(332 111. 561) (164 Ν.Ε.) HOOPER v. HAAS et al. (No. 18950.) Supreme Court of Illinois. Oct. 25, 1928. As Modified, on Denial of Rehearing, Dec. 15, 1928. 1. Dedication 16(1)-"Common-law dedication," as distinguished from "statutory dedication," may be evidenced by acts or declarations without writing. The distinction between statutory and common-law dedication is that, while former is created by particular form of instrument recorded, the latter may be made by grant or other written instrument or evidenced by acts and declarations without writing. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Dedication; Statutory Dedication.] premises, subject to equities therein at date of judgment, in absence of statute specifically giving judgment creditor a greater interest than that of judgment debtor. 7. Dedication 39-Owner's acts in attempt ing to dedicate land amount to estoppel in pais to deny dedication. Owner's acts in attempting to dedicate land to village amount to estoppel in pais against any denial by him of such dedication; the public, as well as individuals, having right to rely on his conduct as indicating his intent. 8. Dedication39-Execution purchaser of land, attempted to be dedicated to village by judgment debtor, is estopped to deny dedication, and hence not entitled to registration free from burden of village's easement (Torrens Act, § 40). Owner being estopped to deny dedication of 2. Dedication 16(1)-Any act indicating In- land by his acts in attempting to dedicate it tent to dedicate is sufficient to constitute "common-law dedication." Any act of dedicator, from which intention to dedicate may be gathered, is sufficient to constitute a common-law dedication; no particular form being required. 3. Dedication 16(1)-Common-law dedica tion may be established by parol. A common-law dedication may be established by parol. 4. Dedication 35(1)-Village, passing resolution accepting dedicatory plat, taking possession of lot, passing ordinances and filing petitions for pavement, sewer, and water before levy of execution against dedicator, and continuing to use lot for street purposes thereafter, completed common-law dedication by acceptance (State Aid Road Act). Village, passing resolution accepting plat attempting to dedicate lot for street, taking possession of lot, passing ordinances and filing petitions in court for pavement, under State Aid Road Act (Smith-Hurd Rev. St. 1927, с. 121, § 9 et seq.), construction of sewer and laying of water pipes before levy of execution against dedicator, and continuing to use lot for street purposes thereafter, accepted dedication, which therefore became complete common-law dedication. 5. Execution 272(1)-Purchaser at judgment sale had constructive notice of village's filing of dedicatory plat in registrar's office, filing of petitions for street paving, etc. (State Aid Road Act). Purchaser at judgment sale must be held to have had at least constructive notice of such public acts by village as filing of plat dedicating lot for street in registrar's office, filing of petitions in county court for paving of street under State Aid Road Act (Smith-Hurd Rev. St. 1927, c. 121, § 9 et seq.), construction of sewer, and laying of water mains. 6. Judgment 780(2)-Lien of ordinary judgment is general, and extends only to debtor's Interest in premises, subject to equities therein, in absence of contrary statute. The lien of an ordinary judgment is general, and extends only to debtor's property right in to village for street purposes, execution purchaser thereof, who takes only owner's interest, charged with equities against owner, likewise is estopped to deny dedication, and hence is not entitled to registration under Torrens Act, §40, free from burden of easement in village for such purposes. 9. Deeds 155-Condition is "condition subsequent," if parties intended that estate should vest and grantee perform acts after taking possession. If, from nature of act to be performed and time required for its performance, it is evident that parties' intention was that estate should vest and grantee perform acts after taking possession, condition is "condition subsequent." [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Condition Subsequent.] 10. Dedication 55-Condition of dedication that street be paved within given time held condition subsequent, barring forfeiture for noncompliance without re-entry or equivalent act. Condition of attempted dedication to village for street purposes, that street be paved within given time, held condition subsequent, so as to prevent forfeiture for noncompliance therewith without re-entry or some act equivalent thereto. 11. Equity24-Court of equity will not enforce forfeiture for breach of condition subsequent. A court of equity will not lend its aid to enforce a forfeiture because of breach of a condition subsequent. 12. Execution264-Purchaser at sale under execution, levied after village accepted dedication of land for street, took only dedicator's interest therein, subject to village's easement. Purchaser at judgment sale took by her deed only the judgment debtor's right and interest in premises, subject to easement of village to use property for street purposes under commonlaw dedication accepted before levy of execution. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 13. Dedication 53-Under common-law dedication, village had exclusive possession and control of property in trust for public use as street. Under common-law dedication of lot for street, village was vested with right to exclusive possession and control of property in trust for use of public as street. 14. Records 9(4)-Village held entitled to registration of street easement under common-law dedication on cross-petition in suit by purchaser at execution sale for registration of title (Land Titles Act, § 7; Torrens Law, § 40). Under Land Titles Act, § 7 (Smith-Hurd Rev. St. 1927, с. 30, § 51), village having easement in land for street purposes under common-law dedication was entitled to registration thereof in registrar's office, under crosspetition setting out facts entitling owner of interest in land to such relief, in suit by purchaser thereof at sale under execution, levied after acceptance of dedication, to register title thereto under Torrens Law, § 40 (Smith-Hurd Rev. St. 1927, с. 30, § 84). of what is known as the Addison road. It fronts 30 feet on that road, and has a depth of 160 feet. The east boundary of this lot is the east boundary line of the village. The lot is now occupied as a public street and state highway, of which it at that point comprises the west half. The street is known as Harlem avenue. Sewer and water pipes have been put into the street and a concrete pavement laid thereon. The pavement was constructed partly by the village and partly by the county under the State Aid Road Act. Smith-Hurd Rev. St. 1927, с. 121, § 9 et seq. James H. Hooper, the husband of Bertha F. Hooper, purchased this property at a sheriff's sale under a special execution issued on a judgment in favor of C. W. Clarke & Co., entered in the county court of Cook county upon an attachment suit against the interest in the property belonging to Charles S. Smith, the registered owner. There is no dispute as to the facts. Charles S. Smith, some time before the levy of the attachment writ, attempted to dedicate the Appeal from Circuit Court, Cook County; property to the public for use as a street. Harry M. Fisher, Judge. Suit by Bertha F. Hooper against Joseph F. Haas and others, in which the Village of Riverside filed a cross-petition. From a decree overruling the Village's exceptions to the examiner's report and directing the registrar of titles to issue a certificate of title to complainant, the Village appeals. Reversed and remanded, with directions. S. Ashley Guthrie, Village Atty., and Tenney, Harding, Sherman & Rogers, all of Chicago, for appellant. Harold O. Mulks, of Chicago, for appellee Bertha F. Hooper. STONE, J. Bertha F. Hooper filed a petition to register certain real estate in the village of Riverside under the Torrens Law. Smith-Hurd Rev. St. 1927, c. 30, §§ 45-148. The village answered the petition, asserting that the lot in question had been dedicated as a street and accepted and improved by the village as such. The village also filed a cross-petition asking for a registrar's certificate to the effect that it held an easement for the uses and purposes of a street in the lot. The matter was referred to the examiner, who found that petitioner was entitled to register the land in her name, and recommended that the cross-petition of the village be dismissed. The decree entered in the cause overrules the exceptions of the village to the examiner's report and directs the registrar of titles to issue a certificate of title, subject to certain taxes and "existing highway on said premises taken and used without consent of the owner by the village of Riverside." The village has appealed. He made and delivered to the village of Riverside a plat of dedication. The plat was filed with the recorder of deeds and recorded there, instead of being registered under the Torrens system, as required by the Torrens Act. It is not contended that the plat was sufficient as a statutory dedication, but it is claimed by appellant that it was sufficient as a common-law dedication, and was acted on and accepted by the village prior to the issuance of the execution on the judgment against Smith. The decree found that the plat constituted an attempt by Smith to dedicate the property, but that it was unregistered. The decree further found that the acts of the village with reference to acceptance of the street were not sufficient to show acceptance of a common-law dedication prior to the registration of the levy on the judgment against Smith. The petition for registration prays that a decree be entered finding the title to be in the petitioner clear of all liens and incumbrances, and that the registrar of titles be required to issue to her a certificate of title and a writ of assistance. The following facts in their chronological order are of importance to a clear understanding of the issues involved: On September 10, 1915, a certificate of title to this property was issued to Charles S. Smith. On March 10, 1924, Smith executed a plat of dedication, describing the property and bearing the certificate of the surveyor and of Smith, in the latter of which it is stated that the survey and plat were made "for the purpose of dedicating the same to the public for street purposes provided Harlem avenue is paved to Ogden avenue during 1924 or 1925." The plat does not name the street to be dedi The lot involved in this lawsuit lies south cated. On September 8, 1924, the village For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (164 Ν.