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vital organs, and he was afraid it was going to be fatal. In response to the deceased's question whether he thought he (the deceased) could live until his parents got there, the doctor answered that he believed he could. The deceased's mind was clear, and he realized what the doctor was telling him. After the doctor was gone the deceased inquired of Mrs. Shiplor how long it was until train time, and, on being told about an hour and a half, said, "I cannot stand it; I cannot live." Again, he inquired if Mrs. Shiplor thought the train would be on time, and when she could not tell he said, "Mama won't get here." When Mrs. Shiplor said, "Yes; you are going to live all right," he said: "No, I cannot; I am too near gone; I am killed." He inquired again about the train, and to her encouraging remark that he was all right, answered: "No, I am killed; I cannot live; I cannot breathe, you see." Then he made the statement offered in evidence. From the first he accepted the doctor's statement as to the probable fatal end of his wound. His only hope was to live to see his parents. In fact, he lived from Friday morning until Monday morning, but there was no hope of his recovery at any time. The evidence shows that he expected death almost immediately, and was sufficient to justify the admission of his statements as dying declarations.

[4] Mrs. Shiplor testified to raising the deceased up and the blood gushing out over her dress while she held him and fanned him, and it is objected that the dramatic character of her evidence was calculated to inflame the minds of the jury and arouse their passions. It was essential to show the actual physical condition of the deceased, his condition of mind, and what he thought of his condition, and the circumstances testified to were competent for these purposes. The fact that the circumstances attending events which are competent to be given in evidence may tend to harrow the feelings or arouse the sympathies does not justify their exclusion.

[5] James Greenlee, when cross-examined by counsel for the plaintiff in error, denied that he had been in a lunchroom on North Oak street with his brother and James Bain about half-after 11 on the night in question, and that they tried to buy cartridges then or asked for beer with their lunch. Lottie Hochshaw, a witness produced by the defense, testified that they were in the restaurant and got some sandwiches about halfafter 10, and questions were then asked calculated to elicit answers that they had asked for drinks and tried to buy cartridges. was not attempted to show that they had got any drinks or any cartridges, and objections to the questions were properly sustained.

It

[6] The court gave to the jury five instructions on the subject of reasonable doubt, covering two pages of the abstract, containing,

on the subject which have been approved in various decisions, all tenċing to minimize the force of the rule of law requiring the proof which will justify a conviction of crime to be beyond a reasonable doubt. A treatise of two pages on the subject of reasonable doubt tends rather to confuse than enlighten, and should not be given to the jury. This judgment, however, is not to be reversed for the giving of these instructions.

[7] An instruction was given on the subject of self-defense, as follows: "The jury are further instructed that before the defendant, Harry Warren, can avail himself of the right of self-defense, it must appear that at the time of the killing the danger was so urgent and pressing that in order to save his own life or to prevent his receiving great bodily harm the killing of the deceased, Arthur Greenlee, was necessary, or apparently necessary, and it must also appear that the deceased, Arthur Greenlee, was the assailant, or that the defendant, Harry Warren, had in good faith endeavored to decline any further struggle before the mortal shot was fired." shot was fired." This instruction was erroneous in assuming that the killing of the deceased was the act of the plaintiff in error. There was testimony that other shots were fired than those fired by the plaintiff in error; that shots were fired from the west at him, and it may be inferred from the evidence that the deceased was in range of these latter shots. The plaintiff in error should not have been foreclosed from presenting to the jury the question whether it was shown that his bullet killed the deceased, as was done by the assumption in the instruction that the killing was by plaintiff in error.

[8] The sixteenth instruction was as follows: "The court instructs the jury that if you believe, from the evidence, that the deceased, Arthur Greenlee, was of sound mind, and was fully impressed of the belief that he would die in a short time and was without hope of recovery, and that he, while in such frame of mind, made declarations and statements, then such declarations and statements would be entitled to the same weight as if they had been made under the sanction of an oath." This was erroneous. The weight to be given to the statements was for the jury to say. They were competent to the same extent as if made under the sanction of an oath from necessity. The instruction is misleading because it seems to say that the statements are entitled to the same weight as if the declarant had testified to them as a witness, and this is not the law. Nordgren v. People, 211 Ill. 425, 71 N. E. 1042. This instruction was approved in Barnett v. People, 54 Ill. 325, but we regard that decision as inconsistent with the rule in the Nordgren Case and as overruled to the extent that it approves this instruction.

