Slike stranica

(161 N.E.)

9. Judgment 501-Action of court having jurisdiction is valid and binding in collateral proceeding, even though erroneous.

Action of circuit court having jurisdiction of suit for specific performance must be regarded valid and binding in a collateral proceeding, even though erroneous.

10. Lis pendens 24 (6)-Knowledge by purchasers of property from plaintiff in specific performance of writ of error by defendant attacking decree does not affect purchasers'


That persons purchasing property from plaintiff in suit for specific performance of contract to sell land to whom it had been deeded pursuant to decree, which decree was not appealed from, had knowledge that defendant in such suit had sued out writ of error attacking decree for specific performance, in nowise affects their title.

11. Vendor and purchaser 238-Purchaser. from one who has good title, notwithstanding equities of which purchaser has notice, procures good title.

A purchaser with notice of prior existing equities who takes title from one who, notwithstanding such equities, has a good title, will also procure a good title.

chancery make such conveyance. The appellant did not make the conveyance as directed, and the master in chancery, on June 10, 1921, conveyed the property to Eva Harris in accordance with the decree. Shortly thereafter she executed a trust deed to the appellee the Home Bank & Trust Company to secure a loan thereon, and later executed a warranty deed to the premises to Annie Meyer. There were several subsequent transfers of the property, and on March 3, 1923, the property was transferred to the appellees Joseph and Anna Czervonko. No appeal was perfected by the appellant from the decree entered against him for specific performance. On the 25th day of September, 1922, he sued out of this court a writ of error to reverse that decree. On De cember 19, 1922, this court reversed the decree and remanded the cause, with directions to dismiss the bill. Harris v. Eich, 306 Ill. 303, 137 N. E. 804. On April 23, 1923, the application for registration of the land title involved in this proceeding was filed by the appellant. It made all the appellees parties.

It is contended that the decree in Harris v. Eich, supra, was not a final decree, and that the issues were not entirely disposed of; that Annie Meyer, who purchased the prop

Appeal from Circuit Court, Cook County; erty from Eva Harris, was charged with noFrancis S. Wilson, Judge.

Application by Frank N. Eich against Joseph Czervonko and others for registration of title to certain lands. Decree dismissing application, and plaintiff appeals. Affirmed.

Justus Chancellor and Harry W. Standidge, both of Chicago, for appellant.

Sherman C. Spitzer, Henry L. Wallace, August F. Mroz, and Cheney & Peterson, all of Chicago, for appellees.

STONE, J. This is an appeal from an order of the circuit court of Cook county dismissing the application of the appellant for registration of title to certain lands situated in that county. The facts involved are not in dispute. The appellant's application alleges that he is the owner of the title to the property and entitled to its registration. The appellees filed an answer, saying that they, through mesne conveyances had on March 3, 1923, purchased the property in question from Eva Harris, to whom the appellant had contracted to sell the property, and that they were entitled to hold unmolested the title thereto.

It appears that on December 15, 1919, the appellant, Eich, who was then the owner of the premises, made a contract with Eva Harris for the sale of the same to her. This sale not having been completed, she filed a bill for specific performance. On March 23, 1921, a decree for specific performance was entered in that proceeding, directing that Eich convey the described property to Eva Harris, and, upon his failure so to do, that the master in

tice lis pendens, and the appellees, who took
title in direct chain from her, were likewise
so charged. The basis for the contention that
the decree was not final but conditional is
that it provided that the defendant should,
within five days from the entry of the decree,
furnish an abstract of title, and that the de-
cree was therefore not a final decree affecting
the title to the real estate. That decree di-
rected that the defendant, within five days
from the entry thereof, order, and within a
reasonable time thereafter, furnish, at his
cost, either an abstract, certificate of Torrens
title, or guaranty policy, as provided in the
contract, and if, upon examination the title
to the premises, be found merchantable and
in fee in him, and acceptable to the complain-
ant, the defendant was required to execute,
acknowledge, and deliver to the complainant
a proper and sufficient warranty deed to the
premises in fee simple, upon written notice
from the complainant to do so. The deed
was to be approved by the master in chancery
in case the parties differed as to its form,
and, upon the delivery of the deed, the com-
plainant was required to pay to the defendant
the money provided in the contract, less the
rents collected, water taxes, interest, costs of
suit, and the cost of the abstract, certificate
of title, or guaranty policy, if the same should
be paid for by the complainant. It was also
decreed that, in case of the failure of the de-
fendant to furnish such abstract, certificate of
title, or guaranty policy, as provided in the
contract, within the time specified, or notify
the complainant in writing of his intention of

