their father's estate, could, after the death of the father intestate, bring what they had received into hotchpot, and claim the right to share in the distribution of his estate; that they were barred by the express contract which they had made from all share in the estate. This was all that was in fact decided in those cases, or intended to be decided. There are not in the present case, as in the former ones, persons claiming to share in an estate in opposition to their express contract by which they had received property in full satisfaction of their shares in the estate.

The conveyance of land which Amos P. Simpson received from his father was in truth an advancement,-something received from his father in anticipation of what he might receive by inheritance,-differing from a simple advancement in that it was an advancement in full, made such by the superadded express contract of the parties; and, under the circumstances of this case, the advancement being regarded as one in full, the property conveyed cannot be brought into hotchpot, and appellees can in nowise share in the distribution of the estate of John Simpson, Sr., deceased. As against the children of Amos P. Simpson, in order that they may be brought within the operation of this section of the statute, we can have no doubt that what he thus received from his father should be regarded as an advancement, and that this is not inconsistent with any former holding of this court.

We are of opinion the superior court decreed rightly, and the judgment of the appellate court will be reversed, and the cause remanded for further proceedings in conformity with this opinion.

SCOTT, J. I do not concur in this decision.

(114 III. 528)

RANSOM v. HENDERSON and others.

Filed January 7, 1886.

1. ANSWER IN CHANCERY WITHOUT OATH, A PLEADING ONLY.

An answer in chancery not under oath is but a pleading, and has no effect as evidence. Jones v. Neely, 72 Ill. 449, and other cases cited.

2. ERROR NOT INJURIOUS To Party, not AVAILABLE TO HIM.

A party cannot assign for error that which does not prejudice his or her. rights. Greenman v. Harvey, 53 Ill. 390; Manufacturing Co. v. Cady, 96 Ill. 430; and other cases cited.

3. TAX DEED-PRIMA FACIE PROOF OF PROPER RECORD-BENEFIT OF STATUTE NOT LOST BY INTRODUCING OTHER EVIDENCE.

Under section 224 of revenue act of 1872 (2 Starr & C. St. c. 120, p. 2101) a tax deed is prima facie proof that the tax sale was conducted in the manner required by law. This includes prima facie proof that the tax sale was conducted in compliance with section 194 of the same chapter, (2 Starr & C. St. c. 120, p. 2093,) which prescribes the record which shall authorize a sale. The reading of a tax deed in evidence is sufficient to throw the burden of showing an imperfect record upon those contesting the sale. An unnecessary introduction of evidence by the plaintiff, in addition to the deed, will not deprive him of the benefit of statute.

Appeal from Brown.

SCHOLFIELD, J. This was a proceeding for partition prosecuted by Samuel E. Henderson, Owen P. Thompson, and William H. Barnes

against Hiram E. Henry, Robert Ransom, and Frona Ann Ransom, ai d others, in the circuit court of Brown county. The substantial allegations of the bill are: The lands of which partition is sought originally belonged to Jesse Orr, who died intestate on the first of January, 1876, leaving surviving him a widow and seven children,-namely, Sarah E. Masterson, John Orr, Sevano Caroline Orr, Susan Orr, Elliott Orr, Julia Orr, and Mary Orr; that John, Elliott, and Julia subsequently conveyed their respective interests in the tract, and the widow relinquished her right of dower in the interests so conveyed to Hiram E. Henry, Robert Ransom, and Frona Ann Ransom, as tenants in common; that after such conveyance the complainants, as tenants in common, purchased and became the owners of the respective interests of Sarah E. Masterson, Susan Orr, and Mary Orr, leaving one-seventh interest owned by Sevano Caroline Orr. Proper parties are made defendants, and brought before the court. Hiram E. Henry, and Robert and Frona Ann Ransom answered, jointly and severally, among other things, denying that they are seized of only the parts or interests in the premises as alleged in the bill, and also denying that complainants, or either of them, have or has any right, title, interest, or estate in the premises. They allege that Frona Ann Ransom acquired and owns six-sevenths of the premises, and that some person other than either of the complainants owns the other seventh. The other defendants failed to answer, and decree was rendered against them pro confesso. The court, on final hearing, found that the complainants each was the owner in fee of an undivided one-seventh, that the defendant, Frona Ann Ransom, is entitled to an undivided foursevenths of the premises; and commissioners were appointed to make partition accordingly. The commissioners reported at a future day that the lands were insusceptible of partition; and thereupon the court decreed that they be sold, and that the proceeds be divided and paid over in accordance with the several interests as previously found, etc. The evidence introduced upon the hearing proves the ownership of Jesse Orr in his life-time, his death, and that his surviving children and only heirs at law were as alleged in the bill; that Frona Ann Ransom has conveyances of the interest of Susan, Mary C., Savano C., and Elliott, and that Sarah Masterson conveyed by deed to complainants. Complainants claim the interests, and the claim was sustained by the circuit court, of John and Julia, by virtue of a judgment and sale for taxes, and a deed thereunder purporting to convey their interests.

