was ordered and decreed that the said deeds dated July 19, 1900, and November 27, 1901, be declared null and void and canceled by the circuit clerk of Hardin county; that the marriage entered into on July 19, 1900, between said Brown and Elsie Taylor be declared valid and binding, and that Elsie Brown was entitled to one-half of the lands of which the said Hugh Brown died. seised as his heir and to homestead and dower in the other half of said premises as his widow; that Charlotte McConnell was entitled to one-fourth of the said premises, and that Rosa Lee Brown, Ceicel Gorden Brown, and Sarah J. Brown were each entitled to the one-twelfth part thereof, subject to the homestead and dower of said Elsie Brown. Το review that decree Charlotte McConnell has sued out a writ of error from this court. No deed dated July 19, 1900, is found in the record. The instrument referred to as of that date in both bill and decree was possibly the document dated July 17, 1900, which purports to be an antenuptial contract entered into by Hugh Brown and Elsie Taylor. It is contended by plaintiff in error that the court erred in decreeing that the marriage between Hugh Brown and Elsie Taylor was valid and binding. Cross-errors have been assigned by Elsie Brown challenging the action of the court in setting aside the deed of July 19, 1900, and the deed of November 27, 1901. Ledbetter & Watson and Oxford & Denton (M. S. Whiteley, of counsel), for plaintiff in error. H. Robert Fowler and Richard F. Taylor, for defendants in error. as SCOTT, J. (after stating the facts above). It was contended on the part of the complainant in the bill that Hugh Brown was an imbecile from birth, while the woman who asserts that she is his widow sought to show that, while peculiar in many respects, he was of average intelligence. More than 90 witnesses testified in the case, and a detailed discussion of their testimony within the limits of an opinion is not practicable. From a careful examination of the evidence it appears to us that Hugh Brown's intellect was weak and of low grade. He always went and came as he saw fit. In the part of Hardin county in which he resided with his father's family, during the years that he should have attended school, educational advantages were very meager. He went to school but a short time, and his attendance seems to have availed him little or nothing. He never at any time acquired the ability to read and write, and his knowledge of arithmetic was very slight. Some witnesses say he could not count above 10. Others say he could not count above 20. Still others say he could not count above 100. He could not count money in any considerable amount, and seems at times to have had difficulty in distinguishing bills of one denomination from those of another denomination. In making such pur chases as were necessary to supply his simple wants, however, he had no trouble in carrying out the transactions, and was able to make change and count money in small amounts without difficulty. His father, who died in 1875, left about 3,000 acres of land and personal property valued at $20,000. The land was partitioned by proceedings in the circuit court. Charlotte McConnell, his sister, who is the sole complainant in this bi!' and is plaintiff in error here, was then an adult, and was a party to that partition suit. In that suit no guardian ad litem was appointed for Hugh Brown, and his distributive share of the personal property was paid to him without any person being appointed by the court to represent or protect his interests. He never at any time had a conservator. He knew what property he owned and understood his rights with reference thereto. He recognized and acknowledged the rights of others. He learned to care for his own property and to transact such business as there was to do in reference thereto with intelligence, except that, when money was to be paid to him, it was necessary that he should have the assistance of some one to count it for him. This lengthy record discloses no instance in which he made an improvident contract or one that resulted in any substantial loss to him, and it is devoid of evidence showing, or tending to show, that he ever did or attempted a wrong against the property of another. He understood his own obligations and complied therewith literally, and insisted that others with whom he had dealings should do the like. The land set off in the partition suit was very largely timber land. Several hundred acres of this he had cleared and put in cultivation, and in this way very materially improved his property. He was able to ascertain and remember the value of this property. He ordinarily rented his land for a share of the crops. He looked after the division of the crops himself, and was able to sell and dispose of the rents and of the timber upon his land without assistance, so far as the making of the contracts was concerned. He was a small, slight man, weighing 120 pounds, and was feeble, physically, throughout his entire life. He sometimes assisted in manual labor on the farms for a short time, but seems not to have been able to do much in that direction. After his father's death his mother assisted him in transacting his business so long as she lived. After her death, he had the assistance of different persons at various times until 1894. At that time he had not had any fixed abode for several years, but boarded about the neighborhood in which his land lay and sometimes in a small town nearby. In that year William D. Taylor became his tenant, and Brown went to board with him. Thereafter Taylor assisted him in the management