was conveyed by Peter Rinus to another son, Frank Rinus. Peter Rinus lived with his granddaughter, Mary Rinus, on a small place, and he conveyed that place to her, and alsc indorsed to her the note numbered 6 for $2,000. It is quite clear that the matter was adjusted at the time, and that no instrument declaring a trust was ever executed, but the notes indorsed to the appellant represented what she was to have at the death of her father, and they were delivered to Struckman to hold, with a right of Peter Rinus to collect the interest until his death. The court did not err in overruling the exceptions.

premises. On May 24, 1916, a supplemental, same time that the conveyance was made to bill was filed, alleging that the complainants William H. Rinus another farm of 163 acres had conveyed the real estate to William H. Garrelts, and he was added as a cocomplainant. The issues were referred to the master in chancery to take the evidence and report the same with his conclusions. The master took the evidence and reported that there was no sufficient evidence that any instrument declaring a trust was ever executed, and no evidence that William H. Rinus ever signed any such document; that the appellant did not know of the existence of the notes or of the indorsement thereof to her until October, 1915, and never had possession of them; and that there was due and payable to the appellant upon the notes the principal sum of $6,000, with interest at 5 per cent. from December 1, 1915. He recommended that upon the payment of the amount so due the notes should be canceled and surrendered, and the trust deed released. The chancellor overruled exceptions to the report except as to the question of interest, and as to that found that interest was due from April 10, 1913. A decree was entered granting the relief prayed for in the bill, and from that decree this appeal has been prosecuted.

The claim of the appellant is that the deed to William H. Rinus was upon an express trust for herself and Charles Rinus and Mary Rinus, by which William H. Rinus was bound to account to her, at the death of Peter Rinus, for one-quarter of what the farm would then be worth, and that the notes indorsed to her, of which she had no knowledge and which she never saw until they were introduced before the master, were to be taken into account as a part of her share. There was no evidence of the execution of any writing relied upon to manifest such a trust or that such a writing had ever been in existence and been lost or destroyed. A man who worked on the farm for William H. Rinus testified that Rinus told him that there was such an understanding, and that a paper was drawn up showing that appellant was an heir. If this witness had not been contradicted, and his testimony should be believed, it would be insufficient to show with the certainty required by the law that the paper was ever executed, and that it had been lost or destroyed, so as to admit proof of its contents. The testimony does not impress the court with its truth, and it was contradicted by William H. Rinus, who de nied that he ever made such a statement. Testimony of a conversation with Peter Rinus in the absence of William H. Rinus was given, but was incompetent, and was not inconsistent with the conclusion that payment of the notes by William H. Rinus to the appellant was the matter referred to. The claim that a trust was created is wholly inconsistent with any known fact. At the

Counsel for appellees says that the chancellor erred in sustaining the exception to the finding of the master that interest had been paid to December 1, 1915, but no cross-error appears either upon the abstract filed by appellant or the additional abstract filed by the appellees. They are not entitled to raise that question, but there was no indorsement of the payment of interest after the date fixed by the chancellor, and the evidence was that no interest was, in fact, paid after that date. The decree is affirmed. Decree affirmed.

Where owner of leased premises knowingly permits the lessees to contract for improvements, a provision in the lease that changes and alterations are to be paid for by the lessee does not prevent a lien from attaching in favor of one furnishing labor and material for the improvements, whether the latter knows of the provision or not.

2. MECHANICS' LIENS 73(7) BREACH OF CONTRACT-WAIVER.

lessor 10 days previous to alteration being made A lease provision requiring lessees to notify in the building might be waived by lessor's failure to object after knowledge that alterations were in progress, and if so waived would not ing labor and material for the alterations. prevent lien attaching in favor of one furnish

Appeal from Second Branch, Appellate Court, First District, on Appeal from Superior Court, Cook County; Charles M. Foell, Judge.

Suit by Bernhard Loeff against Mary Meyer. From a judgment of the Appellate Court affirming a judgment for plaintiff, defendant appeals. Affirmed.

