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which there was upon each block, there was received the benefit of a like easement in another block. In taking the several blocks of land, with the arrangement of this system of streets, there were implied mutual agreements that the streets should ever remain as platted,--a dedication to public use of the ground laid out as streets, as effectual as could have been made by deed solemnly executed. See Cihak v. Kleke, 7 N. E. Rep. 111. There was more than a mere dedication; there was a valuable consideration moving to each blockowner in the making of the division, which should make withdrawal of the dedication beyond his power, further than that the street might be vacated in the mode pointed out by the statute. He took and held an estate upon the condition of its being burdened with the easement of the streets. And the public authorities, in opening and approving the streets, act as the representative of the lot-owners, with others of the public, in so doing. There is no difficulty in regard to the width of the street as respects a common-law dedication. The testimony is that, when this survey was made, stakes were placed at the corners of the blocks, exclusive of the streets, and nowhere else; and that two old surveyor's stakes were discovered a day or two before the hearing in the court below, one on the south-west corner, and the other on the north-west corner, of Perry and George streets. These stakes were just 66 feet apart, and so fix that distance as the width of George street.

If it were necessary, in this case, that there should be an acceptance by the public in order to render the dedication a valid one, we would regard that as sufficiently shown here. An acceptance may be shown by user by the public; as by travel, or by the acts of the public officers in repairing and keeping it up. Rees v. City of Chicago, 38 Ill. 336. Southport avenue was opened to public use in 1871, the very year in which the plat and division were made, and other streets were opened from time to time. This George street was opened, in 1877, its entire length except between the two blocks, 5 and 10. Perry, Diversey, and Wellington streets and Ashland avenue appear to have been thrown open by the people who owned the ground. In 1874 or 1875 a culvert was built by the town authorities over the ditch on the east side of Reuben street or Ashland avenue, across the west end of this unopened portion of George street. Immediate opening and user by the public of all the streets, for their entire length, or immediate formal acceptance by some competent public authority, cannot be necessary to give effect to a dedication of land to the public use of a street by the making of a town plat, and the selling and conveying of lots with reference to the plat. A municipality must be permitted to wait its reasonable time for opening and improving its public streets, as its own resources and the public need may allow and require, without thereby rendering its streets subject to appropriation for the exclusive use and enjoyment of individuals.

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A point is made as against the town in the payment of town and other taxes on this block. It is described in the assessment books: "Block 5; 5.032 acres. To make that number of acres requires the block to be bounded by the dotted line appearing in the plat in the center of the streets surrounding the blocks; and bounding the block by its solid, continuous lines gives but about three and three-fourths acres. This assessor's description is the same designation as appears upon the plat. The land of the block does extend to the dotted line in the center of the street, but the strip of it, 33 feet wide, between the dotted line and the continuous black line, is subject to the easement of a public street. We see no significance in this payment of taxes. There may sometimes be such circumstances, in a particular case, which would make it so inequitable for the public authorities to exercise their power over a public street as to create an estoppel against their doing so. But there is nothing of that kind in the present case. The town authorities have but suffered the fence to remain across George street until there seemed to them a need for the public use that the fence should be removed. The erections put

up upon the street were mere encroachments upon a public street, made by the parties with their eyes open, and at their peril. They can remove the same. They gain no right by their encroachment on the street.

The decree will be reversed, and the cause remanded, with directions to dismiss the bill for want of equity.

(118 Ill. 396)

GRANGE MILL Co. v. WESTERN ASSUR. Co. and others.

(Supreme Court of Illinois. November 10, 1886.)


As between the vendor and vendee of property insured, in case of the destruction of the property, the insurance money represents the property itself, and should in equity be appropriated to the vendor, in case of the insolvency of the vendee. A vendee having agreed to insure the property for the vendor's benefit, of which (and of the vendor's claim) the insurance companies had notice, held, that payment to the vendee was wrongful, and the companies remained liable to the vendor.

Error to appellate court.

John M. Lansden, for plaintiff in error. W. S. Day and Crawford & Bussey, for defendant in error.

