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ever saw the deed testified as to its contents. I says that Compton conveyed the same land Sarah Butler, the oldest daughter, who was married and not living at home at the time of her mother's death, returned to live with her father after her husband's death, and testified that six years after her mother's death she saw the deed, together with the deed from Compton to her mother, in her mother's bureau drawer at her father's house; that she never saw her mother have it in her lifetime and did not read the deed or unfold it; that she saw it there, folded up; that she saw the names on the back, but did not see the description; that the two deeds were there together, kept in a chalk box in a bureau drawer; that it was her mother's box, and besides the deeds there were letters in the box from her brother from the war; that the occasion of her seeing the deeds was that her father was going to make her a deed to two acres of the farm and got the deeds out to see them and get the description to make the deed to her; that he told her that he could not make her a deed -that he was not the land owner-and she saw the deed at that time. M. H. Mundy, a lawyer living in Mt. Carmel, testified that he leased a part of the land from Mrs. Garrett

in 1881 or 1882.

In 1900 two of the daughters filed a bill for the partition of the land against the other heirs and their father, reciting that Hannah Garrett had died intestate, leaving surviving her Bailey Garrett, her husband, and five daughters and three sons, as her and five daughters and three sons, as her only heirs at law, and was seised of the land in controversy; that Bailey Garrett had a right of homestead and dower; and praying that the same might be assigned to him, and the land, subject to dower and homestead, partitioned among the heirs. Just before the bringing of this suit, the appellee Harrison Garrett, having heard that it was to be brought, made an effort to buy the interest of his sister Julia Ballard, in the land, and she refused to sell. Afterward he and his father asked her to go to their sister Lydia, who was one of the complainants, and ask her if she would withdraw the suit if they would get three disinterested parties and have the land divided by them. The sister said she would, and Mrs. Ballard reported to

her father and brother, and that was the last she heard of the matter.

[1] The evidence is convincing that a conveyance was made to Wilbur Compton by Bailey Garrett and his wife on March 8, 1878. Unless such conveyance was made, the conveyance by Wilbur Compton to Mrs. Garrett was wholly purposeless. The deed to

to Mrs. Garrett that Garrett and his wife conveyed to him. There is no doubt about the land that Compton conveyed to Mrs. Garrett, and the effect of Bailey Garrett's testimony is to establish a conveyance of the whole farm to Compton. This is consistent with all the actions of the parties at the time. It seems hardly likely that Compton would make a conveyance of the whole farm to Mrs. Garrett unless the deed executed to him at the same time, which was his only source of title or authority to make the conveyance, also included the whole farm. The fact that Sarah Butler saw a folded paper, apparently a deed, indorsed as such with the names of the grantor and grantee, would of itself be of no importance; but the fact that such a paper was in existence long after her mother's death, among her mother's private papers, together with the deed from Compton to her mother, and that the two were consulted by her father for the purpose of securing a description for a part of the land he was proposing to convey, tends to corroborate the testimony of her father that a deed was, in fact, executed. So far as the delivery is concerned the fact that Compton

executed a deed to Mrs. Garrett of the land

to which he had no other title than the conveyance from Bailey Garrett and his wife to him, and the fact that the deed was afterward found in the possession of Compton's grantee, who would be its natural custodian, grantee, who would be its natural custodian, were sufficient to establish delivery and acceptance. The action of the appellees in attempting to buy the interest of their sister before the beginning of the partition suit, and proposing to have the land divided by three disinterested persons if the partition suit were withdrawn, further corroborates the claim of the appellants.

[2] Some contention is made that the evi

dence of Bailey Garrett was incompetent because the declarations of a grantor in disparagement of the title which he has conveyed are not admissible against his grantee. This rule has no application to the testimony of a grantor who is a witness on the hearing. Though he may not make declarations in disparagement of the title he has conveyed, he is competent to testify to facts which are

material.

[3] The statute of limitations is not available to the appellees, who were tenants in common of the appellants. Even if there had been a disseisin of the cotenants, the appellees' knowledge was such that they could not be claimants of the title in good faith.

