that on this issue the defendant was guilty, as alleged in the declaration. The fifth is substantially the same, except that it instructed the jury, in addition to the foregoing, that if they found that the defendant, without instructions from the plaintiff, and against its desires and instructions, procured to be manufactured 1,300 special heads to fit said brake beams, if any were so defectively manufactured, and by reason whereof the cost of the manufacture of said special heads was lost to the plaintiff, then it was their duty to find the defendant guilty of wrongful conduct and breach of duty, as alleged, and the verdict should be for the plaintiff. Under the language of the contracts in question, and the evidence submitted to the jury, we think these instructions are not fairly subject to criticism. As said in the opinion of the appellate court, they only allow a recovery upon a showing by the evidence that the beams were rendered unfit for brake eams by reason of their defective manufacture. To say the least, when considering the instructions as a series, they appear to be fair to the appellant. Other questions are raised as to the giving of instructions and the admission and exclusion of evidence, but, upon a careful examination of the record, we are satisfied no substantial error was committed in that regard. The judgment of the appellate court will be affirmed. Judgment affirmed. 1. Where a judgment confirming a special assessment expressly excepted the lessee's leasehold estate in the property taxed and the improvements thereon, he had not a sufficient interest in the judgment to entitle him to appeal, though his lease obligated him to pay all taxes and assessments, general and special, imposed on the demised premises. Appeal from Cook county court; Philip S. Post, Judge. Action by the city of Chicago to confirm a special assessment for street improvement. From a judgment confirming the assessment, George B. Weise appeals. Dismissed. C. H. Sippel, for appellant. Edgar Bronson Tolman and Robert Redfield (Charles M. Walker, Corp. Counsel, of counsel), for appellee. BOGGS, J. This was a proceeding in the county court of Cook county for the confirmation of a special assessment to defray the cost of improving a portion of Wentworth avenue, in the city of Chicago. Judgment of confirmation was asked and granted against lots Nos. 8, 9, 12, and 13, in block 26, of Canal Trustees' subdivision of the S. E. fractional quarter of section 21, town 39 N., range 14 E. of the third principal meridian, "excepting the leasehold estate therein and improvements thereon." The title to said lots was conveyed to the city of Chicago in trust for school purposes. A school building was erected thereon, and the primary and grammer school conducted therein by the public school authorities until the year 1888, when the premises were leased by the board of education to the appellant, who has since then occupied the building and premises for the purpose of conducting a manufacturing establishment therein for his personal interest and gain. The lease executed by the board of education to the appellant contained the following stipulation: "The said party of the second part, George B. Weise, for himself, his heirs, executors, administrators, or assigns, doth hereby covenant and agree to and with the said first party, the board of education, that during the continuance of this lease he or they will pay all water rates, and all taxes, duties, and assessments, general and special, ordinary and extraordinary, of every nature and kind whatsoever, which may be levied, imposed, or assessed upon the premises herein demised." No defense was interposed by the city of Chicago as trustee, or by the board of education of said city, but the appellant, the holder and owner of the leasehold estate in the property, sought to interpose the defense that the premises were acquired for public school purposes with public school funds, and are now a part of the public school funds, and for that reason are exempt from the assessment sought to be confirmed against them. His objections were not sustained, but judgment of confirmation was entered, and he has sought to bring such objections before this court by appeal. The judgment of confirmation expressly excepted all the leasehold interest of the appellant, including the improvements, from liability as to the assessment; but the appellant insists he has an appealable interest, and a right to appeal, for the reason the stipulations in his lease require him to pay all taxes, duties, and assessments, general and special, ordinary and extraordinary, of every nature and kind, which may be levied, imposed, or assessed against the premises. The appellant has no interest in the subject-matter of the judgment sought to be appealed from. The obligation of