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declare this to be my last will. I give and bequeath to my dear wife all my estate, both real and personal, for her life. At her death I direct that it be disposed of as follows:

"I give to my son, Morgan Dix, one-third of my said estate. I give to my daughter, Elizabeth Morgan, wife of Charles F. Blake, one-third of my said estate for her life, the income thereof to be applied by herself and her husband to her support, and to the education and support of her four children now living; and at her death I direct that it be divided in equal portions between the said children, if they shall then be twenty-one years of age, or, if not of that age, then to receive their respective portions on becoming so. I give to my daughter, Catherine Morgan, wife of Thomas Walsh, one-third of my said estate for her life, the income thereof to be applied by herself and her husband to her support, and to the education and support of her two children now living; and at her death I direct that it be divided in equal portions between the said children if they shall then be twenty-one years of age, or, if not of that age, then to receive their respective portions on becoming so.

"I appoint Morgan Dix, John J. Cisco, and William T. Lawrence executors of this, my last will. I authorize them to sell such portions of my real estate as they may think it advantageous to dispose of, and to execute all such legal instruments as may be necessary to give perfect titles to the purchasers. And I direct my said executors, in case they make any such sales, to invest the proceeds in first mortgages of the property so sold; in first mortgages of other improved real estate; in bonds of the United States, of the state of New York, or of any of the New England states; or in the first mortgage bonds of railroad companies, the stock of which is selling at its par the city of New York. I direct that no bonds be required of my said executors for the faithful execution of their trust, as I have perfect confidence in their integrity."

Will dated January 28, A. D. 1879.

The testator died on April 21, 1879, in Suffolk county, New York, and his will was admitted to probate, in the surrogate's court of that county, on August 18, 1879. Letters testamentary were issued to Morgan Dix and John J. Cisco. William T. Lawrence renounced his appointment, and refused to act as executor. John J. Cisco died on March 24, 1884, and since his death Morgan Dix has been the sole acting executor. An authenticated copy of the will, and of the probate thereof, have been filed in the recorder's office of Cook county. Two of the four children of Elizabeth Morgan Blake, and the two children of Catherine Morgan Walsh, are minors. The widow of John A. Dix died on February 3, 1884. The assets of the estate are still in the hands of Morgan Dix as executor. No division of the real estate owned by the testator at the time of his death has ever been made, nor has any part thereof been sold or conveyed by any of his devisees.

The first question is whether the present executor, acting alone, has the same powers which were conferred by the will upon the three executors therein named. We think that whatever powers, of sale or otherwise, the three executors could now exercise if they were all living and qualified, are vested in Morgan Dix as sole surviving executor.

Section 97 of chapter 3 of the Revised Statutes of this state, being "An act in regard to the administration of estates," which was passed in 1872, provides as follows: "In all cases where power is given, in any will, to sell and dispose of any real estate, or interest therein, and the same is sold and disposed of in the manner and by the persons appointed in such will, the sales shall be good and valid; and where one or more executors shall fail or refuse to qualify, or depart this life before such sales are made, the survivor or survivors shall have the same power, and their sales shall be as good and valid, as if they all joined in such sales."

The provision here quoted is substantially the same as section 93 of chapter

109 of the Revised Statutes of 1845, except that the latter did not contain the words "shall fail or refuse to qualify." It was, however, held in Clinefelter v. Ayres, 16 Ill. 329, that the statute of 21 Hen. VIII. c. 4, was in force in this state. That statute provided that, if any or either of the persons named as executors in the will should refuse to act, the right and power should devolve upon those who should qualify, to execute the will in the same manner as all could have done. It was accordingly decided in the subsequent case of Pahlman v. Smith, 23 Ill. 448, that where two persons were by will empowered to sell real estate as executors, and not as trustees, and one of them refused to act, the other might, as sole executor, exercise the power in the same manner as both might have done if both had qualified. It was still further held in the later case of Wardwell v. McDowell, 31 Ill. 364, that, where power is given in a will to several executors to sell real estate, a sale by the executor who accepted and qualified was valid, whether the power conferred by the will was a mere naked power or a power coupled with a trust, or whether the power was of a discretionary or mandatory character.