Mrs. Garrett was undoubtedly executed, de- It appears from the testimony of Bailey livered, and filed for record on that day. Garrett that there were nine children, one Bailey Garrett testified that he and his wife of whom (Vanie) married Frank Williamson. executed a deed to Compton at the same She had two children and died, and the chiltime he made the deed to Mrs. Garrett. It dren are both dead; but the time of the is true that he says in his testimony that he death of any of them does not appear from thinks the deed was only of 80 acres, but he the evidence. These dates must be shown

before the interest of the parties can be de- | certain street and number set out in the intermined. formation, in the city of Chicago, contrary to

The decree of the circuit court will be re- the statute. She was tried and found guilty versed, and the cause remanded.

Reversed and remanded.

(273 111. 485)

PEOPLE v. O'BRIEN. (No. 10443.) (Supreme Court of Illinois. June 22, 1916.) 1. STATUTES 118(6)-TITLE OF ACT-CONSTITUTIONAL PROVISIONS.

of a violation of an act of the Legislature of Illinois (Laws of 1915, p. 374), which act is as follows:

"Section 1. Be it enacted by the people of the state of Illinois, represented in the General Assembly: That an act entitled, 'An act to revise the law in relation to criminal jurisprudence,' approved March 27, 1874, in force July 1, 1874, be amended by adding thereto additional section to be known as section 57a1, as follows:

"Sec. 57a1. Whoever is an inmate of a house of ill fame or assignation, or place for the practice of fornication, or prostitution or lewdness, or who shall solicit to prostitution in any street, alley, park or other place in any city, village or incorporated town in this state, shall be fined not exceeding $200, or imprisoned in the county jail or house of correction for a period of not more than one (1) year, or both."

Laws 1915, p. 374, enacted to amend "An act to revise the law in relation to criminal jurisprudence" by adding an additional section known as section 57a1, to provide that whoever is an inmate of a house of ill fame or assignation, or whoever shall solicit to prostitution in any street, alley, park, or other place in any city, village, or incorporated town in the state, shall be fined, or imprisoned, or both, does not violate Const. art. 4, § 13, requiring the subject of the act to be expressed in its title; as it is not necessary that the title shall specifical- Plaintiff in error was upon conviction senly and exactly express the subjects of the act or tenced to three months' imprisonment in the be an index of its details, but is sufficient if all house of correction of Chicago and fined $1 the provisions of the act relate to one subject indicated in the title and are parts of it, inci- and costs, to reverse which judgment she has dental to it, or reasonably connected with it. sued out a writ of error from this court, as[Ed. Note. For other cases, see Statutes, signing as error that the law under which Cent. Dig. 160; Dec. Dig. 118(6).] she was convicted is unconstitutional: (1) 2. STATUTES 64(6)-PARTIAL INVALIDITY- Because the subject of the act is not exEFFECT. Such enactment, creating two general class-pressed in the title, as provided by section 13 es of offenses, first, being an inmate of a house of article 4 of the Constitution; and (2) beof ill fame, and, second, soliciting in any place cause the act is special or class legislation, in any city, village, or incorporated town, even in contravention of section 22 of article 4 if the second offense should be held invalid because special class legislation in contravention of the Constitution. of Const. art. 4, § 22, would not be invalid as to the other offense, as the fact that part of a statute is unconstitutional does not authorize the courts to declare the remainder void, unless all the provisions are connected in the subjectmatter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed the Legislature would have passed

the one without the other.

[Ed. Note.-For other cases, see see Statutes, Cent. Dig. §§ 63, 195; Dec. Dig. 64(6).] 3. CONSTITUTIONAL LAW 42 - RIGHT TO RAISE QUESTION.

The courts cannot entertain objections to the constitutionality of an act made by a party whose rights it does not affect, and who therefore has no interest in defeating it.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 39, 40; Dec. Dig. 2.] Error to Municipal Court of Chicago; Rufus F. Robinson, Judge.

Mary O'Brien was convicted of being an inmate of a house of prostitution or assignation in the city of Chicago, contrary to the statute, and she brings error. Affirmed.