the appellant, under his lease, to pay taxes and assessments on the property, makes him interested in the question whether the property is legally liable to be specially assessed for the improvement sought to be made. If sued for a failure to comply with the stipulations of the lease, the determination of that question would be of interest to him; but he is not for that reason entitled to appeal from the judgment confirming the assessment against the premises, his leasehold interest being excepted from such judgment. It is essential to the right of appeal that the appellant shall have an interest in the subject-matter of the suit. 2 Cycl. Law & Proc. p. 628. "It is not sufficient that be be interested in the question litigated, or that by the determination of the question litigated he may be a party in interest in some other suit growing out of the decision of that question. State v. Markey, 21 La. Ann. 743; Raleigh v. Rogers, 25 N. J. Eq. 506; Swackhamer v. Kline's Adm'r, Id. 503; Morris v. Garrison, 27 Pa. 226; Eclan's Adm'r V. Lancasterian School, 2 Pat. & H. 53." 2 Cycl. Law & Proc. p. 629, note 49. The appellant has no appealable interest in the judgment against the interest of others than himself in the premises, and for this reason his appeal must be and is dismissed. Appeal dismissed. (200 I11. 233) FRAHM v. COMMISSIONERS OF CRAIG (Supreme Court of Illinois. Dec. 16, 1902.) DRAINAGE COMMISSIONERS-APPEAL-COUNTY COURT JURISDICTION-SUPER SEDEAS-SUMMONS. 1. Under Farm Drainage Act, 88 24, 25 (Laws 1901, p. 148), providing that any person not satisfied with the decision of the commissioners may appeal to the county court, by filing a bond conditioned to pay taxes and costs, etc., an appeal is fully taken, and the county court has jurisdiction of the parties and subject-matter, after the filing and acceptance of the required bond, and the issuance and service of, and return to, a supersedeas. 2. Farm Drainage Act, §§ 24, 25 (Laws 1901, p. 148), provide that an appeal to the county court after decision by the commissioners may be heard at any term of the county court, providing 10 days intervene between the time of taking the appeal and the first day of the term, and, if not 10 days, then such appeal shall be heard at the next term of said court. A landowner appealed from a commissioners' decision, in exact compliance with the statute and the county clerk issued a supersedeas to the commissioners, to which they made proper return. A term of court began on December 2d, which was less than 10 days after the taking of the appeal. A probate term began on January 6th following, and a regular law term on January 12th. At the same time the supersedeas was issued, the county clerk also issued a summons against the commissioners, returnable on the first day of the law term. The commissioners did not appear at the probate term. Held, that inasmuch as no summons was required by the statute, and the commissioners were given due notice by the supersedeas, the court did not lose jurisdiction of the appeal because the summons was issued, returnable at the law term, though the commissioners would have been entitled, had they then appeared to demand it, to a trial at the probate term. Error to Douglas county court; Wm. H. Bassett, Judge. Proceeding by the drainage commissioners of district No. 13 of the town of Tuscola to classify the lands of said district. From the commissioners' decision classifying the lands, Hans Frahm, a landowner, appealed to the county court, and from an order dismissing that appeal he brings error. Reversed. James W. & Edward C. Craig and John H. Chadwick, for plaintiff in error. Eckhart & Moore, for defendants in error. CARTWRIGHT, J. Plaintiff in error is the owner of land in the Craig drainage district, by user No. 13, in the town of Tuscola, in Douglas county. The district exists by virtue of section 76 of the farm drainage act, which provides that the parties owning adjoining lands which require a system of combined drainage, who have by voluntary action constructed ditches forming a continuous line, shall be liable for their just proportion of such repairs and improvements as may be needed therefor. Defendants in error are the commissioners of said drainage district, and classified the lands in the district under the provisions of the farm drainage act, as a basis for assessing such lands. Plaintiff in error appealed to the county court of Douglas county from the decision of defendants in error in classifying his lands. The county court, on motion of defendants in error, dismissed the appeal, and entered judgment against plaintiff in error for costs. The writ of error in this case was sued out to review said judgment. Sections 24 and 25 of the farm drainage act provide that any person appearing and urging objections to the classification