Imágenes de páginas
PDF
EPUB

the public maps of the city; and (2) that as within the past thirty years streets have been opened and improved in this subdivision north of Grand avenue and were thus accepted, it must be presumed that all the streets in the subdivision have been accepted.

A common law dedication is only complete upon acceptance. An express acceptance may be shown by some order, resolution or action of the public authorities made and entered of record, or it may be implied by acts of the public authorities recognizing the existence of the street and treating it as a public highway, but in either event the proof of acceptance must be unequivocal, clear and satisfactory. (City of Chicago v. Drexel, 141 Ill. 89; City of Carlinville v. Castle, 177 id. 105; People v. Johnson, 237 id. 237; City of Princeton v. Gustavson, 241 id. 566.) In this case there was no express acceptance shown by any order, resolution or action of the public authorities made and entered of record. In advancing the doctrine that acceptance may be implied from the acts of the public authorities in recognizing the existence of the street and treating it as such, the city relies wholly upon the action of the map department in making a reproduction of the plat filed by Wright and Webster and indicating thereon, through the strip in question, a street which is designated as West Ohio street, and placing upon the adjoining property, on each side of the strip, appropriate numbers. This act, alone, is not sufficient to constitute an acceptance of a common law offer of dedication. Authorities have been cited where the proof of making such maps has been considered, in connection with the proof of other acts on the part of a city, as implying an acceptance of the offer of dedication, but we have not been referred to any case which holds that the making and filing of such a map, alone, is sufficient to establish an acceptance. The making and filing of such a map by some employee of the city would not be sufficient to bind the city, and is therefore not sufficient proof, in

itself, of an acceptance of an offer of dedication on the part of the city.

In support of the second ground relied upon, the city seeks to apply the doctrine announced in Kimball v. City of Chicago, 253 Ill. 105, that where it clearly appears that the principal streets and alleys of a subdivision have been accepted by the municipality the presumption then obtains that all the streets and alleys of the subdivision have been accepted, unless there is something that shows the acceptance was limited. The doctrine there announced is the correct one, and as applied to the facts in this case discloses that there has been no acceptance on the part of the municipality of the streets designated on that part of the plat lying south of Grand avenue. At the time of the filing of the bills herein fifty-nine years had elapsed since the filing of the plat by Wright and Webster. During all that time the strips of land indicated on that plat lying south of Whisky Point road or Grand avenue were either vacant, unoccupied and abandoned, or, as has been the case for at least thirty years past, were in the open, continuous, adverse and undisputed possession of private persons or corporations other than municipalities, and during all that time no act was done on the part of the city of Chicago or of the public, aside from the making and filing of the maps referred to, which would indicate any intention to accept the offer of dedication. It does not appear when the strips of land north of Grand avenue were opened and improved as public streets. Edward Wright, one of the dedicators, died September 24, 1873. If his death occurred before the acceptance of the offer of dedication as to any of these streets the offer to dedicate was revoked, by implication, by his death. (People v. Johnson, supra.) In any event, and even though the streets north of Grand avenue were opened and improved before the death of Edward Wright, the city clearly showed its intention of accepting only those streets lying north of Grand avenue, and after having permitted

conditions to remain as they have been since the annexation of this territory in 1869 down to the present time, it can not now be permitted to insist that merely by accepting the streets north of Grand avenue it thereby accepted those lying south of that street.

The decree of the superior court in each of the consolidated causes is affirmed.

Decrees affirmed.

THE CHICAGO TITLE AND TRUST COMPANY, Appellee, vs. JOSEPH ZINSER et al. Appellants.

Opinion filed June 16, 1914.

I. CORPORATIONS-when effect of consolidation is to create new corporation. Every consolidation, purchase or merger of corporations must have statutory authority, and where the statute merely provides for the consolidation of domestic corporations, the original corporations, as such, cease to exist and a new corporation is created, with all the property, effects, rights and franchises held and enjoyed by either of the old corporations.