SCOTT, C. J. The original bill in this case was brought by the Grange Mill Company, in the circuit court of Union county, against certain insurance companies, and John T. Emison and Lee Musselman. It is alleged complainant sold its mill property to defendant Emison at a certain price, a part of which was paid in cash, and the remainder was to be secured to be paid by his promissory note, with interest. The negotiations for the sale of the property seem to have been conducted by a real-estate agent, and the contract agreed upon, whatever it may have been, was never fully complied with by Emison. It seems he refused to execute his note for the unpaid balance of the purchase money, and refused to accept the bond for a deed that was drawn up for delivery. Notwithstanding his refusal to execute the papers prepared, Emison did take immediate and exclusive possession of the mill property, which was surrendered to him by the company under the alleged contract, and perhaps commenced to operate it. Afterwards, Emison associated with himself one Lee Musselman, and thereafter carried on business under the name of John T. Emison & Co. The alleged contract of sale was made in October, 1880. Shortly after Emison & Co. began to operate the mill they procured insurance upon it for their own benefit from the defendant insurance companies, amounting, in the aggrate, to the sum of $5,000. In June. 1881, the mill property was totally destroyed by fire. No further sum had then been paid on the purchase price of the property. Suits had been commenced by Emison & Co. against the several insurance companies to recover for the losses sustained. Pending those suits this bill was filed, in which the insolvency of Emison & Co. was alleged, and by which complainant claimed the benefit of the insurance under an alleged contract made with Emison, at the time of the sale of the property to him, to have it insured for its benefit. To the bill the several insurance companies were made defendants with Emison and Musselman.

A summons was issued for the defendant companies on the seventh day of November, 1881, and an effort was made to obtain service. Other process was subsequently issued, and such service was had that the defendant companies came into court and defended. An amended bill was filed, in which it was alleged that Emison & Co. recovered judgments in the actions on the policies against the several companies, which judgments, while appeals were pending in the appellate court, were in some way settled by the payment to Emison & Co. of the sum of $2,500, each company paying a sum in proportion to the amount of its risk. On the answers filed by the several defendant

companies, and the replication thereto, and upon the evidence, both documentary and oral, the cause was heard in the circuit court, and the bill was dismissed for want of equity. That decree was afterwards affirmed in the appellate court of the Fourth district, and complainant brings the case to this


The bill is framed on the theory Emison agreed, at the time of the sale, and as a part of the contract, that he would have the property insured for the benefit of complainant. The evidence contained in this record has been subjected to a careful consideration, and it is thought it fully sustains the position taken that Emison did agree to have the mill property insured for the benefit of his vendor. It is so expressed in a written memorandum made at the time, and that memorandum was given in evidence by plaintiffs in the trial of the case of Emison & Co. v. Traders' Ins. Co. That was evidence tending to show there was a contract that insurance should be procured. But, aside from the written memorandum, the agreement to procure insurance upon the property for the benefit of complainant is fully established by other testimony. Undoubtedly the law is that, as between the vendee and the vendor, the insurance money, in case of the destruction of the property, represents the property itself, and, in equity, the insurance money should be appropriated to the vendor, in case of the insolvency of the vendee.

The principle is of frequent application, where a mortgagor or vendee agrees to insure for the benefit of the mortgagee or vendor, in case of loss, in equity such party is entitled to the insurance money to the extent, at least, of his interest in the property which was the subject of insurance. After notice to the insurance company having the risk, such company cannot pay the loss to the assured named in the policy, except at its peril, until the rights of the parties claiming the fund shall have been adjusted. Cases in this state and elsewhere recognize this equitable doctrine. Phoenix Ins. Co. v. Mitchell, 67 Ill. 43; Cromwell v. Brooklyn F. Ins. Co., 44 N. Y. 42; Wheeler v. Insurance Co., 101 U. S. 439.

