Samuel T. Mathews, and a cross-bill claiming title through Richard T. Mathews and asking for partition. The parts of the deed material to this controversy are as follows: "The said parties of the first part, for and in consideration of the sum of $10 in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, and the love and affection for their son, the said Richard T. Mathews, have given, granted, bargained and sold, and by these presents do give, grant, bargain and sell, unto the said party of the second part, his heirs and assigns, all the following described lots, pieces or parcels of land, situate in the county of Morgan and the state of Illinois, to wit: [Describing property.] Nevertheless, it is expressly made, understood and provided that in case the said Richard T. Mathews, the party of the second part, should die leaving no issue, then the aforesaid bargained premises shall revert unto the said party of the first part, their heirs or assigns." The habendum is as follows: "To have and to hold the said premises above bargained and described, with the appurtenances, unto the said party of the second part, his heirs and assigns, forever." Samuel T. Mathews died a few years after the deed was made-probably between 1872 and 1875. Richard T. Mathews died on or about February 6, 1909, leaving a widow, but leaving no issue. The maşter in chancery, to whom the issues made by the bill, cross-bill, answers, and replications were referred, reported as his conclusion that upon the death of Richard T. Mathews, leaving no issue, the real estate by the terms of the deed reverted to the heirs at law of Samuel T. Mathews, and he recommended a decree accordingly. The chancellor confirmed the report of the master, dismissed the cross-bill, and entered a decree for partition in accordance with the prayer of the original bill. From that decree this appeal was prosecuted.

Shelley's Case the deed invested Richard T. Mathews with a fee-simple title, notwithstanding the provision that if he should die without issue the land should revert to the grantor or his heirs. The deed does not come within the rule in Shelley's Case, and it would make no difference in the decision of the case if it did. That rule applies only where an estate of freehold is limited by gift or conveyance to the ancestor, and there is a limitation in the same gift or conveyance, by way of remainder, to his heirs. Johnson v. Buck, 220 Ill. 226, 77 N. E. 163; Miller v. Mowers, 227 Ill. 392, 81 N. E. 420;Smith v. Tucker, 250 Ill. 50, 95 N. E. 45. By virtue of the rule, a gift or conveyance within its terms vests the fee simple in the ancestor the same as if the estate had been limited to him and his heirs; but, where such an estate is so limited, he takes a fee simple, regardless of the rule, and there is nothing for it to operate on. It is true, as stated in Johnson v. Buck, supra, that in some cases where the same result was necessarily reached on other grounds the rule in Shelley's Case was inadvertently applied, and some such cases are cited by appellants. One is Wolfer v. Hemmer, 144 Ill. 554, 33 N. E. 751, where the devise was to Angela Hemmer, her heirs and assigns; but the de cision actually rested upon the unlimited discretionary powers of disposition by the devi. see expressly given by the will, with which the limitation over was inconsistent. Another is Davis v. Sturgeon, 198 Ill. 520, 64 N. E. 1016, where there was a conveyance to Jane E. Davis, her heirs and assigns, with. out any qualification whatever. There was no limitation over, either in the granting clause or the habendum, and the mention of heirs, reversion, and life estate in the gran tee was in the description of the grantee, The court refused to concede that there was any language in the deed indicating an intention to convey to the grantee but a life [1, 2] The chancellor overruled exceptions estate in case she left no heirs, and if there to one of the answers to the cross-bill, alleg- was no such intention the decision was cor ing a custom in Morgan county of using rect, regardless of the rule in Shelley's Case. blank forms for deeds at the time the deed Two other cases cited are Ewing v. Barnes, in question was made, and a custom of in- 156 Ill. 61, 40 N. E. 325, where there was a serting any proviso or conditional clause in devise to James C. Rucker and to his heirs the blank space following the description of and assigns forever, and Silva v. Hopkinson, the real estate, and also refused to strike 158 Ill. 386, 41 N. E. 1013, where there was out the evidence of a witness stating such a devise to two children and their lawful customs. There was no ambiguity in the heirs. The decisions in those cases not only language of the deed, which has a settled applied the rule in Shelley's Case, but were legal meaning, and it could not be changed, not in harmony with other decisions in holdexplained, or added to by oral evidence. ing that a fee cannot be limited upon a fee Fowler v. Black, 136 Ill. 363, 26 N. E. 596, in a will by way of executory devise, and 11 L. R. A. 670; Butterfield v. Sawyer, 187 | they were overruled in Glover v. Condell, Ill. 598, 58 N. E. 602, 52 L. R. A. 75, 79 Am. | 163 Ill. 566, 45 N. E. 173, 35 L. R. A. 360, St. Rep. 246. The chancellor erred in ruling on the exceptions, and in refusing to exclude [4] If there had been a grant to Richard T. the evidence; but, if the conclusion reached Mathews, his heirs and assigns, without was correct upon a construction of the deed limit or qualification, he would have taken a as the only criterion of the grantor's inten-fee-simple estate in the land, because those tion, the error was harmless.

