However, the opinion has possibly gone too far. It seems to hold that a freehold was involved in the situation there presented. The situation tersely stated is one where the defendant claimed an equitable freehold, though the legal freehold was not in dispute; the defendant, of course, whether as mortgagee or as absolute owner, having that.

In this REVIEW (VIII 180) appeared this language:

"The authorities in our state are settled in holding that a proceeding to have an absolute deed declared a mortgage does not involve a freehold. These authorities apparently proceed upon the precedent set by the case of Hollingsworth v. Koon 113 Ill. 443. But the real

reason of these decisions is brought out in the case of Kirchoff v. Union Life Co. 128 Ill. 199, mentioned supra, i. e., that inasmuch as the actual divestiture of the title depends upon some act that may not occur, to wit: the election to avail of the right to redeem, a freehold is only indirectly involved. These cases might as well have been found to involve a freehold, for the reason that a freehold includes an equitable as well as a legal title, and a decree which decreed an absolute deed a mortgage in effect transferred the equitable title; so that we would have the situation of one party claiming under a title the equitable rights in which the other party disputed. However, the courts have not looked at it in that way."

(See also this REVIEW XIV 223.)

Doubtless the court had no intention by the decision in the principal case to overrule the decision in that earlier case of Kirchoff v. Union Life Co., and it would follow that the Kirchoff case was not before the court when it made its decision in the principal

case.

As already indicated, so far as concerns the merits of the principal case and on the substantive law entering into the decision of that case, once the Supreme Court took jurisdiction, there can be no criticism, for it is doubtless correct, and as between the parties, full justice has been done. But, it is submitted, the decision is a precedent on the point of practice as well, and the result brings confusion in the law upon that point. Laymen and some lawyers, it is apprehended, would point to the situation thus found as an example of error by the court, and it is this proneness of some members of the bar to blame the appellate judiciary for shortcomings of members of the bar themselves that particularly calls forth this comment. For no one who appreciates the vast ever-changing flood of adjudicated matters in the law, and who appreciates the proper functions of the judiciary and the bar, can escape a realization of how utterly beyond human capacity it is for any judge or number of judges composing an appellate tribunal to know, much less have in mind, each of the countless little points of decision abounding in the books. That is what lawyers are for-to search into the particular decisions affecting their one particular case and to present them to the court.

Thus, whenever in a particular decision, an earlier decision, say a hundred volumes back, as here, is overlooked, the fault is with the counsel, who, by failure to exhaust the authorities, or, what

would be worse, by design, have failed to inform the court of the real legal situation involved in their particular case; and it is upon them that the stigma should fall. And the other members of the bar, who, when afterwards a similar situation is presented to them, find confusion in the reported decisions, should blame their co-workers in the profession, and not the court.

In the principal case here under comment, it is submitted, the court has arrived at the correct decision upon the point of practice. The court, it is true, may not have so decided the point had its attention been called to the Kirchoff case, but does that prove the principal case wrong and the Kirchoff case right? On the contrary, and for the reason stated in the REVIEW article above quoted from, it is submitted that the principal case is right and the Kirchoff case is wrong. In the principal case the reasoning of the court was permitted to work unaffected by the error of the earlier case.

E. M. L.

NEGLIGENCE-AUTOMOBILES LIABILITY OF PARENT FOR TORT BY DAUGHTER USING FAMILY AUTOMOBILE.-In the case of Graham v. Page, 300 Ill. 40, 132 N. E. 817, the Supreme Court seems to recede from the position adopted by it in the case of Arkin v. Page, 287 Ill. 420. In the Arkin case the court decided that where a son twenty years of age took his father's automobile for a purpose of his own, the father was not liable for an injury caused by the negligent operation of such automobile, although it had been purchased by him for the family use, convenience and pleasure. In arriving at this conclusion, the court decides, first, that the liability of the father, if any, must rest upon the agency of the son, and, second, that the mere fact that the automobile has been provided for the pleasure of the family does not make the individual members of the family the agent of the father while using the car for personal purposes of their own.