The next question is whether the death of the widow has had the effect of annulling or discontinuing the power of sale originally vested in the executors. It seems to be assumed by the appellant that the sole purpose of the testator in conferring the power of sale upon his executors was to realize a fund for the support of his widow during her life. It is therefore urged that, inasmuch as the widow has died before any attempt has been made to exercise the power of sale, the object of creating such power cannot be realized, and accordingly the power itself no longer continues. To support this position reference is made to the case of Smyth v. Taylor, 21 Ill. 296, where we held that when the object for which a power has been created has been accomplished, or has become impossible or unattainable, the power itself should cease to exist. We find no fault with the doctrine thus laid down. As applied to the facts of the case referred to it is unquestionably sound. We do not think, however, that it can be properly held to have any application in the construction of the will now under consideration, unless it be to sustain the power of sale therein conferred.

This will directs how the estate shall be disposed of at the death of the widow. The testator states that, at the death of his wife, he gives to one of his daughters one-third of his estate for her life, the income thereof to be applied to her support, and to the education and support of her four children. He also states that at the death of his wife he gives to another daughter onethird of his estate for her life, the income thereof to be applied to her support, and to the education and support of her two children. The support and edueation of his two daughters and six grandchildren are objects which he very distinctly provides for, and he as distinctly provides for the accomplishment of those objects after the death of his wife. It follows, as a matter of course, that they were not made unattainable by her death. The support and education of the testator's daughters and grandchildren cannot be secured to them without an income. How is an income to be realized? It is admitted that the estate consists largely of vacant, unimproved, and unproductive lands in Illinois and elsewhere. These lands must be sold, and the money derived from their sale must be invested in such a way as to obtain an income. Accordingly the will itself authorizes the executors to sell the real estate, and invest the proceeds in bonds and mortgages. The power of sale was conferred as much for the purpose of providing support and education for the daughters and grandchildren as for the purpose of supporting the widow during her life. The daughters are yet alive. Each is to have a third of the estate during her life, and there is to be no division between her children until her death. Inasmuch, therefore, as the object of the testator in providing for the support and education of his daughters and grandchildren has not yet been accomplished, nor become impossible or unattainable, the power of sale, vested in

the executors so as to enable them to effect that object, has not failed, but still exists in Morgan Dix, the acting executor.

The judgment of the appellate court is affirmed.

(120 III. 9)

RIVERSIDE Co. OF SHAWNEETOWN, ILL., v. TOWNSEND and another. (Supreme Court of Illinois. November 10, 1886.)

1. TAXATION-TAX DEED-SETTING ASIDE-REIMBURSEMENT GRANTEE-EJECTMENT. The proviso of Laws, Ill. 1885, p. 234, amending section 224 of the revenue act, providing that any judgment or decree setting aside a tax deed shall be conditioned upon reimbursement of the grantee for his lawful expenses in obtaining deed, has no application to a judgment in ejectment in which a tax deed is held invalid. 2. CONSTITUTIONAL LAW-STATUTE NOT RETROSPECTIVE.

The Illinois statute providing that judgments and decrees vacating tax deeds shall be conditioned on reimbursing the grantee (Laws 1885, p. 234) is not retrospective.1


A judgment in an action of forcible entry and detainer cannot be successfully pleaded as a bar to an action of ejectment. Ejectment tries the title; forcible entry tries the immediate right of possession.2


Prior possession for less than 20 years is sufficient prima facie proof of title in ejectment to sustain a recovery against a mere intruder or trespasser; but, against a defendant whose possession is lawful, the plaintiff, in order to succeed, must show adverse possession for a period which will bar an entry, to-wit, in Illinois, 20 years.

Appeal from circuit court, Gallatin county.

E. B. Green and Carl Roedel, for appellants. R. R. W. Townshend and T. M. Eckley, for appellees.

MAGRUDER, J. This is an action of ejectment, which is now before us for the second time.. It is reported as Riverside Co. v. Howell, 113 Ill. 256. Since the former decision, it has been redocketed in the circuit court of Gallatin county, and the appellees here were, on their own motion, substituted as defendants in the court below, in the place of William A. Howell, their tenant.