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
161 N.E.-55

so doing, the complainant was authorized to order the same, and, in case of failure or refusal of the defendant to execute, acknowledge, and deliver the warranty deed as in the contract provided, the master in chancery was directed to execute the deed upon payment to him, of the cash balance found due the defendant after deducting therefrom and giving the complainant full credit and allowance for the rents already collected by the defendant or to be subsequently collected, less the water taxes and interest shown to have been paid by the defendant in accordance with the contract and the decree, and that the complainant be immediately let into possession of the premises. The decree entered judgment for costs against the defendant, and reserved further questions and directions until the master should have made a report of his actions and the actions of the parties under the decree.

[1-5] A final decree is one which fully decides and finally disposes of the merits of the case, though incidental matters may be reserved for consideration. A decree is final, though as an incident to the relief granted it directs a reference to a master to state an account where an account is to be settled between the parties, and the rules and principles on which the account is to be made are fixed by the decree. Gray v. Ames, 220 Ill. 251, 77 N. E. 219, 5 Ann. Cas. 174; Allison v. Drake, 145 Ill. 500, 32 N. E. 537; Hunter v. Hunter, 100 Ill. 519; Myers v. Manny, 63 Ill. 211. The alternative provision in the decree for execution of the deed by the master in chancery in case of failure of the defendant to comply with the decree for specific performance does not render the decree interlocutory. Neidhardt v. Frank, 325 Ill. 596, 156 N. E. 769; Johnson v. Northern Trust Co., 265 Ill. 263, 106 N. E. 814. Cases cited by counsel for the appellant recognize this rule. The fact that the decree retained jurisdiction of the cause did not render it interlocutory. It finally disposed of the right of Eva Harris to have specific performance of the contract. A deed was executed in accordance therewith by the master in chancery, and possession surrendered by Eich. The decree was final. It follows, therefore, that the appellant's contention that the transfers made to Annie Meyer and by her through mesne conveyances to the appellees were made pendente lite cannot be sustained. By the entry of the final decree, which was not appealed from, the case was closed. There was nothing pending. Lis pendens ends with the entry of a final decree under such circumstances. Chicago & Northwestern Railway Co. v. Garrett, 239 Ill. 297, 87 N. E. 1009, 130 Am. St. Rep. 229; Hammond v. People, 178 Ill. 503, 53 N. E. 308; Lambert v. Livingston, 131 Ill. 161, 23 N. E. 352; Hannas v. Hannas, 110 Ill. 53; Wadhams v. Gay, 73 Ill. 415; Ben

afterwards sued out of this court to review the decree of the circuit court was a new suit. Thompson v. Davis, 297 Ill. 11, 130 N. E. 455; Hopkins v. Patton, 257 Ill. 346, 100 N. E. 992.

[6] It is also urged that the decree delegated judicial power to the master in chancery which cannot under the law be given him, and his act deeding away the appellant's land lacked due process, and violated the due process clauses of the state and Federal Constitutions. Direction to a master in chancery to make a conveyance in case of nonaction of the party held by the decree to convey (Neidhardt v. Frank, supra; Poole v. Koons, 252 Ill. 49, 96 N. E. 556; Wolf v. Lawrence, 276 Ill. 11, 114 N. E. 567; McFall v. Kirkpatrick, 236 Ill. 281, 86 N. E. 139), or that he compute the amount due or determine other matters of fact (Neidhardt v. Frank, supra; Grubb v. Crane, 4 Scam. 153), is not a delegation of judicial power. Whether the decree did or did not delegate judicial powers to the master in chancery, or was in other respects erroneous, is not material here. It disposed of the rights of the parties and was a final decree. When that decree was before this court, it was necessary to consider only enough of the errors assigned to show that the complainant in the bill had no right to a decree for specific performance.

[7] It is also urged that the decree was not a decree affecting the title to real estate because it required the defendant to produce an abstract. The decree was for specific performance, and clearly affected the title to real estate. Harris v. Eich, supra.

