« AnteriorContinuar »
Opinion of the Court.
residence, so far as her personal knowledge goes, was the city of Chicago, in this State, which place he left about six years ago, and, as she is informed and believes, he went to California, and about two years ago she was informed he was in San Francisco, in the State of California, since which time she has, upon due inquiry, been unable to find where he is residing." Assuming, as for the present question we must, that these allegations are true, we can not conceive how the affidavit could have been any more full and specific. The notice published also fully conformed to the requirements of the section. It contained a notice of the pendency of the suit, the names of the parties thereto, the title of the court, the time and place of the return of the summons, and that a summons had been issued so returnable.
It not only appears by the clerk's certificate that the clerk had sent a copy of the notice by publication, by mail, addressed to the defendant, John C. Hannas, at his last known place of residence, as stated in the affidavit,-i. e., “San Francisco, California,”—but it is proved by other unquestioned evidence that such defendant actually received such notice before the return day of the summons, and in ample time to have made defence to the suit. We do not think the mere fact that no summons is found in the record can be regarded as sufficient to overcome the presumption that the clerk did his duty and issued one, the positive recitals in the notice published by him, and the inference to be drawn from the recitals in the decree that due notice of the pendency of the suit was given. The tendency of our decisions is directly the other way. The logical deductions to be drawn from them sustain the sufficiency of this notice. Tompkins v. Wiltberger et al. 56 Ill. 385; Millett et al. v. Pease et al. 31 id. 377; Tibbs v. Allen, 27 id. 119; Prout v. The People ex rel. 83 id. 154; Turner et al. v. Jenkins, 79 id. 228; Miller v. Handy, 40 id. 448; Mulvey v. Gibbons et al. 87 id. 367; Haworth v. Huling et al. id. 23. It is made morally certain here, by the evi.
Opinion of the Court.
dence, that the defendant, John C. Hannas, was not, in fact, in Cook county, or anywhere else in this State, between the date of the filing of the bill and the term to which the summons was, if issued, returnable, and hence that it would have been impossible that the summons should have been per- . sonally served upon him; and he was, in fact, personally furnished with a copy of the notice. by publication, and so he had all the notice that he needed, and all that is contemplated by the statute in such cases. We think there was ample jurisdiction of the person. .
Second—The only object in making Cook, the trustee, a defendant, is to bind him by the decree. We are unable to perceive why he might not, as he has done, waive the necessity of a formal summons in that regard, and come in, on the hearing, and consent to be treated as a party to the decree, and to be bound by it. He here indorses upon the decree: “I hereby consent to the entering of the within decree, and agree to hold the title to the premises therein described, in trust, as declared and defined by the said decree, or by any decree the court may enter in said suit, and hereby consent to be made a party thereto.” Surely one may voluntarily consent to be bound by a decree, although not a formal party thereto. But it is quite clear, even if the omission of this party was error, it is not an error that affects the defendant, John C. Hannas. Cook was a mere dry trustee, having no interest whatever in the property affected by the decree. It was a matter of indifference to the discharge of his duties, whether the complainant was entitled to the relief she sought or not. The real and only controversy was between Margaret and John C. Hannas, and so any error there may have been in omitting to make Cook a party to the bill can not now be urged as ground of reversal by the defendant, John C. Hannas. Walker v. Abt et al. 83 Ill. 227; Short et al. v. Raub, 81 id. 509; Horner v. Zimmerman et al. 45 id. 16; Greenman v. Harrey, 53 id. 386.
Opinion of the Court.
So far, then, as Mary E. Knowles is concerned, there is no error by which she can be affected. But we are also of opinion the record discloses no substantial error in respect of the admission of evidence, or the sufficiency of the evidence to sustain the decree. The fact that there was no objection to the admission of any evidence is a sufficient answer to the objection that secondary evidence was improperly admitted. Theoretically the defendant was in court, and no principle is better settled than that a party can not stand by and permit improper evidence to be given, and object to its competency for the first time in this court. There was no certificate of evidence, and whether all the evidence is preserved in the record, we can not, therefore, know. The findings sustain the decree, and that is sufficient. Walker v. Carey, 53 Ill. 470.
But again, in this case the bill was taken pro confesso. In such case, although evidence is admitted, its sufficiency to sustain the decree can not be considered. The decree may be rendered without any evidence, and therefore the only inquiry admissible is as to the sufficiency of the allegations of the bill. Boston v. Nichols, 47 7. 353; Gault v. Hoagland, 25 id. 266; Stephens v. Bicknen, 27 id. 444; Harmon v. Campbell, 30 id. 25; Manchester et al. v. McKee, 4 Gilm. 511.