After our opinion was filed in the case at Mt. Vernon, on March 24, 1885, section 224 of the "Act concerning revenue," approved March 30, 1872, in force July 1, 1872, as amended by an act approved May 30, 1879, in force July 1, 1879, was amended by an act of the legislature, which added the following proviso at the end of the section: "Provided, that any judgment or decree of court setting aside any tax deed procured under this act shall provide that the claimant shall pay to the party holding such tax deed all taxes and legal costs, together with all penalties, as provided by law, as it shall appear the holder of such deed or his assignors shall have properly paid, or be entitled to in procuring such deed, before such claimant shall have the benefits of such judgment or decree." Laws 1885, p. 234. This proviso went into force July 7, 1885.

Upon a second trial of the suit before the circuit court without a jury, the court found the issues for appellant, and rendered a judgment in accordance with the terms of the proviso here quoted. The judgment, after finding that appellant owns the fee of a part of the premises, and an estate for the life of another in the balance thereof, and after further finding that the tax deed set up by appellees is void, and should be set aside, and that appellees paid a certain amount of money to get their deed, and for subsequent taxes, directs that appellant recover the premises; and that, "upon the payment by the plaintiff to the defendants of the sum of $2,485.23, a writ of restitution is hereby or

1See Newton v. Thornton, (N. M.) 5 Pac. Rep. 257.

See note at end of case.

dered to issue hereon, the issuance of the same being stayed until such sum be paid as aforesaid."

The errors assigned by the appellant question the validity of so much of the judgment of the court below as formally sets aside the tax deed, and makes the payment of the taxes, etc., a condition precedent to the issuance of the writ of possession. It is manifest that the judgments or decrees referred to in the foregoing proviso are judgments or decrees rendered in proceedings which have for their object the setting aside of tax deeds procured under the revenue act. An ejectment suit is never brought for such a purpose. It is not the proper office of a judgment in ejectment to set aside a tax deed. By adopting the proviso in question, the legislature merely intended to provide that wherever, in any proceeding properly instituted for that purpose, a tax deed should be set aside, the judgment or decree directing it to be done should require the claimant to pay to the holder of the deed whatever such holder had disbursed for taxes and costs, and whatever the law awarded him as penalties. It was not the design of this amendment to change the action of ejectment into a chancery proceeding, nor to confer any new or enlarged jurisdiction upon courts of law. No other tribunals were to be vested with the power of setting aside tax deeds than those which had been in the habit of granting such relief before the passage of the new law.

This proviso can have no application to the deed, which we have already passed upon in this case. It will not be presumed that the legislature intended to enact such a retrospective statute as would affect and change vested rights. Such enactments "are very generally considered in this country as founded on unconstitutional principles, and consequently inoperative and void." 1 Kent, Comm. 455.

By the decision of this court, announced in an opinion filed before the above proviso was adopted, the tax deed in question was held to be invalid, and to constitute no legal bar to the recovery of appellant in its action of ejectment. After that decision was rendered, appellant had the right to proceed with the further prosecution of its suit, under the protection of our ruling that the tax deed of appellees should not stand in the way of its recovery. The judgment of the circuit court virtually nullifies the ruling, and holds, in effect, that the deed shall be a bar to the suit, and shall stand in the way of a recovery, unless appellant pays to appellees the sum of $2,485.23. The deed was declared by that decision to be unconditionally illegal. The legislature has no power to say that a vested right, which is absolute and unconditional, shall only be exercised upon certain conditions imposed by itself; nor do we think that they designed, by the passage of the enactment now under consideration, to assume the exercise of any such power.

Cross-errors have been assigned by the appellees which attack the right of appellant to a judgment for the property, even upon its payment of the amount required of it by the circuit court. The cross-errors are based upon the refusal of the trial court to hold, as law, certain propositions submitted to it by appellees, to the effect that the validity of the tax deed has become res adjudicata. and cannot be questioned by appellant. The suits in which it is alleged that the matters here involved have been already adjudicated are two actions of forcible entry and detainer,-one brought before a justice of the peace, and the other in the circuit court.