[8, 9] What, then, was the effect of the transfers made by Eva Harris subsequent to the decree? It is not denied that Annie Meyer, who purchased the premises in question from Eva Harris, was a bona fide purchaser relying on that decree. The rule is thoroughly established in this state that one purchasing property following a final decree affecting its title and in reliance on that decree will be protected, even though the decree be subsequently reversed on writ of error, where the court had jurisdiction of the subject-matter and the parties. Finlen v. Skelly, 310 Ill. 170, 141 N. E. 388; Hopkins v. Patton, supra; Chicago & Northwestern Railway Co. v. Garrett, supra; Wadhams v. Gay, supra. The proceeding to register title in this case is collateral to the decree for specific performance herein referred to. Kuzak v. Anderson, 267 Ill. 609, 108 N. E. 662. The circuit court having jurisdiction of the specific performance proceeding, its action, even though erroneous, must be regarded valid and binding in a collateral proceeding. Miller v. Rowan, 251 III. 344, 96 N. E. 285; O'Brien v. People, 216 III. 354, 75 N. E. 108, 108 Am. St. Rep. 219, 3 Ann. Cas. 966; People v. Seelye, 146 Ill. 189, 32 N. E. 458; Harris v. Lester, 80 Ill. 307; 1 Freeman on Judgments (5th Ed.) 744; 2 Coo

(161 N.E.)

[10, 11] It is also urged that the Czervonkos had notice prior to their purchase that a writ of error had been sued out to reverse the decree for specific performance, and that they cannot be said to be innocent purchasers for value. They were grantees under a chain of title from Annie Meyer, who had good title. They took such title as she had, and the fact that they may have known that the appellant had sued out a writ of error attacking the decree for specific performance in nowise affects their title. The writ of error was not a part of the same proceeding. A purchaser with notice of prior existing equities who takes title from one, who, notwithstanding such equities, has a good title, will also procure a good title. Peck v. Arehart, 95 Ill. 113; 23 Am. & Eng. Ency, of Law (2d Ed.) 477.

Appellant argues that a decree for specific performance is an exception to the general rule that a purchaser who buys in good faith, relying upon a decree, will be protected, regardless of whether the decree is later reversed on writ of error, and he cites Gilman v. Hamilton, 16 Ill. 225, where it is said that, where a bill is filed for specific performance of a contract to convey land, a decree for that purpose not being a judicial sale, but rather a specific execution of a former sale, any one purchasing from either party is chargeable with notice of all that is involved in the suit as a lis pendens and its ultimate effect and consequence upon the property and the rights and powers of the parties. The language of that decision correctly states the rule where an appeal has been taken or a supersedeas issued before the purchaser buys the property, but such is not the rule, where there is no appeal from the decree, and a writ of error has been sued out, as in the latter case there is nothing pending in the specific performance case, and the rule as to lis pendens does not apply. Smith v. Herdlicka, 323 Ill. 585, 154 N. E. 414; Ure v. Ure, 223 Ill. 454, 79 N. E. 153, 114 Am. St. Rep. 336; Hopkins v. Patton, supra; Hammond v. People, supra; Mulvey v. Gibbons, 87 Ill. 367; Wadhams v. Gay, supra; Guiteau v. Wisely, 47 Ill. 433; Horner v. Zimmerman, 45 Ill. 14; Eldredge v. Walker, supra; Kuzak v. Anderson, supra. Gilman v. Hamilton, supra, cannot be considered authority for the appellant on this point.

The chancellor did not err in denying registration of the appellant's application. If this court were to hold that the appellant has the right to register title as against the appellees, it would, in effect, constitute a holding that no decree could become final during the period allowed by law for suing out a writ of error, and that one who procured a decree for specific performance for the sale of property could receive no benefit of his decree for a period of two years, even though no appeal were taken. Such a holding would be

contrary to all judicial determination with which we are familiar.

The decree will be affirmed.
Decree affirmed.

(330 Ill. 433)

PEOPLE ex rel. MANN, County Collector, v. ALLEN et al. (No. 17864.)

Supreme Court of Illinois. April 21, 1928.

Rehearing Denied June 18, 1928.