2. SAME-rule that authority of a trustee cannot be delegated does not apply to corporation trustee. The rule that the authority of a trustee in matters involving the exercise of discretion and judgment cannot be delegated by the trustee or by the courts rests upon the ground that the selection of a trustee implies personal confidence in his discretion and judgment, but the rule cannot be applied to a corporation trustee, as the element of confidence in the judgment and discretion of an individual is wanting.

3. SAME when consolidated corporation is entitled to execute trust. Where the trust corporation designated as trustee by a will is consolidated with another domestic corporation having the same character of powers, under the name of the latter, after the will was made but before the death of the testatrix, the new corporation formed by such consolidation has power to execute the trust.

APPEAL from the Superior Court of Cook county; the Hon. JOHN M. O'CONNOR, Judge, presiding.

PERCIVAL STEELE, for appellants.

WILSON, MOORE & McILVAINE, (N. G. MOORE, of counsel,) for appellee.

Mr. CHIEF JUSTICE CARTWRIGHT delivered the opinion of the court:

The appellee, the Chicago Title and Trust Company, commenced this suit by filing its bill in the superior court of Cook county against the appellants, Joseph Zinser and Mary Zinser, to compel the specific performance by the appellants of a contract made by it, as executor of the last will and testament of Etta Nelson, deceased, with the appellants for the sale to them of a lot in Chicago, known as 406 South Campbell avenue. The chancellor overruled a demurrer to the bill, and the appellants standing by their demurrer and refusing to answer further, a decree was entered in accordance with the bill. An appeal to this court was allowed and perfected.

The facts alleged in the bill and admitted by the demurrer are as follows: Etta Nelson, who was the owner in fee of the lot in question, died on May 14, 1913, and by her will nominated the Real Estate Title and Trust Company of Chicago as executor, and authorized it to sell and convey, as executor, the real estate of which she died seized. When the will was made, on May 31, 1912, the Real Estate Title and Trust Company and the Chicago Title and Trust Company were two corporations organized under the laws of this State, each having authority to accept and execute trusts and to be appointed assignee or trustee by deed and executor, guardian and trustee by will, and each had complied with all laws governing corporations organized for such purposes. After the making of the will, and before the death of Etta Nelson, the two corporations were consolidated into one, under the name of Chicago Title and Trust Company, by virtue of the statute authorizing such consolidation. The will was admitted to probate and letters testamentary were issued to the com

plainant, the Chicago Title and Trust Company, the corporation created by the consolidation. On January 19, 1914, the complainant, as executor of said will, entered into an agreement in writing with the defendants, Mary Zinser and Joseph Zinser, by which it agreed to sell said lot to the defendants for $950 and to convey the same to them by executor's deed, and the defendants agreed to purchase the lot for said sum and paid $10 earnest money. The complainant was to furnish an abstract of title and the defendants to have five days to examine it, and if they failed to perform the contract they were to forfeit the $10 as liquidated damages. No tender of a deed was to be required, but a notice addressed to 406 South Campbell avenue, deposited in the post-office, postage prepaid, that the deed was ready for delivery, was to have the force and effect of a tender. An abstract of title was furnished, and on January 30, 1914, the defendants delivered to the complainant a full and carefully prepared statement designed to raise the question whether the complainant was entitled to act as executor or trustee in cases where the Real Estate Title and Trust Company had been nominated for that purpose. The defendants therein stated that they did not raise any question of the sufficiency of the title except upon the point above mentioned and had no criticism to make of the form of deed which had been tendered to them, but declined to accept the deed or pay the money provided by the contract until a deed should be made, executed and tendered by some person or corporation having power to act under the will. The bill was filed on February 11, 1914, and set out at length the proceedings for the consolidation of the two corporations as well as the above stated facts.

In the case of Chicago Title and Trust Co. v. Doyle, 259 Ill. 489, the appellee contended that the Real Estate Title and Trust Company, which was nominated as executor of the will of Etta Nelson, had been merged into and absorbed by the original Chicago Title and Trust Company,

264 - 3

« AnteriorContinuar »