believed, that we cannot say, as matter of law, that he was not exercising the care of a prudent boy of his years. See O'Connor v. Railroad Co., 135 Mass. 352, 362; Elkins v. Railroad Co., 115 Mass. 190, 199, 200; Breckenfelder v. Railway Co., 79 Mich. 560, 44 N. W. 957; Ward v. Railway, 85 Wis. 601, 55 N. W. 771. The only question, therefore, is with regard to the care shown by his mother. That must be considered, because an injury to a child cannot be recovered for, although the child has used all the care to be expected of it, if it has not shown the prudence required of an adult, and if it ought not to have been left where it was, without the oversight of an elder. See Collins v. Railroad Co., 142 Mass. 301, 313, 314, 7 N. E. 856.

The lines between liability and immunity are fixed, at least in part, by legislative considerations of policy. While it may not be a sufficient reason for making greater requirements of a defendant that the plaintiff was disabled by poverty from taking certain precautions, the circumstances and limited powers of a large part of the community may be taken into account in determining what persons who use or cross the highways must look out for, and what they shall be held entitled to expect from those whom they meet and may injure. The poor cannot always keep their children in the house, or always see that they are attended when out of doors. In this case the evidence warranted a finding that the mother reasonably might expect her children to obey her, and that leaving them where she did for the short time that she left them there, occupied as they were, was not negligence, in view of the facts that one of them was 9 (Mulligan v. Curtis, 100 Mass. 512, 514), and that the boy had the degree of intelligence which his answer proved. The case falls into that border region between two extremes which we leave to the jury. McNeil v. Ice Co., 173 Mass. 570, 54 N. E. 257; Powers v. Railway Co., 163 Mass. 5, 39 N. E. 345; Creed v. Kendall, 156 Mass. 291, 31 N. E. 6; Lynch v. Smith, 104 Mass. 52, 56.

Exceptions overruled.

DAHLBORG v. WYZANSKI. JOHNSON et al. v. SAME. SAMPLE v. SAME. FORSBERG et al. v. SAME. (Supreme Judicial Court of Massachusetts. Plymouth. Dec. 6, 1899.)

MECHANICS' LIENS-ACTIONS-CONSOLIDATION -APPEAL AND ERROR.

1. Where four separate suits were brought in the district court, under Pub. St. c. 191, for the enforcement of mechanics' liens, and all parties interested became parties to each of the suits, either voluntarily or by order, so that, on hearing, an order might have been entered determining the rights of all parties, it was within the power of the superior court to consider the cases as one, and enter an order in one case establishing the separate liens, and for sale and distribution.

58 N.E.-38

2. Four separate actions were brought, under Pub. St. c. 191, for the enforcement of mechanics' liens, and on appeal to the superior court the causes were considered together; and, after making an order establishing the respective liens, the court entered an order in one of the cases reciting that "it appearing that all claims are ascertained, and no other proceedings are pending for the establishment of liens," and directed the officer to make sale and distribution of proceeds under Pub. St. c. 191, § 28, providing for distribution where all claims are disposed of. At the time of the order of sale, the lien of one of the plaintiffs had not been established, because exceptions taken at the trial remain undisposed of. Held, that the order of sale and distribution was so far separate that the order of sale might be valid, though the order of distribution was invalid, and therefore the judgment as to the claims and order of sale might be affirmed, except as to the plaintiff, whose lien was not established, and the judgment as to his claim and the order of distribution might be reversed.

Appeal from superior court, Plymouth county.

Separate actions by Charles F. Dahlborg, John A. Johnson, David Sample, and Carl H. Forsberg against Maurice Wyzanski for the enforcement of mechanics' liens. There was an order in the several cases establish

ing plaintiffs' respective liens, and an order in the cause of said Sample for sale and distribution, and from the orders defendant appeals. Judgment affirmed except as to plaintiff Dahlborg. Judgment in favor of said Dahlborg reversed.

Argued before HOLMES, C. J., and KNOWLTON, LATHROP, HAMMOND, and LORING, JJ.

E. L. Packard, for petitioners in the first and fourth cases. E. H. Fletcher, for petitioners in second case. W. Goddard, for petitioner in third case. C. B. Snow, Jr., for defendant.