W. G. Anderson and L. A. Newby, both of Chicago, for plaintiff in error. P. J. Lucey, Atty. Gen., Maclay Hoyne, State's Atty., of Chicago, and C. H. Linscott, of Springfield, for the People.

CRAIG, C. J. An information was filed in the municipal court of Chicago charging the plaintiff in error with being an inmate of a house of prostitution or assignation at a

[1] As to the first contention, it is not required that the title of an act shall specifically and exactly express the subject of the act or be an index of its details. Section 13 of article 4 of the Constitution is complied with if all of the provisions of the act relate to one subject indicated in the title, and are parts of it, incident to it, or reasonably connected with it. People v. Braun, 246 Ill. 428, 92 N. E. 917, 20 Ann. Cas. 448. In People v. Van Bever, 248 Ill. 136, 93 N. E. 725, it was held that an enactment was not invalid or contrary to section 13 of article 4 of the Constitution because the subject of the act was not expressed in the title; the title of the act merely purporting to amend the Criminal Code. In that case it was said:

The

"It is further insisted that the act is unconstitutional because of its title, in this: That it attempts to amend the 'Criminal Code,' when, as a matter of fact, we have no Criminal Code in this state; the principal act as to criminal matters being entitled one 'to revise the law in relation to criminal jurisprudence.' rule for the guidance of courts in these matters is to ascertain the intention of the Legislature, and not its mistakes, either as to law or fact. pressed its purpose intelligibly? If it has, the The only question is: Has the Legislature exact is valid and must be upheld. Patton v. People, 229 Ill. 512, 82 N. E. 386; 1 Lewis' Sutherland on Stat. Const. (2d Ed.) § 233. Chapter as the 'Criminal Code.' The title to this amend38 of our Revised Statutes has long been known atory act uses the phrase 'Criminal Code' as synonymous with 'criminal jurisprudence.' The

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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intention of the Legislature as set forth in this title is clear and intelligible, and the objection on this point is without force."

park or other place in any city, village or incorporated town in this state," could be stricken out without affecting the remainder of the section and still leave the part under which plaintiff in error was convicted valid and in force so far as any question has been raised.

[3] Even if we should hold this part of the statute unconstitutional, which we do not, we could not reverse the judgment as to the plaintiff in error, who was convicted under the other clause. We cannot entertain objections made to the constitutionality of an act by a party whose rights it does not affect, and who has therefore no interest in de

In Fuller v. People, 92 Ill. 182, it was held that, where a section of the Criminal Code was adopted by the act of the General Assembly approved March 27, 1874, as a part of the revision of the statutes and in common with all the other sections of the revised Criminal Code then adopted, under the title of "An act to revise the law in relation to criminal jurisprudence," the title was sufficiently comprehensive, and was not liable to any constitutional objection by reason of its generality. All of the criminal laws of the state embraced in chapter 38 of the Re-feating it. People v. Huff, 249 Ill. 164, 94 vised Statutes are included under the title N. E. 61; People v. Braun, supra; Miller v. "An act to revise the law in relation to crim- Sincere, 112 N. E. 664. inal jurisprudence," and the act in question, as its title implies, was to amend "An act to revise the law in relation to criminal jurisprudence." To the same effect is Larned v. Tiernan, 110 Ill. 173. We do not think the act was open to that objection.

The judgment of the municipal court will be affirmed.

Judgment affirmed.

(274 Ill. 45) (No. 10635.)

WACHS v. BROOMELL.
(Supreme Court of Illinois. June 22, 1916.)
RECORDS 9(1)-REGISTRATION OF TITLE—
OBJECTION BY MORTGAGEE.

Under section 9 of the act concerning the registration of land titles (Hurd's Rev. St. 191516, c. 30, § 52), providing that it shall be no objection to bringing land under the act that applicant's estate is subject to a mortgage, but such mortgage shall be noted on the certificate of title, and the title certified shall be subject only to such mortgages as are so noted, a mortgagee while a necessary party to protect his interest by seeing that such notation is made, cannot, if it is correctly noted, object to the registration of the title, where the mortgage was executed after passage of the act.

[Ed. Note.-For other cases, see Records, Dec. Dig. 9(1).]