of his lands, who is not satisfied with the decision of the commissioners, may appeal to the county court within 10 days after such decision, by filing with the county clerk a bond, with security conditioned to pay such taxes as may finally be levied upon the land in question, and the costs occasioned by the appeal in case the commissioners shall be sustained by the court, and that the appeal so taken may be heard at any term of the county court, provided 10 days intervene between the time of taking the appeal and the first day of the term, and, if not 10 days, then such appeal shall be heard at the next term of said court. Laws 1901, p. 148. The objections of plaintiff in error in this case were heard, and the classification confirmed, on November 23, 1901, and the order classifying the lands was dated on that day. The appeal of plaintiff in error was taken in exact compliance with the provisions of the statute, by filing his bond with the county clerk on November 29, 1901. The bond was dated November 27, 1901, and was in the penal sum of $5,000, with William Wimple as surety, and was duly acknowledged before said county clerk, and was approved by him. On the same day that the bond was filed and approved the county clerk issued a supersedeas, directed to defendants in error as drainage commissioners, and to the town clerk of the town of Tuscola as clerk of said commissioners, reciting the proceeding for the classification of the lands, and the appeal of the plaintiff in error therefrom to said county court, and commanding the commissioners and clerk to suspend further proceedings, and to immediately transmit to the clerk of the county court a true copy of their proceedings, and all papers and documents pertaining to the same. This writ was served on the commissioners and clerk, on December 6, 1901. The December term of the county court began on December 2, 1901, less than 10 days after taking the appeal, so that it could not be heard at that term. On December 12, 1901, defendants in error filed in the county court a transcript of their proceedings in the classification of the lands, including the order appealed from. The next term of the county court at which the appeal might have been heard was the regular January probate term, beginning on January 6, 1902. There was also a January term for the transaction of law business, which began January 12, 1902. At the same time the supersedeas was issued the county clerk also issued a summons against defendants in error, returnable on the first day of the January term, to be held on January 13, 1902. On the return day of the summons the parties appeared in the county court, and defendants in error filed their motion to dismiss the appeal for want of jurisdiction in the county court, limiting their appearance to the purposes of the motion. The county court sustained the motion, and entered judgment dismissing the appeal at the cost of plaintiff in error. The appeal was regularly taken and perfected by filing the bond as required by statute. When the bond was filed, and it was accepted and approved by the county clerk, the appeal was taken, and the cause was pending from that time in the county court. Little v. Smith, 4 Scam. 400; Gallimore v. Dazey, 12 Ill. 143; Miller v. Machine Co., 79 Ill. 450. The supersedeas was regularly issued and served upon defendants in error, from whose decision the appeal was taken, and also upon their clerk. They made return to the writ by filing a transcript of their proceedings, and the county court had thus acquired full jurisdiction of the plaintiff in error, and of the subject-matter of the suit. Reed v. Driscoll, 84 Ill. 96. Defendants in error had notice of the appeal by the service of the writ of supersedeas, which they obeyed by making return thereto. They now insist that the county court lost jurisdiction, which it had regularly acquired, because the summons issued by the county clerk was returnable to the law term, beginning on January 13th, instead of the probate term, beginning on January 6th, at which they would have been entitled to a trial under the statute. We think it clear that the court did not lose jurisdiction, and that it was error to sustain the motion. The statute makes no provision for summons, and, if it was necessary that the plaintiff in error should use proper diligence in giving notice of the appeal, there was such notice, and there could be no necessity of a summons for that purpose. The statute secures the right to a trial at the next term of the county court beginning not less than 10 days after the appeal is taken, but if the summons was improperly issued, returnable to a subsequent term, the court would not thereby lose jurisdiction. If the defendants in error had appeared at the term beginning on January 6th, prepared for trial, and