1. Drains 89-Evidence held not to show that widening and deepening main ditch outlet of drainage district benefited lands in upper part of district (Farm Drainage Act 1879).

Where, in natural state, lower part of drainage district organized under Farm Drainage Act of 1879 (Laws 1879, p. 120), was servient to lands of upper part for discharge of waters, evidence held not to show that widening and deepening of main ditch outlet facilitated drainage of water through ditches, and therefore benefited lands in upper part of district.

2. Drains 71-Construction of ditch, not draining land any better than is done by natural water courses, does not "benefit" such land.

Where construction of ditch will not drain tract of land any better than is done by natural water courses, or render it more accessible, or affect its immediate surroundings, it is not benefited, even though ditch may carry off water.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Benefit.]

3. Drains 71-To authorize drainage assessment, lands must be rendered more productive or accessible, or value must be enhanced.

In order to be assessed for drainage project, lands must be thereby rendered more productive, more accessible, or market value substantially increased, and their actual or intrinsic value enhanced.

4. Drains 73-Landowners in drainage district may object to assessment, without affirmatively showing that installation of pumping plant would not make system efficient (Cahill's Rev. St. 1927, c. 42, pars. 114–119; Farm Drainage Act 1879).

Landowners in drainage district organized under Farm Drainage Act of 1879 (Laws 1879, p. 120), may object to assessment for improveatively that no additional improvement, such as ment to drain lowlands, without showing affirmpumping plant, could be made which would make system efficient, since pumping plant could not be installed without compliance with Cahill's Rev. St. 1927, c. 42, pars. 114-119, and until court order was entered commissioners could not be compelled by mandamus to make improve


5. Drains 72-That landowners are in same drainage district affords no reason for requiring all to contribute to every improvement.

Because landowners are joined together in drainage district, or own lands in same water

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

shed, affords no reason why all should contribute to every improvement which may assist in drainage of district, since relative location of lands and benefits to accrue therefrom must be considered.

6. Drains 89-Evidence held insufficient to authorize drainage assessment against upper lands of district for improvement to lowlands, on ground of improved sanitation and protec

tion from overflow and washouts.

Evidence held insufficient to justify assessment against lands in upper part of drainage district for supplemental improvement to drain lowlands, on ground of improved sanitation, protection of fences from overflow, and protection of ditches or prevention of washouts, where upper lands were miles away from lowlands affected.

7. Drains 68-Owners of lands benefited by railroad's filling of openings in embankment, In consideration of drainage district's construction of levee, held properly assessed for Improvement.

Landowners, whose lands were benefited by filling of openings in railroad embankment, which prevented river from overflowing land in times of high water, held properly assessed for improvement, as against contention that filling of such openings was done without cost to district, where filling was done in consideration of district's building of levee.

8. Drains 74-Landowners in drainage district held not estopped to object to assessment by signing request that commissioners proceed with enterprise (Farm Drainage Act 1879).

Landowners in drainage district organized under Farm Drainage Act 1879 (Laws 1879, p. 120) held not estopped to object to assessment by reason of signing request that commissioners proceed with enterprise, since it would necessarily be contemplated that, if such proceedings were had in response to request, it would be initiated in usual way, and parties affected would have all rights that people ordinarily have in proceedings affecting their land.

9. Appeal and error 690 (5)-Error in permitting witnesses to use written memoranda is not reviewable, unless record shows what memoranda contained.

Reviewing court cannot determine whether it was error to permit witnesses to use written memoranda, unless record shows what such memoranda contained.

Appeal from Whiteside County Court; William A. Blodgett, Judge.

Action by the People, on the relation of Joseph Mann, County Collector, against W. C. Allen and others. From the judgment, defendants appeal. Affirmed as to some defendants, and reversed as to others.

W. C. Allen, of Rock Island, and Wood, McNeal & Warner, of Moline, for appellants. Robert W. Besse, State's Atty., of Sterling, McMahon & Bell, of Fulton, and McCalmont & Ramsay, of Morrison, for appellee.

