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of said lot, and that by reason of the death of Daniel J. Calligan intestate, and by reason of the death of certain of his children subsequent thereto, complainant and certain other descendants of Daniel J. Calligan are now the owners of said lot as tenants in common, subject to the dower of Elizabeth E. Calligan, the widow of Daniel J. Calligan, except that the interests of the children and heirs of Edward G. Calligan, who was a son of Daniel J. Calligan, are subject to the rights of the National Fire Insurance Company of Hartford, Conn., the holder and owner of the master's certificate of purchase hereinafter mentioned. The National Fire Insurance Company answered the bill, denying that Daniel J. Calligan was at the time of his death the owner of the premises in controversy, and alleging that at the time of the death of Daniel J. Calligan, his wife, Elizabeth E. Calligan, was the owner in fee simple of the lot, and that by subsequent conveyances and court proceedings, it, the National Fire Insurance Company, became the holder and owner of a certificate of purchase entitling it to a deed to the premises, by virtue of which it has, since the filing of the bill herein, received a deed to the lot, and that it, the National Fire Insurance Company, is now the owner of said lot. The decree entered in the cause finds the rights of the parties to be as alleged in the bill, except it finds that the National Fire Insurance Company is the owner of an undivided interest in fee of the value of $1,000, and is also the owner of an undivided one-fourth of the remainder after taking out the $1,000 interest, and that the interest of each of the other alleged tenants in common, except the children of Edward G. Calligan, is a specified undivided part of the remainder after taking out the $1,000 interest of the National Fire Insurance Company in the premises. The decree, after finding the interests of the respective parties, directs certain persons, as commissioners, to make partition of the premises in accordance with the rights of the parties as fixed by the decree. The National Fire Insurance Company has prosecuted this appeal to reverse that decree.
The question for determination in this case is whether Daniel J. Calligan was at the time of his death the owner of the lot in controversy, except an undivided interest of the value of $1,000 therein, or whether his wife, Elizabeth E. Calligan, had obtained the entire title to said lot prior to the death of her husband. The chancellor found that at the time of the death of Daniel J. Calligan, Elizabeth E. Calligan was the owner in fee of an undivided interest in said lot of the value of $1,000, and that Daniel J. Calligan was the owner in fee of the remainder, and that by reason of his death, intestate, such remainder descended to his heirs at law, being his three children and one grandchild,
Elizabeth E. Calligan. Appellant contends that this finding is contrary to the evidence in the case, and that the court should have found, from the evidence in the record, that Elizabeth E. Calligan was the sole owner in fee of the lot at the time of her husband's death, and that appellant has succeeded to all her right, title, and interest.
Daniel J. Calligan became the owner of the said lot on August 25, 1868, when he received a deed therefor from George W. H. Gilbert and wife. On February 15, 1878, he, together with his wife, executed and delivered to John A. McCoy, as trustee, a trust deed conveying the premises to McCoy to secure a note for $4,000, payable to the Second National Bank of Peoria. On February 18, 1878, Daniel J. Calligan executed and delivered to Richard H. Whiting, Andrew J. Hodges, and Henry B. Hopkins a deed of assignment, thereby assigning and conveying to them in trust, for the benefit of his creditors, all his property, real and personal, including the premises in controversy, except such portion of his property as was exempt by law from levy and sale. His wife did not join in this deed of assignment. Thereafter, on May 29, 1878, Whiting, Hodges, and Hopkins, as assignees of Daniel J. Calligan, executed and delivered to Elliott Callender, assignee in bankruptcy of Daniel J. Calligan, a quitclaim deed conveying the real estate in controversy. This deed contained the following recital: "This deed is made in compliance with an order of the United States District Court for the Northern District of Illinois in the Matter of D. J. Calligan in Bankruptcy, requiring said grantors, as assignees of said Calligan, to convey to said assignee in bankruptcy all property held by them as such assignees." Thereafter, by a deed dated July 3, 1878, acknowledged September 4, 1878, and recorded October 7, 1878, Daniel J. Calligan and Elizabeth E. Calligan, his wife, conveyed and quitclaimed to the Second National Bank of Peoria the lot in question. This deed recited that the consideration for the conveyance thereby made was the full satisfaction and discharge of the note for $4,000 held by the bank, and which was secured by the trust deed to John A. McCoy above referred to. For a long period of time prior to the date of this deed of July 3, 1878, Daniel J. Calligan, together with his wife and family, had occupied the premises as a homestead, and they continued to reside thereon until Calligan's death, in 1886. The deed to the First National Bank contained a release and waiver of the right of homestead both in the body of the deed and in the certificate of acknowledgment attached thereto.