the plaintiff in error had failed to appear, an entirely different question would have been presented. They did not appear, although they were regularly notified of the appeal by the service of the supersedeas, and had made return of their proceedings to the court; but they appeared at the subsequent term, and seem to have insisted that the appeal was taken to that term. This was a misapprehension. The appeal was not taken to any term. It was taken to the county court, and the case stood for trial there according to law. The court erred in holding that it had no jurisdiction and dismissing the appeal. The judgment of the county court is reversed, and the cause is remanded to that court for further proceedings in accordance with the views herein expressed. Reversed and remanded. 1. Where land was conveyed by absolute deed to secure a loan to the grantor, and a contract, not under seal, entered into, permitting him to redeem on payment of the loan, he had an equitable right of redemption, which descended to his heirs, and which could be partitioned among them, so long as the equitable right to redeem continued. 2. In 1874 plaintiff's father sold, and by deed absolute conveyed, certain land. In 1875 a contract, not under seal, was entered into, reciting that the purchase price paid should be considered a loan, and giving him the right to redeem such land on payment of such loan in five years. The land had then been forfeited for taxes accruing during the preceding five years. The grantee redeemed from such forfeiture, and paid all subsequent taxes. In 1878 the grantor died. No part of the loan, or interest thereon, was ever paid. In 1897 plaintiff filed a bill to partition such land, subject to such equitable mortgage. He had reached his majority 14 years before, and the youngest heir of his father had been of age 8 years. The bill contained no offer to pay the mortgage debt or taxes paid by the mortgagee. Held, that the right to redeem under such contract had been lost by the laches of plaintiff's father and his heirs; hence there was nothing to partition. 3. Where the grantee in an absolute deed. which was made to secure a loan, executed a deed of reconveyance to the grantor, and placed it in escrow, to be delivered only on payment of the loan, and such payment was never made, such deed was of no effect, and the legal title remained in such grantee. 4. Where land is conveyed by absolute deed to secure a loan, and a contract entered into between the parties that the property shall be reconveyed on payment of the loan, the entire legal title vests in the grantee, and no action is required on his part to devest the grantor of his equitable right to redeem. 5. Where the right to foreclose a mortgage is barred by limitations, the right to redeem is also barred; such rights being reciprocal 6. Where land was conveyed by absolute deed to secure a loan, and thereafter a contract was executed by the parties that the land should be reconveyed on payment of the loan, which contract was recorded, the heirs of the grantee were bound with notice of such contract; and the fact that they did not know of it until after limitations had run against a right to redeem does not excuse their laches in asserting such right, unless such want of knowledge was owing to some fraudulent conduct on the part of those claiming under such deed. Error to circuit court, Cook county; R. S. Tuthill, Judge. Action by John H. Fitch against William Miller and others for partition, and continued against Robert Miller, as executor of the will of William Miller, after the latter's death. From a judgment in favor of defendant Robert Miller, the plaintiff and certain defendants bring error. Affirmed. This is a petition for partition filed by the plaintiff in error, John H. Fitch, in the circuit court of Cook county on August 21, 1897, against William Miller, the South Chicago Railroad Company, the city of Chicago, Van Arkle, Garrie S. French, Mary A. Fitch, Timothy S. Fitch, and Beatrice Fitch; the latter being three of the plaintiffs in error. The petition or bill seeks partition of the south 20 acres of the E. 2 of the S. E. 4 of section 24, township 38 N., range 14 E. of the third P. M., in Cook county, Ill., and alleges that the petitioner below, John H. Fitch, one of the plaintiffs in error here, and Mary A. Fitch, Timothy S. Fitch, and Beatrice Fitch, defendants below, and the three other plaintiffs in error here, are owners each of an undivided 3/32 part of said 20 acres, and that Garrie S. French, one of the defendants below, and one of the defendants in error here, was the owner of the other 5% or 20/32 of said 20 acres. The bill or petition prays for a partition, subject to such alleged cloud or lien as may have existed by reason of the circumstances hereinafter stated. The bill