and disregarded in Johnson v. Buck, supra.

words are proper and effective to grant a

death it was to go back to her heirs. It was held that the estate conveyed was only for the life of the grantor.

there was a grant of a fee-simple estate, | ing the lifetime of the grantor, and at her with a subsequent attempted limitation over after the fee was granted, and they invoke the rule that an estate cannot, by deed, be limited over to another after a fee already granted. A remainder cannot be limited to take effect after a fee simple, for the reason that, a fee being the entire estate, there can be no remainder after it to be disposed of. Where a fee is granted, there is no remainder to be transferred to another upon the happening of any contingency, and the rule applicable to a will is reversed in the case of a deed, so that the first of two repugnant clauses prevails.

A case much relied upon by counsel for appellants is Palmer v. Cook, 159 Ill. 300, 42 N. E. 796, 50 Am. St. Rep. 165, where there was a deed in the statutory form, without the use of the word "heirs," conveying premises to two grantees, with the provision that, in case either of them should die without an heir, her interest should revert to the survivor. It was held that the clause providing that the interest of either grantee who should die without an heir should re[5, 6] The portions of a deed operative to vert to the survivor was inoperative. Secdefine and limit the estate are the granting tion 13 of the conveyance act (Hurd's Rev. clause and the habendum. The office of the St. 1909, c. 30) provides that every estate habendum is to limit and define the estate in lands which shall be granted, conveyed, or granted, and if there is repugnancy between devised, although other words heretofore necthe granting clause and the habendum the essary to transfer an estate of inheritance former must prevail. Smith v. Tucker, be not added, shall be deemed a fee-simple supra; Riggin v. Love, 72 Ill. 553; 4 Kent's estate of inheritance, if a less estate be not Com. 468. Chancellor Kent there says that limited by express words, or does not appear the habendum has degenerated into a mere to have been granted, conveyed, or devised useless form-which is, perhaps, not exact by construction or operation of law. There in case of any ambiguity in a deed. The ha- have been a number of cases, among which bendum in this deed is to the grantee, his are Saeger v. Bode, 181 Ill. 514, 55 N. E. 129, heirs and assigns; but if the granting clause and Turner v. Hause, 199 Ill. 464, 65 N. E. conveyed an estate less than an absolute fee 445, where a part of that section, which was simple, and there was a possibility of revert- overlooked in Palmer v. Cook, was applied. er to the grantor and his heirs, the habendum In Cover v. James, 217 Ill. 309, 75 N. E. 490, is clearly repugnant to the granting clause the fact that section 13 of the conveyance and wholly ineffective. There is in this deed act excepts grants and devises where an esno limitation over to a third person upon tate less than a fee is limited had been so the happening of the contingency mentioned, overlooked was noted, and in Bauman v. but by the granting clause a certain estate Stoller, 235 Ill. 480, 85 N. E. 657, it was held was granted and defined. The extent of the that the decision in Palmer v. Cook was in estate conveyed is mentioned in the deed conflict with Cover v. James, and that it only in the granting clause, which provides should not be followed. The cases applying that the estate should be determined by the section 13 of the conveyance act, of course, death of the grantee without issue. What- have no influence in the decision of this case, ever interest in the estate was not granted where the word "heirs" was used; but there remained in the grantor and his heirs. Pe- may have been an implication in some of terson v. Jackson, 196 Ill. 40, 63 N. E. 643; those cases, where the question was not inPinkney v. Weaver, 216 Ill. 185, 74 N. E. 714. volved, that if the word "heirs" is used it The rule that a fee cannot be mounted upon cannot be controlled by any other language. a fee by deed does not mean that it is im- Manifestly that cannot be true, since section possible to grant an estate less than a fee 13 applies to wills and devises, as well as simple by a deed. There is no magic in the to deeds and grants, and such a rule would word "heirs" which excludes the possibility prevent any limitation or qualification of an of explaining or defining the estate granted. estate, even in a will, if the word "heirs" In Miller v. Mowers, supra, it was decided or other words of inheritance are used. It that a conveyance, by deed of grant, bargain, is, of course, true that section 13 does not and sale, to the grantee, her heirs and as- apply where the word "heirs" is used. In signs, of certain lands during her natural the deed of Samuel T. Mathews a grant was lifetime, with the habendum to her heirs and made to Richard T. Mathews, which was liaassigns during her lifetime, conveyed only able to be determined and revert to the granlife estate. So, also, in Smith v. Tucker, supra, there was a warranty deed of grant, bargain, and sale to a grantee, his heirs and assigns, with a provision that the deed was only to remain in full force and effect dur

