City of Peoria v. Kidder. stitution of the State. Admits that complainant is owner of the lots, that the commissioners were appointed and made their report as stated in the bill. Defendant also admits that the notices were given as stated in complainant's bill. It can neither admit or deny the statement that the complainant had no other notice than as charged in the bill of the proceedings, and insists that the notices set forth as exhibits are sufficient and legal notices. It admits the rendition of the judgment, the issuing of execution as charged, but denies that any illegal costs are charged. It also states that the assessments were as uniform and equitable as the nature of the case and the circumstances of the parties would permit, and that complainant's lot is benefited to the full amount and value of the judgment rendered against his said lot. Defendant further states, that the records and exhibits of the County Court, filed September 4th, 1850, are a complete and perfect record and history of the proceedings of the city in opening said street, in complainant's bill mentioned, and they refer to said records, and make the whole a part of their answer in the cause, submitting and insisting that all the proceedings are had and done pursuant to law and the ordinances of the city. They admit that complainant's lot is some distance from that portion of Washington street sought to be opened, but insist that the same is on Washington street, of which the part sought to be opened forms a continuous portion, and that complainant's lot will be greatly benefited by opening said street, and that all the lots along said Washington street, between complainant's lot and the street sought to be opened, are also assessed in proportion to the benefits accruing to each; as will appear by the commissioners' report. Complainant filed a replication. The only evidence, other than the exhibits aforesaid, taken in the case, consists of the testimony of Jacob Darst and Wm. M. Dodge, who state that they are familiar with the complainant's lot, and that the lots on the opposite side of Main street, being also on Washington street, and which are not assessed for opening the street in question, would be equally benefited with complainant's lot in the opening of said street. The court made the injunction perpetual. The errors assigned are, the rendering a decree for a perpetual injunction, and not dismissing complainant's bill. N. H. PURPLE, for Appellant. MANNING & MERRIMAN, for Appellee. City of Peoria v. Kidder. WALKER, J. The first objection urged is, that the law authorizing the city to levy an assessment, to make compensation for injury sustained by opening a street, is repugnant to our constitution. The provisions of that instrument, which declare and regulate the taxing power, are referred to as sustaining this position. In answer to the objection it is enough to say, that it is the established doctrine of this court, that assessments of this character are not taxes. It is not, therefore, embraced in or regulated by the provisions of the constitution, to which reference has been made. The constitution has provided that private property shall not be appropriated to public use, without just compensation being made to the owner. Under this provision, when it becomes necessary to appropriate private property to public use, by the opening, widening, or extension of a street in a town or city, the owner whose property is thus appropriated must have just compensation made to him, by the public at large, by the city, or by the persons deriving a pecuniary benefit from the improvement. That the legislature may require compensation to be made in either of these modes, we conceive there can be no question. Where an improvement of this character is made, the adjacent real estate is thereby enhanced in value, unless it be the portions through or over which the street passes, which may sustain injury, for which the owners must be compensated. There can, it seems to us, be no more just and reasonable mode of making this compensation than that which the legislature has adopted, by assessing it upon those who receive a direct benefit from the improvement, in the enhanced value of their real estate, over and above any injury they may thereby sustain. And to ascertain and fix the amount that each person deriving benefit by the improvement shall contribute, to compensate for the loss sustained by those who are injured, a disinterested tribunal is required to appoint competent and disinterested persons, who, under oath, ascertain and report, both the amount of the injury sustained and the benefit derived by each person. This is fair, just, and in all respects reasonable. The right of all parties not to be burthened with an undue proportion of the expenses is secured by the act. If dissatisfied with the assessment, any person feeling himself injured, may attend and show the fact, and prevent a confirmation of the commissioners' report, and if dissatisfied with the action of the court, he may appeal or prosecute error to this court, to reverse the order of confirmation, and judgment on the assessment. (Scates' Comp. 1226, sec. 3.) This affords all parties ample means of being fully heard, and of having any error corrected. The law also requires a notice to be given of the time and LIBRARY. Fuller v. Paige. place of the assessment, when and where all parties in interest may appear and be heard before the commissioners. Again, a further notice is required of the time and court at which application will be made for a confirmation, and judgment on the assessment. If the latter of these notices is not given, the judgment will be void for want of jurisdiction in the court to act, and a sale under such a judgment will confer no title to real estate. It is a rule of uniform application, that where a party has a complete remedy at law, and, having the opportunity, slumbers upon his right, and fails to insist upon it, a court of equity will not afford relief. In this case, defendant in error, on the applition for judgment of confirmation, and for a sale of his property, in the court below, interposed no defense, but permitted judg ment to be rendered against him by default. He having had the notice