Opinion of the Court.

The bill prays for an answer without oath, and for an account of the amount due the several creditors under the trust, that the premises might be sold in execution of the trust, and the amount realized paid to William T. Cutter, junior, the owner of the indebtedness of L. C. Hall and Company; that Jones be decreed to have no lien, charge or incumbrance, or title or estate in the lands, and that he be enjoined and restrained from taking or attempting any legal proceedings to take possession of them, and that the injunction be made perpetual, and for general relief. The bill made Jones, Sedgwick and others parties.

Jones answered, setting up the proceedings above recited in his bill to foreclose. Replication was put in, and the cause heard. The court dismissed the bill without prejudice. To reverse this decree, complainants bring the record here by writ of error, and make the point that the lien under the mortgage to Bouchell should have been held barred by the statute of limitations.

Reference is made, in support of this proposition, to Collins v. Tony, 7 Johns. R. 278. That was an action of dower, by a widow of one who had mortgaged the land, she not having joined in the deed. The court said, as they had held the estate of the mortgagor is the real estate at law, it must be so held when the widow comes to ask her dower of the heirs, or of the grantee of her husband. The court further held, that the mortgage set up was not a subsisting title, as the mortgagee never entered, and there had been no foreclosure, nor had interest been paid on it within twenty years. Jackson v. Hudson, 3 ib. 386, decides nothing further on this point. Jackson v. Pratt, 10 ib. 381, is to the same effect as Collins v. Tony, supra. Why, in that case, was not the mortgage a subsisting title? The answer is given by the courtthe mortgagee never entered, and there had been no foreclosure. Here, there was a strict foreclosure by the decree of a court of competent jurisdiction, and it must stand until set aside by some direct proceeding. This bill contains no such

Opinion of the Court.

prayer, and if it did, and the only fact upon which to ground it was that the statute of limitations, if pleaded in the Knox circuit court, would have defeated the action, and was not pleaded, the court having jurisdiction of the cause properly exercised it by the decree rendered, and no court could thereafter interfere and set it aside. In the absence of fraud, the decree must stand.

The point made most important by the plaintiff in error is, that inasmuch as he, as trustee for the creditors of Hall and Company, and their creditors were not made parties to Jones' bill of foreclosure, the decree is void as to them.

What right did Sedgwick acquire by Thompson's deed to him, executed subsequent to his mortgage to Bouchell, under which Jones foreclosed? Certainly nothing more than the equity of redemption remaining in Thompson, and this equity was conveyed to plaintiff in trust.

On general principles, frequently recognized by this court, Sedgwick, and plaintiff as trustee, should have been parties to the foreclosure suit, but the question arises, as they were not, was the decree of foreclosure a void decree? In the case referred to by plaintiff-Ohling et al. v. Luitjens, 32 Ill. 23-which, in some of the facts, is like this case, it was held, that the complainant there could not be affected by a suit and decree to which he was not a party; that he was still the owner of the equity of redemption, and entitled to claim all the advantages belonging to his position; that the decree as to him was a mere nullity, he losing nothing by the decree. The court had no jurisdiction over him in the suit, and his rights remain unaffected by it. The same doctrine was held in Dunlap v. Wilson, ib. 517.

Testing this case by them, plaintiff lost no rights he possessed, by the decree of foreclosure; that right was simply a right to redeem. The foreclosure did not bar him of that right, and it now exists, so far as we can see, in full force. But the bill does not ask to redeem. He seeks, by his bill, to enforce no such right; it was, therefore, properly dismissed

Syllabus. Statement of the case.

without prejudice. The equities of appellant remain the same as they were when the foreclosure decree was rendered. The decree is affirmed.

Decree affirmed.

TOLEDO, PEORIA & WARSAW RAILWAY CO.

v.

JOHN DARST.

1. PLEADING-declaration in an action against a railroad for injury to stock. In an action against a railroad company for killing stock, the declaration averred that the company had failed to fence the road at the place where the animal was killed, or where it got upon the track, and that it was not killed, nor did it get upon the track, at any of the excepted places. Upon the objection, that it was not directly averred that the injury was the result of the company's failure to fence, it was held, the facts averred would raise a prima facie presumption that the injury resulted from that cause, and at least after verdict, on motion in arrest, the declaration would be held sufficient.

APPEAL from the Circuit Court of Woodford county; the Hon. S. L. RICHMOND, Judge, presiding.

This was an action on the case, brought in the court below by John Darst against the Toledo, Peoria & Warsaw Railway Company, to recover for the alleged killing of a horse belonging to the plaintiff, by one of the company's trains.

After alleging the killing of the animal by the defendants' trains, and that the road had been open for more than six months prior to the accident, it was averred in the declaration as follows:

“And plaintiff further avers that the said defendants never have, at any time since they have so owned, run and used the

Statement of the case.

said railroad within the said county, nor since the same has been so open for use, at the place where the said animal was so injured and killed, nor where the same got upon the track or road, erected and thereafter maintained fences on the sides of their said road suitable and sufficient to prevent cattle, horses, sheep and hogs from getting on such railroad.

"And plaintiff further avers that the said horse did not get upon said railroad, and was not so hit and killed at the crossing of any public road or highway, nor within the limits of any town, city or village.

"And plaintiff further avers that at the point upon said road where the said horse was so injured and killed, and where the same got upon said railroad, fences were necessary along the sides of said road to prevent horses, cattle, sheep and hogs from getting on the track of said railroad from the lands adjoining the same.

"And plaintiff further avers that the said horse was not so struck, injured and killed, and did not get upon said railroad at any place where the said railroad runs through uninclosed lands lying at a greater distance than five miles from any settle

ment.

"And plaintiff further avers that said horse did not get upon said track or road, and was not so hit and killed at any point on said railroad where the proprietors of the lands through which the said railroad runs had already erected fences, or agreed with said company so to do: to-wit, at the County of Woodford aforesaid, — whereby the plaintiff has sustained damage in the sum of two hundred dollars."

The general issue was pleaded, and a trial resulted in a verdict for the plaintiff, whereupon the defendants moved in arrest of judgment, insisting the declaration was defective in not averring directly that the injury was the result of the defendant's failure to fence; but the court overruled the motion, and rendered judgment upon the verdict. The defendants appeal.

Syllabus.

Messrs. BRYAN & COCHRAN, for the appellants.

Mr. H. B. HOPKINS, for the appellee.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

In this case, as in the other between the same parties decided by us at the present term (51 Ill., 365), the appellant relies on the alleged insufficiency of the declaration. In the other the question was raised by demurrer by which the defendant abided; in this it is presented by a motion in arrest of judgment. We find, however, this declaration to be free from the objections we held fatal in the other. It is urged, however, that it is defective in not averring directly that the injury was the result of the defendant's failure to fence. But it does, in an inartificial way, aver facts which raise a prima facie presumption that the injury resulted from the neglect to fence, and at least after verdict the declaration in this respect must be held sufficient.

Objections are also taken to the sufficiency of the evidence, but we find it ample to support the verdict.

Judgment affirmed.

T. JUDSON HALE

v.

LEVI GLADFELDER et al.

1. LIMITATION ACT OF 1839—when the bar of the statute can be made availing to recover possession. When the bar of the statute has become complete, under the second section of the act of 1839, by the concurrence of claim and color of title acquired in good faith, payment of taxes for seven successive years under such color of title, and the actual taking of possession of