Error to Circuit Court, Cook County; Frederick A. Smith, Judge.

Application for registration of title to land by Christine F. Wachs against Chester C. Broomell, trustee. Decree for applicant, and defendant brings error. Affirmed.

[2] As to the second reason urged for the invalidity of the act, it will be noted that there are two general classes of offenses mentioned in section 1 of the act: First, that of being an inmate of a house of ill fame; and, second, soliciting, etc. As has been noted, the information charged plaintiff in error with being guilty of an offense mentioned under the first clause of the act; that is, of being an inmate of a house of prostitution. No objection is made to the form or wording of the information or that it does not describe the offense in the language of the statute. The second objection applies only to the clause of section 1 prohibiting soliciting, etc. It is the contention of counsel for plaintiff in error that by the terms of the act soliciting to prostitution is made an offense only in cities, villages, and incorporated towns, and not everywhere in the state; that the same act is made a crime in cities, villages, and incorporated towns, but is not made a crime in unincorporated towns or in any place outside cities, villages, and incorporated towns, and therefore is in contravention of section 22 of article 4 of the Constitution. In construing statutes as to validity and constitutionality it is a rule that, where a part of a statute is unconstitution- COOKE, J. Christine F. Wachs, the de.. al, that fact does not authorize the courts to fendant in error, filed her application in the declare the remainder void also, unless all circuit court of Cook county to register title the provisions are connected in subject-mat- to certain real estate in the city of Chicater, depending on each other, operating to-go pursuant to the provisions of the act congether for the same purpose, or otherwise so cerning land titles. The application was in connected together in meaning that it can- the usual form, and disclosed, among other not be presumed the Legislature would have things, that the property was incumbered by passed the one without the other. Cooley's a trust deed to plaintiff in error, Chester Const. Lim. (6th Ed.) 210, 211; Myers v. Peo- C. Broomell, as trustee, to secure a note ple, 67 Ill. 503; People v. Hazelwood, 116 for $2,500. Broomell answered the applicaIll. 319, 6 N. E. 480; Dupee v. Swigert, 127 Ill. 494, 21 N. E. 622. The portion of section 1 of the act which reads "or who shall solicit to prostitution in any street, alley,

George W. Brown, of Chicago, for plaintiff in error. Newman, Poppenhusen & Stern, of Chicago (Charles T. Farson, of Chicago, of counsel), for defendant in error.

tion, setting up the trust deed and alleging that he had been requested by defendant in error to join in the application, but had refused; that it was not for the best inter

ests of the owner or holder of the note se-ing such other acts as devolved upon him to cured by the trust deed to have the title protect the interests of those whom he repreregistered, that the title is good and estab- sented as trustee. A mortgagee or a trustee lished by record, and that the registration in a trust deed is liable at any time to be would injure the value of the real estate and the security for the loan. The court sustained exceptions to the answer and struck it from the files. Broomell was thereupon defaulted. The application was referred to the examiner of titles, who reported, recommending that a decree be entered in accordance with the prayer of the application. A decree was entered accordingly, and this writ of error was sued out to review the same.

The only substantial question presented for review is whether a mortgagee or a trustee in a trust deed has the right, under the act concerning land titles, to object to the registration of the title if the interest of such mortgagee or trustee in the property is correctly set out in the application. The argument advanced by plaintiff in error might have some force had the trust deed been executed prior to the enactment of the act concerning land titles. In this case the trust deed was executed long subsequent to the passage of the act. The trust deed and the note which it was executed to secure were both accepted by the trustee and the creditor with full knowledge of the provigions of the act concerning land titles (Hurd's Rev. St. 1915-16, c. 30) and of the right of the owner to make application to have the title registered.

