4. MUNICIPAL CORPORATIONS STREET MENTS. 502(2)— IMPROVEMENT ASSESSMENT-ELE In such proceeding, the question was as to what benefit the objector's property would receive from the making of the whole improve ment, and it was immaterial that the present pavement was in better condition along the objector's lots than elsewhere.. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 1174; Dec. Dig. 502(2).] Appeal from Lake County Court; Perry L. Persons, Judge. Application by the City of Lake Forest for confirmation of an assessment roll spread for the cost of paving a street, to which C. W. Buckley objected. Judgment for the objector in county court, reducing the assessments, and the City appeals. Reversed and remanded. George T. Rogers and Tenney, Harding & Sherman, all of Chicago, for appellant. George A. Mason, of Chicago (Morton T. Culver and Robert Zaleski, both of Chicago, of counsel), for appellee. COOKE, J. The city of Lake Forest ap plied to the county court of Lake county for the confirmation of an assessment roll spread for the cost of paving Sheridan road, one of the streets in the city of Lake Forest. The legal objections were overruled, a jury was waived, and a hearing was had before the court on the question of benefits on the objections of C. W. Buckley, appellee. Appellee owned two lots, 304 and 305, abutting Sheridan road. The amount of assessment against these lots in the assessment roll was -for lot 304, $2,335.90; for lot 305, $1,640.10. The court found that lot 304 was benefited to the amount of $1,880, and that lot 305 was benefited to the amount of $1,320, and judgment was rendered accordingly. From that judgment this appeal has been perfected by the city of Lake Forest. [1, 2] Appellee has interposed a motion to strike the bill of exceptions upon the ground that it was not filed after it had been signed and sealed by the judge. The judgment was rendered on April 20, 1916. On that day leave was given appellant to file a bill of exceptions within 30 days. On May 20, 1916, being within the time fixed for filing, the bill of exceptions was presented to the trial judge and was indorsed, "Presented this 20th day of May, A. D. 1916, and time for settlement fixed at June 5, 1916, at 11 a. m.," which indorsement was signed by the judge. The date of the signing of the bill of exceptions by the judge appears as the 5th day of June, 1916. The bill of exceptions was filed as of May 20, 1916, and it is the contention of appellee that, as it does not appear that it was filed subsequent to the date upon which it was signed by the trial judge, it is not properly a part of the record, as no bill of exceptions existed until June 5, 1916, being the day upon which it was signed and sealed by the judge, and as the filing of a purported bill of exceptions before the same is signed is not the filing of a bill of exceptions within the meaning of the statute. A bill of exceptions purports to be signed at the time the exception is taken in the course of the trial, whether it is presented then or afterwards; but if it is presented within the time allowed by the court for filing same, and that fact is shown on the face of the bill, it may be afterwards filed as of that date within a reasonable time after it is actually signed by the judge. Hill Co. v. United States Guaranty Co., 250 Ill. 242, 95 N. E. 150. As was stated in that case, as a matter of proper practice the judge should have dated the bill, upon signing it, as of the date when it was presented, and an or der should have been procured directing that it be filed as of that date; but, at the most, the failure to follow such practice is merely an irregularity, and does not render the bill of exceptions void. The party presenting a bill of exceptions has done everything within his power when he presents it to the judge to be signed. Under the law it is the duty of the judge to regard the day the bill was presented to him as the date upon which it should be signed, sealed, and filed. If for any reason the judge neglects to enter an order directing the clerk to file the bill of exceptions nunc pro tunc as of the date it was presented to him, and the clerk thereafter, either on his own motion or at the request of the party interested, files it as of the date it was presented to the judge, he has complied with the law, and the opposite party can take no advantage of the fact that the judge failed to enter an order that the clerk should file the bill nunc pro tunc as of that date. It will be here presumed that the clerk filed the bill of exceptions as of May 20, 1916, after it was signed and sealed by the judge. motion to strike the bill of exceptions is overruled. The [3] On the hearing the objector offered the testimony of but one witness, William Niehoff, who testified that he