The fifth objection is that the report of the treasurer is not sworn to. We have held in the case of Chicago & Northwestern Railway Co. v. People, 174 Ill. 80, 50 N. E. 1057, that the affidavit required is not jurisdictional and that the defaulting taxpayer is not interested in the affidavit; that he may show that the tax has in fact been paid, but if he shall not do so, it does not concern him that the proper authorities have acted upon less or different evidence in that respect than might have been required. The amended affidavit offered by the appellant also cured this defect, and the court committed error in refusing to permit it to be made.

The appellee Jeff Cline also objects that certain of his lands were not in the district. The record shows that a stipulation was entered into by the parties to the effect that the lands of the objectors returned delinquent and on which this drainage tax was sought to be collected were taken into the drainage district in January, 1905, and were classified and assessed by the drainage commissioners, and that the assessment was due March 1, 1905.

From an examination of all of these objections we are convinced that they should have been overruled. It is nowhere claimed that the tax was not properly levied by the proper parties or that it had been paid, and no reason was assigned why it should not be paid. There is no objection to the substantial justice of the tax, and under the many decisions of this court appellees' objections should not have prevailed. St. Louis, Rock Island & Chicago Railway Co. v. People, 147 Ill. 9, 35 N. E. 228; Buck v. People, 78 Ill. 560.

Section 191, c. 120 (Hurd's Rev. St. 1903, p. 1541), provides that any error or informality in the proceedings of any of the officers connected with the assessment, levy. ing or collecting of the taxes not affecting the substantial justice of the tax itself shall not vitiate or in any manner affect the tax or the assessment thereof, and any irregularity or informality in the assessment roll or tax list, or in any proceeding connected with the assessment or levy of such tax, or any omission or defective act of any officer connected with the assessment or levy of such tax, may, in the discretion of the court, be corrected, supplied, and made to conform to the law by the court or by the person from whose neglect or default the same was occasioned. If these objections were specifically made in the court below and insisted upon, the corrections could have been permitted under the above section and the objections overruled.

The county court committed reversible error in its rulings, and its judgment must be reversed. The cause will be remanded, with directions to the county court to overrule each of said objections, and enter a judgment and order of sale in conformity with the views herein expressed. Reversed and remanded.

Where a special tax warrant is issued against the property of a nonresident owner, demand for payment thereof need not be made personally, but it may be made by registered letter.

2. SAME APPEARANCE-EFFECT-WAIVER OF IRREGULARITY.

Where a property owner appears and objects to the entry of judgment for special assessment against his property, defects of description in the delinquent list and in the publication and certificate were waived.

3. SAME LOCAL IMPROVEMENTS IMPROVEMENT BY PROPERTY OWNER-NOTICE.

Under the sidewalk act of 1875 (Laws 1875, p. 63), the publication of an ordinance, in accordance with the statute requiring the property owner to build a sidewalk within 30 days from such publication, is sufficient notice to the property owner to build the sidewalk, in the absence of a further requirement of the ordinance that some other notice be given.

4. SAME-DEMAND OF Payment—SUFFICIENCY OF WARRANT.

While a special tax warrant for the improvement of a sidewalk, authorizing the street commissioner to make the amount therein called for from the chattels of the property owner, is thus far void, it is sufficient authority to enable the street commissioner to make a valid demand of payment.

5. SAME-CHARACTER OF IMPROVEMENT-DISCRETION OF AUTHORITIES.

A broad discretion is confided to city authorities in the matter of sidewalk improvements, and the burden is upon one complaining of their action to show that the improvement ordinance is unreasonable.

6. SAME-REPORT OF DELINQUENCY-NECESSITY OF SEAL.

Under Laws 1875, p. 64, § 4, providing that upon the failure to collect a special tax it shall be the duty of the clerk to make report of the tax to such general officer of the county as may be authorized to apply for judgment against and sell land for taxes, the clerk's report of delinquency of a special sidewalk tax need not be under the seal of the city.

7. SAME COMPLETION OF IMPROVEMENT — CONFORMITY TO ORDINANCE.

The fact that a city sidewalk is two or three inches shorter than that called for by the ordinance under which it is constructed, and that some witnesses think the stone used in the walk is too soft, does not make the improvement a different one from that called for by the ordinance.

Appeal from Marion County Court; Charles H. Holt, Judge.

Application by the people, on relation of Samuel J. Smith, county treasurer, for a judgment and order of sale against the lands of W. Scott Marshall. From a judgment granting the application, defendant appeals. Affirmed.

