company for the conveyance of a right of way is carried out by the company and the railroad constructed, the possession of the railroad company is notice of its rights to subsequent purchasers and the agreement is binding upon the original owner and his grantees; that the railroad company was not guilty of laches in failing to file a bill for specific performance and an injunction until suit was brought against it for possession.

In Bragg v. Olson, 128 Ill. 540, this court held that when the purchaser of land, in 1862, was let into immediate possession and occupied and improved the premises up to his death, in 1867, and his widow and heirs continued in such possession for twenty years or more, upon a bill filed by the widow and heirs for a specific performance of the contract the defense of laches could have no application. See, also, Hall v. Peoria and Eastern Railway Co. 143 Ill. 163.

In the Hay case, supra, the court, in its opinion by Mr. Justice Sheldon, says: "The contract proven, then the equitable title of the ground in question was in the Chicago, Danville and Vincennes Railroad Company, from which company it passed to the present complainant. There was after but the bare legal title in Hay, who made the contract, which he held in trust for the benefit of the railroad company, and all subsequently taking such title under him. took it charged with the same trust, being affected with notice thereof from the occupation and use of the ground for the railroad. The objection of laches which is made, so far as respects the remedy for specific performance, is without application to such a case as this. (Pomeroy on Specific Performance of Contracts, sec. 404.) The railroad company had entirely performed on its part and was in full possession and enjoyment of the property with the consent of Alexander D. Hay. Nothing remained to be done but for the former owner to make conveyance of the legal title. The doctrine is, that from the time of the contract for the

sale of land, the vendor, as to the land, becomes a trustee for the vendee, and the vendee, as to the purchase money, becomes a trustee for the vendor, who has a lien upon the land therefor. No lapse of time is a bar to a direct trust as between trustee and cestui que trust. (Decouche v. Savetier, 3 Johns. Ch. 190.) At least time begins to run against a trust only from the time when it is openly disavowed by the trustee who insists upon an adverse right or interest which is fully and unequivocally made known to the cestui que trust. (Oliver v. Piatt, 3 How. 411.) The railroad was built and operated over the premises with the consent and acquiescence of Alexander D. Hay, who made the contract, until his death, in June, 1873, and subsequently was operated, without question of the railroad company's right, till in the spring of 1878, when Blakeley, the right of way agent, applied to defendant Hay for the deed of one hundred feet. There is manifestly no laches to bar specific performance."

The defendants in error acquired title to this property, as shown by their intervening petitions as well as the record of their deed, after the bill in this case was filed. The father of plaintiffs in error bought the property under a written contract. He paid for the property and was entitled to a deed. He was in open, notorious and exclusive possession of said property, and his contract was recorded before any of the rights of defendants in error which are in issue in this proceeding arose. He was the equitable owner and lacked merely a deed conveying the legal title to make him the complete owner.

The bill filed in the case is a bill for specific performance of the contract entered into between the former owners of the lots and the father of plaintiffs in error. Personal service was not had on the defendants to the bill who were parties to the contract, nor their grantee, Ferguson, who held the record title when the suit was commenced. We held in the case of Fowler v. Fowler, 204 Ill. 82, and

in prior cases cited in that opinion, that a decree of specific performance for the sale of land cannot be rendered against a non-resident vendor brought into court by publication, only. In the same case, however, in which an exhaustive opinion was delivered by Mr. Justice Magruder, this court further held that a third party who accepts a conveyance of land with full knowledge of a prior contract for its sale to another holds the land in trust for the original vendee, and a court of equity having jurisdiction of the subject matter and of the person of such third party may compel the latter to perform the contract, even though it is without jurisdiction to enforce the decree against the vendor. The opinion quotes at length from Story's Equity Jurisprudence and Pomeroy on Specific Performance in support of such holding. In the case at bar Ferguson was one of the original owners of the property, which was held in trust, as we have shown, for himself and the other owners. He received a deed from the trustee after the contract of the father of plaintiffs in error was filed for record. The defendants in error acquired the title of Ferguson after this suit was commenced and by their intervening petition became parties to the suit, so that all the parties in interest in the premises were in court and subject to its jurisdiction, and defendants in error took their title lis pendens, with notice of the rights of plaintiffs in error. The bill, while in form a bill for specific performance, was in the nature of a bill to quiet title, and will be so treated. It concludes with a general prayer for relief, and no objection was made to the form of the bill. The sole issue raised by the pleadings and urged in the arguments of counsel of the respective parties was the ownership of the property.