required by the statute, and failing to appear and interpose his defense, which could have been made on that trial, cannot be heard to insist upon it in a court of equity. His defense, if he had any, was cognizable in a court of law, and having had an opportunity to interpose it in that forum, equity has no power to afford relief. The city had the right under their charter to extend the street, to have the benefits and damages assessed, and this property was liable to the burthen. And this proceeding is so far in the nature of a tax, that when those facts exist, a court of equity will not interpose to restrain the collection of such an assessment. Mc Bride v. The City of Chicago, 22 Ill. 574. The decree of the court below must, therefore, be reversed, and the bill dismissed. Decree reversed. ALVAH FULLER, Plaintiff in Error, v. NATHANIEL PAIGE, Defendant in Error. ERROR TO KANE. If a person purchase chattels with a knowledge that they are mortgaged, with an intent to cheat, the sale is void. As between the parties to it, a chattel mortgage is good without being recorded. Where one mixes up his own goods with those of another which are mortgaged, and refuses to separate the goods, if the mortgagee takes the goods confounded with his own, he will not be a trespasser. THIS was an action of trespass, commenced by Fuller against Paige, in Aurora Common Pleas Court, and taken, by change of venue, to the Kane Circuit Court. Fuller v. Paige. The declaration was in trespass in the usual form, for taking and carrying away goods and chattels of the plaintiff, consisting of a lot of drugs and medicines. There was a trial by jury, and a verdict for the defendant. One Myers mortgaged the goods in controversy to Paige, Myers attending the store as a clerk. Myers sold the goods to Fuller, who was fully informed of the mortgage from Myers to Paige. Fuller stated that he knew of the existence of the mortgage at the time of the purchase, but that it was good for nothing, inasmuch as it had not been recorded. The consideration from Fuller to Myers was a pre-emption claim in Kansas, and a bond for a tract of land in Michigan. Myers stated that the sale to Fuller was to get property with which to pay his debts. The goods, when mortgaged to Paige, were appraised at $1,000. Fuller, after his purchase from Myers, added a small stock to the drugs, and carried on business. When requested by Paige to select the goods so added by him to the stock derived from Myers, he refused to do so, and Paige took the entire stock as mortgaged, together with such as Fuller had added to it. The mortgage described the goods secured by it. GLOVER, COOK & CAMPBELL, for Plaintiff in Error. HOYNE, MILLER & LEWIS, for Defendant in Error. BREESE, J. In this case the court below instructed the jury, in substance, that if the appellant, then plaintiff, purchased the goods described in the declaration, with a full knowledge of the mortgage to the defendant, and with the intent to cheat and defraud him of his lien, the sale was void, as to the mortgagee. This we hold to be the law. The mortgage was good, as against Myers, the mortgagor, without being recorded. If then, the appellant purchased the goods of Myers with the knowledge of the mortgage, and for the purpose and with the intent to enable Myers to put the money in his own pocket, and cheat the mortgagee, that was such a fraud in fact as to avoid the sale to appellant. It cannot be tolerated, that a party, thus acting, should be permitted to enjoy the fruits of such conduct. We do not say, that the mere knowledge of the existence of a mortgage unrecorded would make the purchase from the mortgagor a fraud in law, where there is no intent manifested by such purchaser, to commit a fraud in fact by enabling the mortgagor to pocket the avails, and so cheat the mortgagee. When a purchase from a mortgagor is bona fide, and without any intent to cheat, the case might be different. Here the facts 26 360 127 249 26 360 f92a 638 Great Western Insurance Co. v. Staaden. show a contrivance and a design by the appellant, knowing of the existence of the mortgage in collusion with the mortgagor to cheat the mortgagee. The parties cannot receive our aid in furtherance of such intention, nor do we think the law requires it. Good faith and absence of fraudulent intent must characterize all contracts. Upon the other point, the appellant had mixed up his own goods with the goods mortgaged, and he was notified to select his, and take them away, which he refused to do. The appellee had a right to take his own goods, and if he took some, not his property, they being so confounded with his own that he could not distinguish them, it would be fraud to charge him in trespass, however he might be liable in trover. On the whole case we think justice is with the appellee, and we accordingly affirm the judgment. Judgment affirmed. THE GREAT WESTERN INSURANCE COMPANY, Plaintiff in ERROR TO COOK. I Where the preliminary notice and proofs under a policy of insurance, when presented to the representative of an insurance company, are received without objec tion, and remain in his possession for several weeks, without notifying the insured that a formal defect will be availed of, it will be held that such objections have been waived by the insurers. If the certificate required from the nearest notary is given to C. Staaden when the policy is to Nicholas Staaden, it will be fatal unless the mistake shall be cured by proper averments. The want of a seal to such a certificate will probably be cured by a verdict. THERE was a judgment for the plaintiff in the Circuit Court for $1,500 debt, and $145.50 for damages. The facts of the case are stated in the opinion of the court. A. W. WINDETT, for Plaintiff in Error. MONROE & SPENCER, for Defendant in Error. BREESE, J. The question presented by this record, is one of importance, not only to insurance companies, but to the insured, who are now a numerous class in this State, and ought to be advised of their obligations under a policy like the one before us. This policy, we believe, does not differ essentially in the conditions mutually imposed, in regard to losses by fire, from those of other insurance companies in this State, and elsewhere. |