The general doctrine on this subject is not questioned, but the defense is rested mainly on two grounds: (1) That, prior to making the compromise or settlement, as was done, with the assured, the insurance companies had no notice of the claim now insisted upon by complainants; and (2) that the policies were, for some reason, not obligatory on the companies issuing them, and for that reason they were under no legal liability to pay the losses to the assured. It follows, as a matter of course, if the companies were under no obligation to pay the losses to the assured, there could be no obligation to pay complainant. It appears from the acquittance taken from Emison & Co., on payment of the sums agreed upon, by way of compromise or otherwise, that the companies each had actual notice, before anything was paid to Emison & Co., of the equities of complainant, for in it they provided, in the "event of any further litigation by the Grange Mill Co., "neither company was to be affected by the payment of the sums of money paid or otherwise. To what "further litigation" is the reference? Obviously, to "further litigation" on the present bill, then pending. There was then no other litigation pending anywhere, or in any court, that could affect the parties in regard to the matters they were contracting about. In case the litigation then pending should be continued by complainant in this suit, it was agreed neither defendant should be affected by what was done by the parties to the settlement they were making. If it had no reference to complainant's bill, then there was nothing to which it could by any possibility refer. Conceding, then, as must be done, the reference is to the present bill, it is conclusive as to the actual knowledge of defendants of the equities of complainant. The fact of notice is therefore fully proved, and, if they paid anything to Emison & Co. on the policies, it was wrongful, and at the risk of the companies paying it. Passing, now, to consider the second question made on the defense, it is

seen it is the most important question discussed. It is whether the evidence contained in this record shows a prima facie right to relief in favor of complainant. It is thought it does. It is made a ground of objection the policies issued by the insurance companies were not introduced in evidence. Under the pleadings, that was not necessary. The making of the policies by the several companies, the amount of the risk carried by each, and for whose benefit made, were all facts distinctly admitted by defendant insurance companies in their joint and several answers. It was wholly unnecessary, therefore, to prove that which was solemnly admitted by the answer, and the practice does not require it. The destruction of the mill property by fire is also admitted in the answer of defendant, and proof of that fact was unnecessary. It is said there is no proof of loss given by the assured. That fact was waived by the companies placing their refusal to pay the losses on the sole ground the assured had no title to the property destroyed. The evidence in this record shows the refusal to pay the loss was for the reason the assured had no insurable interest in the property. That they had such an interest appears, past all doubt, from the evidence in this record. Emison had bought the property, had made partial payment, and was in possession under his contract, at the time the policies were written. He and his partner that he had taken in with him were the equitable owners of the property insured at the time, and had they paid the balance of the purchase money they would have been entitled to a deed. These facts, when established, either by admission or proof, were prima facie sufficient to warrant the relief demanded by complainant. Of course, the prima facie case thus made is liable to be defeated. If the representations made in the application were untrue and false, then there would be a breach of the warranty implied in every application for insurance, and the policies would be void. That, however, is a matter of defense. It was not necessary for complainant to introduce the application, and prove the representations it contained were correct. That proof should come from defendants, if they, or either of them, insisted they had been overreached in writing the policies. The defendants made no such proof, nor did they ever charge the assured with any actual fraud in obtaining the policies. The insistence by defendants has all the time been that the policies were void because the assured had no title to the property. It may be, when the companies come to make their defense, it will appear the assured represented their insurable interest in the property correctly. How that may be cannot be known until the defense shall be unfolded.

The judgment of the appellate and the decree of the circuit court will be reversed, and the cause remanded to the circuit court for further proceedings not inconsistent with this opinion.

(108 Ind. 292)

MCCULLOUGH and others v. DAVIS and others.

(Supreme Court of Indiana. November 22, 1886.)


A purchaser at sheriff's sale on foreclosure of a mortgage executed by a married woman and her second husband on lands held by her under her assignment of dower in proceedings in partition of her first husband's estate, there being children of the former marriage still living, acquires, under section 2484, Rev. St. 1881, no interest therein, and cannot maintain ejectment for the possession of such lands.


An objection to the admission of evidence, in order to be available, must be definite and specific. A mere general objection on the ground that it is "irrelevant, incompetent, and immaterial," is insufficient.