of his affairs, and at times acted as his agent until the performance of the marriage ceremony, in 1900. Upon the happening of that event Hugh Brown established a home for himself and his wife, where they resided as husband and wife until his death, and where she gave him the assistance in the management of his business that he found necessary. He possessed many eccentricities and peculiarities. He indulged in certain practices that were bestial, but which were not necessarily inconsistent with a higher type of intellect than that of the idiot. He dressed very poorly, was careless about his attire and his personal appearance, and was filthy in his habits. He was a member of the church. He was sober and law-abiding, and detested drunkenness and lewdness. At church meetings he frequently led in prayer. A meeting was held by the Christian people of the neighborhood in which he resided during the Civil War for the purpose of offering prayers for the success of the Union armies. He attended that meeting and made a prayer which is said by a very intelligent witness who was present to have been as able an effort as was heard at the meeting. He was careful of his money, and was miserly in his disposition, but was kind to the poor who resided in his vicinity. Prior to the performance of the marriage ceremony he would never consider the sale of any of his land, and, when approached on the subject, would say that he would cut his throat from ear to ear before he would dispose of any of it, and would invariably leave the company of the person who had made the proposition. After his marriage he and his wife sold and conveyed, for valuable considerations, about 300 acres of the land. He was very ignorant, and could not converse intelligently for five minutes upon any current topic of the day. Within a few years after he went to board with Taylor he stated to a number of persons that he intended to marry Taylor's daughter, Elsie, and get them a place to stay. Following this, a proceeding to have a conservator appointed for him was instituted. That case seems to have been dismissed before a verdict was reached. Hugh Brown was very much incensed toward some of his relations on account of this proceeding, and thereafter announced that he would marry Elsie Taylor and give her all his property. A marriage ceremony was performed on July 19, 1900, by J. W. Riley, an ordained elder in the Church of Christ, uniting in marriage Hugh Brown and Elsie Taylor. Riley had known Brown for a number of years, and testified that at the time of the marriage his mental condition was good, and there was nothing in his conduct or actions that would cause any one to think anything to the contrary. Brown was then 60 years of age and Elsie Taylor was 23. It is evident that their life together was not a happy one, which, considering the disparity in their ages, would not be surprising even had he been a man of higher intelligence. If the evidence of those who testified for the complainant be true and so far as this particular thing is concerned it preponderates-Hugh Brown submitted to many indignities at the hands of his wife that a man of ordinary intelligence and spirit would not endure; but this we think is to be attributed to the fact that she was very evidently not a woman of refinement, and to Hugh Brown's weak condition, both of mind and body. The chancellor possessed an advantage in determining the question of mentality which we do not enjoy. He saw and heard the witnesses, except a few whose evidence was taken by depositions, and in that way was better enabled to judge in whom to place credence. Under these circumstances it must clearly appear that there is a palpable error in the finding of the chancellor upon questions of fact before a reversal may be had. Dowie v. Driscoll, 203 Ill. 480, 68 N. E. 56, and cases there cited. The chancellor found ror. that on July 19, 1900, Hugh Brown was mentally competent to contract marriage, and that the marriage which he entered into with Elsie Taylor was valid and binding, and that all the conveyances attacked by the bill which were to others than Mrs. Brown were valid; and in this we do not think there was erWhile the decree does not in express and specific words state the court's finding upon the question of Brown's mental capacity to dispose of and convey property, the finding in reference to the conveyances last referred to shows that the chancellor determined that Brown had sufficient mental capacity to enable him to dispose of and convey real estate. Appellant does not question that portion of the decree which finds conveyances to others than the wife to be valid. The decree, however, sets aside an instrument described therein as a deed from Hugh Brown to Elsie Brown dated July 19, 1900, and the deed of November 27, 1901, on the ground that they were obtained by the undue influence of William D. Taylor and his daughter, Elsie. It does not appear from the abstract that there ever was any deed from Brown to his wife other than that of November 27, 1901. The reference to a deed of the earlier date may possibly have been intended to designate the antenuptial agreement entered into on July 17, 1900. In view of the condition of the proof, however, this apparent confusion is not of importance. Elsie Brown by her assignment of crosserrors challenges the decree in so far as it sets aside the conveyance or conveyances made to her. The parties and the chancellor treated the bill as charging undue influence, and it will therefore be so regarded by us. We find, upon examination of the proof, that there is absolutely no evidence which