By section 9 of the act it is provided that it shall not be an objection to bringing land under the act that the estate or interest of the applicant is subject to any outstanding lesser estate, mortgage, lien, or charge, but that such estate, mortgage, lien, or charge shall be noted upon the certificate of title and duplicate thereof, and the title or interest certified shall be subject only to such estates, mortgages, liens, and charges

as are so noted, except as in the act provided. By this section a trustee in a trust deed, or a mortgagee, is expressly prohibited from objecting to the registration on the ground that the estate or interest of the applicant is subject to such incumbrance. It is true that plaintiff in error, as trustee, was a necessary party to the application to register the title, as he was interested in having the lien of his trust deed correctly noted upon the certificate of title. Under the act that was the extent of his interest in the proceeding, and, as no question is raised as to the correctness of the recital in the application in regard to the terms and conditions of the trust deed or to the findings of the decree in that respect, nothing is presented for our consideration.

called upon to protect his interest in the real estate incumbered. If the trust deed or the mortgage so provides, the debtor can be required to repay all necessary expenses incurred by the mortgagee or trustee in protecting the interest of the creditor. If the creditor has not taken the precaution to make such provision in the trust deed or the mortgage, then he must bear this expense himself.

The decree of the circuit court was proper and is affirmed.

Decree affirmed.

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1. PARTITION 11-STATUTORY PROVISIONS— IMPLIED REPEAL.

ing a joint tenant to compel partition, was not Hurd's Rev. St. 1913, c. 106, § 1, authorizrepealed by Hurd's Rev. St. 1913, c. 30, § 5, providing that joint tenancies can be created by express words, merely because partition destroys the right of survivorship incident to a joint tenancy.

[Ed. Note.-For other cases, see Partition, Cent. Dig. § 35; Dec. Dig. 11.] 2. PARTITION 46(1)-PROCEEDINGS-NECESSARY PARTIES DEFENDANT.

A mortgagee is a necessary party to a partition proceeding.

[Ed. Note.-For other cases, see Partition, Cent. Dig. § 114; Dec. Dig. 46(1).] 3. PARTIES 75(9)-DEFECT OF PARTIES-DEMURRER-GENERAL DEMURRER.

A general demurer to a bill for partition and accounting should not be sustained when all parties necessary for an accounting are joined, although a necessary party for partition is lacking.

[Ed. Note.-For other cases, cases, see Parties, Cent. Dig. § 116; Dec. Dig. 75(9); Pleading, Cent. Dig. § 494.]

Appeal from Circuit Court, Cook County, Jesse A. Baldwin, Judge.

Bill by Orlando C. Barr against Emma Barr for partition and accounting. From an order sustaining a general demurrer and dismissing the bill, the complainant appeals. Reversed and remanded.

Gentzel & Crane, of Chicago, for appellant. W. W. Maxwell, of Chicago (Simeon Straus, of Chicago, of counsel), for appellee.

DUNCAN, J. Appellant, Orlando C. Barr, filed in the circuit court of Cook county on November 1, 1915, an amended bill against Emma Barr, alleging, in substance:

That appellant and appellee are owners in fee simple, as joint tenants and not as tenants in common, of the east 19 feet of lot 23, Plaintiff in error complains that by being and the west 11 feet of lot 22, block 15, in made a party to the application he is com- Harriet Farlan's subdivision of the west half pelled to assume additional burdens in the of the southeast quarter of section 26, town employment of an attorney and in perform-40 north, range 14 east, of third principal

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

meridian. That they derived title thereto by Itate other than to executors and trustees (undeed from Antone Peterson and Nellie Peter-less otherwise expressly declared as aforesaid), son, his wife, by deed designating the char-shall be deemed to be in tenancy in common" acter of ownership as follows:

"To have and to hold the above-granted premises unto said grantees, as parties of the second part, and to the survivor of them, and to the heirs and assigns of such survivor forever, not as tenants in common, but in joint tenancy."

That said property is improved by a twostory two-flat dwelling house, located at 2622 Logan boulevard, Chicago. That the premises are now incumbered by a mortgage in ises are now incumbered by a mortgage in the sum of $3,500, and that there are other claims against said real estate in the sum of $400. That appellee has occupied one of the flats of said premises and has been renting the upper flat of said premises to a tenant for the sum of $27 per month, and has been collecting the rents thereof since June, 1912, and has never paid appellant any part of said rents so collected, and has never paid any rent to appellant for the flat she has occupied, and has never accounted for such rents. The prayer of the bill is for partition of said premises between appellant and appellee or of the sale of the premises in case they cannot be partitioned, "subject to the first and second mortgages or other incumbrances against said property," and for an brances against said property," and for an accounting for rents and profits and disbursements of rents and profits by appellee since June, 1912. The court sustained a general demurrer, and dismissed the bill for want of equity.

