter, but must award the change. Knickerbocker Insurance Co. v. Tolman et al. 106.

2. And the fact that the party seeking the change may have no merits, does not change the rule. The right to a change, upon comply. ing with the statute, is secured to him by an express provision of the statute, and the courts have no power to repeal, modify or mitigate any requirement of the statute. Ibid. 106

VERDICT.

SPECIAL VERDICT.

"

1. Whether inconsistent with general one. In an action against a railway company, to recover damages for causing the death of a person, through negligence, the jury found the issues for the plaintiff and assessed his damages, but also found, in response to special interrogations, that the deceased looked and listened for the cars while driving on the highway before going upon the railroad track, both before and after passing a cornfield which obstructed the view; that before going upon the track he was told to stop, as the cars were coming, but that he did not hear this, and that no beil was rung or whistle sounded by the approaching train which caused the death; it was held, that the special finding was not inconsistent with the general verdict, and did not justify the court in rendering judgment for the defendant. Dimick, Admr. v. Chicago and Northwestern Railway Co. 338.

IMPEACHING.

2. Can not, for mistake on statement of juror. Where a jury have returned a verdict which is, by the court, put in form, and the jury then polled, and each of them assents to the verdict after it is so put in form, they can not be permitted to come in afterwards and say they were mistaken, and thus impeach their verdict. Suver v. O'Riley, 104.

WAIVER.

OF DUE NOTICE.

Of loss by insured. See INSURANCE, 10. OF FORFEITURE OF POLICY. See same title, 21.

WILLS.

PROBATE OF WILL.

1. Sufficiency of proof by subscribing witnesses. Where neither of the subscribing witnesses to a will, whose mark only is made to their names, can identify the instrument as the one they had attested, and are not able to swear that the testator was of sound mind at the date of its execution, the proof will not authorize its probate. Crowly v. Crowly, 469.

2. Proof required to probate. To entitle a will to probate, four things must concur: The will must be in writing, and signed by the testator, or in his presence by some one under his direction; it must be attested by two or more credible witnesses; two witnesses must prove that they saw the testator sign the will in their presence, or that he acknowledged the same to be his act and deed; and they must swear that they believe the testator was of sound mind and memory at the time of signing or acknowledging the same. Ibid. 469.

3. Whether other than attesting witnesses may be examined. On appeal from the county court denying the probate of a will, a party seeking its probate is not confined to the two attesting witnesses to establish the execution of the will or the sanity of the testator; but on appeal by a contestant from an order probating the will, the rule is different, and the proof will be confined to the testimony of the subscribing witnesses. Ibid. 469.

COSTS ON CONTEST.

4. Executor defending not liable for. In contest relating to the validity of a will, it is the duty of the person by it appointed executor, to defend it, and when he does so, although unsuccessful, it is error to render a decree against him personally for all the costs. Pingree et al. v. Jones, 177.

WITNESSES.

COMPETENCY.

1. Of party in his own behalf in suit against an executor. A claim ant who is prosecuting a claim against the estate of a deceased person is a competent witness in his own behalf, in relation to what was done and said at a settlement between him and the executor of the estate, about which a witness produced by the executor has testified. Straubher et al. v. Mohler, 21.

2. Devisee to prove will. A devisee under a will is not a competent witness to prove its execution. Crowly v. Crowly, 469.

CREDIBILITY.

3. By whom to be determined. An instruction that the jury should disregard the evidence of a witness, if they believed he had wilfully sworn falsely to a material fact in the case, unless corroborated, is faulty. It is the privilege of the jury to disregard the testimony of such a witness. Reynolds v. Greenbaum, 416.