HAMMOND, J. These are four separate suits, brought originally in the Second district court of Plymouth, under Pub. St. c. 191, to enforce liens for labor and materials. Although the petitioners are not the same in each suit, yet by an inspection of the respective records it appears that all parties interested, including the 11 lienors, became parties to each of the suits, either by appearing voluntarily, or in answer to an order of notice, so that at the time of the hearing in that court there were four suits pending, in which the parties were the same, and in either one of which an order could have been entered determining the rights of all parties interested in the litigation. The court did not adopt this course, but, in the case of Johnson and others, passed an order establishing liens in favor of seven of the petitioners, but finding for the respondent as against Swanstrom, the remaining petitioner, and in the three other suits ordered a personal judgment in favor of the respective petitioners against Wyzanski, the respondent. These orders and judgments were entered September 23, 1898. From

them the respondent appealed to the superior court, except that in the case of Johnson and others he appealed only from the order establishing the lien of Willen, so that the judgment against Swanstrom and in favor of the six remaining petitioners in that case stands. We have no occasion to notice the errors of the district court with respect to the judgments and orders appealed from, because they were vacated by the appeal. While no order of consolidation was made by the superior court, it is manifest that the cases there were considered together, and as in substance one case. The claims as to which an appeal had been taken were tried together upon issues framed, and were submitted to the same jury, who found in favor of every claimant except Willen, but, as to him, found for the respondent, where. upon the court made an order in the cases of Dahlborg, Sample, Forsberg, and Blomquist establishing their respective liens, and in the Sample case entered an order of sale and distribution. This last order recites that liens had been established in favor of certain persons thereinafter named, for the sums set against their respective names, and proceeds to name the persons, the list including all the lienors in the four cases who had succeeded in maintaining their liens; and it then directs that the property be sold by public auction by the sheriff, first giving due notice of the time and place thereof according to law. The order further proceeds as follows: "It appearing that all the claims against said property are ascertained, and that no other proceedings are pending for the establishment of liens against the same," the officer making such sale is directed to dispose of the proceeds as provided by Pub. St. c. 191, § 28.

The parties being the same, we are of opinion that it was within the power of the superior court to consider the cases as one, and to enter the order of sale in the case in which it was entered, and also that it was within its power to recite in that case the names of the lienors who had established their liens in either one of these cases, and the amount due on each as established by the judgments of the lower court, from which no appeal was taken, or by the superior court. But the respondent objects that at the time of the order of sale it was not true that the lien of Dahlborg had been established, because exceptions taken at the trial before the jury are yet undisposed of, and it does appear that there are such exceptions still pending. is apparent, therefore, that the proceeds of the sale cannot be distributed under Pub. St. c. 191, § 28, but must be held and disposed of under section 29 of that chapter, which makes provision for cases where all the claims are not ascertained. But we think the order of sale and the order of distribution are so far separate and distinct that the order of sale may be valid and ef

It

fective even although the order of distribution may be invalid, and that the judgment as to one claim may be valid notwithstanding the judgment upon another may be wrong. We see no error in the findings and rulings of the court in the matter of allowing separate costs in each case. The result is that the judgment of the court as to all the claims except that of Dahlborg and as to the order of sale is affirmed, but as to the claim of Dahlborg and the order of distribution it is reversed. So ordered.

CARTWRIGHT, J. In November, 1891, John Flusky commenced an action of forcible detainer against the defendant in error, John J. Flusky, to recover possession of a farm of 292 acres in McHenry county. There was a judgment against John J. Flusky before the justice of the peace, and he appealed the cause to the circuit court. On July 25, 1892, said John J. Flusky filed his bill in said circuit court against said John Flusky and the plaintiff in error, James F. Clancy, to enjoin the action of forcible detainer, and for a specific performance of an alleged oral contract for the conveyance to him of said farm. Complainant alleged that the defendant John Flusky was his father; that in September, 1887, said John Flusky agreed that if complainant would rent his own farm, and move upon the farm in question, and cultivate and improve the same, and furnish a home to his said father as long as he should desire such home, he would convey the land to complainant; that complainant accepted said agreement and proposal, took possession, made improvements, and performed the contract on his part; that said John Flusky resided with complainant, and he furnished him with board, lodging, and care, until October, 1891, when he left complainant's home without cause; and that on July 29, 1892, said John Flusky made a conveyance of the land to James F. Clancy for the pretended considera1 Rehearing denied December 7, 1900.