For the reasons given, that part of the decree of the city court of East St. Louis which decreed that defendants in error Canavon and Tarleton are the owners of lot 16 will be reversed and the cause remanded to that court, with directions to enter a decree finding that plaintiffs in error,

as heirs-at-law of J. S. Snell, Sr., are the owners of said lot 16, and that defendants in error Canavon and Tarleton, by proper deed of conveyance, convey to plaintiffs in error all their interest in said lot 16 within thirty days from the entry of such decree, and in default of their compliance with said decree that the master in chancery of said court make and deliver such deed.

Reversed in part and remanded, with directions.

THE NORTHERN TRUST COMPANY, Appellant, vs. BUCK & RAYNER, Appellee.

Opinion filed April 23, 1914.

I. INHERITANCE TAX-inheritance tax is not a tax upon property. That portion of the property of a deceased person which is reserved to the State under the Inheritance Tax law, although denominated an inheritance tax, is not a tax upon the property, but is a condition or a charge upon the right or privilege of succeeding to the ownership of the property by descent or will.

2. SAME-State acquires title to its share of deceased person's estate by operation of law. Under the Inheritance Tax law the State acquires title to its portion of the estate of a deceased person immediately upon the death of the owner, and such portion becomes severed from the remainder of the estate by operation of law and cannot pass either by descent or devise.

3. SAME when a lessee is not obliged to pay inheritance tax. In the absence of express words in a ninety-nine year lease which directly, in terms, require the lessee to pay inheritance taxes, provisions in the lease which refer to the payment by the lessee of taxes, charges and assessments that may be imposed upon the property itself exclude the idea that the lessee is bound to pay an inheritance tax, which is a thing wholly apart from property itself.

APPEAL from the Appellate Court for the First District;-heard in that court on appeal from the Circuit Court of Cook county; the Hon. JOHN P. McGOORTY, Judge, presiding.

MASON BROS., (HENRY B. MASON, of counsel,) for appellant.

D'ANCONA & PFLAUM, for appellee.

Mr. JUSTICE VICKERS delivered the opinion of the court:

The sole question in the case at bar is whether appellee, Buck & Rayner, a corporation, being the assignee of the lessee interest in a ninety-nine year lease, is liable, under the covenants in that lease, to re-pay appellant, as trustee and executor under the last will and testament of the lessor, the amount of the inheritance tax which appellant was compelled to pay to the county treasurer of Cook county. The action was in covenant for the recovery of $8010.85 which appellant paid as inheritance tax to the State by reason of the passing of the demised premises under the last will of the lessor, Ralph E. Starkweather. The suit being upon the lease and its assignment, those documents were brought into court and copies thereof attached to the declaration, and in the same manner, by an amendment to the declaration, the will of the original lessor was brought into court and a copy thereof attached to the declaration as an exhibit. Appellee craved and obtained oyer of the lease and the assignments thereof and the will of the lessor, and thereupon filed a general demurrer to the declaration, which was sustained. Appellant having elected to abide by its amended declaration, final judgment was rendered against it, which upon an appeal to the Appellate Court for the First District was affirmed. The case comes to this court on a certificate of importance.

The course of the pleadings here pursued is in accordance with the authorities, (1 Chitty's Pl.-Am. ed. 187213; Collins v. Ayers, 13 Ill. 358; Matthews v. Storm, 72 id. 316;) and presents the legal question whether under the terms of the lease appellee is liable to reimburse ap