Winston & Lowy, of Chicago (Frank A. Lasley, of Chicago, of counsel), for appellant. Joseph Rosenberg and Irving Zimmerman, both of Chicago, for appellee.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

DUNN, J. The superior court of Cook (ics' liens for labor and material furnished county, in a proceeding to enforce a mechan- for the improvements. In this case it is ic's lien, entered a decree for $502 in favor claimed that the consent was conditioned of Bernhard Loeff against certain real estate upon previous notice in writing to the lessor. of Mary Meyer, who appealed to the Appel- She had no such notice, but she had actual late Court for the First District, which af- notice of the making of the improvements. firmed the decree, and she prosecutes a fur- She was at the building and saw them in ther appeal to this court; the Appellate progress within three or four days of the Court having granted a certificate of impor- beginning of them. She did not object to the tance. improvement, but knowing that it had been begun without notice to her she permitted it to proceed without objection. She was entitled to the notice provided in the lease, but she might waive that notice, and by making no objection she knowingly permitted the improvement to be made. The provision of the lease that changes or alterations made should be paid for by the lessee was a bind

On March 20, 1913, the appellant leased the premises in question to Aaron Salzer and David Salzer for a term of 10 years, beginning May 1, 1914. The lease contained the following provision:

"Lessees shall have the right, upon ten (10) days' previous notice in writing to lessor, to make such changes or alterations as they may deem suitable, provided such changes or alterations shall not diminish the value of the build-ing contract which she had a right to enforce. ing and shall be paid for by lessees, but all It was not binding, however, on the appellee, material alterations, except changing the front of the building, shall be first approved in writ- even though he had notice of it. ing by lessor."

The appellant was present when the lease was prepared, and the clause just quoted was read to those present. The lessees went into possession on May 1, 1914, and immediately began the making of repairs and alterations in the building, including the changing of the front. No previous notice in writing was given to the appellant, but on the 3d or 4th day of May she visited the premises and saw repairs being made to the front of the building and a few days later again visited the building and saw the repairs going on. The lessees failed and went into bankruptcy. The decree rendered was for the amount due for material furnished and work performed on the store front exclusively.

[1, 2] The appellant contends that the appellee's knowledge of the provisions of the lease that changes or alterations were to be made only upon 10 days' previous notice in writing to the lessor and were to be paid for by the lessees prevented him from acquiring any lien. The statute authorizes a lien upon any lot of land for material or labor furnished in altering or repairing any

It is argued that the case of Boyer v. Keller, 258 Ill. 106, 101 N. E. 237, Ann.

Cas. 1916B, 628, holds, by implication, that that all alterations and repairs were to if the provision of the lease in that case be paid for by the lessee had been known to the contractors the lessor would not have been held liable for the improvements that the lessee was permitted to make. Such an inference is not to be drawn from the opinion. The contractors there were not therefore could not be affected by it, but aware of this provision of the lease and

the conclusion is not to be drawn that if

they had known of it they would have been affected by it. The object of the statute is to give a lien for labor or material furnished in the improvement of real property to rial, and every interest in the real estate imthe persons furnishing such labor or mateproved is subject to the lien if the owner of such interest knowingly permitted the imthe owner may have forbidden any change, However strictly alteration, or improvement in his property by the terms of a lease, nevertheless, if he

provement to be made.

knowingly permits improvements to be made by his tenant the contractor will not be afbuilding thereon under a contract with the fected by the prohibitions in the lease. The owner, or with one whom the owner has authorized or knowingly permitted to contract land is bound for the payment of the cost of for the improvement of or to improve the the improvement permitted by the owner, same, and where a lessee is authorized by even though the owner has expressly conhis lease to make improvements, the contract tracted that he shall not be bound unless for such improvements with the lessee is such contract is made with the person furwithin the terms of the statute. In Haas nishing the labor or material. The agreeElectric Co. v. Amusement Park Co., 236 ment of a landlord with his tenant to permit Ill. 452, 86 N. E. 248, 23 L. R. A. (N. S.) the latter to improve at his own cost the 620, 127 Am. St. Rep. 297, the owner of the rented property merely grants a privilege to premises indorsed on the lease a consent that the tenant, but does not relieve the land from the lessee should have the right to make im- the lien imposed by the statute. The landprovements on the premises, provided that lord may exempt his land from any lien by all improvements, alterations, and additions not permitting the improvement to be made made by the lessee should remain on the or by requiring beforehand a release of the premises at the expiration of the lease for lien by the contractor, but if he permits the the benefit of the lessor, and it was held that making of the improvement on credit he subhe thereby subjected his interest to mechan-jects his land to the lien of the statute if

the tenant fails to pay in accordance with his | made a set of deeds conveying to her two contract. daughters and said two grandchildren each a

The judgment of the Appellate Court is tract of land. Each of these deeds, except the affirmed.

TION "RESERVATION."