had examined the property of objector and the condition of the present roadway along the line of the proposed improvement, and based his opinion on his experience in "hundreds and hundreds of paving cases." He estimated that the property of objector would be benefited at the rate of $2 per front foot, and this is the basis adopted by the court in fixing the amount of benefits. This witness had never seen the property in question until this matter arose, except, as he testified, he had driven by there a few times when pleasure driving. He did not testify that he was familiar with the values of property in that locality, or with the market value of the lots of the objector. When he was asked to give his opinion as to the benefits to these For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes For the reasons indicated, the judgment of the county court is reversed, and the cause remanded. Reversed and remanded. (276 III. 324) PEOPLE ex rel. COUNTY COLLECTOR OF (No. 10960.) (Supreme Court of Illinois. Dec. 21, 1916.) DRAINS 68-DRAINAGE DISTRICT COMMISSIONERS-POWERS-SPECIAL ASSESSMENTS. two lots, counsel for appellant objected, | kee v. Illinois Central Railroad Co., 263 Ill. upon the ground that the witness had not 589, 105 N. E. 731. shown himself qualified to give an opinion. The objection was overruled, and this action of the court is assigned and relied upon as error. Opinion evidence must be relied upon wholly in cases of this kind to determine the amount of benefits, if any, to property by reason of such an improvement. Before any witness is entitled to express an opinion as to the benefits which will follow in the making of such an improvement, he must show himself qualified to express an opinion. It must be apparent that an opinion as to benefits would be without any value, where the witness is not familiar with the locality or the value of the property claimed to be benefited by making the improvement. The mere fact that the witness had had experience in "hundreds and hundreds of paving cases" in other localities would not, of itself, qualify him to express an opinion as to the benefits which property in a locality with which he was unfamiliar would derive from a local improvement, especially when he had no knowledge of the value of the lots in question, or of other real estate in that vicinity. The objection to the testimony of this witness should have been sustained. [4] The witness Niehoff in his examination In view of the provision of Farm Drainage Act, $77 (Hurd's Rev. St. 1915-16, c. 42, § missioners thereafter shall be the same as pre152), that the "powers and duties of the comscribed for other districts and they shall commence acting at the point reached by the aforeprovision that "the powers and duties of the comsaid agreement," and notwithstanding the missioners of a district by mutual agreement, and the mode and effect of special assessments, shall be the same as provided for other district formed by a written agreement stating tricts," the commissioners of a drainage disthat the character of the work should be the cleaning, enlarging, and improving of the ditches then existing, were without authority to levy special assessments for the construction of tile drains, or to change open ditches into closed ditches. [Ed. Note.-For other cases, see Drains, Cent. Dig. § 72; Dec. Dig. 68.] Appeal from Shelby County Court; A. J. Steidley, Judge. S. S. Clapper, of Moweaqua, and George B. Rhoads, of Shelbyville, for appellant. W. E. Lowe, State's Atty., of Shelbyville (J. C. Willard, of Shelbyville, of counsel), for appellee. testified to the condition of the pavement now existing in that portion of the street which is sought to be paved. He testified that the present pavement is in better con- Application by the People, on the relation dition along the lots of appellee than it is of the County Collector of Shelby County, elsewhere, and disclosed that he took that against Joe Curry, for an order of sale for a element into consideration in giving his opin- delinquent drainage assessment. From judgion as to the benefits which would accrue to ment for relator, defendant appeals. Rethese lots, upon the apparent theory that ap-versed and remanded, with directions. pellee would be entitled to some credit in the making of the new improvement by reason of the fact that the present condition of the street in front of his premises is better than along the other property included in the assessment roll. This testimony also went in over objection. This was an improper element to consider. The real question In determining the benefit to any property by reason of any local improvement is: What benefit will that particular property receive from the making of the whole improvement? It is immaterial whether the present roadway is in