St. Louis, Jacksonville and Chicago Railroad Company v. Mathers.

Swan v. Chandler, 8 B. Monr. 97; Clark v. Ricker. 14 N. H. 44; Commonwealth v. Johnson, 3 Cush. 454; Gardner v. Maxey, 9 B. Monr. 90; Hinesburgh v. Sumner, 9 Vt. 23; Soule v. Bonney, 87 Me. 128; Porter v. Havens, 37 Barb. 848.

But a contract or note to compound a private misdemeanor,such as a suit for slander or bastardy proceedings, is good. Wallridge v. Arnold, 21 Conn. 434; Merrill v. Fleming, 42 Ala. 234; Clark v. Riker, 14 N. H. 44. So is a note given uft? conviction for the legal costs and expenses of the prosecution. Beeley v. Wingfield, 11 East, 46; Kirk v. Strickwood, 4 B. & Ad. 421; Baker v. Townshend, 1 J. B. Moore, 120. See, also, Bell v. Wood, 1 Bay 249; Cameron v. McFar land, 2 Car Law Repos. 415; Corley v. Williams, 1 Bailey, 588; Ford v. Cratty, 52 Ill. 313; Keir v. Leeman, 6 Q. B. 808, where the authorities are fully reviewed.

When a man accused his cashier of stealing money, and the cashier acknowledged that he had, and gave a note with an indorsement and a mortgage for the amount; and no prosecution was instituted nor any agreement made not to prosecute, the note was held valid. Catlin v. Henton, 9 Wis. 476, and see Reg. v. Daly, 9 C. & P. 342.

It has been held that to receive a note signed by a person guilty of larceny as a consideration for not prosecuting him is compounding a crime and indiotable. Commonwealth v. Pease, 16 Mass. 91; 1 Camp. 45; 2 M. & S. 201. But merely taking back one's goods which have been stolen, or receiving reparation without agreement not to prosecute, or otherwise interfere with the course of justice, is no offense. Reg. v. Stone, 4 C. & P. 379; 1 How. P. C. 59; Plumer v. Smith, 5 N. H. 553.-REP.

81. LOUIS, JACKSONVILLE AND CHICAGO RAILROAD COMPANY V. MATHERS.

(71 111. 508.)

Railroad agreement limiting location of stations — illegal contract.

Land was conveyed to a railroad company on condition that it should build no stations within three miles of a certain place. Held, that the condition was against public policy and void, and that the vendor was not entitled to relief for a breach thereof.*

BILLS

ILLS in equity to compel the reconveyance of land. In 1860 the complainant, John Mathers, and others conveyed 200 lots in the town of Ashland to trustees, for and in consideration of $1 and the benefits to be derived from the construction of the Tonica and Petersburg Railroad.

* See same principle, St. Joseph & Denver City R.R. v. Ryan, 15 Am. Rep 357; 8. C., 11 Kans. 602; Marsh v. Fairburg, etc., R. R. Co., 16 Am. Rep. 564 8. C., 64 [ll. 414.

St. Louis, Jacksonville and Chicago Railroad Company v. Mathers.

Prior to such conveyance, and in view thereof, the board of directors of said railroad adopted the following:

"WHEREAS, Some of the proprietors of the towns of Sinclair, Yatesville, Ashland and Tallula, located on the line of the Tonica and Petersburg Railroad, propose donating a number of lots in said towns for the purpose of aiding in the completion of said road from Jacksonville to Petersburg; and,

"WHEREAS, said parties are not willing to make such donations unless the board of directors will agree that no depot or station shall be established on the line of said road in less than three miles of each of said towns; therefore, be it

"Resolved, That this company will accept such donations upon the express condition, that, provided such donations be made, no depot or station shall be established within three miles of either of said towns, on the line of the said Tonica and Petersburg Railroad."

In October, 1862, the Tonica and Petersburg Railroad Company and the Jacksonville, Alton and St. Louis Railroad Company were consolidated, and the appellant, the St. Louis, Jacksonville and Chicago Railroad Company, was thereby created a corporation, and invested with the franchises and other property of both companies, and assumed all debts and liabilities of the former company. This consolidation was fully legalized by an act of the legislature approved February 13, 1863.

Complainant's bill alleged the foregoing facts and the violation of the condition on which the said conveyance was made, to wit, not to build stations within three miles of Ashland, and that complainant had acquired all the interest of his co-grantors in the said lots. The bill demanded that the said lots be reconveyed to complainant and that defendant pay damages sustained by reason of a failure to perform.

Defendant filed a cross-bill for a decree that the lots be sold to pay defendant's indebtedness.

The court below decreed in favor of complainant, and defend. ant appealed.

Dummer & Brown, for appellant.

Morrison & Whitlock, for appellee.

SCHOLFIELD, J. The deed for the property, which is the subject of this litigation, professes, upon its face, to have been executed in

St. Louis, Jacksonville and Chicago Railroad Company v. Mathers. consideration of the benefits to be derived by the grantors from the construction of the Tonica and Petersburg railroad, and of $1. It purports to invest the trustees therein named, and their successors, with the fee simple title to the property, which is to be sold and conveyed by them "at either public or private sale, in such parcels, at such times and upon such terms as to them shall seem meet." It will be observed that there is nothing in the language of the deed, nor in anywise connected with the title of record, whereby a bona fide purchaser from the trustees would have been charged with constructive notice of the condition subsequent upon nich is now claimed the deed was executed, and that the relief sought is based upon evidence of facts entirely independent of the deed.

