ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.
MR. JUSTICE HARLAN delivered the opinion of the court.
This is an action in the nature of ejectment. It was brought by the plaintiff in error, December 24, 1879, to recover from the defendant in error the possession of a tract of land in Henderson County, Illinois, containing ten acres more or less, and upon which was a distillery. The plea was, not guilty of unlawfully withholding the premises described in the declaration. There were three trials of the case, each time by the court, pursuant to a written stipulation of the parties waiving a jury. Upon the first trial there was a judgment for the defendant. At the instance of the plaintiff a new trial was granted in conformity with a statute of Illinois, which provides that at any time within one year after a judgment, either upon default or verdict in an action of ejectment, the party against whom it is rendered, his heirs or assigns, shall be entitled, upon the payment of all costs, to have the judgment vacated and a new trial granted; no more, however, than two new trials to be granted to the same party under the statute. Rev. States. Ill. 1845, p. 208, § 30; 1874, p. 447, § 35; 1 Starr & Curtis' Anno. Stat. 989. The first new trial under this statute is the right of the unsuccessful party, and is not dependent upon the discretion of the court. Vance v. Schuyler, 1 Gilman, 160; Riggs v. Savage, 4 Gilman,
; Emmons v. Bishop, 14 Illinois, 152; Chamberlin v. McCarty, 63 Illinois, 262; Lowe v. Foulke, 103 Illinois, 58. These statutory provisions govern the trials of actions of ejectment in the courts of the United States sitting in Illinois. Equator Company v. Hall, 106 U.S. 86. At the second trial there was a judgment for the plaintiff. The defendant then took a new trial under the statute, and when the case was last tried the court ruled that, upon all the evidence, the law did not authorize a recovery by the plaintiff, and gave judgment for the defendant. The present writ of error brings up that judgment for review.
The parties entered into a written stipulation as to the principal facts. The main question in the case arises out of a sale by a collector of internal revenue of the premises in dispute, including the distillery thereon, for taxes due from the distiller.
The facts, so far as it is necessary to state them, may be thus summarized:
On the 20th of September, 1873, the Bank of Chicago was the owner in fee of the premises. It executed to the United States, April 22, 1874, in conformity with the statute of the United States, what is called a vaiver, which recited that George E. Hinds intended to carry on the business of distilling and manufacturing high wines in the distillery on these premises, and contained the following provisions: "And whereas the undersigned, the Bank of Chicago, a corporation organized and existing under the laws of the State of Illinois, of the county of Cook and the State of Illinois, has an interest in the title of said lot of land and distillery and appurtenances: Therefore, in order to enable the said George E. Hinds to carry on said business on said lot of land in said distillery, and to comply with the requirements of the eighth section of the act of Congress, approved July 20th, A.D. 1868, and in consideration thereof, the said bank does hereby express and give its consent that said distillery and premises may be used by said Hinds for the purpose of distilling spirits, subject to the provisions of law; and the said bank does hereby expressly stipulate that the lien of the United States for taxes
and penalties shall have priority of any and all its interest and claims to said distillery and premises, and that in case of the forfeiture of the distillery premises or any part thereof the title of the same shall vest in the United States, discharged from any such claim or interest which the said bank has or may have in and to the same, and with the express understanding that this waiver shall take effect and be in force on and after this date." This document was recorded the day succeeding its execution, in the office of the recorder of the county where the land lies.
The bank, on the 10th of July, 1874, executed to Isaac P. Coates a deed or instrument, which was duly recorded on the 30th of March, 1875, conveying various parcels or tracts of land, including the one in controversy, in trust to dispose of the same at public or private sale, and apply the proceeds to the payment of its debts and liabilities. Coates executed, May 3, 1875, under section 3262 of the Revised Statutes, a waiver similar to the one above referred to, and which by its terms was to take effect May 10, 1875. This was also placed on record. By quitclaim deed executed on the same day -- May 3, 1875 -- Coates, as assignee, conveyed the premises in dispute to Elisha H. Turner, of Burlington, Iowa. The consideration recited was $8500, paid by the grantee. This deed was recorded May 6, 1875, together with the waiver that Coates had executed. Turner, also, on the same day, executed and placed upon record a similar waiver to the United States.
On May 6, 1875, Turner conveyed the premises to George F. Westover, of Chicago, in trust, to secure the payment of three promissory notes given by Turner for the price of the premises, all dated May 6, 1875, and payable to the order of Isaac P. Conates, assignee; one for $1500 due July 1, 1875; one for $3000 due May 1, 1876; and one for $3000 due May 1, 1877; each note drawing interest at the rate of eight per cent per annum until due, and ten per cent after maturity. This deed provided, among other things, for a sale by the trustee upon default by Turner in the payment of the notes or any part thereof, or of the interest accruing thereon, and for a conveyance to the purchaser. It gave the trustee power to adjourn
the sale from time to time, at discretion, and constituted him attorney for the grantor to execute and deliver deeds to the purchaser or purchasers; applying the proceeds to the payment of the notes and for other purposes specified, and reconveying to the grantor, after the objects of the trust were accomplished, such part of the premises as remained unsold. This deed was recorded the day of its execution, and at the same time with the deed from Coates to Turner.
In conformity with the terms of the trust deed, Westover, on the 1st day of September, 1876, advertised the premises to be sold, at public vendue, on the 7th day of October, 1876, to the highest bidder for cash, together with all the right, title, benefit and equity of redemption therein of Turner, his heirs and assigns. The advertisement stated that the sale because of default in the payment of the first two above-described notes of Turner to Coates, and of the interest due thereon, and because of the application by the legal holders of the notes to the trustee to sell and ...