The action before the justice was brought in June, 1881, by the appellees against one Charles Kampan, who is alleged to have been a tenant of appellant. June 16, 1881, judgment was rendered in favor of the appellees, and possession delivered to them on June 21, 1881. The proceedings in the action before the justice cannot be set up as a bar to the present suit, for the reason that appellant was not a party to that action. Kampan was the defendant therein, and made no defense, suffering judgment to be recovered against himself. There is no evidence that appellant ever had any notice

of the suit against Kampan, and its rights here cannot be barred by the judgment in that suit, no matter what questions may have been adjudicated thereby. The second action of forcible entry and detainer was begun on August 23, 1881, in the circuit court of Gallatin county, by appellant against William A. Howell and John E. Hall, who are shown by the evidence to have been tenants of the appellees. The case was tried before a jury, who returned a verdict of "not guilty," and in September, 1881, judgment was rendered against appellant. This judgment is pleaded here as a bar to the present action of ejectment. Appellees insist that the validity of their tax deed was, or might have been, adjudicated upon and determined in the action of forcible entry and detainer in the circuit court, and that appellant is estopped by the judgment of that court therein from assailing the validity of the tax title in this case. But a judgment in an action of forcible entry and detainer cannot be pleaded as a bar to an action of ejectment, for the reason that the questions involved in the two proceedings are different. The object of the action of ejectment is to try the title to property, while in an action of forcible entry and detainer "the immediate right of possession is all that is involved, and the title cannot be inquired into for any purpose." Kepley v. Luke, 106 Ill. 395; McGuirk v. Burry, 93 Ill. 118; Smith v. Hoag, 45 Ill. 250; McCartney v. McMullen, 38 Ill. 237; Shoudy v. School Directors, 32 Ill. 290.

Counsel for appellees quote the sixth clause of the second section of the forcible entry and detainer act, (Starr & C. St. c. 57, page 1175,) which provides that "the person entitled to the possession of lands or tenements may be restored thereto * * * when lands or tenements have been * * * sold under the judgment * * * of any court in this state, *** and the party to such judgment, * ** after the expiration of the time of redemption, when redemption is allowed by law, refuses or neglects to surrender possession thereof, after demand in writing by the person entitled thereto, or his agent;" and refer to certain decisions of this court which hold that, in order to recover under the clause so quoted, the plaintiff must show a valid judgment, execution, and sheriff's deed. Johnson v. Baker, 38 Ill. 98; Johnson v. Bantock, Id. 113; Kratz v. Buck, 111 Ill. 40. We do not deem it necessary to decide whether this clause was designed to include judgments for taxes against land or not.

It is to be noted that the action of forcible entry and detainer, which is relied upon as a bar, was not begun by appellees against appellant; and hence appellees did not, as plaintiff, set up in the complaint their tax judgment, sale, and deed, and allege the refusal of appellant to surrender possession. The action was brought by appellant against appellees. Appellees were already in possession of the property. If it were allowable for a party having the possession to defend it in an action of forcible entry and detainer by showing the judgment and sale contemplated by the sixth clause of the act, there is no evidence that the tax judgment relied on by appellees was proven by them, in their defense against the action brought by appellant. The complaint, as set out in the record, makes no other allegation than the general one that Howell and Hall unlawfully withhold the possession thereof from the said Riverside Company. "The record contains no proof whatever that the question of the validity of the tax judgment was brought before the court which rendered the judgment in the forcible entry and detainer suit, or was in any way determined or adjudicated upon by that court. It is not sufficient to say that the question might have been submitted for adjudication in that suit. The cause of action, then, where the question involved was the right of possession, is different from the cause of action in this ejectment suit, where the question involved is the title to the property. There is a wellfounded distinction laid down in the books between the effect of a judgment, as a bar or estoppel, against the prosecution of a second action upon the same claim or cause of action, and its effect as an estoppel in another suit, between

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