In a deed "upon the condition that

*

if the said grantee herein die before attaining the age of twenty-one the said land hereby conveyed shall revert to" certain persons, the quoted provision was valid, being a conditional limitation, and was not unenforceable as a forfeiture nor invalid as a reservation to a stranger to the deed, under the rule that a reservation must be to the grantor, or the one creating the estate, and must be of something arising out of the thing granted, as an easement or the like.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Reservation.]

one to Homer Parris, contained a provision for the payment by the grantee of $10 per year to the stepmother, Eliza Walters, during Eliza's lifetime. Each deed to the grandchildren contained certain other conditions in case of the death of the grantee before reaching 21. The deed to the granddaughter, Belle Hoke, conveyed the 22 acres here in question. It was on a printed statutory short-form warranty blank, and recited that the grantor, Elizabeth Hendricks, in consideration of one dollar and natural love and affection "and the performance of the conditions named by the grantee," conveyed and warranted to Amanda Belle Hoke the real estate in question. It then continued as follows:

"This deed to be valid only upon the condition named herein: shall pay or cause to be paid to Eliza Walters First, that said grantee the sum of $10, to be paid annually on or before the 25th day of December during the natural life of said Eliza Walters, and failure to comply with any or all of the conditions of this deed shall render it null and void, and also if the said grantee herein die before attaining the age of twenty-one years the said land hereby conveyed shall revert to Mary Ellen Roberts and Martha Elizabeth Hendricks."

Amanda Belle Hoke (called in the briefs Belle Hoke and so called in this opinion) died May 9, 1913. She was about 4 months old when the deed in question was executed and was less than 21 years old when she died.

Error to Circuit Court, Shelby County; Her father died in 1905, and her only heir at J. C. McBride, Judge.

Bill by Mary Ellen Roberts and others against Elizabeth Dazey. Decree for complainants, and defendant brings error. Af

firmed.

Whitaker, Ward & Pugh, of Shelbyville, for plaintiff in error. A. J. Steidley and George B. Rhoads, both of Shelbyville, for defendants in error.

law was her father's father, Wilfred Hoke. Wilfred Hoke deeded the premises in question to Elizabeth Dazey, plaintiff in error here. Counsel for plaintiff in error argue that the deed to Belle Hoke gave the title to her in scended to her only heir, her grandfather, fee simple and that upon her death it deand by his deed it is now vested in plaintiff in error. Elizabeth Hendricks died in 1901. The stepmother, Eliza Walters, died a few days after the deeds were executed, and no contention is made by counsel that this deed became void on account of the failure to pay said annual payment to the stepmother.

CARTER, J. This is a bill filed by defendants in error in the circuit court of Shelby county for the partition of about 22 acres of land in that county. A demurOne of the principal contentions of counsel rer filed by Elizabeth Dazey was overruled for plaintiff in error appears to be that the and a decree entered for the partition of provision in said deed whereby the land was the premises as prayed in the bill. This to "revert" to the two daughters, defendants writ of error has been sued out to review in error here, was a reservation and that a the decree of the circuit court. reservation made to a stranger to the deed On July 5, 1894, Elizabeth Hendricks is void, and as defendants in error were owned the land in question. She was a strangers to the deed the provision as to the widow, then having an aged stepmother, title reverting to them is void. Eliza Walters, and two living children, defendants in error, Mary Ellen Roberts and Martha Elizabeth Weger. Two other of her children had died prior to that time, one leaving a son, Homer Parris, and the other leaving a daughter, Belle Hoke. On the last-mentioned date, Elizabeth Hendricks

"A reservation is the creation, in behalf of the grantor, of some new right issuing out of the thing granted, usually an incorporeal hereditament-something which did not exist as an independent right before the Grant." Tiedeman on Real Property (3d Ed.) § 608.

"It is created by and for the benefit of a grantor or his heirs and not for a stranger."

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

6 Am. & Eng. Ency. of Law (2d Ed.) 515; 3 counsel, after the deed of Belle Hoke, is Washburn on Real Property (6th Ed.) § 2363. vested or contingent. It is more in the

If the person who will be entitled to an executory interest cannot be known until the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Mary Daly Fitzgerald (the appellant), and Eliza J. Hanlon, and his brother, Matthias B. Daly, to whom the said lot was devised in fee simple provided he should survive the testator ten years. Matthias B. Daly, Jr., died on August 27, 1907, intestate, leaving

happening of the contingency, the executory in-, terest does not pass by descent; but, if the identity of the executory devisee is certain, so that on the happening of the contingency' he will take the estate, the future interest descends to his heirs, though he die before the contingency happens. Appeal from Circuit Court, Cook County; his father, Matthias B. Daly, and his sisters, Frederick A. Smith, Judge.