The plaintiff in error complains of the

the refusal of others. He has been acquit- | ted of murder. The substance of some of the instructions refused was contained in others which were given, and the objections made to others will no doubt be obviated on another trial. It is unnecessary to consider these objections in detail.

For the errors indicated, the judgment will be reversed and the cause remanded. Reversed and remanded.

(259 III. 232)

ROBERTS et al. v. COX et al. (Supreme Court of Illinois. June 18, 1913.) 1. TENANCY IN COMMON (§§ 3, 15*)-MUTUAL RIGHTS AND LIABILITIES-ADVERSE POSSES

SION.

A grantee in a quitclaim deed executed by the widow and adult heirs of a decedent leaving also minor heirs acquires a legal title to an undivided interest, and is a tenant in common with the minor heirs, and his possession is not adverse to them unless it becomes so after they attain full age.

[Ed. Note.-For other cases, see Tenancy in Common, Cent. Dig. §§ 5-17, 42-52; Dec. Dig. §§ 3, 15.*]

2. TENANCY IN COMMON (§ 15*)-MUTUAL RIGHTS AND LIABILITIES-ADVERSE POSSESSION.

Mere possession by one tenant in common, who receives all the rents and profits and pays the taxes, does not overcome the presumption that the possession of one tenant in common is the possession of all and does not constitute an adverse possession.

[Ed. Note.-For other cases, see Tenancy in Common, Cent. Dig. §§ 42-52; Dec. Dig. 8

15.*]

3. TENANCY IN COMMON ( 15*)-MUTUAL RIGHTS AND LIABILITIES-ADVERSE POSSES

SION.

The possession of one tenant in common becomes adverse to his cotenants by notice that the premises are held adversely to their claim, and the notice may consist of overt acts of exclusive ownership, provided they are of such an unequivocal character as to impart information to the cotenants that their right and title are denied and that the possession is held adversely to any claim they may have.

[Ed. Note.-For other cases, see Tenancy in Common, Cent. Dig. §§ 42-52; Dec. Dig. § 15.*]

4. TENANCY IN COMMON ($ 15*)-MUTUAL RIGHTS AND LIABILITIES "ADVERSE POSSESSION."

The possession of a cotenant becomes "adverse" as a matter of fact where his acts are of such a character as to show that he claims exclusive ownership and denies all right in his cotenants, and limitations begin to run when the possession of the cotenant assumes that

years after the cotenants attained full age, who lived in the vicinity and who understood that their right was denied, the right of the cotenants was barred by limitations.

[Ed. Note.-For other cases, see Tenancy in Common, Cent. Dig. §§ 42-52; Dec. Dig. § 15.*]

6. LIFE ESTATES ($ 8*)-POSSESSION OF LIFE TENANT-POSSESSION OF REMAINDERMEN.

The possession of real estate by a life tenant is in law the possession of the remainderman and his grantees.

[Ed. Note.-For other cases, see Life Estates, Cent. Dig. §§ 24-28; Dec. Dig. § 8.*]

Appeal from Circuit Court, Coles County; W. B. Scholfield, Judge.

Suit by Alpheus Roberts and others against John M. Cox and others. From a decree of dismissal for want of equity, complainants appeal. Affirmed.

T. N. Cofer and Albert C. Anderson, both of Charleston, for appellants. Henry A. Neal, of Charleston, and James W. & Edward C. Craig, of Mattoon, for appellees.

CARTWRIGHT, J. The appellants filed their bill in the circuit court of Coles county fourteenths of a tract of land containing 40 against the appellees, claiming title to threeacres and praying for partition of the same. The appellees defended under the 20-year and 7-year statutes of limitation. The issues were referred to the master in chancery, who took the evidence and reported the same, with his recommendation that the bill be dismissed for want of equity, at the appellants' cost. The chancellor overruled exceptions to the report and entered a decree in accordance with the recommendation. From that decree this appeal was prosecuted.

