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Opinion of the Court.

agency extends no further, and without special authority an agent can only receive payment of the debt due his principal in the legal currency of the country, or in bills which pass as money at their

par value by the common consent of the community. In the case at bar only one bond was deposited with the Farmers' Bank. That institution, therefore, was only agent of the payee for its collection. It had no authority to receive payment of the other bonds for him or on his account. Whatever it may have received from the obligors to be applied on the other bonds, it received as their agent, not as the agent of the obligée. If the notes have depreciated since in its possession, the loss must be adjusted between the bank and the depositors; it cannot fall upon the holder of the bonds.” See, also, Adams v. Hackensack Improvement Com., 44 N. J. Law (15 Vroom), 638, where this question is elaborately examined; Hills v. Place, 48 N. Y. 520; Williamsport Gas Co. v. Pinkerton, 95 Penn. St. 62, 64; Wood v. Merchants' Saving, Loan & Trust Co., 41 Illinois, 267.

Russell & Holmes, then, did not become the agent of Cheney to receive the amount of the notes by reason simply of the fact that the notes were made payable at their bank. The funds left by Libby with them to be applied in payment of the notes of 1885, 1886 and 1887 are, therefore, his property, not the property of Cheney. The utmost effect of Libby's offer, within a reasonable time after June 1, 1885, to pay the note of that year in lawful money, and of his offers, at the appointed times and place, to pay the notes of 1886 and 1887, was to prevent the forfeiture of the contract, and to save his right to have it specifically performed, so far as that right depended upon his paying those notes. But they must be actually paid by him before he is entitled to a deed, or to a decree that will have the force and effect of a conveyance. Under the circumstances it was not absolutely necessary that he should have brought the money into court for the defendant at the time he filed his bill. His offer in the bill to perform all the conditions and stipulations of the contract was sufficient to give him a standing in court. Irvin v. Gregory, 13 Gray, 215, 218; Hunter v. Bales, 24 Indiana, 299, 303 ; Fall


V. Hazelrigg, 45 Indiana, 576, 579. But the decree of specific performance ought not to become operative until he brings into court for the defendant the full amount necessary to pay off the notes for principal and interest falling due in 1885, 1886 and 1887. Caldwell v. Cassidy, 8 Cowen, 271; Haxtun

y v. Bishop, 3 Wend. 15, 21; Hills v. Place, supra; Wood v. MerchantsSaving Co., supra; Webster v. French, 11 Ilinois, 254, 278; Carley v. Vance, 17 Mass. 389, 391; Doyle v. Teas, 4 Scammon, 202, 261, 267; McDaneld v. Kimbrell, 3 Greene (Iowa), 335. The defendant is not entitled to interest after the respective tenders were made. because it does not appear that the plaintiff has, sièce the tenders, realized any interest upon the moneys left by him for Cheney at the bank of Russell & Holmes. Davis v. Parker, 14 Allen, 94, 104; January v. Martin, 1 Bibb, 586, 590; llart v. Brand, 1 A. K. Marsh. 159, 161: 2 Sugden on Vendors, 8th Amer. Ed. 314-15 [627–8]. The decree below is affirmed. But it is adjudged and or

dered that the said decree be and is hereby suspended, and
shall not become operative until the plaintiff brings into
the court below for the defendant the full amount of the
notes for principal and interest executed by him to the
defendant and made payable on the 28th days of May,
· 1885, 1886 and 1887, without interest upon any note after
its maturity.




No. 1421. Submitted January 7, 1890. -- Decided March 3, 1890.

The only contention between the parties in this action of ejectment was,

whether the centre of a street in the village of Hyde Park was the southern boundary line of the plaintiff's land, or whether that line ran twentythree feet further south. The court in its charge to the jury said: “In 1873 the village of Hyde Park laid out and opened 41st Street sixty-six.

Citations for Plaintiff in Error.

feet wide from Grand Boulevard to Vincennes Avenue, the centre of which was a line equidistant from the north and south lines of the quarter section, on the theory that this line was the true east and west boundary between the four quarters of the quarter section and the true southern boundary of the McKey tract;” and then directed the jury thus: “If you believe from the evidence that the centre of the street is the centre east and west line of the quarter section, then you are also instructed that it was and still is the true boundary line, and that the plaintiff is not entitled to the land described in the declaration on the theory that the Greeley survey was correct;Held, that this was erroneous as it in effect directed the jury to find that the plaintiff was not entitled to recover; and, as the evidence was conflicting, that was a question to be

determined by the jury. A rule in force for the subdivision of public lands for disposal under the

public land law does not necessarily apply to the subdivision of private lands by their owners after they have been granted by the government

without having first inade official subdivisions. In Illinois the inference that an owner of land has dedicated it to the pub

llc for use as a street can only be drawn from acts which show an actual intention to so dedicate it, or from acts which equitably estop the owner from denying such intention.

EJECTMENT. Verdict for the defendant, and judgment on the verdict, to review which this writ of error was sued out. The case is stated in the opinion.