To the decision in the Arkin case, Justices Cartwright, Farmer and Carter dissented on the ground that the doctrine of agency is not confined to commercial business transactions and an agency arises from the fact of the parent's furnishing an automobile for family use with a general authority, express or implied, that it may be used for the pleasure, comfort and entertainment or outdoor recreation of members of the family.

In the Graham case the court held a father liable where an injury was caused by the negligent operation of an automobile driven by the sixteen-year-old daughter who was using the car, at the time in question, to go to a shoe shop to call for a pair of shoes she had left there to be repaired. While the court attempts to reconcile its holding in the present case with its former holding upon this subject, saying, "The facts in this case (Arkin v. Page, supra) did not present the question as it is presented here," yet it is significant to observe that the decision in the present case is written by Justice Farmer, one of the dissenting justices in the former opinion. It is respectfully submitted that no difference in principle or

even in actual facts can, upon a close analysis of these two cases, be found to exist. In the present case the court says:

"The facts in that case did not present the question as it is presented here. In this case defendant's daughter was not merely driving the car for pleasure, but was using it on a family errand—one of the purposes her father testified he kept the car for and one of the purposes he testified his daughter was authorized to drive it for. The daughter was only sixteen years old, was engaged in no business, earned no money, but lived with her parents and was clothed by them. It was the duty and business of her father to provide her shoes, and, when needed, to have them repaired. Instead of her father taking her shoes to the shop for repair and getting them there when that had been done, he permitted his daughter to do it and authorized the use of the car by her for that purpose. She was performing the business and duty of her father in the manner and with the means authorized by him. She was, if not the servant, at least the agent of her father in the performance of the duty or business."

In the former case the automobile was being used by the son to drive him to Lewis Institute for the purpose of seeing if he could register in a course of study in the summer school. He expected to pay the tuition himself out of his own money and had not talked with his father about going to school. It could, however, equally well be argued that, until the son became of age, it was the duty of the father to assist his son in procuring an education and, although the son intended to pay his own tuition, yet he was under no obligation so to do, and this assumption of one of the duties of his father should not affect the duty of his father to assist him in procuring the necessary information in regard to the completion of his education. Paraphrasing the language of the court in the Graham case, it can be said:

Instead of his father going to the school and getting this information for his son, he permitted his son to do this himself and authorized the use of the car by him for that purpose. He was performing the business and duty of his father in the manner and with the means authorized by him.

As was said by the court in the Graham case in considering two New Jersey cases upon this subject, "there appears to be no valid basis for a distinction, but the indications are rather that the court is not inclined to again approve its former decision." That the court does not in fact intend to base its decision upon the very minor difference in facts between the Arkin case and the Graham case, but it intends rather to place all cases of this character in the same category, is, we think, indicated by the following statement of the basic principle of which the court indicates its approval:

"The weight of authority supports the liability of the owner of a car which is kept for family use and pleasure where an injury is negligently caused by it while driven by one of his children by his permission and the reasoning of those cases seems sound and more. in harmony with the principles of justice."

In the majority opinion in the former case, the court quotes extensively from cases holding the father liable under similar circumstances, and among other cases cited is that of King v. Smythe, 140 Tenn. 217, and then tersely says with reference to the language quoted:

"This argument may be sound enough, but it has no application to the doctrine of master and servant." In the present case, however, the court adopts the language of the case of King v. Smythe, supra, saying:

"We agree with the Supreme Court of Tennessee that where a father provides his family with an automobile for their pleasure, comfort and entertainment 'the dictates of natural justice should require that the owner should be responsible for its negligent operation, because only by doing so, as a general rule, can substantial justice be attained.'"