Appellant insists that the trial court dismissed the bill solely on the ground that one joint tenant cannot compel partition against his cotenant. The appellee, however, contends that the bill was not only properly dismissed because a cotenant of property held in joint tenancy is without power to compel partition, but also that the demurrer was properly sustained because it appears on the face of the bill that all parties in interest are not made parties defendant to the bill. The condition of the record is such as to permit appellee to argue any grounds upon which the court may be sustained in its holding that the bill was bad against the general de

murrer.

[1] Section 1 of chapter 106 (Hurd's Stat.

1913, p. 1818) provides:

"When land, tenements or hereditaments are held in joint tenancy, tenancy in common or coparcenary, whether such right or title is derived by purchase, devise or descent, or whether any or all of the claimants are minors or of full age, any one or more of the persons interested therein may compel a partition thereof by bill in chancery as heretofore, or by petition in the circuit court of the proper county," etc.

It is argued by appellee that section 5 of the Conveyance Act, that:

"No estate in joint tenancy, in any lands, tenements or hereditaments, shall be held or claimed under any grant, devise or conveyance whatsoever, heretofore or hereafter made, other than to executors and trustees, unless the premises therein mentioned shall expressly be thereby declared to pass not in tenancy in com

-is in conflict with said section 1 of the Partition Act, as the right to create a joint tenancy is inconsistent with the right of such cotenants to destroy the right of survivorship by partition. The case of Mette v. Feltgen, 148 Ill. 357, 36 N. E. 81, is relied on by appellee as sustaining this position. That case in no way sustains that contention, nor is there anything said therein, so far as we are able to see, by which such a

conclusion could be drawn. An estate in

joint tenancy may be terminated by all of the

their interests in the premises, and by that cotenants except one conveying to that one ed. Where one of two joint tenants conveys means an estate in severalty would be creatto a stranger, a tenancy in common is created between the other joint tenant and the purchaser. 1 Washburn on Real Prop. (4th Ed.) 647. The right to partition, conceding that it destroys the right of survivorship in an estate in joint tenancy, is not altogether inconsistent with the right to create an estate in joint tenancy, as insisted by appellee. Joint tenants could change an estate in joint tenancy to a tenancy in common or to one in severalty before either of said sections was is not a sufficient objection to a partition of passed-i. e., at common law. Therefore it such an estate that it destroys the right of survivorship. 30 Cyc. 181. Section 5 of the Conveyance Act merely gives a party the privilege of creating an estate in joint tenancy in a certain way, and the statute on partition gives the cotenants the privilege of partitioning it after it is created, and the two sections of the statute are not in such conflict that the former repeals the latter

statute.

[2, 3] In partition proceedings it is necessary to make all persons having any interest in the premises parties to the suit. Hurd's Stat. 1913, c. 106, § 6. Mortgagees have such an interest as to make them necessary parties. Mansfield v. Wallace, 217 Ill. 610, 75 N. E. 682; Loomis v. Riley, 24 Ill. 307; Cheney

v. Ricks, 168 Ill. 533, 48 N. E. 75. The bill

in this case shows on its face that the per

sons holding the incumbrances are not made advantage of it by demurrer. parties, and the proper practice is to take advantage of it by demurrer. Deniston v. Hoagland, 67 Ill. 265. Want of necessary parties is a matter of substance, and on demurrer is fatal to the bill. 10 R. C. L. § 242, p. 469. It is a rule, however, that when a bill sets forth various claims for relief in a court of equity and the defendant files a general demurrer, the demurrer should be overruled if any of the claims therein set forth be proper for its jurisdiction and consideration. Gooch v. Green, 102 Ill. 507; Snow v. Counselman, 136 Ill. 191, 26 N. E. 590. In the present case the bill alleged facts justifying an accounting and prayed for that relief

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