Mr. J. R. Doolittle, for plaintiff in error cited Irwin v. Dixon, 9 How. 10, 30; Cincinnati v. White, 6 Pet. 431; Kelly v. Chicago, 48 Illinois, 388; Bauer v. Gottmanhausen, 65 Illinois, 499; Lull v. Chicago, 68 Illinois, 518; Kyle v. Town of Logan, 87 Illinois, 64, 67; Hyde Park v. Dunham, 85 Illinois, 569, 577; Chicago V. Johnson, 98 Illinois, 618; Herhold v. Chicago, 108 Illinois, 467; Peyton v. Shaw, 15 Bradwell, Ill. App. 192, 196; Robertson v. Wellsville, 1 Bond, 81; Lownsdale v. Portland, Deady, 39; Lansdown v. Elderton, 14 Ves. 512; Gray v. Gray, 1 Beavan, 199; Ilarding v. Harding, 4 Myl. & Cr. 514; Requea v. Rea, 2 Paige, 339, 341 ; Miller v. Collyer, 36 Barb. 250; Cazet v. Hubbell, 36 N. Y. 677, 680; Bloomington v. Bloomington Cemetery Assn., 126 Illinois, 221; Chicago v. Stinson, 124 Illinois, 510; Gates v. Salmon, 35 California, 576; S. C. 95 Am. Dec. 139; Sutter v. San Francisco, 36 California, 112.

Opinion of the Court.

Mr. James H. Roberts, for defendant in error, cited: Cincinnati v. White's Lessee, 6 Pet. 453, and cases cited; Macon v. Franklin, 12 Georgia, 239; Case v. Favier, 12 Minnesota, 89; Cady v. Conger, 19 N. Y. 256; Barclay v. Howell's Lessee, 6 Pet. 496, 513; Wilder v. St. Paul, 12 Minnesota, 192; Forney v. Calhoun County, 84 Alabama, 215; Adams v. Saratoga Railroad, 11 Bar: 414; Chicago v. Wright, 69 Illinois, 318.

MR. JUSTICE LAMAR delivered the opinion of the court.

This is an action of ejectment brought in the Circuit Court of the United States for the Northern District of Illinois by William D. McKey against the village of Hyde Park, to recover possession of a strip of land 23 feet wide and 150 long, used and occupied by the village as a part of a street known as Forty-first Street. The ground of McKey's complaint is, that the village, in locating and opening that street, entered upon, and unlawfully took possession of his land to the extent of the above mentioned strip, ejected him therefrom, and withholds from him the possession thereof. The defendant filed a plea of not guilty, and at the trial contended that the street, including that strip, was properly located and was rightfully used as a public highway by virtue of a common law dedication, and also under a deed from plaintiff's co-tenant, with the acquiescence of plaintiff through a long period of years.

The controversy in the case is as to the location of a boundary line, there being, according to the bill of exceptions, no contention as to the title of the premises in dispute. The land in dispute is in the south ten acres of the N.W. 4 of the N.E. of section 3, township 38 N., R. 14 E. of the third principal meridian in Cook County, Illinois. Upon the trial it was shown that the trustees of the Illinois and Michigan Canal had owned the N.E.4 of section 3, deriving their title by grant from the State of Illinois; and that they conveyed the northwest quarter of this N.E. to P. F. W. Peck, describing it in the deed as the northwest quarter of the N.E. of the section, containing forty acres, more or less. By mesne convey

Opinion of the Court.

of the N.

ances the title to the south ten acres of this N.W. E. of section 3, in June, 1886, became vested in two brothers, 4 Edward and Michael McKey, living in Wisconsin, as tenants in common, and was held by them until the death of Michael McKey, intestate, September 29, 1868, upon whose death his interest therein descended to his four minor children, one of whom, William D. McKey, the plaintiff, became of age on September 18, 1874. Edward McKey died intestate August 14, 1875.

In order to show his title to the premises in dispute the plaintiff put in evidence the proceedings of the Circuit Court of Cook County in chancery in a suit for the partition of the McKey tract among the heirs and owners thereof. As shown by this evidence that court in that case appointed commissioners to partition the land, and authorized them to subdivide it into blocks, lots, streets and alleys, which they did, and attached to the record a plat entitled "McKey's Addition to Hyde Park.”

The plaintiff also put in evidence the final decree in that cause entered October 6, 1882, the said plat being a part of it. The decree reads as follows:

"It appearing to the court that the plat in said report attached, marked 'E', which said commissioners have entitled 'McKey's Addition to Hyde Park,' being a subdivision made by Circuit Court commissioners in partition of that part of the south ten acres of the northwest quarter, etc., represents their subdivision of the land above described under description No. 5, and was by them duly submitted to the president and board of trustees of said village of Hyde Park, and was approved by them on the eighth of September, A.D. 1882, as appears by the certificate of the clerk of said village thereon, the pieces or parcels of land designated on this plat 'E' as streets and alleys being laid out for public streets and alleys as on said plat 'E' shown. It is further ordered, adjudged and decreed that the several maps or plats by said commissioners prepared and the subdivision by them made and shown thereon, and the respective titles given thereto, be, and the same are hereby in all respects approved, ratified, and confirmed,

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