T. E. Merritt, for appellant. J. C. Smith, C. F. Dew, and J. J. Bundy, for appellee.

RICKS, J. The county court of Marion county rendered a judgment and order for sale against the real estate of appellant in the city of Centralia for the cost of the construc

tion of a limestone sidewalk along his lot, and this appeal is from that judgment. The walk was built by the city pursuant to an ordinance passed July 19, 1904, under the sidewalk act of 1875. The property was located in the business district of Centralia, and the ordinance provided for a natural stone sidewalk of the width of 10 feet on Locust street, upon the west line of appellant's lot, to begin at the south line and to run thence north and about on the west line of said lot, a distance of 40 feet. The ordinance required that three trenches should be dug, one on each side and one in the center of the sidewalk line, 38 inches below the sidewalk grade line, and that there should be laid in each of these a brick supporting wall 9 inches wide and 34 inches deep, and directed that the stone should be 10 feet long and not to exceed 5 feet wide, of good, hard quality of limestone, free from soft and shaly spots. In May, before the passage of the ordinance, appellant was served with a written notice to build a walk such as was afterwards described in the ordinance, but did not do so. The ordinance was passed and published, and the city authorities waited about 40 days after the publication of the ordinance, and, no walk having been built by appellant, the city authorities built one. The cost of the walk was $119.55. At the time the ordinance was passed there was a 5-foot flagstone sidewalk along the line of the proposed new walk. The ordinance required that the walk be built within 30 days from the publication thereof, and that, if the owner did not so construct it, it should be built by the city under the supervision of the street commissioner and to be approved by the street commissioner and the committee on streets and alleys, and that the cost of the walk should be charged against the abutting property. The walk was built in acordance with the ordinance and approved and accepted by the street commissioner and the committee on streets and alleys, and an itemized account of the cost of the same was made and filed with the city clerk by the street commissioner within 30 days thereafter. The city clerk then issued to the street commissioner, as directed by the ordinance, a warrant for the collection of the tax.

Appellant did not reside in Centralia, but in Chicago, and demand was made upon him by sending a copy of the warrant in a registered letter, his receipt therefor being returned to the commissioner. It is urged that this demand was not sufficient, but should have been a personal one. We do not agree to this contention. It is sufficient that it be shown, and in a proper manner, that a demand was made and that the property owner either failed or refused to pay. The law does not require that an officer go from Centralia to Chicago to serve such a demand. Appellant did not pay the same, and on the 2d of January, 1905, the street commissioner returned the warrant, stating the manner in which the demand was made, and that no part of it had been paid.

On January 5, 1905, the city clerk certified the property as delinquent to appellee, as county treasurer and ex officio collector of said county, who advertised the same as delinquent and made application for judgment at the June term of said court. Appellant appeared at that term, by his counsel, at the time fixed for application for judgment and filed 11 objections (several of which were of a general character and went to the merits), which were overruled and judgment and order of sale entered. Appellant excepted and moved to vacate or set aside the judgment and for a new trial, which was also overruled.

Counsel for the appellant devotes a large portion of his argument to the objections urged against the delinquent list and the publication and certificate thereof, and endeavors to point out that the property is not properly described and that it is in many other respects insufficient. It is unnecessary to enter into a consideration of these objections, as the appellant appeared and objected to the judgment and had all the benefit and advantage that a good notice could have given him, and in such case it is immaterial whether the notice be good or bad and complies with the law or not. Mix v. People, 106 Ill. 425.

It is next urged that appellant was entitled to be served with a notice to construct the walk after the passage of the ordinance, and that as the notice was served upon him before the passage of the ordinance he was never in default. The statute does not require that a city shall give to the property owner a notice to build a sidewalk where an ordinance is passed, such as the one before us, for the construction thereof. The publication of the ordinance is all the notice to which the property holder is entitled. By its publication it becomes a law of the municipality, and the owners of property affected are bound to take notice of it and act accordingly. This is true, unless the ordinance itself under which the walk is constructed provides that a notice shall be given, in which event it is necessary that the city show that the notice required by the ordinance has been given. Hoover v. People, 171 Ill. 182, 49 N. E. 367; Hintze v. City of Elgin, 186 Ill. 251, 57 N. E. 856. The ordinance in question did not contain a provision for giving notice to the property owner, but followed the statute and required the property owner to build the sidewalk within 30 days from the publication of the ordinance, and no other or further notice was required.

It is also claimed that the warrant for the collection of the tax was void because it authorized the street commissioner, as collector, to make the amount therein called for from the goods and chattels of appellant. So much of the warrant as attempted to make it an execution was void. Craw v. Village of Tolono, 96 Ill. 255, 36 Am. Rep. 143. But the street commissioner did no act under it that would raise that question, as he only made demand, and it was sufficient authority to him

to make the demand even though it ran as an execution.