The objection that complainant was guilty of laches in not filing her bill, is not tenable. No such defence is interposed in the answer, nor does the bill seek to explain and excuse the delay, as in Hall v. Fullerton, 69 Ill. 448, and Williams v. Rhodes et al. 81 id. 571, and evidence of such defence would therefore have been inadmissible. (Trustees v. Wright, 12 Ill. 432.) But even if the pleadings were, in this respect, sufficient, there is nothing in proof to show that any shorter period of limitation should be applied than that prescribed by the statute. The decree must be affirmed.
1. CORPORATION-right to acquire and hold title to real estate_limit of the right. By section 31, of chapter 32, of the Revised Statutes of 1874, corporations, associations and societies, not for pecuniary profit, formed under that act, are made capable, in their corporate inmes, of taking, purchasing, holding and disposing of real and personal property, for the purposes of their organization.
2. SAME—who may object that a corporation is holding real estate in excess of its right. Where a corporation, by the law of its creation, is authorized in some cases, or for some purposes, or to a certain extent, to take and hold the title to real estate, it can not be made a question by any party, except the State, whether its real estate has been acquired for the authorized uses or not, or is in excess of the capacity of the corporation to take and hold. The State alone must assert her policy in that regard.
3. So the right of an association, assuming it to be a corporation under a law authorizing the creation of corporations of the class to which it claims to belong, and which has exercised powers as a corporation, to hold property, can not be questioned by an individual citizen in a suit to set aside a contract he has made with the association in its corporate name and character.
4. CHANCERY-jurisdiction-injunction as to right in another State. A court of equity in this State has jurisdiction of a bill, the object of which is to obtain an injunction to prevent the defendant from interfering with a right of way claimed by the complainant over lands situate in another State, where the defendants are personally served. The jurisdiction in eqnity by way of injunction is strictly in personam.
5. LEASE-construed, as to period of duration—as affected by the mode of organization of the lessee corporation. The owners of land leased to a club all their ground in a certain section, used for a canal and right of way, "for and during the existence of said club," with this clause: “Whenever said club shall cease to exist as now organized, this lease, etc., shall be determined and cease.” On the day before the execution of this lease the club had passed a resolution to become incorporated, and the lessors were members of the club: Held, that the grant of the right of way, or canal and its appartenances, did not cease upon the club becoming incorporated under the statute, assuming all the debts of the same and taking all its property; and that the words, “as now organized,” referred to the purpose of organization, not the mode of organization.
Brief for the Appellant.
6. SAME-as to what passes by lease of a canal—the foot-way as an incident. Where a hunting and fishing club constructed a canal across a tract of land, so as to connect its club-house with a river and its marsh grounds, through which to transfer boats, and which was used in connection with a foot-way along its side, over which the hunters walked, and the owners of the land, knowing the use made of the canal and foot-way, leased to the club all the ground then used for the canal, it was held, that the lease passed the foot-way, as an actual, constant incident to the use of the canal, especially when the lessors, by their subsequent acts, showed an acquiescence in the continued use of the foot-way in connection with the canal.
7. CONSTRUCTION OF CONTRACT-acts of the parties. The acts of parties under a contract which they have entered into, and their acquiescence in its provisions, which seem to evince their understanding of its meaning, and to be a construction of the contract by the parties themselves, are entitled to regard in considering what was their intention in the making of it.
8. GRANT--as to an easement passing with the principal thing. It is the rule that whenever a thing is granted, all and every easement necessary to its beneficial enjoyment will pass.
APPEAL from the Appellate Court for the First District :heard in that court on appeal from the Circuit Court of Cook county; the Hon. M. F. TULEY, Judge, presiding.
Messrs. WALKER & CARTER, for the appellant:
The burden is upon a corporation, and those claiming under it, to show that by its charter it is a body politic, authorized to take or convey lands. Lumbard v. Aldrich, 8 N. H. 34; Angell & Ames on Corp. secs. 161, 162.
If appellee can not, under the laws of this State, take and hold landg for sporting or other amusements, it can not do so in any other State. In Indiana there is no statute authorizing a corporation of the character of appellee. It will not, therefore, be claimed that it is the policy of the State of Indiana to permit foreign corporations to do what its own citizens
As to our State policy in regard to corporations acquiring and holding real estate, see Carroll v. City of East St. Louis, 67 Ill. 568.
An easement for right of way is an interest in the land over which it is to be enjoyed. Washburn on Easements, 5;