The material facts are as follows: James W. Craig was the owner of the tract, and on October 26, 1853, conveyed it by warranty deed to John L. Roberts, who died intestate on January 3, 1854. Roberts left no descendant, and his heirs at law were his widow, his father and mother, and five brothers. The widow inherited an undivided one half and had dower in the other half, which, subject to the dower, descended to the father, mother, and brothers in the proportions fixed by the statute. Three of the brothers were minors, aged four, six, and eight years, respectively. On February 22, 1854, the widow, father, mother, and two of the brothers, constituting the only adult heirs, reconveyed the premises, by quitclaim deed, to James W. Craig, who took possession of the land and held exclusive possession until his death, in 1887. Since his death the land has been in the exclusive possession of his widow, who is now Eliza J. Ring, one of the defendants. James W. Craig left a will devising a life estate in the land to his widow with the reWhere a grantee of an undivided interest mainder in fee to his two children, and the in real estate and those claiming under him defendant John M. Cox acquired the remain. have been in the actual, visible, hostile, and exclusive possession of the entire' property un- der by conveyances. The three minors were der a claim of absolute title for more than 20 each entitled to a one-fourteenth interest in

character.

[Ed. Note.-For other cases, see Tenancy in Common, Cent. Dig. §§ 42-52; Dec. Dig. § 15.*

For other definitions, see Words and Phrases, vol. 1, pp. 227-236; vol. 8, p. 7568.] 5. TENANCY IN COMMON (§ 15*)-MUTUAL RIGHTS AND LIABILITIES-ADVERSE POSSESSION.

and notice that the premises are held adversely to the claim of the cotenants. Such notice need not be a formal one, directed to the cotenants, but may consist of overt acts of exclusive ownership of such a nature as to give notice to the cotenants that an adverse possession and disseizin are intended to be asserted. If acts are depended upon to give the possession an adverse character, they must be of such an unequivocal character and of such a nature as by their own import to impart information to the cotenants that their right and title are denied and the possession is held adversely to any claim they may have. Long v. Morrison, 251 Ill. 143, 95 N. E. 1075.

the land as heirs at law of their father. One | mon may become adverse to his cotenants by of them reached his majority in 1866 and the assertion of an adverse right and title died shortly afterward. Another became 21 years of age in 1868 and died in 1908. The remaining one reached his majority in 1871. The three-fourteenths claimed by the bill are the shares which descended to the minors on the death of John L. Roberts. About 1872 James W. Craig asked the complainant Alpheus Roberts who had become 21 years of age in 1871 to give him a quitclaim deed for his interest. Alpheus replied that he had nothing to give him and nothing further was said on the subject. The request was an acknowledgment that Alpheus had an interest in the legal title but there was no offer to pay anything for the deed. Some time between 1870 and 1872 Craig asked a neighbor if he would see the two Roberts heirs who were then living and get them to give him a deed. One of them refused outright and Alpheus said he would not sign a deed unless Craig paid him. That statement being reported to Craig he told the neighbors that he would do what was right with them but nothing further was done. After 1872 there was never any acknowledgment by Craig of any right, title or interest in the land of any nature in the Roberts heirs. Craig in his lifetime received the rents and profits, paid the taxes and treated the land in every respect as his own, and since his death his widow, the life tenant, has received the rents and profits and paid the taxes. The parties lived near each other, and no claim was ever made of any interest in the land adverse to the title of Craig and his devisees until the bill was filed in this case, in 1911, when Craig and his devisees had been in exclusive possession about 40 years with no acknowledgment of any other title. There was no evidence under what circumstances the deed to Roberts, and the quitclaim deed from the widow and heirs soon afterward to Craig, were made.

[4] The possession of a cotenant becomes adverse, as a matter of fact, if his acts are of such a character as to show that he claims exclusive ownership and denies all right or title in his cotenants. Waterman Hall v. Waterman, 220 Ill. 569, 77 N. E. 142; Steele v. Steele, 220 Ill. 318, 77 N. E. 232. Whenever the possession of a cotenant assumes that character the statute of limitations begins to run and an action will be barred when the statutory period has elapsed.