The claim that the ordinance is void because unreasonable and oppressive is not sustained by the evidence. The location was in the business district of the city, and the other walks about it were of the width of 10 feet, and were so required by the extent of the use of them. This is not denied by appellant, but it is urged that, as there was 5 feet of good stone walk there, the city should only have required an additional 5 feet in width to be built. It will be observed that the walk so ordered was a 10-foot walk, and it was required that the stones, which should lie crosswise on the walk, should each be 10 feet in length and not to exceed 5 feet in width. This would make a much smoother and better walk than a walk with a seam or opening in the center and a seam formed by the cross layers of stone. In a matter of an improvement such as this a broad discretion must be confided to the city authorities, and the burden is upon the one complaining to show that the ordinance is unreasonable, and we are unable to see that such is the case, as shown by this record.

It is claimed that the report of delinquency made by the city clerk to appellee is insuffi. cient because there is not attached thereto, under the signature of the city clerk, the seal of the city. The language of the statute with reference to this report is as follows: "Upon the failure to collect such special tax as heretofore provided in this act, it shall be the duty of said clerk, within such time as said ordinance may provide, to make report of all such special tax, in writing, to such general officer of the county as may be authorized by law to apply for judgment against and sell lands for taxes," etc. Laws 1875, p. 64, § 4. From the reading of the above statute it is seen that the report is not required to be under the seal of the city, but that the only requirement is that it shall be in writing. We regard it as sufficient.

It is urged, lastly, that the walk as constructed is not the kind of walk called for by the ordinance. The evidence shows that the walk was built in the general manner provided for in the ordinance, with the brick walls for support of the stone, and that the stone used was Bedford limestone four inches thick and of the dimensions required by the ordinance. The particular points urged are that after the walk was completed it showed that by actual measurement there were only 398/10 feet of the walk longitudinally, and that the ordinance called for a 40-foot walk; and, further, that the stone that was used was not hard limestone, as called for by the ordinance, but appellant urges that the limestone used was soft. The record shows that the lot adjoining that of appellant already had a 10-foot walk and that the walk that was built along appellant's property was joined up to it. A mere difference of two

tenths of a foot in the length of the walk, when the space for a walk was all occupied with one, would seem to be a trivial matter and the objection highly technical-so much so that the law would not take notice of it. Concerning the character of the stone, the witnesses agree that it is limestone, but differ as to whether it is hard or soft. Some testify that it is soft, and some hard, and others testify that it is soft when first put down but hardens by exposure. All testify that it is of the same character of stone as that usually used in that city for walk purposes. The objection that the improvement is not the improvement called for by the ordinance is not sustained by showing a slight variance in quality of material from that called for by the ordinance, and particularly so where the city authorities charged with that duty have approved and accepted the improvement or the material that enters into it. The fact that the stone was softer than some witnesses thought it ought to be would not characterize the walk as one different from that called for by the ordinance, when it is admitted and shown that in a general way the material called for was used, and used in the manner directed.

The judgment of the county court is affirmed.

Judgment affirmed.

(219 Ill. 9)

LIVINGSTON COUNTY BUILDING & LOAN ASS'N v. KEACH et al. (Supreme Court of Illinois. Dec. 20, 1905.) 1. BOUNDARIES-ESTABLISHMENT-BILL IN

EQUITY.

Where plaintiff is deprived of the full width of his lot as the result of a boundary line dispute between the owners of lots on each side of his property, he may bring ejectment against the one of such owners who is encroaching on his property, but cannot file a bill in equity to have the court fix the boundary line and determine which of the abutting owners is in error in relation thereto. 2. EQUITY-JURISDICTION.

The equitable jurisdiction of the court can be invoked only where there is no adequate remedy at law and there is necessity for the interposition of equity to prevent unnecessary and annoying suits.

[Ed. Note. For cases in point, see vol. 19, Cent. Dig. Equity, §§ 121-140, 167-171.) 3. QUIETING TITLE-WHEN ACTION LIES.

An owner of a lot cannot maintain a bill against two adjoining owners, one or the other of whom has encroached upon his land, to quiet title, where the bill alleges that complainant's title to a strip of land of certain width between their lots is admitted, but the only controversy is as to its true boundaries.

Error to Circuit, Court, Livingston County; G. W. Patton, Judge.

Bill by the Livingston County Building & Loan Association against Anna L. Keach and Fanny L. White. Judgment for defendants, and plaintiff brings error. Affirmed. See 72 N. E. 769.