tor or his heirs by the death of the grantee
without issue, and we find no reason for re-
fusing to uphold the grant as made.
The decree is affirmed.
Decree affirmed.

(251 Ill. 460.) COSBY et al. v. BARNES et al. (Supreme Court of Illinois. Oct. 25, 1911.) 1. DRAINS (§ 16*) - PETITION TO DISSOLVE DISTRICT-SEPARATE APPEALS OF PETITION

ERS.

Under Practice Act (Hurd's Rev. St. 1909, c. 110) § 97, providing that where an order, reviewable by the Supreme Court, is rendered in a circuit or county court, in any case or proceeding against two or more persons, either of them may remove the suit by appeal to the reviewing court, and Hurd's Rev. St. 1909, c. 37, § 82f, being section 3 of an act as to concurrent jurisdiction of circuit, superior, and county courts in the organization of drainage districts, providing that appeals may be taken from the final orders from either the county or circuit courts to the Supreme Court, the fact that, on the county court dismissing a petition for dissolution of a drainage district, two of the petitioners appealed to the circuit court, does not prevent the other petitioners appealing to the Supreme Court; each petitioner, alone or with the others, having the right to pray an appeal.

[Ed. Note.-For other cases, see Drains, Dec. Dig. § 16.*]

2. DRAINS (§ 16*)-DISSOLUTION OF DISTRICT -"ASSESSED" LAND.

For land to be "assessed," within the act of 1889 for dissolution of drainage districts (Hurd's Rev. St. 1909, c. 42, § 191), authorizing dissolution on petition of the owners of a certain proportion of the "assessed" land of the district, it is not necessary that the costs and benefits shall have been apportioned under Farm Drainage Act, § 26 (Hurd's Rev. St. 1909, c. 42. § 100); but it being clear, from sections 21, 22, and 59 of said act (sections 95, 96, 134), in connection with the remainder thereof, that it was intended that the classification of the lands should be treated as the special assessment thereof, all land classified above zero, as to which no appeal has been taken, is "assessed" land.

[Ed. Note.-For other cases, see Drains, Cent. Dig. §§ 4, 5; Dec. Dig. § 16.*

For other definitions, see Words and Phrases, vol. 1, pp. 547-549; vol. 8, p. 7583.]