Ε.) passed an ordinance providing for the laying of water mains on Harlem avenue over the property in question, and prepared and filed a plat showing the location of these water mains over this property. At that time the village also filed a petition in the county court to levy an assessment to pay for the water mains. Notice of the pendency of this proceeding was given to interested property owners. This proceeding was pending from September, 1924, to February, 1925. On November 10, 1924, the plat made by Smith was formally approved by the board of trustees of the village. On that same day a resolution was passed by the board of local improve ments providing for the pavement of Harlem avenue, extending over the property in question. On January 5, 1925, a resolution was passed by the board of local improvements of the village providing for the construction of a sewer on the premises in question. On February 2, 1925, an ordinance was passed providing for the paving of the street, including this property, and during that month a petition was filed by the village in the county court to levy an assessment to pay for this pavement. On February 2, 1925, an ordinance was passed by the board of trustees of the village for the construction of a sewer in Harlem avenue over this property. During the month of February, 1925, a petition was filed by the village in the county court to levy an assessment for the construction of the sewer. The plat in question was filed with the recorder of deeds on February 13, 1925. On March 21, 1925, the water main as sessment was confirmed by the county court. On May 15, 1925, the paving assessment was confirmed by the county court. On that day a sheriff's certificate of levy on the writ of attachment in aid of the judgment against Smith was filed with the registrar. This levy was made on May 14, 1925. These facts are of importance on the issue whether there has been a common-law dedication of this lot for street purposes and an acceptance thereof by the village prior to the issuance of a levy on the judgment against Smith. Bertha F. Hooper (who will be referred to as appellee) contends that James H. Hooper, who purchased this property at a judgment sale and from whom she has taken the same had, when he purchased it, no notice, actual or constructive, of proceedings amounting to acceptance of the dedication. It is of some importance, therefore, to observe the occurrences with reference to this property subsequent to the time of the registration of the levy against the interest of Smith in the property and prior to the sale thereof. On May 28, 1925, the sewer assessment was confirmed in the county court. In July and August of that year the sewer and water mains were laid across the property. On August 3, 1925, a transcript of the judgment against Smith for $379.85 was filed with the registrar. On August 4 the sheriff's certificate of levy of special execution on the property made on August 3, 1925, was filed with the registrar. On September 15, 1925, the property was sold to James H. Hooper, the sheriff's certificate reciting a consideration of $432.75. This certificate was filed with the registrar on September 18, 1925. During this time, and up to December, 1925, the property was graded as a street and the curb was laid. On December 16, 1926, the sheriff's deed was issued to appellee as assignee of the certificate of sale to Hooper. This deed was filed with the registrar on December 18, 1926. The examiner reported as his conclusions that the attempt to dedicate this land as a highway cannot be treated as an exception to the provisions of section 40 of the Land Titles Act (Smith-Hurd Rev. St. 1927, с. 30, § 84), and that therefore appellee was entitled to have the land registered in her name, free from any such attempted dedication. Appellants contend that the attempted dedication operated by way of estoppel against the dedicator, and that Hooper, who was the purchaser of the property at a judgment sale, took only the interest of Smith, charged with whatever equities existed against him, and, since the village had completed the acceptance of the common-law dedication prior to the issuance of an execution on the judgment against Smith, Hooper, as purchaser at the judgment sale, is bound by such acceptance on the part of the village. [1-3] The first question to be determined in the solution of the problems involved in this case is whether there was in fact and in law an acceptance of a deficient dedication for street purposes. The distinction existing between a statutory and a common-law dedication is that, while the former is created by a particular form of instrument recorded, a common-law dedication may be made by grant or other written instrument, or may be evidenced by acts and declarations without writing. No particular form is required. Any act on the part of the dedicator from which an intention to dedicate may be gathered is sufficient to constitute a common-law dedication. Such dedications have been established in every conceivable way by which the intention of the dedicator could be evinced. Alden Coal Co. v. Challis, 200 I11. 222, 65 Ν. Ε. 665; Davidson v. Reed, 111 III. 167, 53 Am. Rep. 613; Godfrey v. City of Alton, 12 Ill. 29, 52 Am. Dec. 476. A common-law dedication may be established by parol. Moffett v. South Park Com'rs, 138 111. 