A. C. Norton and R. B. Campbell, for plaintiff in error. C. C. & L. F. Strawn, for defendant in error Keach. White & Tuesburg, for defendant in error White.

CARTWRIGHT, J. Plaintiff in error, Livingston County Building & Loan Association, filed its bill in equity in the circuit court of Livingston county against defendants in error, Anna L. Keach and Fanny L. White. The court sustained a demurrer of the defendants to the bill and dismissed it, at complainant's cost.

The facts stated in the bill as a basis for the relief asked for are, that the complainant is the owner of the south 60 feet in width of lot A, in Babcock's addition to Pontiac, which was laid out and platted in 1857 by Billings P. Babcock, who was then the owner of the premises; that the defendant Anna L. Keach owns the land adjoining complainant's said property on the north and defendant Fanny L. White owns the land adjoining complainant's said property on the south; that both said defendants admit that complainant is the owner of and has the legal title to said south 60 feet in width of lot A, but they disagree as to where the boundary lines of the lot are; that defendant Anna L. Keach claims that the southern boundary of lot A is identical with the north line of block 6, in the city of Pontiac, while the defendant Fanny L. White insists that said southern boundary is 7 feet and 8 inches further north; that the defendant Anna L. Keach has taken possession of the land up to the north line of complainant's property as she claims it to be, and Fanny L. White has taken possession on the other side up to the south line as she claims it to exist; that defendants have left to complainant only 52 feet and 4 inches in width, while they both concede that between the correct boundary lines there is a distance of 60 feet; that on account of the plat being ambiguous as to the starting point, it is not clear whether the southern boundary of complainant's property is identical with the north line of block 6 or whether it is 7 feet and 8 inches north of the north line of said block. The prayer of the bill is that the court shall ascertain and fix the true boundary lines of complainant's property, settle the conflicting claims of the defendants in respect to the property and the location of such lines, and settle and declare the rights and titles of the parties to the strips of land in dispute.

It is contended that the court erred in not sustaining the bill as a bill to remove a cloud and quiet title, and also for the reason that a resort to equity was necessary to avoid a multiplicity of suits. If the bill were a bill to remove a cloud and quiet title it could not be maintained, for the reason that the complainant was not in possession of the premises in dispute and they were not vacant or unoccupied. Gage v. Curtis, 122 Ill.

520, 14 N. E. 30; Johnson v. Huling, 127 Ill. 14, 18 N. E. 786. But there is no cloud upon complainant's title to be removed. The bill alleges that both of the defendants admit the title and ownership of the complainant, and that the only controversy is whether the property is located in one place or another. While the prayer of the bill is broad enough to involve a freehold estate, the averments do not show that there is any adverse claim of title which is apparently valid and which constitutes a cloud.

Complainant has a complete remedy at law, and for that reason cannot resort to a court of equity. The strip seven feet and eight inches wide on the north is in the possession of Anna L. Keach, and if it is a part of complainant's 60 feet there is a remedy against her by ejectment. If the 7 feet and 8 inches on the south side, in the possession of the defendant Fanny L. White, is a part of complainant's lot the law affords the same remedy against her.

There is no equitable ground for relief to prevent a multiplicity of suits. According to the bill but one of the defendants is wrongfully in possession of the complainant's property, and, with the facts ascertained, but one action is necessary. The equitable jurisdiction is only exercised when legal remedies are inadequate and there is a necessity for the interposition of equity to prevent unnecessary, annoying and harassing suits. 14 Ency. of Pl. & Pr. 219. There is no such condition shown in the bill. The bill does not allege where the true southern boundary is or where complainant's property is located, but prays the court to investigate and determine that question. The bill is not a bill of interpleader, but is brought to enforce property rights and interests of the complainant. In such a case, it is necessary for the complainant to aver and prove such facts as will establish its rights, and it is not the province of a court of equity to take up the burden of discovering the facts necessary to show where complainant's property is located. The court was right in sustaining the demur

rer.

The decree is affirmed. Decree affirmed.

(219 Ill. 72)

NEW YORK LIFE INS. CO. v. RILLING. (Supreme Court of Illinois. Dec. 20, 1905.) INSURANCE-ACTION BY AGENT-COMMISSIONS.

An agent of a life insurance company, appointed for the purpose of soliciting insurance from a certain person, resigned after the company had declined the risk applied for and brought an action for commission on a policy subsequently issued to such person on the solicitation of another agent. Held, that evidence for the defendant that after the resignation of plaintiff he had attempted to obtain a policy for defendant from the same company was admissible as tending to show an aban donment of the contract.