PER CURIAM. The Whiteside and Rock Island special drainage district, located principally in the southwest portion of Whiteside county, but extending into the northeast portion of Rock Island county, was organized in 1883 under the Farm Drainage Act of 1879 (Laws 1879, p. 120). In 1919 an additional or supplemental improvement was inaugurated. In 1924 an application was made by the collector in the county court of Whiteside county for a judgment and order of sale against certain lands in the district, which were in default in the payment of the 1924 installment of the special assessment. The judgment rendered in that case was reversed on appeal to this court, and remanded for a hearing on the question of benefits. People v. Allen, 317 Ill.

92, 147 N. E. 479. Reference is made to the opinion on that appeal for a detailed description of the territory embraced within the district. Upon the filing of the remanding order the cause was consolidated with the application made by the collector for judgment for the installment due January 1, 1925. The objectors filed objections to both installments, claiming (1) that their lands received no benefits; and (2) that the assessments exceeded the benefits. On a hearing the county court held that the lands of some of the objectors were benefited to the full amount of the assessment, that some were benefited a portion of the amount assessed, and that some received no benefit. All of the objectors, except Brewer and Mason, against whose lands benefits were assessed have appealed. The district has appealed from the judgment as to

all land held to have received no benefit and as to all land held to be partially benefited. The two appeals have been consolidated in this court.

July 11, 1917, 62 landowners, including objectors E. H. Chamberlain, John Dobers, J. Scott Hyde, Harry O. Beardsworth, and George Klendworth, presented a petition to the commissioners, reciting that the petitioners had learned of negotiations between the commissioners and the Chicago, Burlington & Quincy Railroad Company concerning a proposed contract by which the railroad company agreed to allow the district to use its embankment from the village of Erie southwest to the section line between sections 14 and 15 in the town of Erie as a dike to prevent Rock river from overflowing said district, the company to fill all openings in the railroad embankment and keep them closed. By the contract the district obligated itself to construct a dike south along the section line aforesaid, a distance of a mile and a half, to the north bank of Rock river, and then west two miles, along a public highway, to high ground at the hamlet of Hillsdale, at the southwest corner of the district, and place therein a suitable culvert, with proper flood gates, which could be operated to keep Rock

(161 N.E.)

river from flowing into the district when the river was high, and to allow the water to flow from the district into the river when the river was low. The petition requested the commissioners to enter into such a contract with the railroad company and to proceed without delay with the improvement. The purpose of this drainage district, as shown in the order organizing it, was to construct and maintain drains, ditches, and embankments within the district for agricultural and sanitary purposes.

The district contains about 16,400 acres, and there are more than 20,000 acres of adjoining land of higher elevation which drain into the district. Reference to the accompanying plat will show the lands affected and their relation to the proposed improvement:

is made was levied to pay for the cost of the dike south of the railroad, the flood gates consisting of a concrete frame and four steel gates, each 5x5 feet, and the dredging of the slough from the railroad embankment to Rock river. In making the assessment for this improvement the Quade 40, being the southwest quarter of the southeast quarter of section 10, in township 19 north, range 3 east of the fourth principal meridian, was taken as zero, or lands unaffected by the improvement. The scale of classification for the assessment does not appear in the abstract. It does appear that the benefits were computed on the scale of 100 for full benefits and zero for no benefits. Both the district and the objectors had their own surveyors, and each used a different datum plane for their elevations; but, as there

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The lands of the objectors are designated on the plat by circles, crosses, and crosses within circles. The tracts found by the county court to be benefited the full amount of the assessment are marked by a circle; those found to be partially benefited, by a cross within a circle; and those found not to benefited at all, by a cross. Rock river lies south and east of the district, and flows in a southwesterly direction. The village of Erie is on the railroad, on the sand ridge which extends into the district from the east and separates the lands of the objectors in the north side of the district from those in the south side. There is a dike at the east end of Lake Erie, connecting the two sand ridges.

is no material difference in their findings, when reduced from one to the other, we have used the plane adopted by the objectors' engineers, which is a plane 100 feet below the top of the wall of the bulkhead of the flood gates. The Quade 40, as to which it was agreed no benefits were derived by the improvement, has a level of 96.5. There is no evidence in the record that the water of Rock river has ever reached that height; the highest water shown being at a level of 95, or 12 feet below the elevation of the Quade 40.

Originally the lands lying in this district were inundated by water coming from different sources. The northeast portion of the district, which includes the lands of all the The special assessment to which objection objectors before this court except Jensen,

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