3. DRAINS (§ 16*)-DISSOLUTION OF DISTRICT -PETITION-FAILURE TO SET OUT JURISDIC

TIONAL FACTS-WAIVER.

Parties opposing a petition for dissolution of a drainage district waived all questions as to jurisdiction by filing an answer to the petition on the overruling of their objections to its sufficiency, so that they cannot, on appeal of petitioners, raise the question that the petition does not set out the jurisdictional facts as to the ownership of the lands.

[Ed. Note.-For other cases, see Drains, Cent. Dig. 88 4, 5; Dec. Dig. § 16.*]

4. DRAINS (§ 16*)-DISSOLUTION OF DISTRICT -PETITIONERS' OWNERSHIP OF LANDS-PRIMA FACIE SHOWING.

The classification roll and the other files of the organization of a farm drainage district are sufficient prima facie to show title to lands of the district in petitioners for its dissolution. [Ed. Note.-For other cases, see Drains, Cent. Dig. 88 4, 5; Dec. Dig. § 16.*]

The owner of a dower interest is an owner of land, within the provision of the act of 1889 for dissolution of drainage districts (Hurd's Rev. St. 1909, c. 42, § 191) as to the proportion of adult landowners of the district who must sign the petition for dissolution.

[Ed. Note.-For other cases, see Drains, Dec. Dig. § 16.*]

8. DRAINS (§ 16*)-DISSOLUTION OF DISTRICT -PETITION-OWNERS OF LAND.

One who, after signing a petition for dissolution of a drainage district and before the hearing thereon, sold his land, but had not conveyed it, is to be counted as owner and signer, within the statute for dissolution.

[Ed. Note.-For other cases, see Drains, Dec. Dig. § 16.*]

9. DRAINS (§ 16*)-DISSOLUTION OF DISTRICT -PETITION-LANDOWNERS-HIGHWAYS.

Parts of the highways in three towns being included in a drainage district, each board of commissioners is to be considered as one owner; the signature of two or more on any board counting as the signature for that board as one owner, within the provision of the statute as to the number of adult landowners of the district who shall sign the petition for its dissolution.

[Ed. Note.-For other cases, see Drains, Dec. Dig. § 16.*]

10. DRAINS (8 16*DEBTEDNESS.

)-DISSOLUTION OF DISTRICT

-PAYMENT OF

Within the act of 1889 for dissolution of drainage districts (Hurd's Rev. St. 1909, c. 42, § 191), providing that, on petition of a certain proportion of the landowners, a district may be dissolved, when it shall be determined by the court, among other things, that no indebtedness of such district exists, it is enough that the amount of the indebtedness is paid to the clerk of the district, and through him to the creditors, before the final order on the petition. [Ed. Note.-For other cases, see Drains, Dec. Dig. § 16.*]

Appeal from Logan County Court; James T. Hoblit, Judge.

Petition by Noah Cosby and others for dissolution of a drainage district, opposed by Charlotte L. Barnes and others. From an order dismissing the petition, part of the pe

5. DRAINS (§ 16*)-DISSOLUTION OF DISTRICT -SIGNERS OF PETITION-BONA FIDE OWN-titioners appeal. Reversed and remanded.

ERS.

The provision of the act of 1889 for dissolution of a drainage district (Hurd's Rev. St. 1909. c. 42, § 191) as to the proportion of adult landowners of the district who shall sign the

S. L. Wallace, Humphrey & Anderson, and McCormick & Murphy, for appellants. King & Miller and Beach & Trapp, for appellees.