Appeal from Appellate Court, First District.

Action by Charles W. Rilling against the New York Life Insurance Company. Judgment for plaintiff was affirmed by the Appellate Court, and defendant appeals. Reversed.

Edward O'Bryan, William N. Marshall, and Rufus S. Simmons, for appellant. Newman, Northrup, Levinson & Becker and C. E. Cleveland, for appellee.

HAND, J. This was an action of assumpsit commenced in the circuit court of Cook county by the appellee, against the appellant, to recover certain commissions which he claimed were due him, as a solicitor for insurance, from the appellant. The appellee recovered a judgment in the trial court for the sum of $5,684.10, which judgment, after a remittitur of $2,966.60 had been entered in the Appellate Court, was affirmed by that court, and a further appeal has been prosecuted to this court.

It appears from the evidence that the appellee was in the employ of the Mutual Life Insurance Company of New York as a solicitor for life insurance in the city of Chicago; that he solicited one George P. Braun, who resided in Chicago, and obtained from him an application to said Mutual Life for $100,000 insurance upon his life; that the Mutual Life declined the risk, whereupon appellee sought through Mr. Pearman, who was the Chicago agent of the New York Life Insurance Company, to place said insurance in said New York Life, and on the 16th day of July, 1902, the appellee, for the purpose of enabling him to obtain the commissions on said insurance should the New York Life insure Braun, was appointed agent for the New York Life. On the next day, through the appellee, Braun applied to the New York Life for $100,000 insurance. The company did not accept the risk for that amount, but offered to issue Braun a policy for $10,000. Its counter proposition was not satisfactory to appellee, and he declined to submit the proposition to Braun. Nothing more seems to have been done by appellee with reference to the Braun insurance until October 11, 1902, when he executed and delivered to the appellant the following instrument in writing: "Chicago, Ill., October 11, 1902. New York Life Ins. Co., New York, N. Y.-Gentlemen: Referring to the agreement that has been in existence between your company and myself, I wish to avail myself of the clause which gives me the privilege of terminating such agreement. Please have same take effect immediately. Please construe this as my resignation. Yours truly, C. W. Rilling."

On the 21st of July, 1903, Braun, through an agent of the New York Life in Chicago named Nichols, again made application to the appellant for $200,000 insurance on his life, which was accepted by the company, and four policies aggregating that amount were

issued to Braun, for which he paid to the company $10,870 in cash as the first annual premium. Appellee claimed the New York Life secured the Braun insurance through his efforts, and he was entitled to the commissions provided to be paid him in his contract with the company bearing date July 16, 1902. The appellant claimed that contract was terminated by appellee's resignation bearing date October 11, 1902, and that the Braun insurance was obtained some 10 months after the termination of said agency, through the efforts of Nichols, and was a different kind of insurance from that applied for by Braun to the company through appellee and which had been rejected. The question, therefore, whether the appellee abandoned his efforts to insure Braun in the New York Life and his rights under said contract at the time he resigned as agent of said company and waived thereby any claim against the company based on the application made to the company by Braun through his efforts, became an important question on the trial. It, in fact, was one of the main grounds of defense relied upon by appellant. The appellee and appellant both understood appellee was only appointed as agent of the New York Life for the purpose of handling the Braun insurance. There was a conflict in the evidence as to what was said at the time appellee resigned as agent of the New York Life. Appellee testified, at the time he resigned he stated to Mr. Pearman he would not relinquish his rights to the Braun claim, and that Pearman said to him his resignation would not affect his claim for commissions on that insurance, and that as soon as the chief medical examiner of the company came to Chicago he would notify appellee, and appellee should bring Braun to the New York Life for examination. Mr. Pearman, and his assistant of the Chicago office, Mr. Greenwood, both testified that at the time appellee resigned he said he would do nothing more with reference to placing with the New York Life the Braun insurance, and that he made no reservations with reference to commissions on the Braun insurance. The court, upon the trial, instructed the jury if they should find from the evidence "that the letter of Rilling dated October 11, 1902, and the transactions and mutual understanding of the parties in connection with its signing and delivery, constituted an abandonment by Rilling of all rights on the part of Rilling which had in the past or might in the future accrue to him by reason of the Braun insurance matter, then you will find the issues for the defendant."

The appellant called Braun as a witness, and offered to prove by him that after October 11, 1902, the date of Rilling's resignation, the appellee presented Braun to the Equitable Life, and that Braun through his efforts applied to said insurance company for $100,000 insurance upon his life and