worse condition along portions of the line of the proposed improvement than lsewhere. If the whole of the street is in Buch condition as to render a new pavement necessary, no property owner has the right to have credited against the benefits he receives from the whole improvement any sum by reason of the fact that the present roadway immediately along his property is in better condition than it is elsewhere along the line of the proposed improvement. The opinion of the witness Niehoff resulted from a consideration of improper elements, and should have been excluded. City of Kanka COOKE, J. The county collector made application in the county court of Shelby county for judgment and order of sale against the property of Joe Curry for a delinquent drainage assessment of Mutual drainage district No. 1 of town of Flat branch. This drainage district was formed under section 77 of the act commonly known as the Farm Drainage Act (Hurd's Rev. St. 1915-16, c. 42, § 152). On November 18, 1893, a written agreement was entered into by the owners of the lands to be included in the district, and the same was duly signed, acknowledged, and recorded in the drainage record. By this agreement the general character of the work to be done was provided for, as follows: "The general character of the work to be done shall be the cleaning, enlarging, and improving of the open ditches in said district, so as to afford ample facilities for the adequate drainage of all the lands included in said dis trict and the keeping of the said open ditches in necessary repair.' The agreement further provided that: "The amount of taxes to be levied shall be limited in amount to such sum as may be deemed adequate for the payment of the work, as aforesaid, contemplated and provided to be done, together with such estimate of contingent expenses as may be deemed necessary to add thereto." The agreement recited that the owners of the lands described had theretofore by voluntary action constructed ditches and drains which formed a continuous line and branches having a common outlet, and these are the ditches referred to in that part of the agreement above quoted. A plat of the district upon which the ditches were indicated, a profile and report of the character of the work necessary to be done, and an estimate of the cost thereof, were attached to the agreement and expressly made a part thereof. The lands included within the district were situated in six different sections, and the main open ditch was of considerable size and length. In the year 1913 the commissioners of the district determined to change the system of drainage from open ditches to tile drains, and passed a resolution providing for a tile drain, varying in diameter from 20 to 24 inches, to take the place of the open ditch. This drain was to be placed for a part of the way in the open ditch and for a part of the way from three to five rods distant from the open ditch. The estimated cost of the improvement was $4,309.50. An assessment was levied to pay for the improvement, the work was let, and the new tile drain put in, and appellant's lands were returned as delinquent. It was for the amount of this assessment against appellant's lands that the county collector made application for judgment and order of sale. same as prescribed for other districts and they shall commence acting at the point reached by the aforesaid agreement: Provided, that this agreement may include the selection of three drainage commissioners from their own number, or from others, and their terms of office shall be until the third Tuesday of the following November, or for this term and for one year in addition, as may be agreed at the time of their appointment and at the annual meetings thereafter, a majority of the land owners may choose three commissioners to effect, or a majority may, in writing, disconserve one year by signing a certificate to that tinue the voluntary district, and thereafter it shall be under such commissioners as is herein provided for other districts of this class. Such writings shall be recorded on the drainage record. The powers and duties of the commissioners of a district by mutual agreement, and the mode and effect of special assessments, shall be the same as provided for other districts." It is contended by appellee that under the provisions of this section, after a district has once been formed by mutual agreement, it becomes amenable to all the provisions of the Farm Drainage Act, and the commissioners are warranted in taking any action that the commissioners of any other district formed under the provisions of the Farm Drainage Act have authority to take. As we understand the argument of appellant, he takes two positions: (1) That the authority of commissioners of a district by mutual agreement is