indicates that either instrument executed by Hugh Brown was obtained by the exercise of undue influence. If the evidence heard on the part of the complainant stood alone, it would not support the decree in this respect. No testimony was offered by either party showing the circumstances surrounding Hugh Brown at the time when he signed the antenuptial contract, or at the time when he signed the deed of November 27, 1901, and, as we have above pointed out, there is no evidence whatever of the execution of any deed dated July 19, 1900. The contract bears date of July 17, 1900, which was two days before the marriage was solemnized. It is signed by Hugh Brown and Elsie Taylor, and recites that they are about to enter into marriage, and that he is desirous of making a suitable and proper settlement to and for her use, and he covenants and agrees to and with her that he will, on or before the day of the marriage, by good and sufficient conveyance, settle and warrant to and upon her and her heirs the real estate owned by him, situated in the county of Hardin, in the state of Illinois. The instrument does not provide for the reservation of any rights in the land to Hugh Brown. It was witnessed by John Jack and Clara Taylor. The deed of November 27, 1901, reserved a life estate to the husband, was acknowledged before John Jack, a notary public, and he and William D. Taylor signed as witnesses. Neither Clara Taylor nor John Jack was called as a witness. William D. Taylor was called for Mrs. Brown. Opposing counsel objected to his testimony on the ground that he was incompetent, for the reason that he was a party to the suit, and the court sustained this objection. No one testified to having been present at the time either of the instruments was executed or at any time when either was prepared, or when the execution or preparation of either was suggested or discussed with Hugh Brown or in his presence. It is not made to appear by this record that W. D. Ta or consented to the marriage, or knew that the antenuptial agreement was to be executed. The only connection that he is shown to have with the execution of any deed is found in the fact that his name appears upon the deed of November 27, 1901, as a witness to the execution thereof. There is no evidence whatever to show that Mrs. Brown, either before or after her marriage, solicited or requested Hugh Brown to execute any conveyance to her or to execute the contract, or did anything to bring about the execution of any instrument beyond joining in the contract and accepting the deed when it was tendered to her. On the contrary, it is shown that in marrying her and conveying his property to her he did exactly as he had long intended to do. Plaintiff in error's position is that the relations existing between Brown on the one side and his wife and her father on the other side were fiduciary in character, that they were the dominant parties and Brown the dependent party, and that the presumption therefore arises that the execution of the contract and the deed was obtained by undue influence. No such presumption obtains here, because it is not shown that either Wil liam D. Taylor or Mrs. Brown sought to have Brown execute either of the instruments, or that they did anything for the purpose of bringing about the execution of either of the instruments by Brown (In re Will of Barry, 219 Ill. 391, 76 N. E. 577), except that Mrs. Brown, or Elsie Taylor as she then was, agreed to marry Brown and joined with him in executing the contract, as she might lawfully do. Her promise to marry him and her act in joining in the antenuptial contract raise no presumption or inference that she exercised undue influence over him. The circuit court erred in setting aside the conveyance or conveyances to Mrs. Brown. Plaintiff in error complains of the exclusion of certain evidence which she offered. It does not appear that this testimony would have been competent under the pleadings, and no error was committed in its rejection. This case was hotly contested. The feeling of both parties and solicitors toward their opponents was unpleasant. Mr. Fowler, one of the solicitors for Mrs. Brown, testified in her behalf in reference to the mentality of Hugh Brown. His testimony is of the same general tenor as that of many others who testified for her. We cannot believe that it was regarded by the chancellor as of controlling importance. Our view as to the propriety of an attorney testifying in a suit in which he is employed we recently expressed in Wilkinson v. People, 226 Ill. 135, 80 N. E. 699, and Bishop v. Hilliard, 227 Ill. 382, 81 N. E. 403. The decree of the circuit court, in so far as it sets aside and annuls the conveyance or conveyances to Elsie Brown and awards partition, will be reversed. In all other respects it will be affirmed. The cause will be remanded to the circuit court, with directions to dismiss the bill for want of equity in so far as it charges invalidity of the deed or deeds from Hugh Brown to Elsie Brown and seeks partition. Reversed in part and remanded, with directions. (232 III. 348) PEOPLE ex rel. THOMPSON, County Treasurer, v. SMYTHE et al. (Supreme Court of Illinois. Feb. 20, 1908.) Appeal from Cook County Court; D. T. Smiley, Judge. Application by the people, on the relation of John R. Thompson, county treasurer, for a judgment and order of sale against lots of Charles H. Smythe and another for a delinquent installment of a special assessment. From a judgment and order of sale, the lotowners appeal. Reversed and remanded, with directions. Taylor & Martin, for appellants. George A. Mason and William