Much latitude is allowable in the admission of parol evidence to supply what has been lost by the destruction of records, and where it appears that the finding is right upon all the evidence, and no harm was done by the extreme latitude allowed in the admission of such evidence, it will not be sufficient cause for reversal.

Appeal from circuit court, Madison county.
Robinson & Lovett, for appellants.

The demurrer to the second paragraph of appellees' answer should have been sustained. The object of section 2484, Rev. St. 1881, on which the defense is founded, is to preserve the property of a widow, who marries a second time, for the children of the marriage, by virtue of which she received it; but it is not intended to interfere in any way with the alienation of her life-estate. Miller v. Noble, 86 Ind. 527. The judgment in the foreclosure case, to which appellees were parties, settled the validity of the mortgage as to them, and they cannot now collaterally attack it to defeat the rights of an innocent purchaser. Having failed to attack it in that action they are now estopped from so doing. Burk v. Hill, 55 Ind. 419; Gall v. Fryberger, 75 Ind. 98; Hunter v. Burnsville Turnpike Co., 56 Ind. 213; Anderson v. Wilson, 100 Ind. 402. Parol evidence as to what took place at a former trial, to the effect that the land in controversy was set off to appellee Ann Davis as her share as widow of Oscar Eads, was improperly admitted. 1 Greenl. Ev. p. 115, § 86. Parol evidence as to the ownership of such land was also improperly admitted. The court also erred in permitting oral evidence to be given of the contents of the pleadings and decree in the partition case; for, although the record in the clerk's office was lost, a copy could have been obtained, as the case had been appealed to the supreme court.

M. A. Chipman, J. W. Sansberry, Jr., and F. A. Walker, for appellees. The opinion in the case of Miller v. Noble, 86 Ind. 527, rightly construed, does not sustain appellant's view. The question here involved was not presented in that case. A married woman, holding land by virtue of a previous marriage, cannot alienate the same during a subsequent marriage; cannot alienate the same directly or indirectly, either by deed or mortgage, or by judgment and sale on execution, (Edmondson v. Corn, 62 Ind. 17; Connecticut Mut. Life Ins. Co. v. Athon, 78 Ind. 10; Mattox v. Hightshue, 39 Ind. 95; Sebrell v. Hughes, 72 Ind. 186; Vinnedge v. Shaffer, 35 Ind. 341; Bowers v. Van Winkle, 41 Ind. 432; Wright v. Wright, 97 Ind. 444; Smith v. Beard, 73 Ind. 159; Haskett v. Hazel, 83 Ind. 534;) nor can she be estopped by any act or omission in the consummation of such alienation. Behler v. Weyburn, 59 Ind. 143; Unfried v. Heberer, 63 Ind. 67.

The parol evidence complained of by appellant was introduced only as to matters on which the record in the partition case was silent, and was therefore admissible. Wharton, Ev. Wharton, Ev. §§ 986-988; Bottorff v. Wise, 53 Ind. 32; Roberts v. Norris, 67 Ind. 386. The objections to the admission to other evidence are too uncertain to present any question to this court. Forbing v. Weber, 99 Ind. 588.

NIBLACK, J. Action by Neal C. McCullough and three others, constituting the firm of Neal C. McCullough & Co., against Ann Davis and William P. Davis, to recover the possession of 20 acres of land in Madison county. The defendants answered: First, in general denial. Secondly, that in June, 1859, one Oscar F. Eads died seized of the lands described in the complaint and other lands in Madison county, leaving the defendant Ann Davis as his widow, and also children of the marriage, who still survive him as his heirs at law; that afterwards the said Ann intermarried with her co-defendant, William P. Davis, and has ever since continued to be his wife; that after her said intermarriage, that is to say, in the year 1875, by proper proceedings in partition in the Madison circuit court between the said Ann Davis and her husband, and the children and heirs at law of the said Oscar F. Eads, deceased, the lands in controversy were assigned and set off to the said Ann Davis as her one-third part of the lands of which the said Oscar F. Eads died seized; that she, the said Ann, thereupon entered upon and took possession of said lands; that afterwards, on the ninth day of April, 1875, the defendants, Ann Davis,

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