On August 2, 1878, the United States District Court for the Northern District of Illinois entered the following order in the Matter of Daniel J. Calligan, Bankrupt: "It
receipt of William H. Bradley, clerk, and lot by warranty deed to her son, Edward G. the receipts of creditors filed herein, that said bankrupt has fully complied with all the conditions of the composition proceedings herein, it is thereupon ordered by the court that Elliott Callender, assignee herein, turn over all the property and assets belonging to said bankrupt's estate remaining in his hands, to the said Daniel J. Calligan." On the same day the United States District Court also entered another order in said matter, as follows: "On reading the register's final report upon the composition herein, it is ordered that the assignee of said estate turn over the assets in his hands to said bankrupt." These are the only orders entered by the United States District Court in the bankruptcy proceedings introduced in evidence in this case, and the only other proceeding here shown to have been taken therein, other than that shown by the recital in the deed from Whiting, Hodges, and Hopkins, as assignees, to Elliott Callender, assignee in bankruptcy, was the filing of a report on August 5, 1878, in the United States District Court, by Elliott Callender, assignee in bankruptcy, in which said assignee shows his receipts and disbursements and the balance of cash on hand, and reports that in pursuance of the order of August 2, 1878, he paid and delivered to Calligan all the balance of cash on hand and all the books, accounts, goods, chattels, and property remaining in his hands as assignee. No mention is made in this report of the real estate in question.
The record further discloses that on October 7, 1878, there were executed, acknowledged, and recorded four instruments affecting the title to the real estate in controversy, as follows: A quitclaim deed from the Second National Bank of Peoria to Eunice Elizabeth Calligan; a deed from John A. McCoy, trustee, to Eunice Elizabeth Calligan, releasing the trust deed of February 15, 1878, and conveying the title to her; a quitclaim deed from Elliott Callender to Daniel J. Calligan; and a trust deed from Eunice Elizabeth Cal ligan, in her own right, and Daniel J. Calligan, her husband, conveying the premises to Samuel S. Winn in trust to secure a note for $2,500, payable to John Winn. These four instruments, together with the above mentioned deed from Daniel J. Calligan and wife to the Second National Bank of Peoria, were filed for record at the same time. The trust deed of October 7, 1878, to Winn was released on October 7, 1881, and on the latter date Daniel J. Calligan joined with his wife in another trust deed to John C. Proctor, as trustee, to secure a note for $2,500.
Calligan. On July 22, 1898, Edward reconveyed the premises by quitclaim deed to his mother, who on the same day executed a contract, which was not recorded, agreeing to reconvey the premises to Edward upon his making certain payments aggregating $8,000. Thereafter, on May 22, 1903, Elizabeth E. Calligan mortgaged the lot to Elliott Callender to secure a note for $3,000, and four days later conveyed the lot to Edward G. Calligan by warranty deed. Shortly afterwards Edward executed and delivered to his mother a mortgage on the lot to secure the payment of $6,000 to her, this mortgage reciting that it was made subject to the prior mortgage given to Elliott Callender to secure a note for $3,000. Afterwards, and prior to November 30, 1908, Edward G. Calligan died, leaving his widow and two children, and Elizabeth E. Calligan instituted suit in the circuit court of Peoria county against Edward's widow and children to foreclose the $6,000 mortgage. Proceedings were had in that suit which resulted in a decree on November 30, 1908, foreclosing the $6,000 mortgage held by Elizabeth E. Calligan and the $3,000 mortgage then held by appellant, and a sale was had on December 29, 1908, at which John W. Culbertson became the purchaser, and a certificate of purchase was issued to him by the master, which he afterwards assigned to appellant. The time for redemption from the sale having expired after the bill for partition herein was filed, appellant, as the holder of the certificate of purchase, on March 30, 1910, obtained a deed from the master conveying the lot in controversy to appellant.