alleges that John Fitch. was the owner of said 20 acres in his lifetime, and that he died intestate at Nettleton, Kan., on July 20, 1878, leaving, him surviving, as his only children and heirs at law, the plaintiffs in error, John H. Fitch, Mary A. Fitch, Timothy S. Fitch, and Beatrice Fitch. It is also alleged that said plaintiffs in error conveyed an undivided five-eighths of said premises to said Garrie S. French. By amendment to the bill, the Illinois Central Railroad Company was made a defendant. William Miller filed an answer to the bill, denying that John Fitch owned any of said premises at the time of his death. Answers were filed by Garrie S. French, and by Mary A. Fitch, Timothy S. Fitch, and Beatrice Fitch, substantially admitting the allegations of the bill. William Miller, who resided in London, England, died testate on June 18, 1898, in England, and his death was suggested, and his unknown heirs and devisees were made defendants; and thereafter his executor and trustee and heirs filed an answer denying, substantially, the material allegations of the bill. On February 13, 1900, after hearing had, the court below rendered a final decree, in which, after finding that the city of Chicago had by condemnation acquired the title to a part of certain lots described in the bill, but not here in controversy, and that the South Chicago Railroad Company had acquired by condemnation the title to a certain strip of land for a right of way over a part of said premises, which had been leased to the Illinois Central Railroad Company, the court further found that the complainant below, the plaintiff in error John H. Fitch, had not proved the material allegations of his bill, and that the same was without equity, and dismissed the bill for want of equity. The present writ of error is prosecuted from the decree of the circuit court so dismissing the bill. The material facts, as set up in the pleadings and shown by the proofs, are substantially as follows: On March 5, 1874, John Fitch was the owner of the 20 acres of ground here in controversy, and on that day executed a warranty deed conveying said 20 acres, and also lot 156 in division 3 of the south shore subdivision of the N. E. 4 of section 30 in said township 38, to William Miller, of London, in the kingdom of Great Britain, in consideration of the sum of $30,000, which said deed was recorded in the recorder's office of Cook county on April 20, 1874. The deed was executed by Fitch to Miller in pursuance of a sale made by Fitch to Miller of the premises therein described; and Miller paid $5,000 in cash to Fitch, and executed a mortgage upon the 20 acres in question to secure the balance of the purchase money, to wit, the sum of $25,000, evidenced by two notes, one for $10,000, due in 30 days, and the other for $15,000, due in 60 days, after March 5, 1874, which said mortgage was recorded in the recorder's office of Cook county on April 23, 1874. The note for $10,000 was paid by Miller to Fitch, but the remaining note for $15,000 was not paid when it was due. In May, 1874, Fitch brought suit in assumpsit in the superior court of Cook county against Miller upon the note for $15,000. On October 5, 1875, a settlement or arrangement was made between Fitch and Miller, which was reduced to writing by a written contract dated October 5, 1875, which contract, however, was not under seal, and was signed and acknowledged by John Fitch, Elizabeth W. Fitch, his wife, and by William Miller, by Thomas L. Parker, his attorney in fact, which said agreement was recorded on October 7, 1875, in said recorder's office. Upon the same day the suit brought by Fitch against Miller upon the note for $15,000 was dismissed by agreement. The contract of October 5, 1875, recites the execution of the deed of March 5, 1874, by John Fitch and wife to William Miller, conveying said 20 acres and said lot 156 for the consideration of $30,000, and also the execution of the mortgage securing the payment of $25,000, and also recites that "it has been agreed between the said John Fitch and the widow and devisee of Timothy S. Fitch, deceased, that the entire sum of $30,000, the purchase money of the said land herein described, should become and be treated as a loan of money from the said Miller, and as security for the repayment thereof and interest; that said Miller should retain as security the said lands hereinbefore described, which have been conveyed to him by said John Fitch and wife, as herein before set forth, and in' addition thereto, and as additional security for the repayment of the said entire sum, the said John Fitch and wife have on this date executed a certain mortgage for the sum of $7,500 to said William Miller, with interest, convéying" certain lots in certain blocks in South Shore subdivision No. 5, in Cook county, "subject