[5, 6] James W. Craig and his devisees have been in the exclusive possession of the tract of land since 1854, and, at least since 1872, it has fulfilled all of the conditions of being actual, visible, open, notorious, hostile, and exclusive under a claim of title inconsistent with that of any other person. The possession of the life tenant since the death of James W. Craig has been, in law, the possession of the remaindermen and their grantee. Mettler v. Miller, 129 Ill. 630, 22 N. E. 529; Weigel v. Green, 218 Ill. 227, 75 N. E. 913, and Id., 221 Ill. 187, 77 N. E. 574. It was certainly understood by the other tenants in common living in the same vicinity that James W. Craig and his devisees claimed exclusive ownership and denied all right or title in any other person. Any right of action by complainants was barred by the 20year statute of limitations before the bill was filed, and the court did not err in dismissing the bill for want of equity. The decree is affirmed. Decree affirmed.

[1, 2] By the quitclaim deed from the widow and adult heirs James W. Craig acquired the legal title to eleven-fourteenths of the tract of land as tenant in common with the three minors, each of whom had title to onefourteenth. His possession was, in contemplation of law, the possession of all, and was not adverse to the other tenants in common unless it became so after the minors attained their majority. Mere possession by one tenant in common, who receives all the rents and profits and pays the taxes assessed against the property, no matter for how long a period, is not sufficient to overcome the presumption of law that the possession of one is the possession of all, and such facts, alone, do not constitute an adverse posses-ed by a chattel mortgage, a new note with persion. Stevens v. Wait, 112 Ill. 544; Comer v. Comer, 119 Ill. 170, 8 N. E. 796; McMahill v. Torrence, 163 Ill. 277, 45 N. E. 269.

[3] The possession of one tenant in com

(259 Ill. 130)

KEELIN V. POSTLEWAIT CO. (Supreme Court of Illinois. June 18, 1913.) 1. CHATTEL MORTGAGES (§ 136*)-LIEN-DURATION-CHANGE IN FORM OF INDEBTED

NESS.

Where, upon the maturity of a note secur

sonal security was executed for the balance due, the old note being surrendered and canceled, and there was no intention to release the lien of the chattel mortgage, but on the contrary the note was given as an evidence of the

continuation of the debt, the lien was not released as to the unpaid balance as against a subsequent mortgagee, since a mere change in the form of the indebtedness does not satisfy a mortgage given to secure it unless it is intended to so operate.

| erly deducted, there would still be a balance due from the mortgagor to the first mortgagee. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3331-3341; Dec. Dig. § 843.*]

Error to Branch C Appellate Court, First

[Ed. Note.-For other cases, other cases, see Chattel Mortgages, Cent. Dig. §§ 220-226; Dec. Dig. District, on appeal from Circuit Court, Cook 136.*] County; Thomas G. Windes, Judge.

2. CHATTEL MORTGAGES (§ 136*) WAIVER OR Loss.

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As between the parties the lien of a chattel mortgage can only be destroyed by the payment or discharge of the debt or by the release of the mortgage.

[Ed. Note.-For other cases, see Chattel Mortgages, Cent. Dig. §§ 220-226; Dec. Dig. § 136.*]

3. CHATTEL MORTGAGES (§ 136*)-RIGHTS AND REMEDIES OF CREDITORS-MODIFICATION OF AGREEMENT.

Where a note secured by a chattel mortgage provided for monthly payments by applying thereon the amount of livery bills due from the mortgagee to the mortgagor, the parties, by agreement between them, could, as against a subsequent mortgagee, postpone such payments until the maturity of the note, the livery bills being paid the mortgagor in cash, since the subsequent mortgagee acquired no rights in reference to the first mortgage except the right to pay the debt secured thereby and thus release it, especially where the money so paid the mortgagor was used by him to defray the running expenses of the business, and he was thus enabled to remain in business longer than he could otherwise have done.

Bill in equity by Thomas W. Keelin against the Postlewait Company. A judgment in favor of complainant was reversed by the Appellate Court for the First District (174 Ill. App. 71), and complainant brings error.

Affirmed.