 The principal disagreement between appellant and appellees relates to the validity of the deed from Daniel J. Calligan and Elizabeth E. Calligan, his wife, to the Second National Bank of Peoria, which purported to convey the lot in controversy. Appellees take the position that as this deed was dated July 3, 1878, it must be presumed, in the absence of proof to the contrary, that it was the bankruptcy proceedings were then pendexecuted and delivered on that date, and as ing, and as all of Calligan's right, title, and interest in the premises, except the homestead estate, had before July 3, 1878, vested in the assignee in bankruptcy, the deed to the Second National Bank was ineffective to convey anything except the homestead estate, being an undivided interest of the value of $1,000. We have frequently held that, in the absence of proof to the contrary, the presumption is that a deed was executed and delivered on the day it bears date, and this After the death of Daniel J. Calligan, in notwithstanding the deed may not have been 1886, his widow, under the name of Eliza- acknowledged until a subsequent date. Deinbeth E. Calligan, continued to deal with the inger v. McConnel, 41 Ill. 227; Jayne v lot in question as her property, mortgaging Gregg, 42 Ill. 413; Darst v. Bates, 51 Ill. the same to secure notes executed by her, and 439; Hardin v. Osborne, 60 Ill. 93; Hardin conveying the same by deed, as hereafter v. Crate, 78 Ill. 533; Smiley v. Fries, 104
v. Whitham, 155 Ill. 514, 40 N. E. 1014, 28 | and, in considering the effect of that statute L. R. A. 612, 46 Am. St. Rep. 355; Walker v. in Mariner v. Saunders, 5 Gilman, 113, it was Doane, 131 Ill. 27, 22 N. E. 1006. In none of said that "the certificate of acknowledgment those cases, however, was the acknowledg- of a deed from a feme covert to convey her ment to the instrument there under consider- own lands is as much an essential part of ation an essential part thereof, or necessary the execution of the deed as her seal or sigto render the instrument effective as a con- nature." veyance. Unless an acknowledgment is by statute made a requisite to the validity of the deed, a delivery without acknowledgment will be good, and will convey the title of the grantor. Doe v. Miles, 2 Scam. 315; Roane v. Baker, 120 Ill. 308, 11 N. E. 246. In such cases the certificate of acknowledgment is no part of the instrument of conveyance, but is merely evidence of the execution of the instrument by the grantor (Osgood v. Blackmore, 59 Ill. 261), and may be attached to the instrument either before or after its delivery. Hence the presumption that an instrument which is not required by statute to be acknowledged in order to convey title was delivered on the day it bears date is not rebutted by the fact that it appears from the certificate of acknowledgment that it was acknowledged at a subsequent time.
It will not be presumed that a deed was delivered before it was executed, and the acknowledgment of an instrument conveying a homestead being an essential part of the execution of the instrument, so far as the conveyance of the estate of homestead is concerned, it must be presumed, in the absence of proof to the contrary, that it was delivered on the date of the acknowledgment. Hence it must be presumed that the instrument purporting to convey the premises here in controversy to the Second National Bank was delivered by Daniel J. Calligan and wife to the bank on September 4, 1878, being the date of its acknowledgment, as it purported to and did convey an estate of homestead, and the proof shows that possession was not abandoned or given pursuant to the convey
 Appellees concede that the homestead estate was conveyed by this instrument, and the chancellor so found, but contend that the title to the excess over the homestead did not pass; this contention being evidently based upon the theory that as the deed, so far as it purported to convey the excess, was valid without acknowledgment, it must therefore be presumed, so far as the excess is concerned, that the deed was delivered on July 3, 1878. If it be presumed that, so far as the excess is concerned, the deed was delivered on July 3, 1878, yet it must also be presumed that the same instrument was again delivered on September 4, 1878, and upon such redelivery all the right, title, and interest which the grantors then had in the premises passed to their grantee. Doe v. Howland, 8 Cow. (N. Y.) 277, 18 Am. Dec. 445; Osterhout v. Shoemaker, 3 Hill (N. Y.) 513.