Suit by Florence M. Daly and others against Mary Daly Fitzgerald, whose husband, Richard Fitzgerald, was appointed her guardian ad litem. Decree for plaintiffs, and defendant appeals. Affirmed.

Joseph P. Mahoney, of Chicago, for appellant. Jay Clifford McCally, of Chicago, for

appellees.

CARTWRIGHT, J. This appeal is from a decree of the circuit court of Cook county ordering title in fee simple in the appellees, Florence M. Daly and Irene M. Daly, to lot 88, in block 1, of Sampson & Greene's addition to Chicago, to be registered. The appellant, Mary Daly Fitzgerald, was made a defendant, and, being insane, her husband, Richard Fitzgerald, was appointed her guardian ad litem and answered, committing her rights and interests to the protection of the court and claiming title in her by virtue of a deed from Joseph B. Daly. The examiner of titles found and reported that there was no competent evidence that the deed was delivered and recommended that it should be removed as a cloud upon the title of the appellees. The court confirmed the report and entered a decree accordingly.

Florence M. Daly and Irene M. Daly, his heirs at law. Matthias B. Daly did not survive the ten-year period but died on November 16, 1910, leaving as his heirs at law his daughters, the appellees, Florence M. Daly and Irene M. Daly, who claimed title as heirs at law of their brother, Matthias B. Daly, Jr., and their father, Matthias B. Daly.

[1-6] The deed was prepared for execution by Henry Schumacher, a notary public, who took directions from Joseph B. Daly and went to the home of the appellant, where it was signed and acknowledged by the grantor in the presence of the appellant and her husband. The husband, Richard Fitzgerald, gave testimony tending to show that the deed was delivered by pushing it across the table to the appellant and then delivering it to Schumacher for safe-keeping, with an agreement that it should not go on record until after the grantor was dead. The appellees were suing as heirs at law, and the husband of the appellant was incompetent to testify in her behalf. Treleaven v. Dixon, 119 III. 548, 9 N. E. 189; Way v. Harriman, 126 Ill. 132, 18 N. E. 206; Shaw v. Schoonover, 130 Ill. 448, 22 N. E. 589; Heintz v. Dennis, 216 Ill. 487, 75 N. E. 192. It is urged that no On March 9, 1899, Joseph B. Daly, the objection was made on the ground of incomowner of the lot, while at the home of his petency of the witness, but the specific objecsister, the appellant, Mary Daly Fitzgerald, tion stated was that Joseph B. Daly was made and acknowledged a warranty deed of dead, and that could only mean that the husthe same to her. The deed was in the pos- band was not competent for that reason. session of Henry D. Schumacher, the notary The only competent testimony as to what ocpublic who drafted it and took the acknowl- curred when the deed was made and the disedgment, from the time when it was made position made of it was that of Schumacher, until 18 months after the death of the gran- and he could not remember what was done tor, when it was obtained from him by Rich-except that he was to hold the deed until aftard Fitzgerald and recorded. On January er the death of the grantor and it was not to 17, 1907, Mary Daly Fitzgerald was adjudg-be recorded before that time, and that he ated insane and has so remained since that time. About 8 years after making the deed Joseph B. Daly on February 27, 1907, executed his last will and testament, containing the following devise of the lot:

"Second. I give, devise and bequeath to my beloved brother, Matthias B. Daly, the prop- | erty known as No. 533 West Thirteenth street, Chicago, Illinois, or lot eighty-eight (88), in block one (1), in Sampson & Greene's addition to Chicago, to have and to ho d in fee simple, provided the said Matthias B. Daly shall survive me ten years, but should the said Matthias B. Daly die before the lapse of ten years after my death, I give, devise and bequeath the said property to his son, Matthias B. Daly, Jr., to have and to hold the same in fee simple."

Joseph B. Daly died on August 2, 1907, leaving as his heirs at law his three sisters, Catherine B. Daly (known as Sister Bernice),

tached a memorandum to the deed that it was not to be recorded until after the death of the grantor. The memorandum was destroyed by Schumacher at the time the deed was delivered to Richard Fitzgerald. Schumacher had had considerable experience in making deeds and thought that he probably instructed the grantor to make delivery of the deed, which was evidently based upon his habit or custom, and that was not sufficient to prove delivery. Russell v. Mitchell, 223 Ill. 438, 79 N. E. 141. The deed was not found in the possession of the appellant so that a presumption of delivery would arise from that fact, but it remained with Schumacher eighteen months after the death of the grantor, due, as alleged, to the fact that the location of Schumacher was not known. Delivery is largely a matter of intention, and