tion of $10,000, while complainant was in open possession of the premises as owner of the same. John Flusky answered, denying that he was the father of complainant, and denying the contract and making of improvements, and alleged that complainant moved upon the premises to assist in improving and tilling the same at complainant's own suggestion, for which he was to pay complainant a reasonable compensation, either in a share of the crops or otherwise; that he resided with complainant until he was compelled to leave on account of his treatment; and that he had conveyed the premises to the defendant Clancy for a good and valuable consideration. Clancy, in his answer, also denied the making of the contract, and the making of improvements by the complainant, and alleged that he had paid $10,000 for the property. . Both answers set up the statute of frauds as a defense to the alleged oral contract. Replications were filed to the answers, and the cause was referred to a special master in chancery. The defendant John Flusky died in December, 1894, after a part of the testimony was taken. On October 25, 1897, defendant Clancy filed his cross bill, alleging that his codefendant, John Flusky, was dead, and that, not being a party to the forcible detainer suit, he could not obtain affirmative relief except by cross bill. He prayed for a writ of restitution of the premises, as grantee of John Flusky. John J. Flusky answered the cross bill, and a replication to the answer was filed. A special master reported in favor of complainant, finding that complainant was the legitimate son and only heir of John Flusky, that the contract was made, and that complainant performed his part of it, except so far as prevented by John Flusky leaving his home without any reasonable cause. He recommended a decree setting aside the deed to the defendant Clancy as a cloud upon the title of complainant, and granting the relief prayed for in the original bill. The cause was heard on exceptions to the report. The first exception was that the master erred in finding that the complainant was the legiti mate son of John Flusky, but this exception was afterwards withdrawn, so that the finding of that fact cannot be questioned, and is not open to further investigation. The court overruled the remaining exceptions, confirm. ed the report, and entered a decree dismiss. ing the cross bill of Clancy, and declaring complainant, John J. Flusky, the owner in fee simple of the premises.

On the question whether the alleged contract was made, the direct evidence consisted of the testimony of complainant and his daughter that it was made, and of the defendant John Flusky denying it, and testifying that complainant moved upon the farm without any agreement of any sort. There was some evidence of admissions by the complainant that he went on the farm without any agreement, and these alleged admissions he denied. It was proved that after the com

Mary

plainant moved on the place the defendant John Flusky frequently said to different persons that the place and everything there belonged to complainant, and that he had given the farm to him. Considering all the evidence and the attendant circumstances, we conclude that the facts established by the proofs are as follows: In September, 1887, John Flusky owned the farm in question, and was living on it. He was 87 years old. His wife was dead, and he had no family. Jane Flusky, a daughter of the complainant, was keeping house for him. The farm was not in good condition,-was unfenced and overrun with burrs and Canada thistles. At that time John Flusky proposed to complainant, who was living upon his own farm, eight miles distant, that if he would move upon this farm, and take possession of it, and cultivate and improve it, and furnish said John Flusky a home with him, he would give complainant the farm. Complainant considered the proposition for about a week, when he accepted it, and rented his own farm and moved on these premises in pursuance of the arrangement. He built necessary wire fences, did some ditching, and put in tile, and put in a hydraulic ram to furnish water for the stock. He got the farm into a better state of cultivation, and reduced the number of burrs and thistles upon it. He paid most of the taxes after he took possession. About the time complainant went on the farm, John Flusky built a house upon it at a cost of about $1,500, and a barn that was worth, perhaps, $3,000. The parties lived together in the house, and complainant furnished John Flusky a home and cared for him for about four years, until October, 1891, when he left without any justifiable reason. The parties were perhaps both inclined to be somewhat quarrelsome, and they had minor troubles. about various things, but there was no sufficient cause for leaving the place. After leaving the farm, and bringing the suit in forcible: detainer, John Flusky made the conveyance to Clancy without any consideration. The improvements made by the complainant were not extensive, and the improved cultivation of the farm was only the result of good husbandry, but no great improvements were required. The father was in good circumstances, and built the house and barn, and was otherwise liberal with complainant, and, among other things, paid a mortgage of complainant amounting to $2,154.40. Complainant was in the open and visible possession of the premises, and Clancy had notice of his claims when he took the title.