and

The only question discussed upon the record is whether the evidence is sufficient to justify the decree as to those two interests. But the only parties adversely affected by the ruling-namely, John and Julia-are not before us. They have assigned no errors upon this record, and have taken no steps to reverse the decree below. Frona Ann Ransom, who alone appeals, makes no pretense, by her proofs, of ownership of their interests. Her answer, not under oath, was but a pleading, putting in issue the allegations of the petition. Willis y. Henderson, 4 Scam. 13; Jones v. Neely, 72 Ill. 449. The evidence, shows that she entered into possession having titles to a certain undivided interest, and fails to show

a disseizin of her co-tenants, or any attempt to disseize them; and the law therefore construes her possession as being under and by virtue of the title she is proven to have had, and in maintenance of the rights of all the tenants. Freem. Co-tenancy, § 166; Busch v. Huston, 75 Ill. 344; Ball v. Palmer, 81 Ill. 370. She got her full distributive share of the proceeds of the sale of the property under the decree, and whether other shares to which she is not entitled are paid over to the right parties or not cannot concern her. The principle is of familiar application that a party cannot assign for error that which does not prejudice his or her rights. Greenman v. Harvey, 53 Ill. 390; Robinson v. Brown, 82 Ill. 281; Willemin v. Dunn, 93 Ill. 511; Manufacturing Co. v. Cady, 96 Ill. 430. But we may go further, and sustain the decree upon the hypothesis that the question is properly before us. The judgment was for the taxes due for the year 1879. A record of the judgment and sale thereunder, a copy of the affidavit made for the purpose of obtaining a tax deed, and a tax deed in due and regular form of law, were read in evidence, without any objection being interposed against the competency and sufficiency of the evidence at the time. At all events, the record discovers no such ob

jection.

Section 224 of the revenue law, in force when this sale was made, (2 Starr & C. St. 2101,) makes tax deeds, like that here read in evidence, prima facie evidence in all controversies and suits in relation to the right of the purchaser, his heirs or assigns, to the real estate thereby conveyed, of seven distinct specified facts; among which are "that the real estate was sold for taxes or special assessments, as stated in the deed," and "that the sale was conducted in the manner required by law." Very clearly, if the sale was not conducted in the manner required by section 194 of the same chapter, which prescribes the record which shall authorize the sale, it was not conducted in the "manner required by law," and, conversely, if it was conducted in the manner required by law, it was conducted as required by said section 194; and so it must follow that the tax deed itself was prima facie evidence that the sale was conducted in the manner required by that section.