 In the case of a deed conveying a homestead, however, there can be no presumption that the deed was delivered on the day it bears date if the date of the deed is prior to the date of the acknowledgment. The homestead estate can only be conveyed by following the method prescribed by the statute for such conveyances. Section 4 of the Homestead Act of 1872 (Laws 1871-72, p. 478), which was in force at the date of the deed from Daniel J. Calligan and wife to the Second National Bank and at the time that instrument was acknowledged, provides that no release, waiver, or conveyance of the estate of homestead shall be valid unless the same be in writing, subscribed by the householder and his or her wife or husband, and acknowledged in the same manner as conveyances of real estate are required to be acknowledged, or possession be abandoned or given pursuant to the conveyance. By the express terms of this statute an acknowledgment is made a requisite to the validity of a conveyance of the estate of homestead, unless possession be abandoned or given  By the trust deed of February 15, 1878, pursuant to the conveyance, and without the legal title to the premises vested in John such acknowledgment the attempted convey- A. McCoy, as trustee, and there remained ance is void and does not operate to convey until McCoy, as trustee, on October 7, 1878, the estate of homestead. Gage v. Wheeler, by deed conveyed the legal title to Eunice 129 Ill. 197, 21 N. E.. 1075; Ogden Building Elizabeth Calligan, the wife of Daniel J. Ass'n v. Mensch, 196 Ill. 554, 63 N. E. 1049, Calligan. Coryell v. Klehm, 157 Ill. 462, 41 89 Am. St. Rep. 330; Gillam v. Wright, 246 N. E. 864. After executing and delivering Ill. 398, 92 N. E. 906, 138 Am. St. Rep. 243. this trust deed Daniel J. Calligan retained This statute makes the certificate of acknowl- and held the equitable title to the lot, subject edgment a part of the instrument of convey- to the rights of the Second National Bank ance, and until the instrument has been as the holder of the note secured by the acknowledged it has not been fully executed. trust deed, until February 18, 1878, when In effect it is similar to the statute which he executed and delivered to Whiting, was in force in the early history of the state Hodges, and Hopkins, as assignees, a deed prescribing the manner and before whom a of assignment, which operated to convey deed purporting to convey the estate of a Calligan's equitable title to all the excess
The deed from Calligan to the Second National Bank operated to convey all the right, title, and interest which he had in the lot on September 4, 1878.
79 Ill. 465; Torrence v. Shedd, 156 Ill. 194, 41 N. E. 95, 42 N. E. 171. On May 29, 1878, these assignees conveyed all the title which they had received by Calligan's deed of assignment to Callender, as assignee in bankruptcy, and by this conveyance Callender, as assignee in bankruptcy, became vested with the equitable title to all the excess over the homestead estate, subject to the rights of the Second National Bank as the holder of the note secured by the trust deed to McCoy, but only in trust for the purpose of applying the proceeds, in case of sale, to the payment of the bankrupt's creditors. So far as the record in this case discloses, the bankruptcy proceedings were concluded on August 5, 1878, by the payment of all claims against Calligan under a composition with creditors in the bankruptcy proceedings, and the trust upon which Callender, as assignee in bankruptcy, held the equitable title to the lot thereupon terminated. Thereupon Daniel J. Calligan became reinvested with all the equitable title to the lot, subject only to the rights of the Second National Bank, no conveyance from the assignee being necessary to reinvest him with such title. Burton v. Perry, 146 Ill. 71, 34 N. E. 60. Having become reinvested with the equitable title to the whole of the lot prior to September 4, 1878, the deed from Calligan and wife to the Second National Bank operated to convey, not only the equitable title to the homestead, but also the equitable title to the excess, and the deed from the bank to Eunice Elizabeth Calligan on October 7, 1878, vested the equitable title to the lot in her freed from the rights of the bank, as the holder of the note secured by the trust deed to McCoy. Thereupon Mrs. Calligan had the right to require a conveyance of the legal title from McCoy, and such conveyance was made on October 7, 1878, and she then became invested with both the legal and equitable title to the whole lot. Coryell v. Klehm, supra.