CARTER, C. J. Salt Creek special drain- drainage districts (Hurd's Stat. 1909, p. 683), age district was organized in Logan county it must be held that each petitioner herein, under the farm drainage act (Hurd's Rev. St. alone or with others, has the right to pray 1909, c. 42) in 1908. The commissioners of an appeal. the district classified the lands contained within its boundaries. At the time and place fixed by the commissioners, as provided by law, objections to the classification were heard, and certain corrections made. The classification roll as finally adopted showed estimated benefits for the entire district of $107,833.54. From that classification as finally made certain interested owners of land in said district, and certain commissioners of public highways included in the district, appealed to the county court of said county, which said appeals had not been disposed of at the time of this hearing in the lower court. October 22, 1910, Noah Cosby and other landowners in said district filed a petition in said county court praying for the dissolution of the district under the provisions of the act of 1889 providing for the dissolution of drainage districts. Hurd's Stat. 1909, p. 918. Certain owners (appellees here) entered their limited appearances and objected to the jurisdiction of the court to hear said petition for dissolution. After a hearing these objections were overruled, and appellees filed a traverse or answer to said petition, stating, in substance, that the petition was not signed by four-fifths of the adult landowners in said district owning threefourths in area of the assessed lands therein; that no assessment had been levied and spread against the lands owned by the petitioners; that an indebtedness existed against said district and remained unpaid at the date of the filing of said petition; that certain specified petitioners did not sign the petition in their own proper persons or handwriting. General and special replications were filed by appellants to said traverse, alleging, among other things, that certain of appellees were not bona fide landowners, but merely owned a pretended interest in the lands under fraudulent deeds. At the conclusion of the hearing of the evidence offered by petitioners in the trial of the cause below, on motion of appellees the court withdrew all said evidence, and found the issues for appellees, and dismissed he said petition, at appellants' cost. From this order this appeal was prayed.

[1] Appellees insist that the petition to dissolve this district is a joint petition, and an appeal therefrom must be in the names of all the petitioners, jointly; that it appears here that two petitioners appealed to the circuit court, and that therefore this court cannot consider this appeal. Under the provisions of section 97 of the practice act of 1907 (Hurd's Stat. 1909, p. 1708), and paragraph 82f of chapter 37, being section 3 of an act as to the concurrent jurisdiction of circuit, superi

[2] The principal contention in the briefs in this case is as to whether any of the lands in this district are "assessed" lands, as that term is used in said act of 1889. Appellees insist that lands are not "assessed," as that term is there used, until the costs and benefits have been apportioned under section 26 of the farm drainage act. Hurd's Stat. 1909, p. 892. We cannot so hold. It is clear, from sections 21, 22, and 59 of the farm drainage act, in connection with the remainder of said act, that the Legislature intended the classification of the lands to be treated as the special assessment of the lands. This court has held that the classification of lands in a farm drainage district is the vital thing to the landowner, as the classification, when established, forms and remains the basis upon which all drainage taxes must be levied in the district (People v. Hulin, 237 Ill. 122, 86 N. E. 666; People v. Chapman, 127 Ill. 387, 19 N. E. 872); that it is the classification, and not the spreading of an assessment, that affects the rights of landowners (People v. Schwank, 237 Ill. 40, 86 N. E. 631). When lands have been classified under the farm drainage act, the lands to be charged with the payment of benefits are "assessed" lands. If any of the lands so classified are placed in the zero class, such lands are not "assessed" lands. The distinction is between the land which helps to bear the burden of the cost and that which does not, and this distinction is ascertained as soon as the classification is completed. All land classified above zero, as to which no appeal has been taken, is necessarily "assessed" land. All of the land in this district appears to have been classified above zero. We think the trial court ruled incorrectly in holding that the land organized into farm drainage districts could not be held as "assessed" land, under said act of 1889, until the commissioners of the district, by resolution, had ordered an amount of money to be raised by special assessment upon the lands of the district, as provided in said section 26 of said farm drainage act.

It is agreed by counsel on both sides that the motion to dismiss was allowed by the court on the ground that none of the lands in the district were "assessed" lands, as that term is used in the said statute of 1889. In view of this fact, the judgment must be reversed, and the cause remanded. There are, however, other questions raised on the record by cross-errors, which must necessarily be passed on when the case is tried again.

[3, 4] It is contended by appellees that the petition does not set out the jurisdictional facts as to the ownership of the lands. Ap