The decision in Graham v. Page, supra, contains no dissenting opinion, and while it might perhaps have clarified the law upon the subject to have had the court expressly overrule the earlier case of Arkin v. Page, supra, rather than to have adopted the course of seeking to indicate a distinction which does not exist, yet it is respectfully submitted that the case of Graham v. Page, supra, may be relied upon for all practical purposes to establish the doctrine that a parent will now be held liable for the negligent operation of his automobile by any of the members of his family, when used for any of the usual purposes for which the automobile was provided and intended. It may perhaps be doubted whether the reasoning of the court in arriving at its result in the Graham case is as sound as the principles enunciated by it in the Arkin case, in that where courts look to "the dictates of natural justice" for the guidance of their decision, while humane results may at times be obtained, yet surprising decisions at variance with well settled principles are not to be unexpected. PAUL E. PRICE.

PENDENS TORRENS

MECHANIC'S LIEN-REGISTRATION-LIS ACT. In the case of In re Bickel 301 Ill. 484, 134 N. E. 76, the court had before it for consideration the question whether a mechanic lien claimant, who had perfected his lien against property registered under the Torrens law by registering his claim in the Registrar's office within the four-month period, subsequently lost his lien, at the expiration of the two-year period within which suit must be commenced, by failure to file with the registrar a lis pendens notice of the commencement of his suit in the Superior Court, in accordance with the provisions of section 84 of the Torrens law.

Section 7 of the Mechanic's Lien Act provides that a contractor seeking to enforce his mechanic's lien to the prejudice of a subsequent purchaser must file his claim or commence his suit within four months after the completion of the work or final delivery of the material. In Hacken v. Isenberg 288 Ill. 589, it was decided that, with respect to property registered under the Torrens law, this filing of the claim, to be effective as against subsequent purchasers,

He

must be in the office of the registrar of deeds and not in the Circuit Court clerk's office. In the case at bar, the claimant had filed his claim in the registrar's office within the four-month period. then, obviously, by the terms of section 9 of the Mechanic's Lien Law, had two years from the completion of the work, or the final delivery of material, within which to commence his suit to enforce the lien. He complied with this provision of section 9 by filing his suit in the Superior Court of Cook County within the two-year period, but he failed to comply with the provisions of section 84 of the Torrens law, which provides, in substance, that no suit affecting property registered under the act shall be deemed lis pendens until a certificate of the pendency thereof shall have been filed with the registrar. In other words, the claimant filed his claim in time and in the proper office, i. e., that of the registrar, commenced his suit in time, i. e., within two years, but did not take the precaution of filing with the registrar a notice of lis pendens. Presumably his omission was founded upon the assumption that, having given. notice of his claim by filing his claim with the registrar, within the four-month period, he had cast a duty upon all prospective purchasers to inquire as to whether suit had been seasonably instituted, and had thereby absolved himself from any duty to give a notice of lis pendens, i. e., a notice of the institution of such suit.

This assumption was incorrect. The Supreme Court held that by failing to file a notice of lis pendens with the registrar, within the two-year period, the claimant lost his lien as against the subsequent purchaser, even though such subsequent purchaser could ascertain, from an examination of the certificate of title, that a mechanic was claiming a lien against the property, such mechanic's lien claim having been duly registered within the four-month period. The requirement of the filing of the notice of lis pendens is thus made peremptory.

The court's statement as to the ratio decidendi is rather brief; simply stated, it is that a contrary rule would be inconsistent with the central purpose of the Torrens system of land title registration. to provide one place, and one place only, where the prospective purchaser need search as to the exact condition of the title he is acquiring, and all encumbrances thereon, i. e., the office of the registrar (Hacken v. Isenberg supra; Glos v. Kingman & Co. 207 Ill. 26). The court's argument is weakened, however, by the consideration that in this situation the prospective purchaser can ascertain, from an examination of the certificate, that a mechanic's lien claim is registered against the property, even though a notice of lis pendens is not filed. The decision is probably actuated somewhat by the desire to help the development of the Torrens system of registration.

There is a forcible dissenting opinion by Mr. Justice Duncan. Mr. Justice Duncan's argument proceeds upon the theory that, having perfected his lien by registering it with the registrar, the mechanic lien claimant is not required by any provision of the Torrens law, to do anything further to continue his lien in force. He considers the situation entirely analagous to that of the holder of a