William A. Doyle, of Chicago (Joseph J. Thompson, of Chicago, of counsel), for plaintiff in error. Jones, Kerner & Posvic, of Chicago (De Witt C. Jones, of Chicago, of counsel), for defendant in error.

COOKE, C. J. In this case the judgment of the Appellate Court for the First District reversing the decree of the circuit court of Cook county and remanding the cause, with directions to dismiss the bill for want of equity, has been brought up for review by writ of certiorari.

On May 1, 1903, Luke Wheeler purchased from defendant in error, the Postlewait Company, its livery business for $9,400. Of this sum $1,500 was paid in cash and three notes were given for the balance: One for $500, [Ed. Note.-For other cases, see Chattel Mortgages, Cent. Dig. §§ 220-226; Dec. Dig. in 90 days; and one for $5,400, payable in payable in 30 days; one for $2,000, payable $136.*1

4. CHATTEL MORTGAGES (§ 162*) TAKING POSSESSION OF PROPERTY-TIME FOR TAKING

POSSESSION.

23 months at the rate of $250 per month, and interest. The first note was executed by Wheeler and plaintiff in error, Thomas W. Keelin. A chattel mortgage was given on all the personal property used in the livery business to secure the other two notes. The note for $5,400 was as follows: "Chicago, May, 1903. On or before twenty-three months after date I promise to pay Postlewait Company $5,400, with interest thereon from date at the rate of six per cent. per annum. ue received. This note is secured by a chattel mortgage. Payment thereon is to be made in monthly installments of $250 each, 5. ESTOPPEL (§ 87*)-REPRESENTATIONS-NE- the first payment to be June 20, 1903. It is

Where a note secured by a chattel mortgage provided for payment on or before 23 months after date, payment to be made in monthly installments, the mortgagee was not bound to declare a forfeiture and take possession of the mortgaged property upon a default in payment of one of the installments, but, if it saw fit to do so, could wait until the entire debt secured by the mortgage became due. [Ed. Note.-For other cases, see Chattel Mortgages, Cent. Dig. §§ 286-293; Dec. Dig. § 162.*]

Val

agreed that said monthly payments are to be taken in livery hire by said Postlewait Company, which livery hire and service are to be satisfactory to said Postlewait Com

CESSITY OF RELIANCE ON REPRESENTATIONS. A chattel mortgagee was not estopped by its representations to a subsequent mortgagee that the mortgagor was keeping up the payments on the secured notes to deny such pay ments or, to assert a lien therefor, where the second mortgagee extended no additional cred-pany. it to the mortgagor and did not change his attitude or course of conduct in any respect on account of such representations.

[Ed. Note. For other cases. see Estoppel, Cent. Dig. §§ 230-234; Dec. Dig. § 87.*] 6. APPEAL AND ERROR

It

If the livery bill of said Postlewait Company at the end of any month shall exceed $250 the excess shall be paid to me. If the livery bill in any month shall be under $250 the adjustment shall be delayed until the following month and until the livery (§ 843*)-REVIEW- bill amounts to the sum of $250 or more. MATTERS NOT NECESSARY TO A DECISION. being the intention to pay said indebtedness On appeal from a judgment dismissing a bill by a second chattel mortgagee to have the in livery hire to said Postlewait Company, first mortgage declared satisfied and for a re- as aforesaid, within the period above speciceiver of the mortgaged property, it was un- fied, at the rate of $250 per month. The necessary to determine whether certain items interest to be computed and paid at each were improperly deducted in the monthly settlements between the first mortgagee and the monthly settlement. This note is secured by mortgagor, where, even if they were not prop-chattel mortgage. Luke Wheeler."