T. Hapeman (Edward J. Brundage, Corp. Counsel, of counsel), for appellee. CARTWRIGHT, J. This is an appeal from a judgment and order of sale entered at the July term, 1907, of the county court of Cook county for nonpayment of an installment of a special assessment levied by the city of Chicago and alleged to be due and delinquent. The errors assigned and questions involved are identical with those involved in the case of People ex rel. v. Smythe, 83 N. E. 821. The decision in that case disposes of all questions involved in this one, and a like judgment will be entered here. The judgment of the county court is reversed, and the cause is remanded to that court, with directions to enter a judgment and order of sale in compliance with section 191 of the revenue act (Hurd's Rev. St. 1905, c. 120), and to spread the same of record in the tax, judgment, sale, redemption, and forfeiture record. Reversed and remanded, with directions. (232 II. 349) FOSTER v. ILLINOIS ZINC CO. (Supreme Court of Illinois. Feb. 20, 1908.) 1. VENDOR AND PURCHASER-REMEDY OF VENDOR-RESCISSION OF CONTRACT-Grounds— MISREPRESENTATIONS-SUFFICIENCY. Representations to a vendor of coal land by the purchaser thereof that he had bought part of the adjoining coal lands, and intended to buy the rest, and that it was to the vendor's interest to sell, because, if he did not until all the coal around him had been sold, he might not have an opportunity to do so, are not fraudulent in character so as to justify a court of equity in rescinding the sale. 2. DEEDS-SETTING ASIDE GROUNDS - MISREPRESENTATIONS-EVIDENCE-SUFFICIENCY. In a suit to set aside a deed for coal underlying certain land, as having been procured by fraud and misrepresentation, evidence examined, and held insufficient to show that the grantor was induced to give an option to the land conveyed, or to make the deed in question, by reason of fraud or misrepresentations by the gran tee. [Ed. Note.-For cases in point, see Cent. Dig. vol. 16, Deeds, §§ 644-645.] Appeal from Circuit Court, La Salle County; S. C. Stough, Judge. Bill in equity by Robert N. Foster against the Illinois Zinc Company. From a decree dismissing the bill, complainant appeals. Affirmed. Sears & Smith, for appellant. Dolph, Buell & Abbey and Duncan, Doyle & O'Conor, for appellee. DUNN, J. The appellant filed his bill in the circuit court of La Salle county to set aside a deed for the coal underlying a certain quarter section of land in said county, executed by the complainant to the defendant, on the ground that its execution was procured by the fraud and misrepresentation of the defendant's agent, or to require a reconveyance to the complainant of the first vein of coal underlying said land. From a decree dismissing the bill for want of equity, the complainant has appealed to this court. The fraud and misrepresentation charged in the second amended bill related to the procuring of an option from complainant in November, 1899, and the execution of the deed in July, 1900. It is alleged that B. D. Brewster, an agent of appellee, came to appellant's home in Aurora for the purpose of obtaining an option on his coal lands, and represented that he had bought the Reynolds property adjoining appellant's on the east, and had made arrangements for the purchase of the Bull and Carlton properties adjoining appellant's on the north and northeast, and was then on his way to close up the deal for the Bull and Carlton properties, and that appellant, unless he sold his coal rights to Brewster, would be in a pocket and could not work or mine the coal on said premises, and it would be valueless to appellant, and that there were but two veins of coal under said premises, and that appellant, relying on Brewster's statements, gave a written option to Brewster for the purchase of the third vein of coal underlying said land for $12 an acre, expressly reserving the second vein. Brewster's first meeting with appellant was at the latter's home in Aurora in the latter part of November, 1899, and the question of the purchase of the coal was then discussed between them. Brewster and appellant both testified before the master, and they differ somewhat as to what was said in regard to the purchase by Brewster, for the company he represented, of the coal under the land adjoining appellant's. Appellant testified that Brewster told him he had bought from Reynolds on the east and was on his way to Chicago to close for the purchase of the Bull and Carlton properties, and, if appellant did not sell, he would be in a pocket, and Brewster further told him of a farmer who had 240 acres and would not sell, and now was in a pocket and could not sell. Brewster testified that he did not tell appellant that. if he did not sell, he would be in a pocket, but that he did tell him he thought a man ought to sell while he had the opportunity; that he told the appellant that he was surrounded; that Brewster controlled the Robbins land, which is the same as the Carlton land, and expected to get Bull's land and the Reynolds land; that he told appellant about Barrett, who would not sell and the coal around whose land had been sold so that afterward he could not sell. No one was present at the conversation between Brewster and appellant, but appellant's sister was in the house and heard the conversation. She testified that Brewster said his company had bought the Reynolds property, and that he was then on his way to buy the Bull and Carlton properties, and that the appellant would be in a pocket, and he told of the farmer who would not sell and was in a pocket. The effect of all this evidence is that Brewster