620, 28 Ν. Ε. 975; Kyle v. Town of Logan, 87 Ill. 64; McIntyre v. Storey, 80 III. 127; Warren v. Town of Jacksonville, 15 Ill. 236, 58 Am. Dec. 610. [4, 5] It is not disputed in this case that Smith attempted to make a dedication of this lot for a street, nor is it argued by appellants that such attempt was effectual to establish a statutory dedication. It seems equally clear, from the chronological statement of acts on the part of the village concerning this property, not only by resolution accepting the plat, but by its acts in taking possession thereof, passing ordinances and filing petitions in court for pavement, sewer, and water, all of which occurred before the levy of the execution against Smith, and the continued use of the lot for street purposes after the issuance of such levy, that the village accepted the dedication of this street, and that a common-law dedication was therefore complete. It must also be held that of such public acts on the part of the village as the filing of the plat in the registrar's office, the filing of petitions in the county court for the paving of the street, construction of a sewer, and laying of water mains, the purchaser at the judgment sale had at least constructive notice. [6-8] Appellee contends, however, that James H. Hooper, who purchased at the judgment sale, purchased the entire right of Smith in the premises as the same was shown by matters of record, and since the attempted dedication, and its acceptances, if there were such, did not appear as a matter of record in the registrar's office they in nowise affected the title, but that the purchaser at a judgment sale under the Torrens system is entitled to receive the title shown by the record in the registrar's office; that he is to be treated as a purchaser without notice. The lien of an ordinary judgment is general, and extends only to the property right which the debtor owns in the premises, subject to the equities in it at the date of the judgment. It is limited to the actual interest of the judgment debtor. East St. Louis Lumber Co. v. Schnipper, 310 Ill. 150, 141 N. E. 542; Yarnell v. Brown, 170 111. 362, 48 N. E. 909, 62 Am. St. Rep. 380. Unless the judgment creditor is able to point to some statute specifically giving him a right to a greater interest than that which the judgment debtor actually owns, he is limited to that right. Section 30 of the Conveyance Act (SmithHurd Rev. St. 1927, c. 30, § 29) provides that deeds, mortgages, and other instruments in writing, which are authorized to be recorded, shall take effect and be in force from and after the time of filing the same for record, and not before, as to all creditors and subsequent purchasers without notice. By this section a judgment creditor is entitled to priority over the holder of an unrecorded conveyance. Section 30, however, is intended to apply only to such equities arising against the interest of the judgment debtor as are to be evidenced by instruments required to be recorded. Since no particular form is necessary for the establishment of a common-law dedication such a dedication may arise through circumstances, at least some of which are not susceptible of record. It has been held that resulting trusts, which, like common-law dedications, are not within the statute of frauds (Smith-Hurd Rev. St. 1927, c. 59), are not within the provisions of sec tion 30. In East St. Louis Lumber Co. v. Schnipper, supra, it was held the fact that a resulting trust had not been recorded was of no aid to the purchaser at a judgment sale who had been made defendant to a bill filed by the cestui que trust seeking to have the sheriff's deed set aside as a cloud on his title. The acts of Smith in attempting to dedicate this land amount to an estoppel in pais against any denial by him of such dedication. The public, as well as individuals, have a right to rely on the conduct of the owner as indicative of his intent. Alden Coal Co. v. Challis, supra; Elliot on Roads and Streets (2d Ed.) § 124. Smith being estopped, appellee, who does not take by warranty or in reliance on the certificate of the registrar but takes because of the circumstances of the debt, judgment, levy of execution and sale, takes only Smith's interest charged with the equities existing against Smith, and is likewise estopped to deny the existence of the common-law dedication. Appellee contends that under section 40 of the Torrens Act she is entitled to have this property registered free from the burden of an easement in the village for street purposes; but, as Smith was estopped to deny the right of the village to register its common-law dedication, appellee is in no better position. [9-11] Appellee also contends that, since the attempted dedication was made on condition that Harlem avenue be paved in 1924 or 1925, and since it was not paved until 1926, the condition was not met, and the attempted dedication was a nullity, and could not be made valid by any acceptance on the part of the village. If from the nature of the act to be performed and the time required for its performance it is evident that the intention of the parties was that the estate should vest and the grantee perform the act or acts after taking possession, then the condition is a condition subsequent. Phillips v. Gannon, 246 Ill. 98, 92 N. E. 616. The condition that the street be paved within a given time indicates clearly that the village was to take possession of the street, as it did, and the paving was to follow. It was a condition subsequent. This being so, forfeiture could be enforced against the village only by re-entry or some act equivalent thereto. Hart v. Lake, 273 IIL. 60, 112 N. E. 286; Golconda Northern Railway v. Gulf Lines Connecting Railroad, 265 Ill. 194, 106 N. E. 818, Ann. Cas. 1916A, 833. Nothing of the kind appears here. The record does not contain any evidence that Smith ever sought by re-entry or otherwise to revoke the attempted dedication. A court of equity will not lend its aid to enforce a forfeiture because of a breach of a condition (164 Ν.