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kins, together, having heretofore conveyed the undivided one-half part thereof to one John S. Farnam. It is hereby expressly declared by said grantors above named, that the purpose of this deed is to perfect the legal title to the said real estate conveyed in the said grantees abore named, as heirs of Martin Thompkins, deceased, by releasing all claims and interests which the said grantors have or might have therein as heirs of the late Justus and Lurena Stephens, both deceased, who, by their deed of date the 26th day of February, 1867, conveyed the said lands to Mary Thompkins," etc., concluding as in the former deed to Farnam. A mortgagee under Farnam and his wife, and certain tenants, were made parties defendant to the bill.
It is insisted by the appellant that the decree of the circuit court is erroneous in finding that he was the owner of but an undivided one-half of said premises, he insisting that he is the owner of the whole. His contention is based upon the theory that by the deed of Stepbens and wife to Mary Thompkins and the heirs of Martin Thompkins, the interest conveyed to said heirs was but a contingent remainder, conditioned upon their being heirs of Martin Thompkins at the death of Mary Thompkins, in whom the title in remainder could vest, and that as Martin Thompkins survived his wife, and hence at her death had no heirs, (nemo est hores viventis,) the remainder failed, and the land reverted to the grantors, Stephens and wife, or their heirs, and that by the deed to him from Templeton and others, heirs of the said Justus and Lurena Stephens, of date December 8, 1888, he became vested of the sole title to the premises in fee simple. While the bill seems to adınit that the conveyance by Stephens and wife was to Mary Thompkins for life, with remainder to the heirs of Martin Thompkins, the deed itself is not clear to that effect. Its language is: "This indenture," etc., "between Justus Stephens, of the county of Bureau, in the State of Illinois, and
Lurena Stephens, his wife, party of the first part, and Mary Thompkins, of the same place, for and during her natural lifetime, with remainder over to the heirs of Martin Thompkins, the husband of said Mary, party of the second part, witnesseth: That the said party of the first part, for the consideration
have remised, released, sold, conveyed and quit-claimed unto the said party of the second part and the heirs aforesaid, forever, all the right, title and interest, claim and demand, which the said party of the first part have in and to the following described lots,” etc.
It will thus be seen that the granting part of the deed does not purport to convey a life estate to Mary Thompkins and the remainder over to the heirs of Martin Thompkins, but that it is only by construing that part of the deed, together with the recital as to the parties of the second part, that an intention to convey a life estate with a contingent remainder over can be gathered. While it is true that contingent remainders are recognized in this State, they are not favored, and we think it may well be doubted whether, under all the facts and circumstances shown in this case, together with the peculiar language of the deed, it should be held to create such an estate. In our view of the case, however, it is unimportant to discuss that branch of it. On the appellant's own theory, that upon the death of Mary Thompkins the title reverted to the heirs of Justus and Lurena Stephens, it cannot be held that his deed from those heirs vested the title to the whole of the premises in him. That was a quit-claim deed of “all interest” in the premises, followed by the recital above quoted, clearly showing that the purpose of the deed was but to give effect to that which the grantors recognized as the intention of their ancestor in making the deed to Mary Thompkins and the heirs of Martin Thompkins.
The position of counsel for the appellant that this recital must be rejected as repugnant to the former clause conveying "all interest,” is untenable. The deed does not purport to convey the fee simple title to the property. (Holbrook v. Debo, 99 Ill. 372.) Certainly, there is no such inconsistency or repugnancy apparent upon the face of the instrument as to make it necessary to reject any part of the language used.