 The quitclaim deed of October 7, 1878, from Callender to Daniel J. Calligan, conveyed nothing, as Callender individually never had any title to the premises, and the equitable title which he had held as assignee in bankruptcy had previously revested in Calligan by operation of law. No subsequent conveyance to Daniel J. Calligan appearing from the evidence, it necessarily follows that he was not seised of any portion of the lot at the time of his death, and his heirs obtained no title thereto by descent from him. The conveyances subsequent to October 7, 1878, being the date when Mrs. Calligan obtained the title to the lot, show that appellant is the sole owner of the premises in controversy, and the chancellor, should have so found. The decree is therefore erroneous in finding that the heirs of Daniel J. Calligan
and their descendants have an interest in the premises, and in ordering partition.
The decree will be reversed, and the cause remanded to the circuit court, with directions to enter a decree dismissing the bill for want of equity.
Reversed and remanded, with directions.
(259 I11. 72)
TOWN OF MATTOON v. ELLIOTT. (Supreme Court of Illinois. June 18, 1913.) 1. COURTS ($ 219*) - JURISDICTION - NATURE
A freehold is involved within the statute giving the Supreme Court jurisdiction on direct appeal, where the necessary result of the judgment is that one party gains and another party loses a freehold estate, or where the title to a freehold is so put in issue by the pleadings that the decision necessarily involves a decision of the issue, but the right to a freethe action, and not incidentally or collaterally, hold must have been directly the subject of and the judgment must be conclusive of the freehold right until reversed.
[Ed. Note. For other cases, see Courts, Cent. Dig. 88 539-542, 545-549, 550, 552-573; Dec. Dig. 219.*]
2. HIGHWAYS (§ 44*)-RESURVEY-STATUTORY PROVISIONS-EFFECT.
A resurvey of a highway pursuant to or der of the highway commissioners, under Road and Bridge Act (Hurd's Rev. St. 1911, c. 121) § 37, authorizing the commissioners to order a resurvey, is made ex parte without notice and evidence, and is not binding on adjoining landowners or any other interested persons.
[Ed. Note.-For other cases, see Highways,
Cent. Dig. §§ 27, 137-140; Dec. Dig. § 44.*1 3. COURTS ($ 219*) - JURISDICTION - NATURE
Where defendant, in an action for a penalty for obstructing a highway, pleaded estoppel in pais, and averred that the highway commissioners ordered a resurvey, and that he erected the fence complained of as an obstruction on the boundary line of the resurvey, title to land was not in issue, and the Supreme Court had no jurisdiction on direct appeal from a judgment for defendant.
[Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 539-542, 545-549, 550, 552-573; Dec. Dig. 219.*]
4. HIGHWAYS (§ 161*) — OBSTRUCTION-DEFENSES-ESTOPPEL IN PAIS.
A defendant, in an action by a town for a penalty for obstructing a highway, may, under the plea of estoppel in pais, prove that the an obstruction was fence complained of as erected on the boundary line of a resurvey of the highway ordered by the highway commissioners.
[Ed. Note.-For other cases, see Highways,
Cent. Dig. §§ 322, 437-443; Dec. Dig. § 161.*1 5. ESTOPPEL (§ 106*) - ESTOPPEL IN PAIS
PERMANENT INTERESTS IN LAND.
Estoppel in pais affecting permanent interests in land is available only in courts of equity.
[Ed. Note.-For other cases, see Estoppel, Cent. Dig. §§ 291, 299; Dec. Dig. § 106.*] 6. CONSTITUTIONAL LAW (§ 46*)-DUE PROCESS OF LAW-STATUTES-VALIDITY.
The question of due process of law in the ordered under Road and Bridge Act (Hurd's taking of land by a resurvey of a highway Rev. St. 1911, c. 121) § 37, is not involved
in an action for a penalty for obstructing a highway where, under the issues legal title cannot be affected.
[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 43-45; Dec. Dig. § 46.*1 Error to Circuit Court, Coles County; William B. Scholfield, Judge.
Action by the Town of Mattoon against E. N. Elliott. There was a judgment for defendant, and plaintiff brings error. Cause transferred to the Appellate Court.
James W. & Edward C. Craig and Donald B. Craig, all of Mattoon, and Charles C. Lee, of Charleston, for plaintiff in error. Bryan H. Tivnen, of Mattoon, and Henry A. Neal, of Charleston, for defendant in error.
