usage, but those words do not indicate any certain or definite use of the square in the absence of such proof, and certainly not for the definite use of maintaining thereon a county jail. (Village of Princeville v. Auten, 77 Ill. 325.) The bill, on its face, states a good cause of action, and if it was lacking in any formal matters pointed out on demurrer appellant should have had the opportunity of amending it. It certainly was possible to amend it to state a good cause of action, and therefore it could not be finally disposed of on motion to dismiss the bill.

Appellee insists that no proper exceptions were saved by appellant to the ruling of the court in considering the affidavits on motion to dismiss the case and in refusing his motion for a rule on appellee to plead, etc. In chancery it has never been held necessary, under our practice, to allege or preserve such exceptions. Under the holding of this court in Miller v. Anderson, 269 Ill. 608, no exceptions need now be alleged or preserved in the record to the rulings of the court in law cases.

Appellant's contention that under his bill he is entitled. to insist on the provisions of the statute entitled “Jails and Jailers," approved June 24, 1915, and providing, "but it shall be unlawful to build a jail within two hundred feet of any building used exclusively for school purposes," can not be sustained for want of allegations that said school building was used exclusively for school purposes, and that when built the jail on the site whereon it is to be built will be within two hundred feet of said school house. Whether or not appellant might avail himself of such a defense is therefore not before us.

For the errors indicated the decree of the circuit court is reversed and the cause is remanded, with directions that the parties be required to make up the issues in the case by proper pleadings for a final hearing.

Reversed and remanded, with directions.

FRED A. HART et al. Plaintiffs in Error, vs. JAMES LAKE et al. Defendants in Error.

Opinion filed April 20, 1916.

I. PARTITION-equity has no jurisdiction to decree a partition where complainants have no title. A court of equity has no jurisdiction of a bill for partition where the complainants, at the time of filing their bill, have no title whatever to the premises, and where, before decreeing partition, it is necessary for the court to divest certain of the defendants of the title to the premises and invest the complainants with that title.

2. SAME on breach of condition subsequent the grantor must re-enter to be entitled to partition. The grantor, on breach of a condition subsequent, must re-enter before he will be entitled to a bill for partition, and until re-entry he has only a possibility of reverter. (Mott v. Danville Seminary, 129 Ill. 403, distinguished.)

3. DEEDS-conveyance upon condition subsequent leaves no reversion in the grantor. A conveyance upon condition subsequent passes a base or determinable fee, leaving in the grantor no reversion but only the naked possibility of a reverter in case of a breach of the condition; but the breach of condition does not, of itself, determine the estate.

WRIT OF ERROR to the Circuit Court of McHenry county; the Hon. C. H. DONNELLY, Judge, presiding.

FISHER & NORTH, and WAITE & DONOVAN, for plaintiffs in error.

HENDRICKS & MARSHALL, for defendants in error.

Mr. JUSTICE COOKE delivered the opinion of the court: Fred A. Hart and certain other heirs-at-law of William Hart, Jr., deceased, filed their amended bill of complaint in the circuit court of McHenry county against Lanson D. Hart, the remaining heir-at-law of William Hart, Jr., and James Lake and Douglas I. Hine, individually and as trustees of the First Congregational Church of Harvard, McHenry county, Illinois, alleging that on March 19, 1866,

William Hart, Jr., was the owner in fee of lots 4 and 5, in block 3, in Hart's addition to Harvard, in McHenry county; that on that date said William Hart, Jr., conveyed said premises to the trustees of the First Congregational Church of Harvard, McHenry county, Illinois, by warranty deed, which deed contained the following clause: "And it is agreed and understood by the parties to these presents that the above described lots are deeded to the above trustees for the purpose of building thereon a Congregational church, and for no other purpose; and it is further understood that whenever the said lots cease to be used for the above described purpose they shall revert to the makers of this deed or to their heirs or assigns;" that the premises have for five years last past ceased to be used for the purposes set forth in said deed, to-wit, for the purpose of building thereon a Congregational church or for a Congregational church; that during all of said time there was no pastor employed and no meeting or religious services held in said church by the members thereof; that there was no congregation of persons meeting together for religious worship or performing any of the functions, social or religious, of an organized church society under the auspices of said First Congregational Church of Harvard, but, on the contrary, said premises have been taken in charge by the defendants James Lake and Douglas I. Hine, claiming to be trustees of the Congregational church, and that the defendants James Lake and Douglas I. Hine have rented the premises to divers and sundry persons and associations and collected the rents therefrom; that upon said premises are built and located a dwelling house and a building formerly used as a Congregational church; that the dwelling house is now occupied by Clayton A. Goodsell, one of the defendants to the bill, as a tenant, for a residence, and that the church building is now occupied and used a portion of the time by St. Paul Evangelic Lutheran Church, also a defendant to the bill; that on August 23, 1911, there was

filed for record in the recorder's office of McHenry county a certain instrument, which is set out verbatim in the amended bill and which appears to be an affidavit made by D. I. Hine setting forth that at a meeting of the members of the First Congregational Church of Harvard, McHenry county, Illinois, on August 22, 1911, James Lake and D. I. Hine were elected trustees of said church, and said church adopted as its corporate name, "The First Congregational Church of Harvard, McHenry county, Illinois," but the complainants allege that the First Congregational Church of Harvard had long prior thereto broken up, disbanded and ceased to exist, and that the filing and recording of said instrument were done by the defendants Douglas I. Hine and James Lake with the fraudulent intent of still further clouding the title of the complainants to said premises, and that the same is a cloud upon the title of the complainants and should be removed; that the defendants James Lake and Douglas I. Hine have for many years rented the premises and have collected the rents therefrom and should account to the complainants and the defendant Lanson D. Hart for all moneys so received by them; that the complainants and the defendant Lanson D. Hart are the only heirs-at-law of William Hart, Jr., deceased, and are the only persons having any interest in or title to the said premises. The amended bill prays for partition of the premises among the complainants and the defendant Lanson D. Hart; that the title to the premises may be found and adjudged to have reverted to and re-vested in complainants and the defendant Lanson D. Hart free and clear of any claim, right or title on the part of the trustees of the First Congregational Church of Harvard, McHenry county, Illinois, or on the part of said church; that the defendants James Lake and Douglas I. Hine may be required to account and pay over to the complainants and the defendant Lanson D. Hart the rents, issues and profits received by them from said premises, and that the complainants may

have such other and further relief as equity may require. To the amended bill the defendants James Lake and Douglas I. Hine, individually and as trustees of the First Congregational Church of Harvard, McHenry county, Illinois, interposed a demurrer, one of the grounds of demurrer being that the amended bill shows on its face that the complainants have no title to the premises; that the sole purpose of the proceeding is to construe the provision of the deed above quoted, and in case it should be construed in the manner contended for by the complainants, then to have the court declare a forfeiture for a breach of the alleged condition subsequent. The circuit court sustained the demurrer and dismissed the amended bill for want of equity, at the cost of the complainants. The complainants in the bill have sued out this writ of error, seeking a reversal of the judgment of the circuit court.

An attempt to have a court of equity construe the provision of the deed in controversy between the parties has been made heretofore in a proceeding brought in the circuit court of McHenry county by the First Congregational Church of Harvard against the heirs of William Hart, Jr., deceased, and others, ostensibly for the purpose of quieting the title of the church to the premises above described. The circuit court awarded the relief sought by the church in that proceeding, but upon writ of error sued out by the heirs of William Hart, Jr., we held that as between the church and the heirs of William Hart, Jr., a legal title, only, was involved; that no other relief was sought against the heirs of William Hart, Jr., than that the clause of the deed above set out be construed and the legal title of the church be declared, and, after calling attention to the rule that a court of equity will not assume jurisdiction to declare such legal title but will remit the parties to their remedy at law, we reversed the decree and remanded the cause to the circuit court, with directions to dismiss the bill