In addition to the chattel mortgage securi- | wait Company advertised the property to be ty, the $2,000 note was also executed by sold on August 27, 1904. On August 26, 1904, Wheeler's father-in-law. Upon its maturity Keelin filed his bill in chancery in the cir$1,500 was paid thereon, and for the balance cuit court of Cook county setting up the a note for $500 was given by the same par- giving of the mortgage to him, alleging that ties. the mortgage to the Postlewait Company was fully paid, and that there was nothing due it for which the property should be sold, and that the Postlewait Company and Wheeler were conspiring to defraud him of his rights. The bill prayed for a discovery of the property of Wheeler; that the Postlewait Company be required to disclose the amount of money received from Wheeler and all moneys coming into its hands from the livery business carried on by him; that its mortgage be declared satisfied; that Wheeler be decreed to pay plaintiff in error the amount due him; and asked for the appointment of a receiver. On the day the bill was filed Samuel C. Postlewait was appointed receiver, and on the following day the property was sold for the sum of $4,450.40. expense of the receiver and the expense of the Postlewait Company in connection with taking the property and advertising the sale, as allowed by the circuit court, amounted to $1,042.74. Deducting this sum from the amount of the sale would leave in the hands of the receiver $3,407.66, or $652.09 less than the amount remaining due and unpaid on the two notes due the Postlewait Company.

The

During the time the livery business was owned by Wheeler, he rendered livery service to the Postlewait Company, a corporation engaged in the undertaking business. For nine months, or until February, 1904, $250 per month was credited from the livery bill of the Postlewait Company upon the $5,400 note. Subsequently, and beginning with the month of February, 1904, the whole of the livery bill accruing monthly was paid in cash. The Postlewait Company owned hearses and an ambulance, which were used in its business. By agreement entered into with Wheeler at the time he purchased the livery business he was to have the use of the hearses and the ambulance and divide the gross earnings derived from their use with the Postlewait Company-65 per cent. to Wheeler and 35 per cent. to the Postlewait Company-the latter to maintain and keep the same in repair. In addition, it was further agreed that the Postlewait Company should have 10 per cent. of the proceeds from such livery business as it should bring or send to Wheeler; the bills for the same to be guaranteed by it. In the monthly settlements made by the Postlewait Company with Wheeler the 35 per cent. of the gross earnings from the use of the hearses and the ambulance and the 10 per cent. of the proceeds from all the livery business furnished through it were deducted from its livery bill. The $500 note was paid when due. No other payments were made upon the two remaining notes than those specified. At the time the decree was entered, assuming that the Postlewait Company had given Wheeler credit for all moneys that should have been applied to the payment of these two notes, there was then due and unpaid on the two notes the sum of $4,059.75. Wheeler had been compelled to borrow money with which to pay the $500 note, and Keelin became security on this new note. In the meantime Keelin, who is engaged in the feed business, had furnished Wheeler with feed to the amount of $657.54. On July 16, 1907, Wheeler gave Keelin a mortgage on the same property as that mortgaged to the Postlewait Company, to secure the payment of a note for $2,000; such mortgage being by its terms made subject to the mortgage of the Postlewait Company. The $2,000 obligation mentioned in the mortgage was meant to cover the indebtedness then owing from Wheeler [1, 2] It is first contended that when $1,and such advances as might thereafter be 500 was paid on the $2,000 note and that made to him by Keelin. In August, 1904, note was surrendered and canceled and the Wheeler became convinced that he could no new note for $500, with personal security, longer carry on the business, and he surren- was executed, the mortgage lien was released dered possession of the mortgaged property as to the unpaid balance of the $2,000, and to the Postlewait Company, to be sold under the $500 should not be accounted as a part

The Postlewait Company answered the bill, but Wheeler was defaulted. The cause was referred to a master in chancery, who took the proof and reported, finding that the Postlewait Company had overcharged Wheeler $180 on its rent contract and that it was not entitled to the 10 per cent. of the proceeds from the livery business furnished by it; that the Postlewait Company was entitled to the balance due on the two notes; and that there was still in the hands of the receiver the sum of $469.12 in excess of the amount due the Postlewait Company. The chancellor sustained exceptions to the master's report and entered a decree finding that Wheeler was indebted to Keelin on the note secured by the second mortgage in the sum of $1,585.21, and that Keelin had a superior and preferred lien on the funds in the hands of the receiver, as against the claim of the Postlewait Company, for that amount, and ordered the receiver to first pay the amount so found to be due Keelin and to turn the remainder over to the Postlewait Company. Upon appeal to the Appellate Court for the First District that decree was reversed and the cause remanded, with directions to dismiss the bill for want of equity.

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