to prior incumbrance." And Elizabeth W. Fitch, widow and devisee of Timothy S. Fitch, as further security, has by her deed of mortgage, bearing even date herewith, conveyed to said William Miller all of "certain other blocks and lots in said South Shore subdivision No. 5, subject to prior incumbrance to Ezra B. McCagg, to secure a note of $7,500, bearing even date herewith, and payable to said William Miller in five years after date, with interest thereon at ten per cent. per annum, out of property, or the proceeds thereof, received by her as devisee from the estate of Timothy S. Fitch, her husband, deceased, but not out of property acquired by her otherwise." And said contract also recited that Miller and his wife had made a certain deed to John Fitch, as grantee, of said south 20 acres and of said lot 156, "which said deed has not been deliv. ered, but is held in escrow, in the hands of Robert Hervey, of Chicago, representing said William Miller, to be delivered to said John Fitch on full payment of said sum of $30,000, and interest at the rate aforesaid and at the time aforesaid, and for the securing of the payment whereof the said deed is so held in escrow, and which sum is further secured by the mortgages hereinbefore described, made by the said John Fitch and wife and Elizabeth W. Fitch, respectively, on the property, and for the sums respectively therein set forth, which mortgages are simply additional securities for the prompt and faithful payment of said sum of $30,000, with interest thereon." The said agreement then proceeds as follows: "Now, it is understood and agreed between the said parties, and is hereby declared to be the true intent and meaning of said transaction, that upon the full payment of the said sum of $30,000, and interest at ten per cent., in five years from the date thereof, said interest being payable annually, the said deed so held in escrow, to said twenty acres, shall be duly delivered, and the respective mortgages executed at this date by John Fitch and wife and Elizabeth W. Fitch, respectively, shall be fully released and discharged of record; all of said property being held in the aggregate simply as security for the payment of the said sum of $30,000 and interest, and no other or greater sum." It was also stated in the contract that "it is agreed that the taxes shall be promptly paid by John Fitch and Elizabeth W. Fitch, and in case of default in the payment of interest, or of any taxes or assessments, then that the mortgage, hereby created on the twenty acres and lot 156, herein described, may be foreclosed on said default; said Miller having the power on any default to declare the whole sum due and to foreclose." It was also therein agreed that on the full payment of the $30.000 and interest, and the closing up of the entire transaction, the mortgage from William Miller to John Fitch on the 20 acres therein described, and lot 156 aforesaid, should be discharged of record. The origi nal deed from William Miller and wife to John Fitch, which was held in escrow by Robert Hervey, was dated July 3, 1875, conveying the premises in question in consideration of $30,000. Late in the year 1875 John Fitch left Illinois, and went to Kansas to live. Upon learning of his death, which took place on July 20, 1878, Robert Hervey handed over the deed he was holding in escrow to Thomas L. Parker, the agent of William Miller. On December 23, 1875, the mortgage which had been executed by William Miller to John Fitch to secure the two notes, one for $10,000 and the other for $15,000, was released; and the release deed, dated December 23, 1875, was recorded on that day, and was produced upon the hearing of this cause upon notice by the heirs of William Miller. The deed, however, in Hervey's hands, was never delivered to John Fitch; nor was any demand made upon Hervey for it by either John Fitch in his lifetime, or by any of his heirs or representatives after his death. The mortgages for $7,500 each, referred to in the contract of October 5, 1875, were second mortgages; and the first mortgage, to which they were subject, was foreclosed in the circuit court of the United States for the Northern district of Illinois, and the property was sold, leaving a deficiency unsatisfied of over $15,000, for which decree was entered on June 26, 1878, against John Fitch. The notes for $7,500 secured by these mortgages are brought into court by Miller or his representatives, subject to the order and direction of the court; the mortgages securing them having been cut off by the foreclosure already named. Gage & Deming, for plaintiffs in error. Willard & Evans, for defendants in error. MAGRUDER, C. J. (after stating the facts). 1. The record presents the case of a deed made by John Fitch, deceased, to WilBom Miller, deceased, which, though absolute |