The objection now urged is that the evidence introduced failed to show compliance with said section 194; in other words, the existence of a precept authorizing the sale. The reading of the deed in evidence alone, by the petitioners, would have made a prima facie case in their behalf, and the burden would then have been on the defendants to have disproved that prima facie case. They were under no obligation, in the first instance, to have introduced any other evidence. But having unnecessarily introduced some evidence of the proceedings anterior to the sale, may it be said they have waived the prima facie case made by the introduction of the deed? We think not; especially as no objection was made at the time to the sufficiency of this evidence on the admissibility in evidence of the tax deed. Had the objection now urged been urged at the time, the petitioners might, for aught that appears in this record, have obtained and introduced the evidence claimed to be wanting. It comes too late. Daniels v. Burso, 40 Ill. 307; Hyde v. Heath,

75 Ill. 381. Bell v. Johnson, 111 Ill. 374, was totally unlike the present case. There the proceeding was to set aside the tax deed as a nullity, because there was no precept. The complainants affirmatively introduced what was claimed to be all the record evidence, and no precept was included. It was then incumbent on the defendant to introduce other proof of the precept, if such evidence was in existence; and no such evidence being introduced it was concluded there was none. The prima facie case made by the introduction of the tax deed was overcome. There was no question as to the admissibility of evidence, or of waiver by reason of failure to object to the introduction of evidence.

We have made some changes in the argument in this opinion, but none in the rulings. Since considering the able petition for rehearing filed herein, we perceive no reason to change from our former conclusion, and the decree is therefore affirmed, and the petition for rehearing denied.

(104 Ind. 359)

SUPREME COURT OF INDIANA.

STITZ v. STATE.

Filed December 31, 1885

1. ARSON-EVIDENCE-MOTIVE.

It is competent in a prosecution for arson to prove an overvaluation of insured property destroyed by fire, and a demand of the insurer for such value. This evidence is not competent for the purpose of impeaching the character of the accused, but is competent for the purpose of showing a motive. 2. SAME-INSTRUCTIONS-MISTAKE IN ESTIMATING VALUE OF PROPERTY.

Where evidence is given tending to show an overvaluation of property, and there is evidence tending to show that it was made by mistake of fact or error of judgment, the accused is entitled to an instruction that, if the overvaluation arose from such a cause, it is not evidence of a criminal motive or intent.

8. CRIMINAL LAW-REASONABLE DOUBT.

The following instruction is erroneous, viz.: "While each juror must be satisfied of the defendant's guilt beyond a reasonable doubt, to authorize a conviction, such reasonable doubt, unless entertained by all the jurors, does not warrant an acquittal. "1

Appeal from Jasper circuit court.

R. P. De Hart and S. P. Thompson, for appellant.

E. P. Hammond, for appellee.

ELLIOTT, J. The indictment upon which the appellant was convicted charges him with the crime of arson; and charges also that the crime was committed for the purpose of defrauding the Phoenix Insurance Company, who had issued a policy of insurance upon the building burned. The state was permitted to give in evidence a claim made by the appellant for property destroyed by the fire, and to prove that he put a value upon the property beyond its real worth. We regard this evidence as competent. We do not, however, agree with the counsel for the state that it was competent for the purpose of impeaching the character of the accused. On the contrary, we regard the theory of the counsel for the state upon this point as radically erroneous. Character cannot be impeached by evidence of specific acts. This familiar principle shatters the theory of the state. In proceeding upon this theory counsel were led into serious error in their argument to the jury, and the court followed them to the manifest injury of the appellant.

We put our ruling on the ground that the evidence was competent as tending to show a motive to commit the crime. If an accused has a

1" Reasonable doubt" was recently defined by the court of appeals of New York to be a doubt for which some good reason arising from the evidence can be given." People v. Guidici, (N. Y.)3 N. E. Rep. 493; and by the supreme court of Colorado, in Minich v. People, (Colo.) 9 Pac. Rep. 5, as "such a doubt as would cause a reasonable man to hesitate and pause."

For a full discussion of the subject of reasonable doubt, see People v. Guidici, (N.Y.) 3 N. E. Rep. 493, and note, 496.

v.4N.E.,no.2-10