urged appellant to sell, and stated that he had bought a part of the coal lands adjoining the appellant's and intended to buy the rest; that it was for appellant's interest to sell, because, if he did not until all the coal around him had been sold, he might not have an opportunity to sell. These representations were not of such a character as to justify a court of equity in rescinding a contract of sale, even if one had been entered into on the strength of them. The parties were dealing at arm's length. Brewster was, in fact, engaged in buying the coal lands adjoining appellant's. Their sale could not in any way affect appellant's land, except in the indirect way that it might lessen the demand for his land; but he could not control this in any way. Whether the adjoining coal lands continued in their present ownership or were sold, he had no rights in them to be affected by their sale, and his interest in his own land would, of course, be unaffected by it. Neither he nor Brewster could know whether the latter's efforts to buy of the adjoining owners would be successful, though it appears from the record they were partially so. And, in fact, the appellant was not induced by Brewster's representations to give the option. Appellant declined altogether to consider the giving of an option except for one of the two veins of coal on his lands, and, as to the option for that one, he declined to give it at that time. Brewster left the option blanks with him, and he told Brewster that, if he concluded to sell, he would fill out the option and mail it to him, properly signed. That was the end of the matter for more than two months, and then, on January 30, 1900, appellant wrote out the option in his own handwriting for the third vein, expressly reserving the second, and mailed it to Brewster. This option expired on February 28, 1900, and it was afterward extended by appellant to April 30 and again to July 1, 1900. It was finally allowed to lapse, and no action was taken on it. The evidence does not show that any false representations were made by Brewster at the time the negotiation for the option was first entered upon, or afterward, that would justify the rescinding of the option or the deed or that influenced the appellant with reference to either. A few days before the expiration of the last extension of the option Brewster paid appellant $100, and told him he thought they were going to take the coal. However, on July 13th Brewster came to appellant's office, and told him that he (Brewster) represented the Illinois Zinc Company, and that the company would not take the coal unless it got it all. An interview occurred later between the appellant, Brewster, Noon, manager of the company, Buell, its attorney, and Eades, mining engineer, at which an agreement was reached for the sale of all the coal, and a deed was prepared and executed by appellant for all the coal underlying his land for the consideration of $2,000. Appellant claims that at this meeting it was again stated to him by Brewster that the company had bought the Bull, Reynolds, and Carlton land, and that, if he did not sell, he would be in a pocket, and that Brewster also stated that the second and third veins were all the coal on the land. Brewster and Noon deny that any such statement was made, and the appellant is not corroborated. The evidence fails to show that appellant was deceived or defrauded in the execution of the option or the deed, and the decree of the circuit court dismissing his bill for want of equity will be affirmed. Decree affirmed. (198 Mass. 18) MARSHALL v. OLD COLONY ST. RY. CO. In an action for injuries to a street car passenger, thrown from his seat by the jolting of the car passing over a cross-over and switch, the exclusion of evidence that about a year after the accident, and at the time of the taking of a photograph of the tracks at the point of the ac cident received in evidence, the outer rail and its mate showed wear, was within the discretion of the trial court, where the evidence was offered to show improper construction of the track, and where it did not appear whether the worn rail was down at the time of the accident, nor whether it was worn at the time it was placed there. nor how long it had been down. [Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Carriers, § 1301.] Exceptions from Superior Court, Norfolk County; Edgar J. Sherman, Judge. Action by John Marshall against the Old Colony Street Railway Company. There was a verdict for defendant, and plaintiff brings exceptions. Overruled. This was an action of tort by plaintiff to recover for personal injuries sustained by him while a passenger on a car of defendant, by reason of being thrown from his seat to the floor of the car by the violent jolting of the car. The accident happened at a point where the double tracks ended, while the car was entering the single track. Chas. C. Mellen and Harold E. Fales, for plaintiff. Asa P. French and Jas. S. Allen, Jr., for defendant. HAMMOND, J. The jury found that at the time of the accident the car was not running at a high and dangerous rate of speed. This was fatal to the plaintiff's case so far as it rested upon the first count. They also found that the railway at the place of the accident was not constructed in an improper and dangerous manner. This was fatal to the plaintiff so far as his case rested upon the second count. The only question is one of evidence. In the course of the trial the plaintiff having introduced a photograph taken a year after the accident, of the tracks and roadbed, and a plan of the same as they existed a little more |