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for the extension of the payment of the interest coupon which fell due March 3, 1895, and to the legal conclusions of the master as to the right of the appellees, under the allegations of the bill, to foreclose the trust deed. The exceptions were overruled and a decree of foreclosure and sale entered, and the decree was affirmed by the Appellate Court on appeal. This is a further appeal of the said mortgagor, Dorn, to reverse the judgment of the Appellate Court.

CHARLES PICKLER, for appellant.

LACKNER & Butz, for appellees.

Mr. JUSTICE Boggs delivered the opinion of the court:

The case made by the allegations of the bill is, that the appellant had made default in the payment of the principal note according to its tenor and effect, and also in the payment of the six coupon notes given at the time the principal note was executed to evidence the liability of the appellant to pay interest semi-annually on the principal note from the date thereof to the 3d day of March, 1893, the date of its maturity.

It appeared from the report of the master, which, in this respect, it is conceded is fully supported by uncontroverted testimony, that appellant had paid each of said interest notes mentioned in the bill, and was not, in respect of any of them, in default. It also appeared from the master's report and from like uncontroverted testimony, that the payment of the principal note had been extended, by an agreement based upon a good and sufficient consideration, for the term of one year, to-wit, to the 3d day of March, 1894, and again extended by a like binding agreement for the further period of three years, to-wit, to the 3d day of March, 1897, and was not due when the bill was filed, to-wit, on the 20th day of April, 1895. The case made by the bill was fully met and overcome by the proofs. The master found that the maturity of the mortgage debt had been extended to March 3, 1897, but that it was proven appellant had not paid the interest coupon which, under the terms of the contract of extension, fell due on the 3d day of March, 1895, promptly at maturity, and that the appellees had the right to declare the mortgage debt due and payable because of such default, and on this finding decree was entered against the appellant. The case, then, upon which the appellees succeeded, was, that the principal of the indebtedness to them did not fall due until March 3, 1897, but that by reason of the failure of appellant to pay the semi-annual installment of interest promptly on the 3d day of March, 1895, the right accrued to them, under the terms of the agreement extending the maturity of the note to March 3, 1897, to declare the principal sum due and payable, and to proceed at once to foreclose the mortgage. But the appellees made no such case by the pleading. They were not entitled to a decree of foreclosure upon the case alleged in their bill, for it was disproved. It is not sufficient, if true, that the evidence disclosed a state of case upon which a bill could have been framed which would have entitled them to a decree, for the reason such evidence is not applicable to the allegations of the bill. If the allegations of a bill are overcome by the proof, the complainant cannot have a decree because it may appear that issues might have been made by other pleading upon which he would have been entitled to relief. Ap. pellees might, upon the coming in of the master's report, or at any time before the rendition of the decree, have applied for and obtained leave, upon such terms as the court should deem just, to make such amendments to their bill as might be found necessary to state a case entitling them to a decree under the evidence produced upon the hearing. But no such course was taken, and the question presented by the record is, whether the appellees were entitled to a decree under the allegations of their bill.

It is a fundamental rule of equity pleading, that the allegations of a bill, the proof and the decree must correspond, and that the decree cannot give relief that facts disclosed by the evidence would warrant where there are no averments in the bill to which the evidence can apply, and that if the evidence disproves the case made by the bill the complainant cannot be given a decree upon other grounds disclosed by the proofs, unless the court permits the complainant to amend his bill so as to present the case disclosed by the evidence. McKay v. Bissett, 5 Gilm. 499; Morgan v. Smith, 11 Ill. 194; White v. Morrison, id. 361; Rowan v. Bowles, 21 id. 17; Chatjin v. Heirs of Kimball, 23 id. 36; Bremer v. Canal Co. 123 id. 104; Russell v. Conners, 140 id. 660; Ohling v. Luitjens, 32 id. 23; Burger v. Potter, id. 66.

We make no ruling on the contention of appellant that under the agreement between the parties with reference to the interest note which fell due March 3, 1895, it was necessary to the right of appellees to institute the suit, they should have first given appellant notice and an opportunity to pay the coupon. If the bill is amended, and the right to declare the mortgage debt due because of the alleged default in the payment of that interest coupon be made the basis of the right to institute the suit to foreclose the mortgage, the appellant may answer the amended bill and raise an issue on the point upon which both parties can be fully heard and the right of the matter properly determined.

The decree of the circuit court and the judgment of the Appellate Court are reversed and the cause will be remanded to the circuit court, where appellees may proceed further, as they may be advised.

Reversed and remanded.



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Opinion filed February 14, 1898.

1. PARKS-assessment to improve boulevard-regularity of steps by which street was acquired need not be shown. An assessment petition for boulevard improvement, which alleges that the street had been selected and taken by the park commissioners and was within the park district, need not set forth the various steps by which the commissioners acquired control of such street, nor need the regularity of such steps be proven in the assessment proceeding.

2. TAXES--fact that ordinance confines assessment to contiguous property does not make it a special tax. An assessment for street improvement, made according to benefits, is not necessarily a special tax because confined, by the ordinance, to contiguous property.

WRIT OF ERROR to the Circuit Court of Cook county; the Hon. THOMAS G. WINDES, Judge, presiding:

Wilson, MOORE & MCILVAINE, for plaintiff in error.

GREEN, ROBBINS & HONORE, for defendants in error.

Mr. JUSTICE CARTER delivered the opinion of the court:

As the owner of lot 17, in block 98, in school section addition to Chicago, abutting on that part of Jackson street improved by the South Park Commissioners, plaintiff in error sued out this writ of error to reverse a judg. ment rendered by default against said lot by the circuit court, in a proceeding by said commissioners for the confirmation of a special assessment made by them for the improvement of said street. There is no bill of exceptions in the record, and unless the proceedings on their face show that the judgment is erroneous it must be affirmed.

The petition was filed under an act of the General Assembly entitled "An act to enable the corporate authorities of two or more towns, for park purposes, to issue bonds,

* * * to make, revise and collect a special assessment on contiguous property for benefits by reason of the location of parks and boulevards,” etc., approved June 16, 1871. (2 Starr & Curtis' Stat. 1695.)

It is first contended that error appears because it is shown by the petition that Jackson boulevard was not originally a part of the park system, but only that it was "selected and taken” by the commissioners and was in the South Park district, and that they had no power to take a street of the city and exercise control over it except under a statute for that purpose,-citing Kreigh v. City of Chicago, 86 Ill. 407; and while it is not denied that, under statutory provisions enacted since that case was decided, (Laws of 1879, p. 216,) the commissioners, with the consent of the city council of Chicago and of the abutting property owners, had the power to select and take such streets and improve them as boulevards, it is still said that they could do so only under the circumstances and upon the conditions mentioned in the statute; that, this being a statutory proceeding, it is necessary that it should appear from the record that the facts upon the existence of which the right to take the street depended really did exist. We do not regard this view as correct. The proceedings by which the street was selected and taken had no necessary connection with the proceedings for the confirmation of the special assessment. It was alleged in the petition that it had been selected and taken and was within the park district, and it was neither necessary to allege nor to prove in this proceeding the regularity of the various steps by which the commissioners acquired control of the street. Whether such an issue might not have been made so as to involve the trial of the question bere sought to be raised, as was done in Thorn v. West Chicago Park Comrs. 130 I11. 594, it is not necessary to inquire, for the proceedings on their face show that the defendants in error had secured control of the street, and it will not be presumed that they did so illegally. As said in Chicago and Northwestern Railway Co. v. West Chicago Park

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