limited by the terms of the agreement; and (2) that if that is not true, and the general provisions of the Farm Drainage Act apply to such a district, the commissioners did not proceed properly under the provisions of that act. It will not be necessary to note the second or alternative contention. It will be noted that said section 77 does contain the provision, "the powers and duties of the commissioners thereafter shall be the same as prescribed for other districts and they shall commence acting at the Various objections were made to the appli-point reached by the aforesaid agreement," cation for judgment and order of sale, and and also, "the powers and duties of the all of them are relied upon here. It will be commissioners of a district by mutual agreenecessary for us to notice but one of them.ment, and the mode and effect of special asThe third objection was that the district was sessments, shall be the same as provided for formed by an agreement in writing which other districts." This language was not specified the purposes of the district and meant to destroy the force and effect of the the general character of the work to be done, agreement entered into, or to give the comand the commissioners were not given au- missioners power and authority to proceed in thority by this agreement to levy special any other manner than that provided by the assessments for the construction of tile drains agreement. As long as the district remains or to change open ditches into closed ditches. one by mutual agreement, the terms of the Section 77 of the Farm Drainage Act, under agreement must govern. The provisions of which this district was formed, is as fol- the section just indicated simply specify lows: what the powers and duties of the commissioners are under the agreement. This is made evident by another provision of the section, which is that a majority of the landowners "may, in writing, discontinue the voluntary district, and thereafter it shall be under such commissioners as is herein provided for other districts of this class." If at any time the agreement becomes inadequate for the needs of the district, a majority of the landowners may discontinue the voluntary district, and thereafter it shall become such "Owners of land which requires combined drainage may form drainage districts, by mutual agreement to include lands of their own only, by an instrument of writing duly signed and acknowledged, and recorded in the drainage record. This agreement may include the location and character of the work to be done; the adjustment of damages; the classification, amount of taxes to be levied; how the work shall be done, or so much of these or more as may be agreed upon, and to this extent shall be as valid as though formed in the mode hereinbefore provided, and the powers and duties of the commissioners thereafter shall be the TION. a district as the appellee contends it is at 15. ESCROWS 14(1) — DELIVERY-CANCELLApresent a district where any necessary improvement for the proper drainage of the lands may be made. By the agreement forming this district it was expressly stated that the character of the work should be the cleaning, enlarging, and improving of the ditches then existing on the lands included within the district. The commissioners cannot depart from the terms of this agreement and make other and different improvements. Their action in providing for the construction of, and in constructing, the improvement in question, was without authority and void. The judgment of the county court is reversed, and the cause is renranded, with directions to sustain this objection. Reversed and remanded, with directions. (276 Ill. 218) MAIN v. PRATT. (No. 11006.) (Supreme Court of Illinois. Dec. 21, 1916.) 1. FRAUDS, STATUTE OF 143(1)-LAND SALE CONTRACT-RIGHT TO REPUDIATE. A parol contract for the sale of land pursuant to which a deed and a purchase-money note were deposited in escrow, being within the statute of frauds and unenforceable, could be repudiated by either party at will, or by the heirs of grantor after her death, at any time before the conditions on which the deed was to be de livered to the grantee had been performed. [Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. §§ 344, 345, 349, 350; Dec. Dig. 143(1).] 2. ESCROWS 1-DEFINITION. An escrow is a written instrument which by its terms imports a legal obligation, and which is deposited by the grantor, promisor, or obligor, or his agent, with a stranger or third party, to be kept by the depositary or until the performance of a condition or the happening of a certain event, and then to be delivered over to the grantee, promisee, or obligee. [Ed. Note. For other cases, see Escrows, Cent. Dig. §§ 1-3, 5; Dec. Dig. 1. For other definitions see Words and Phrases, First and Second Series, Escrow.] 