Under these circumstances, the burden was upon appellee to show such facts as render it inequitable for the title to remain where it was vested by the operation of the deed, and, until this was done, the appellant was justified in relying alone upon the deed.

The contract with the board of directors of the Tonica and Petersburg Railroad Company, which is alleged to have been the real and only consideration for the execution of the deed, is in the nature of a condition subsequent. At the time the preamble and resolution of the board of directors, which constitute the alleged contract, were adopted, as well as at the time the deed was executed, the road was not completed, nor were all of its depots and stations established. The condition that no depot or station shall be established within three miles of either of said towns, on the line of said road, is unlimited in point of time, and, if valid, might be enforced as readily after the expiration of fifty years as one year. There is no evidence of fraud or mistake, the proof showing that the deed was drawn by appellee, and that the condition stated in the preamble and resolution of the board of directors was purposely omitted from the deed by the request of the secretary of the company; and the only ground upon which the relief prayed is asked, is, the failure of the railroad company to observe the condition in the preamble and resolution.

In the view that we take of this case, we do not deem it necessary to discuss whether the evidence introduced for the purpose of showing a different consideration from that expressed in the deed should have been excluded for the reason that it tended to affect

St. Louis, Jacksonville and Chicago Railroad Company v. Mathers. the validity of the deed, as we think the evidence was clearly inadmissible upon another ground.

The validity of a condition subsequent depends upon its being such as the law will allow to divest an estate, for if the law deems the condition void as against its own policy, then the estate will be absolute and free from the condition. 1 Story's Equity, § 238; 4 Kent's Com. (8th ed.) 134; 1 Washburn on Real Estate (2d ed.), 469.

Nor is the rule different if we shall regard this as a proceeding to require a re-conveyance of the property, on account of a want or failure of consideration. A court of equity will not lend its aid to enforce the performance of a contract which appears to have been entered into by both the contracting parties for the express purpose of doing that which is illegal; and where such a contract has been executed by one of the parties by conveying real estate, a court of equity will not, in general, interfere, but will leave the title to the property where the parties have placed it. Swain v. Bussell, 10 Ind. 438; Inhabitants, etc. v. Eaton, 11 Mass. 368; Hoover v. Pierce, 26 Miss. 627; Cushwa v. Cushwa, 5 Md. 44; White v. Hunter, 3 Fost. 128; Murphy v. Hubert, 4 Harris, 50; Barton v. Morris, 15 Ohio, 408; Wright v. Wright, 1 Litt. 179.

It is said, in 1 Story's Equity, § 296 a: "But where a party to an illegal or immoral contract comes himself to be relieved from that contract, or its obligations, he must distinctly and exclusively state such grounds of relief as the court can legally attend to; and he must not accompany his claim to relief, which may be legitimate, with other claims and complaints which are contaminated with the original immoral purpose; for if he sets up, as a ground of relief, the non-fulfillment of the illegal contract on the other side, and thereby he is released from his obligation to perform it, that shows that he still relies upon the immoral contract and its terms for relief, and, therefore, the court will refuse it."

The alleged agreement or condition, on account of the non-performance of which relief is here sought, was, that a railroad company, chartered by an act of the legislature, and invested with the power of condemning private property, upon the ground that its road is for the public use, shall not establish a depot or station within three miles of Ashland. It cannot be pretended, for a moment, that the board of directors had authority to make such an agreement or condition. They were trustees both for the public and

St. Louis, Jacksonville and Chicago Railroad Company v. Mathers. the stockholders of the company, and in the discharge of their twofold duty were required to act with reference to the public convenience on the one hand, and the private interests of the stock. holders upon the other. Between these there was no conflict, for the greater the local conveniences for the use of the road by the public, the greater would be its local business, and, of consequence, the profits of the stockholders. The interest, therefore, both of the stockholders and the public, forbid that there should be a positive prohibition against the establishing of stations at any points on the line of the road. Whenever the public convenience requires that a station on a railroad should be established at a particular point, and it can be done without detriment to the interests of the stockholders of the company, the law authorizes it to be established there, and no contract between a board of directors and individuals can be allowed to prohibit it.

If the present contract could be sustained, then, upon the same principle, a board of directors, and individuals desiring to remove all competition in the sale of town lots, might contract so that upon the entire line of a great railway there would be no stations, save where the parties contracting should be interested in the sale of town lots; and thus practically exclude the mass of the public from any beneficial use of the road.

In Bestor v. Wathen, 60 Ill. 138, a contract between the officers of a railroad company and certain private parties, to secure the location of a railroad at a particular point, was held void, as being contrary to public policy, and not susceptible of being enforced in a court of equity. It was there said: "When the people, through the legislature, grant to a company the right of eminent domain for the purpose of constructing a railway, the grant is made because it is supposed the road will bring certain benefits to the public When the company is incorporated, and subscriptions are made to the stock, the money is subscribed upon the understanding that the officers intrusted with the construction of the road will so locate its line and establish its depots as to bring the highest pecuniary profit to the stockholders, compatible with a proper regard to the public convenience. These, and these alone, are the considerations which should control the action of the president and directors of the road, and so far as they permit their official action to be swayed by their private interests, they are guilty of a breach of trust toward the stockholders, and of a breach of duty to the public at