Ε.) Charles P. Bock, Judge. subsequent. Patterson v. Vermilion Academy, Appeal from Vanderburgh Circuit Court; 312 III. 386, 144 N. E. 9; Sanitary District v. Chicago Title & Trust Co., 278 Ill. 529, 116 N. E. 161. This contention of appellee is not valid. [12, 13] Appellee by her deed took only the right and interest of Smith in the premises, subject to the easement of the village to use the property for street purposes, and the chancellor erred in ordering the registration of the land in appellee free from the rights of the village. Under the commonlaw dedication, the village was vested with the right of exclusive possession and control of the property in trust for the use of the public as a street. It could have maintained ejectment against a trespasser. Village of Lee v. Harris, 206 III. 428, 69 N. E. 230, 99 Am. St. Rep. 176. [14] Section 7 of the Land Titles Act (Ca Valentine Becker was convicted of possessing intoxicating liquor, and he appeals. Reversed, with directions to grant new trial. Edward A. Lorch and William D. Hardy, both of Evansville, for appellant. Arthur L. Gilliom, Atty. Gen., for the State. MARTIN, C. J. The errors assigned in this appeal from a conviction of appellant on a charge of unlawful possession of intoxicating liquor, under section 4, c. 48, Acts 1925 (section 2717, Burns' 1926), present the question of the admissibility in evidence of liquor seized and information gained by officers while making a search of appellant's premises. It appears from the record that the search hill's Stat. 1927, c. 30, par. 55), provides that warrant, issued under section 31, c. 48, the owner of any estate or interest in land, whether legal or equitable, may apply to have his title registered in accordance with the provisions of the act, and it is urged by appellant that it was entitled, under its crosspetition, to a hearing on the facts set out in that petition, and, if found to be true, to have its easement registered in the registrar's office. No reason appears why that conclusion does not follow the views herein expressed. The interest of the village is an interest in land, and we are of the opinion that the crosspetition, under the showing made in this case, should have been allowed. The decree is therefore reversed, and the cause remanded, with directions to enter a decree granting the prayer of the cross-petition, registering the easement of the village of Riverside in the property to use the same as a street, and registering the deed of appellee subject to such easement. Reversed and remanded, with directions. BECKER v. STATE. (No. 25188.) Supreme Court of Indiana. Dec. 5, 1928. Criminal law 394-Intoxicating liquors 248-Search warrant, based on affidavit only on information and belief, did not show reasonable cause for search, and evidence obtained was inadmissible in liquor prosecution (Burns' Ann. St. 1926, §§ 2717, 2746). Where affidavit for search warrant under Burns' Ann. St. 1926, § 2746 (Acts 1925, c. 48, §31), was based on information and belief, and magistrate heard no evidence, there was insufficient showing that reasonable and probable cause for search existed, and evidence obtained by search was inadmissible in prosecution for possession of intoxicating liquor, under Burns' Ann. St. 1926, § 2717 (Acts 1925, c. 48, § 4). Acts 1925, (section 2746, Burns' 1926), by authority of which appellant's premises were searched, was issued without a sufficient showing that reasonable and probable cause for the search existed, either by a positive affidavit alleging facts or by a hearing of evidence by the issuing magistrate. The affidavit was upon information and belief, and the magistrate heard no evidence. In such a case, under the rule established by Wallace v. State (1927) 199 Ind. 317, 157 Ν. Ε. 657 (Martin and Gemmill, JJ., dissenting), the evidence obtained by the search is inadmissible, and upon the authority thereof this judgment is reversed with directions to grant appellant's motion for a new trial. HUMPHRIES et al. v. PEACOCK et al. (No. 13204.) Appellate Court of Indiana, in Banc. Dec. 6, 1928. Elections 260-Commissioners appointed to recount votes recorded by voting machines, as well as by use of paper ballots, held entitled to $10 per diem (Burns' Ann. St. 1926, § 7623 et seq.). Where votes to be recounted included those recorded by voting machines as well as those cast by use of paper ballots, and appointment of recount commissioners and recount was pursuant to Burns' Ann. St. 1926, § 7623 et seq. (Acts 1921, c. 94), commissioners were each entitled to per diem allowance of $10. Appeal from Delaware Circuit Court; Joseph G. Leffler, Special Judge. Separate actions, consolidated for trial, by James R. Peacock, by Grover C. Arbogast, and by William Matheson, against John C. Humphries and others. From the judgment, defendants appeal. Affirmed. Francis A. Shaw, of Muncie, for appellants. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |