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Where there is such an obligation no question of negligence arises, because the insurer has agreed to produce a definite result. The contract, however, did create a duty on the part of the Northern Pacific by its assumption of the maintenance and operation of the interlocking device. Many duties the disregard of which create liabilities are implied by the law although assumed by contract, as in the case of warehousemen, carriers and bailees. In the absence of an agreement the several railroad companies crossing the tracks of each other would have mutual duties and obligations under the law. The law would cast upon the several companies the duty of using ordinary care to maintain the crossings in safe condition, and to operate their trains in accordance with the law and with due regard to the safety of persons and property. One party would be as much interested in the maintenance of the crossings in a suitable condition as either of the others. (Chicago and Alton Railroad Co. v. Joliet, Lockport and Aurora Railway Co. 105 Ill. 388.) By the contract of 1892 the Northern Pacific assumed the duty of constructing, maintaining and operating the interlocking device. No contractual relation was necessary to raise a legal obligation, but in the absence of a contract the obligation would rest upon all the companies. By the contract the Northern Pacific assumed the discharge of the duty imposed by law, and was liable for a breach of that duty through the negligence of the towerman operating the device. The position of counsel for the appellant is, that each company had a pecuniary interest in installing the interlocking device; that all joined in the contract, and from the very nature of things one of the companies had to be selected as the one which would have exclusive superintendence and control of the system, and that being so, the Northern Pacific and its successors and the receiver were only bound to exercise ordinary care in the selection of men to operate the system, and did not become liable for the negligence of
the towerman, who had been selected with due care. That rule might apply under different facts, but in this case the Northern Pacific voluntarily assumed the duty for a consideration satisfactory to that company, and we do not think that the duty was limited, as claimed.
The judgment of the Appellate Court is affirmed.
VIRGINIA K. DONHAM et al. Appellees, vs. JAMES E. Joyce (JACOB GLOS et al. Appellants.)
Opinion filed December 17, 1912—Rehearing denied Feb. 5, 1913.
1. JURISDICTION—when parties cannot complain, on appeal, of the insufficiency of notice by publication. Defendants to a suit for partition and to cancel tax deeds as clouds, who are personally served with summons and appear, answer the bill and participate in the hearing before the master in chancery and before the court, cannot complain, on appeal, that the court did not have jurisdiction of the persons made parties as unknown owners because the certificate of publication was insufficient.
2. COSTS-when holders of tax deeds cannot complain that they are charged with large portion of costs. Where the holders of invalid tax deeds refuse a tender, made in open court, of a sufficient amount to reimburse them for all proper expenditures and persist in obstructing the complainants in their efforts to partition the property, with no better title than such tax deeds, which were admittedly invalid as to part of the lots, and with no title whatever to the other lots, they cannot complain that they are charged with such portion of the costs as are occasioned by their conduct.
3. SAME when the deposit of gross sum for all holders of tax titles is a sufficient tender. Where the owner of land files a bill for partition and to remove as clouds the tax deeds and conveyances based thereon, and deposits in court a sufficient sum of money to reimburse all of the defendants holding any interest under the tax deeds, he should be relieved from any subsequent costs made by such defendants in attempting to adjust their conflicting claims to the reimbursement fund.
4. SAME-a master in chancery's fees for taking testimony are not limited to oral testimony. The word "testimony," as used in section 20 of the Fees and Salaries act, allowing a master in chancery fifteen cents per hundred words "for taking and reporting
testimony under order of court," is used with the meaning of "evidence," and includes documentary evidence introduced before him on the hearing, as well as oral testimony.
5. STATUTES-Words of a statute should be given their popular meaning. Where words having both a technical and a popular meaning are used in a statute courts should accord to them their popular meaning, unless the nature of the subject indicates or the context suggests that they were used in their technical sense.
APPEAL from the Superior Court of Cook county; the Hon. CHARLES A. McDONALD, Judge, presiding.
JOHN R. O'CONNOR, and ALBEN F. BATES, for appellants.
ROBERT ZALESKI, (LACKNER, BUTZ, VONAMMON & MCGREGOR, of counsel,) for appellees.
Mr. JUSTICE VICKERS delivered the opinion of the court: This is a bill for the partition of twenty lots in the city of Chicago among tenants in common, and incidentally for the removal of a large number of tax deeds and other instruments as clouds upon the title. Robert B. Donham filed the original bill on August 11, 1911. Subsequently, and before the cause was disposed of, he died, and his widow, Virginia K. Donham, and his two daughters, Virginia B. and Roberta E., were substituted as complainants. A supplemental bill was filed after the death of Robert B. Donham containing the usual allegations of ownership, as tenants in common, of the premises, and set forth, in detail, the several tax sales, and recited the issuance of deeds thereon to Jacob Glos, Ezra C. Fahrney, Charles J. Marhoefer, Reginald G. R. Crane, J. A. Brophy and the town of Cicero. Eighty-seven persons were made defendants by name, and all other persons who might have any interest, title or claim to the premises were made parties as "unknown owners." The bill alleged that the premises were owned in fee, in equal parts, by complainants and James. E. Joyce, and alleged the manner in which such title was
obtained from the government of the United States. The prayer was for partition of the premises, an accounting between complainants and their co-tenant, Joyce, and the removal of numerous instruments of record as clouds upon the title, including the tax deeds above referred to and various conveyances made by the holders of the void tax titles. The defendant James E. Joyce answered the bill, admitting all of its allegations, and made no contest. town of Cicero filed a formal answer claiming an interest by virtue of certain tax deeds, but afterwards accepted a tender made in open court and made no further contest. No further contest was made by any of the defendants except Jacob Glos, Emma J. Glos, A. H. Glos, D. Arnold and August A. Timke, each of whom filed a separate answer, all answers being substantially alike, in which they severally denied all of the allegations of the bill and alleged that each of said defendants was the owner of all the lots in controversy. Under an order of court entered October 5, 1911, directing the complainants to deposit with the clerk $1017 to reimburse Jacob Glos and his grantees as their interest might thereafter be determined, that amount was accordingly paid into court, and an order of reference was made directing the master in chancery to take the proofs and report the same to the court, with his conclusions of law and fact thereon. C. L. Bates was made a party because she was a grantee in a deed made by Jacob Glos. The complainants being unable to ascertain who C. L. Bates was, or her residence, had service made upon her by publication. A default was then entered against her. During the progress of the hearing before the master it was discovered that C. L. Bates was Clara L. Bates, daughter of Jacob Glos, who had recently married a man by the name of Alben F. Bates. Thereupon summons was sued out for Clara L. Bates and served, and she then appeared and filed an answer to both the original and supplemental bills. After Clara L. Bates was brought in by summons the case
was re-referred to the master in chancery and all of the evidence which had been offered before her answer was reintroduced, except certain evidence which related to the accounting between the co-tenants and settlements with other tax title holders which in no way concerned her. The master made an extended report, in which he set out the various defects in the tax deeds, made an itemized statement of the account between the complainants and Joyce, found the amount due from Joyce to the complainants and the amount due the holders of the several tax deeds, and recommended that a decree be entered as prayed for, that the tax deeds be set aside and that $500 be allowed as a solicitor's fee. Objections were filed to this report, which were overruled and subsequently were ordered to stand as exceptions before the court, where they were again overruled and a decree entered in accordance with the prayer of the bill. The decree found that the master was entitled to $770 for his fees, $154.20 of which was allowed for a stenographer. Of this amount Jacob Glos, Emma J. Glos, A. H. Glos, D. Arnold and August A. Timke were required to pay $600. An execution was awarded against them for the collection of that amount. To reverse this decree Jacob Glos, Emma J. Glos, A. H. Glos, August A. Timke and D. Arnold have prosecuted an appeal to this court.
The principal errors relied upon for reversal of the decree are: First, that the court did not have jurisdiction of the parties; second, that the taxation of costs against the appellants was illegal; third, that the master's charges were excessive; fourth, that the evidence was insufficient to support the decree. These several assignments will be considered in the order in which they are above stated.
First-Appellants' first contention is, that the court did not have jurisdiction of the persons who were made parties as unknown owners and parties interested. It appears that Jacob Glos executed a trust deed to August A. Timke, trustee, to secure certain notes which had presumably passed