It is unnecessary to cite authorities in support of the proposition that all deeds, wills or other instruments will be so interpreted as to give effect to the intention of the party or parties thereto, if it can be done without contravening some established rule of law or public policy; and applying that rule to this deed, it is clear that appellant took under it only the interest which his wife and her sister, Elizabeth, could have taken as heirs of Martin Thompkins had he died prior to the death of his wife. To permit him, under this quit-claim deed, in consideration of one dollar, to become the absolute owner of all this property, in the face of the expressly declared intention of the grantors to the contrary, would be most inequitable and unjust, and violative of the clear intention of all the parties at the time of its execution. No rule of law, and certainly no public interest or policy, requires any such construction. That deed, as well as the subsequent one by the same parties to the complainants below, clearly shows that both the grantors and grantees understood that by the deed of Justus Stephens and wife to Mary Thompkins and the heirs of Martin Thompkins it was intended to convey a life estate to the wife, Mary, with remainder to those who should be the heirs of Martin Thompkins at his death, but that such intention was not expressed in that deed, or at least it was doubtful whether such intention was sufficiently expressed, and the object of both those deeds was simply to give effect to and carry out the real intention. The decree of the circuit court will be affirmed.
171 525 183 201
THE CHICAGO AND NORTHWESTERN RAILWAY COMPANY
THE PEOPLE ex rel. Charles F. Welty, County Collector.
Opinion filed February 14, 1898.
TAXES-effect of overscer's failure to notify party to work out road tax. The failure of the overseer of highways, in towns which have adopted the system of paying road taxes in labor, to give three days' notice to a tax-payer to work out such tax, as required by sec-. tion 108 of the Road and Bridge act of 1883, (Laws of 1883, p. 160,) is not a mere irregularity but the denial of a substantial right, which vitiates the levy.
APPEAL from the County Court of Lee county; the Hon. R: S. FARRAND, Judge, presiding.
WILLIAM BARGE, and C. LEROY BROWN, for appellant.
Mr. JUSTICE CARTWRIGHT delivered the opinion of the court:
Appellant appeared and filed objections to the application of the county collector of Lee county for judgment against its property for the road taxes assessed by the commissioners of highways of the town of Nachusa, in districts numbered 4 and 8 of said town. The court overruled the objections and gave judgment for the taxes.
It was stipulated at the hearing that the commissioners of highways of the town assessed the taxes and made and certified the lists, including a description of appel. lant's railroad property, September 1, 1898, being only two days previous to the date upon which the overseer was required by law to return such lists to the supervisor of the town; that the town of Nachusa had adopted the labor system provided for in the statute for the payment in labor of road taxes, and that the overseers of highways in said districts did not give appellant three days' notice of the time when and the place where it might appear and pay said road taxes in labor.
In the case of People v. Chicago, Burlington and Quincy Railroad Co. 164 Ill. 506, the various steps essential to the levy and collection of a valid tax of this character were pointed out, and it was held that the provisions of the statute must be substantially complied with before property can be taken and sold in satisfaction of the tax. Among these provisions is the direction of section 108, that every overseer of highways shall give at least three days' notice to each person residing in his district against whom a land or railroad property or personal property road tax is assessed, of the time when and the place where he may appear and pay such road tax in labor, and the provision that every such person may appear at such time and place and work in person or by an able-bodied substitute, and be credited on such road tax $1.25 for every day of eight hours. It was agreed in this case that such notice was not given, and appellant was deprived of the opportunity contemplated by the statute to work out the road tax. The privilege given by the statute was a substantial right, and it might be of considerable advantage to appellant to work out the tax at the rate therein fixed. Judge Cooley, in his work on Taxation, (at page 511,) says: “But it is not a mere irregularity when one is denied his legal right to work out a road tax and the amount is demanded in money." In such a case the party taxed is denied a substantial right which goes to the foundation of the tax, and the failure to give the notice and afford the opportunity accorded by the statute to make payment in labor vitiates the levy. Patterson v. Creighton, 12 Me. 367; Miller v. Gorman, 38 Pa. St. 309; Biss v. Town of New Haven, 42 Wis. 205.
Other objections to the taxes are presented and argued, but it is needless to consider them, since the failure to give the notice is decisive against the validity of the taxes. The judgment of the county court is reversed.