CARTER, J. This was an action in the circuit court of Coles county for the recovery of a penalty for the obstruction of a public highway in the town of Mattoon. The commissioners of highways refused to bring the suit, and Fred Block, Sr., the owner of land adjoining the highway, gave the cost bond, and the suit was instituted in the name of the town. The declaration consisted of three counts. Defendant in error filed a plea of nil debet and a special plea of estoppel in pais. To this latter plea plaintiff in error demurred. The trial court having overruled the demurrer, plaintiff in error elected to stand by it. Judgment of nil capiat was entered and that the defendant in error recover his proper costs. To reverse that judgment this writ of error has been sued out. The three counts of the declaration charged, in varying language, that said road had been laid out upon a certain line, and that defendant in error had constructed a fence in said road. Defendant in error's plea of estoppel in pais averred that the highway commissioners entered an order, under section 37 of the Road and Bridge Act (Hurd's Stat. 1911, p. 2001), authorizing a resurvey of said road; that said resurvey was made, and after it had been completed and the road staked out upon the line of the resurvey, defendant in error erected the fence referred to in each count of the declaration, "upon the west boundary line of said resurvey, and not upon any other line, by reason whereof the defendant says that the plaintiff is estopped from claiming that the road runs upon a different line from that found in the resurvey, as aforesaid, and is also estopped from setting up any claim against defendant for the construction and placing of said fence upon said line of the said survey," etc. A motion was made by defendant in error to transfer this cause to the Appellate Court on the ground that no freehold is involved, and that this court is without jurisdiction. That motion was taken with the case.
termine whether the public has a perpetual easement, and that therefore a freehold is necessarily involved here (Town of Audubon v. Hand, 223 Ill. 367, 79 N..E. 71, and cases cited); while defendant in error insists that under the pleadings in this case the question whether a road existed at this point was not involved, as the only question raised by the pleadings was whether, by its conduct, plaintiff in error was estopped from bringing an action of damages to recover the statutory penalty for obstructing a highway.
 In none of the cases cited by counsel has the question been passed upon as to whether a freehold was necessarily involved under the issues raised by a plea of estoppel in pais. A freehold is involved in the manner required by the statute to give this court jurisdiction, so as to bring the case directly from the trial court here, "in all cases where the necessary result of the judgment or decree is that one party gains and another party loses a freehold estate," and also in those cases "where the title to a freehold is so put in issue by the pleadings that the decision of the case necessarily involves a decision of such issue." Sanford v. Kane, 127 Ill. 591, 20 N. E. 810; Malaer v. Hudgens, 130 Ill. 225, 22 N. E. 855; Piper v. Connelly, 108 Ill. 646; Rhoten v. Baker, 193 Ill. 271, 61 N. E. 1058; Stevenson v. Lewis, 244 Ill. 147, 91 N. E. 56; Douglas Park Building Ass'n v. Roberts, 218 Ill. 454, 75 N. E. 1018.
 The resurvey in question could not cause one party to gain and another party to lose a freehold. This court, in Gentleman v. Soule, 32 Ill. 271, 280 (83 Am. Dec. 264), in considering a resurvey made under a somewhat similar statute by highway commissioners, stated: "This proceeding did not establish or prove anything but that the commissioners claimed that a road existed where the survey was made. It left the proof of its existence precisely as it was before. When its existence was questioned, it devolved upon the people to show that they had acquired the right in the place they claimed by the survey. It could not have been the intention of the Legislature, when they authorized the public authorities to have such surveys made, to conclude the owner in his absence, and without any means of being heard to controvert the claim of the public. Nor does the law give him the right of appeal. It does not declare that such a survey shall affect his rights, nor does it. Such a proceeding is ex parte, and without evidence, and is consequently not binding upon adverse interests." The resurvey under said section 37 of the Road and Bridge Law was also ex parte, without notice and without evidence, and necessarily cannot be Plaintiff in error contends that this court binding upon the adjoining landowners or has held that in suits begun in a court of any other interested persons. To justify record for the recovery of a penalty for ob- bringing a case directly to this court upon structing a highway, it is necessary to de- the ground that the decision of the trial