In a suit for specific performance of an alleged contract to convey lands, such contract must be shown, and its material terms must be proved. Wright v. Raftree, 181 Ill. 464, 54 N. E. 998. When the alleged contract is oral, and the statute of frauds is pleaded, there must have been such performance as will take the contract out of the prohibition of such statute; but when a contract is prov

ed, and it is founded upon a good and valuable consideration, and has been performed by one party, a court of equity will decree its specific performance at the suit of such party. The complainant must show that he has done, and is ready and willing to do, all the things that are required of him by the agreement according to its terms; but, if that is the case, he is entitled to have the other party perform his part of it. The contract in this case is not objectionable to the rules of equity, and the only question seems to be whether there was such performance by complainant that the statute of frauds will not bar the remedy. It has been repeatedly held that where a father gives land by parol to his son, and the son takes actual possession of the land under the agreement, and in reliance upon it, and performs his part of such agreement, a court of equity will enforce the promise. Kurtz v. Hibner, 55 Ill. 514; Langston v. Bates, 84 Ill. 524; Bohanan v. Bohanan, 96 Ill. 591; McDowell v. Lucas, 97 Ill. 489; Irwin v. Dyke, 114 Ill. 302, 1 N. E. 913. The circumstances of cases differ greatly, but we think this case comes fairly within the rule stated in these decisions, and that the court did not err in enforcing the contract.

Some objections are made to the procedure and the decree, but, having disposed of the substantial merits of the controversy, we do not regard such other objections of any importance, and the decree will be affirmed. The decree of the circuit court is affirmed accordingly. Decree affirmed.

MAGRUDER, J., dissents.

CAMPBELL & ZELL CO. v. ROSS.1 (Supreme Court of Illinois. Oct. 19, 1900.)

ATTACHMENT-INTERVENTION-FRAUDULENT TRANSFER-APPEAL-REVIEW-QUESTIONS CONSIDERED.

1. Where an appeal is taken from the appellate court, its judgment will only be reversed for error of law appearing in the record, and not for insufficiency of the evidence.

2. Property was attached, and a third person filed an interplea, claiming it under an assignment which the plaintiff alleged to be fraudulent. The plaintiff requested certain propositions of law relative to the good faith of the transfer to be held as law in the case, which failed to state that the plaintiff must be a creditor of the debtor before he could attack the transfer for fraud, and no question of law as to the sufficiency of the proof to establish his standing as a creditor appeared in the record. The plaintiff contended that the evidence was sufficient to show that he was a creditor, but the appellate court determined the cause adversely to him. Held, that the cause would not be reversed by the supreme court for failure to accept such propositions, since the record did not show that they were based on the right of the plaintiff, as a creditor, to attack such transfer as fraudulent, and the decision of the appellate court was final as to the facts.

Appeal from appellate court, First district. 1 Rehearing denied December 6, 1900.

Attachment by the Campbell & Zell Company against William A. Ross. Mahala Ross filed an interplea, claiming attached property, and from a judgment of the appellate court (86 Ill. App. 356) affirming a judgment in claimant's favor, plaintiff appeals. Affirmed.

John Reid McFee, for appellant. James S. Cummins, for appellee.

CARTER, J. The branch appellate court affirmed a judgment of the superior court of Cook county by which it was adjudged, upon the appellee's interplea in an attachment brought by the appellant against one William A. Ross, that the shares of stock attached were the property of appellee, and not of the defendant in the attachment. All questions of fact have by the judgment of the appellate court been conclusively settled adversely to appellant, and we cannot reverse the judgment unless a question of law is presented by the record for our consideration which was decided erroneously below.

The issue made upon appellee's interplea was tried by the court without a jury. The appellant presented to the trial court 10 propositions to be held as law in the decision of the case, but the court refused each and all of them. No propositions were held or presented on behalf of appellee. The interplea alleged that the stock was the property of appellee, by assignment and delivery to her for a valuable consideration, and that the plaintiff had notice thereof before the attachment. The plaintiff, in its replication, denied that the stock was the property of appellee, and denied that the alleged assignment was made in good faith. There was evidence tending to prove the allegations of the interplea, and evidence on the part of the plaintiff in the attachment tending to prove the allegations of its replication. In other words, there was a conflict as to the bona fides of the transfer. The propositions which the plaintiff requested the trial court to hold as law in the decision of the case were mainly directed to the question of good faith of the transaction. we have held that before a plaintiff in the attachment, upon an issue of this character, can question the good faith of the transfer under which the claimant claims title, he must prove that the relation of debtor and creditor existed between the defendant and himself,-in other words, must prove that the defendant was indebted to him. Manufacturing Co. v. Alton, 168 Ill. 564, 48 N. E. 175; Springer v. Bigford, 160 Ill. 495, 43 N. E. 751. Otherwise, he would not be injured by a fraudulent transfer, and could not, therefore, be heard to question that it was made in good faith. Now, in the propositions asked by appellant this question was wholly ig nored, and it was assumed that the plaintiff had the legal right to question the good faith of the assignment of the stock to appellee, whether it had shown itself to be a creditor of the defendant or not, or else it was as

But

sumed that that relation had been proved; and appellant contends here that there was sufficient proof upon that question. Whether there was or not was a question of fact for the appellate court, and no question of law as to the legal sufficiency of the proof in that regard has been presented by the record, or is presented here in any way, except by the argument of counsel. It might have been presented by propositions of law, but was not. Some of the propositions were erroneous in other respects, but, as the omission mentioned was common to all, a sufficient reason appears for their refusal by the trial court.