3. ESCROWS 1-VALIDITY-REQUISITES. It is essential, in order that an instrument may operate as an escrow when delivered to one not a party to it to be delivered over in turn to a party on performance of certain conditions, that there be a valid contract between the parties as to the subject-matter of the instrument and the delivery; otherwise the party making the delivery may recall the instrument. [Ed. Note. For other cases, see Escrows, Cent. Dig. §§ 1-3, 5; Dec. Dig. 1.] 4. FRAUDS, STATUTE OF 117-LAND SALE CONTRACT-DEED AS MEMORANDUM. A deed, placed in the hands of a third person for delivery to the grantee on performance of a certain condition, was not a sufficient memorandum in writing of the contract to answer the requirements of the statute of frauds, though it contained the names of the parties, recited the consideration, and described the property involved, where it did not state the terms of the sale. [Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. § 261; Dec. Dig. 117.] Where, in a suit by the representative of an estate to quiet title and set aside a deed, it appeared that the deed had been placed in the hands of a third person for delivery to the grantee on performance of certain conditions, and that before such performance the grantor died and her representative notified the depositary to not deliver the deed, and demanded that it be delivered to her, but the depositary deliv ered the deed to the grantee in violation of such notice, a decree was properly entered for com. plainant, granting the relief prayed for. [Ed. Note.-For other cases, see Escrows, Cent. Dig. §§ 17, 18, 20; Dec. Dig. 14(1).] Appeal from Circuit Court, La Salle Coun. ty; Edgar Eldredge, Judge. Appeal by Thirza Main against Walter M. Pratt. From a decree for complainant, defendant appeals. Affirmed. McDougall & Chapman, of Ottawa, for appellant. George P. Hills and Stead, Woodward & Hibbs, all of Ottawa, for appellee. FARMER, J. This is an appeal by Walter M. Pratt from a decree of the circuit court of La Salle county, granting the relief prayed in a bill in chancery filed against him and others in that court by Thirza Main in her individual capacity as sole heir of both her father and mother and as administratrix of her mother's estate. The bill prayed that the title to 80 acres of land be quieted in complainant, that defendants to the bill be decreed to have no interest in the premises, and that certain instruments of record be set aside as clouds upon complainant's title. The facts out of which the litigation arose, as alleged in substance in the bill, answer, and cross-bill, are that James W. Finn, the father of complainant, Thirza Main, in his lifetime owned the 80 acres of land described in the bill. He died testate September 16, 1909, leaving surviving him his widow, Samantha, and his daughter, the complainant, as his only heir at law. By his will Finn devised the 80 acres of land to his widow. The will was not for some reason presented for probate until April 10, 1910. About the 1st of October, 1909, Walter M. Pratt applied to Mrs. Finn to purchase from her the 80 There was a verbal agreeacres of land. ment made between the parties at that time for the sale of the land by Mrs. Finn to Pratt for $10,500, $2,500 to be paid March 1, 1910, and a mortgage on the premises to be then given for $8,000, due in five years, at 5 per cent. interest, possession of the premises not to be given Pratt until March 1, 1910, when the $2,500 cash payment was to be made. The will not then having been probated, Pratt desired that the daughter, Thirza, and her husband should unite with Mrs. Finn in the deed. Charles Hoss prepared a short-form warranty deed dated October 6, 1909, which was signed and acknowlIt was edged on that day by Mrs. Finn. then sent to a bank in Aurora, where com Pratt, in addition to answering the original bill, filed a cross-bill setting up the agreement between him and Mrs. Finn for the purchase of the land, the delivery of the deed to Hoss for delivery to him when he complied with the terms of the agreement, and alleging he had performed the conditions he agreed to perform, upon which the deed was delivered to him by the depositary, and claiming he was seised in fee simple of the land, subject to the mortgage to complainant. The cross-bill prayed that the title in him be quieted, and that complainant in the original bill account to him for the rents of the premises. plainant and her husband lived, with instruc- | unenforceable; that the delivery of the deed tions to secure the signatures and acknowl- to Hoss was not a true delivery in escrow ment of complainant and her husband and because the agreement under which the dereturn the deed to Hoss. Complainant re- livery of the deed to him was made was a fused to sign it, and some three months lat- parol agreement not enforceable under the er the deed was returned to Hoss, who re- statute of frauds and voidable by either of tained it. This was accepted by the parties the parties at their option, and that neither as a failure of the negotiations for the sale Samantha Finn nor those who succeeded to and purchase of the land. About March 1, her interests upon her death could be de1910, Pratt renewed his negotiations with prived of the control over the deed, and, Mrs. Finn for the purchase of the land, and in substance and effect, that no rights under agreed to buy it at the price before agreed and by virtue of the agreement could be upon if Mrs. Finn would probate the will of claimed or enforced by Pratt. her husband, so that he would be safe in buying from her. It was further agreed between Pratt and Mrs. Finn that she was to sell him the land for $10,500 and give possession on March 1, 1911. Pratt was to give a note for $2,500, due in one year, without interest, but agreed to pay it as soon as the estate was closed, whether the note was due by its terms or not. The deed was to be left in the hands of Hoss, also the $2,500 note, and it was agreed between the parties that when Pratt paid this note and executed another note for $8,000, due in five years, with interest at 5 per cent., secured by a mortgage on the premises, the deed was to be delivered to him by Hoss. No new deed After the issues were made up the cause was executed by Mrs. Finn, but the deed pre- was referred to the master in chancery to pared under the first agreement and execut- take proofs and report his conclusions of law ed by her October 6, 1909, was retained by and fact. The master reported, recommendHoss, to be delivered when Pratt had com- ing a decree, dismissing the original bill for plied with his agreement. All these agree want of equity and granting the relief prayments and negotiations were in parol, and no ed in the cross-bill. Objections filed by comwriting or memorandum thereof was made. plainant in the original bill with the master The will of Finn was admitted to probate were overruled by him and renewed as exApril 14, 1910. Mrs. Finn died intestate ceptions before the chancellor, who sustained July 3, 1910, and complainant was appoint- the exceptions and entered a decree as prayed administratrix of her estate. July 26, 1910, Pratt filed in the recorder's office of La Salle county a notice to B. F. Golden, the tenant in possession of the land, and to all others whom it might concern, that he (Pratt) was the legal owner of the land, and that the deed from Mrs. Finn was held by Hoss for delivery to him. On September 2, 1910, complainant, as sole heir of her father and sole heir of her mother and as administratrix of her mother's estate, served notice and demand on Hoss to surrender the deed to her, but he refused to do so. Hoss went to California in September, 1910, and did not return until July, 1911. On July 11, 1911, Pratt paid Hoss the $2,500 note and executed and delivered to him a note payable to complainant for $8,000, secured by a mortgage on the premises, whereupon Hoss delivered the deed to Pratt, and he filed it for record. Complainant refused to accept the money and mortgage, remained in possession of the land, and filed the bill in this case. ed in the original bill, and dismissed the cross-bill for want of equity. The decree finds that the delivery of the deed by Samantha Finn to Hoss under the arrangement of May 16, 1910, was not a delivery in escrow because the foundation of the delivery was an agreement between Pratt and Mrs. Finn resting in parol, that it was unenforceable under the statute of frauds, and that neither Mrs. Finn nor those succeeding to her rights and interests upon her death could be deprived of full control over the deed. The decree finds that after the demand by the original complainant upon Hoss for the deed it became and was lifeless and of no effect, and the delivery by Hoss to Pratt July 11, 1911, was not a delivery in law or equity, did not effect a conveyance of the real estate to Pratt, and that he took no title or color of title to the land thereby. Appellant says in his brief that practically but one question is involved, and that is whether by the delivery of the deed by Mrs. Finn to Hoss for Pratt she lost all control Among the grounds upon which complain- over it, and by the delivery of the $2,500 note ant predicates her claim for relief, as al- by Pratt to Hoss he lost all control over the leged in the bill, are the following: That note. It is argued that the evidence sustains the contract between Samantha Finn and the claim that when the deed was delivered Pratt was within the statute of frauds and by Mrs. Finn to the depositary she retained 114 N.E.-37 |