Whether, upon the evidence reviewed by counsel, judgment should have been for the plaintiff in the attachment, instead of for the claimant, was a question finally settled in the appellate court. We have no power to review it. The judgment of the appellate court is affirmed. Judgment affirmed.

CHICAGO TITLE & TRUST CO. v. TOWN OF LAKE VIEW.1

(Supreme Court of Illinois. Oct. 19, 1900.) MUNICIPAL CORPORATIONS-PUBLIC PARKS

CONSTITUTIONAL LAW.

Laws 1871-72, p. 587, relating to public parks, and the several acts amendatory thereof subsequently passed, held constitutional.

Appeal from Cook county court; John H. Batten, Judge.

Action by the town of Lake View against the Chicago Title & Trust Company, executor of Parker R. Mason, deceased, to enforce a special assessment for opening and improving a public highway. From a judgment of the appellate court confirming such special assessment, defendant appeals. Affirmed.

Edward Roby, for appellant. Edward O. Brown and James McCartney, for appellee.

CARTER, J. By this appeal the appellant, as the executor of Parker R. Mason, deceased, seeks to reverse, as to a certain lot owned by him, a judgment of the court below confirming a special assessment levied to pay the cost of opening and improving a public highway along the shore of Lake Michigan, known as the "Lake Shore Drive." Assessments upon other property under the same petition for the same improvement were reviewed by this court in Jones v. Town of Lake View, 151 Ill. 663, 8 N. E. 688, in which case many of the questions involved in this appeal were decided, and to which reference is made for a more particular statement of the proceedings. The lot or piece of land involved was finally adjudged to be the private property of Parker R. Mason, in Mason v. City of Chicago, 163 Ill. 351, 45 N. E. 567; and after that decision the property was included in the assessment

1 Rehearing denied December 6, 1900.

roll, and Mason, having been notified, appeared and filed his objections to confirmation. Pending the proceeding he died, and appellant, his executor, was substituted. under the first 10 objections the legal sufficiency of the proceedings was attacked: First, the constitutionality of the several statutes under which the proceedings were taken; second, the validity of the order or ordinance authorizing the assessment; third, compliance with law in the steps taken to levy the assessment. The eleventh objection made the issue, tried by a jury, that the property was assessed more than it was benefited, and more than its proportion of the cost of the improvement.

In the first place, it is contended that the several statutes relating to parks, in pursuance of which the proceedings were taken, are unconstitutional and void; that is to say, that the act entitled "An act in regard to the completion of public parks and the management thereof," approved June 16, 1871 (Laws 1871-72, p. 587), and the several acts amendatory thereof subsequently passed, are each and all in conflict with the constitution, and void. What was said in People v. Mayor, etc., of City of Chicago, 51 Ill. 17, to the effect that some of the sections of the original act of 1869 there referred to more specifically were in contravention of the constitution of 1848, in no wise affects the validity of any provision of the statute involved in this case. The act of 1871 was held constitutional in Hundley v. Commissioners, 67 Ill. 559; and in People v. Gage, 83 Ill. 486, it was said: "It is unnecessary to argue upon the constitutionality of the park acts. That has been settled by the case of Hundley v. Commissioners, supra." And in Jones v. Town of Lake View, supra, the amendatory acts were considered. We are asked to review and overrule all of these cases, and to declare this park legislation void under the constitution, and consequently that the assessment upon the lot in question was without authority of law. We think it unnecessary to follow counsel in his elaborate argument upon these questions. They are settled, and should remain so. So, also, is the point made that the supervisor and assessor of the town of Lake View were not the corporate authorities of that town, and therefore had no authority to make the assessment. That question was expressly decided adversely to appellant's contention in the Jones Case, supra. The proceedings in that case were substantially the same as in this, and they were there held legally sufficient.

Under the eleventh objection, the jury found that appellant's lot was not assessed more than it would be specially benefited by the improvement, nor more than its proportionate share of the cost thereof, and we think the evidence sustains the finding. The judgment must be affirmed. Judgment affirmed.