cost. This is the rule in ordinary civil causes. Section 590, Rev. St. 1881; Merrill v. Shirk, 128 Ind. 503, 28 N. E. Rep. 95. We think it was the intention of the legislature, by the statute above quoted, to apply the same rule to proceedings of this character. A finding and judgment against remonstrators, establishing a ditch, therefore properly and necessarily involves a judgment for costs. In the case at bar the court did, as shown by the record, find against the remonstrants, and did render final judgment against them establishing the ditch. The failure of the clerk to enter, as a part of the judg ment, a judgment for costs was a mere omisssion to record a part of the judgment actually rendered, as shown by the record.

This brings us to the consideration of the final proposition. In the original proceeding the question of jurisdiction was not raised, either in the circuit court or in this court. As the question 'comes to us, it presents some novel features. It is an attack on a judgment of a court of general jurisdiction, which has been appealed to and affirmed by the court of last resort. The attack is by a party to the record, the party who appealed the cause, and unsuccessfully sought its reversal. His motion asked the court, notwithstanding the affirmance of the judgment, to treat it as a nullity. The attack upon the judgment is collateral, and can only succeed if the judgment is void. It must fail if it is merely erroneous, no matter how great the error. That the attack is collateral does not seem to be controverted by counsel in their argument, nor, in our opinion, could that fact be successfully questioned. The contention, earnestly presented and ably and vigorously argued, is that, the averments of the petition showing that the effect of the construction of the ditch would be to lower certain lakes in La Grange and Steuben counties, the proceeding was" without authority and incurably void," because the court had no jurisdiction of the subject-matter. If counsel are right in their contention that the court had no jurisdiction of the subject-matter, their argument is unanswerable, and the judgment is void. They, however, err in giving to the term "subject-matter” too limited an application. Their error lies in their failure to distinguish between the subject-matter of the proceeding and the subject-matter of the specific case then before the court. Jurisdiction of the subjectmatter of a case grows out of the fact that it belongs to a general class of cases of which the court has jurisdiction. If the court has no jurisdiction of the subjectmatter, it has no power to act at all, and any order made by it is void, and may be ignored. The parties cannot waive the objection, nor can they, by agreement, give to the court jurisdiction of a case belonging to a class which the law withholds from its cognizance. The question may be raised at any time, and the court's action in usurping jurisdiction may be questioned collaterally. If, however, the court has jurisdiction of the subject-matter of an action, the fact that the averments of the complaint or petition in the case before it v.31N.E.no.8-43

are defective or insufficient, or that it contains averments tending to deprive the court of jurisdiction to grant the specific relief sought, will not, of itself, render the judgment of the court void. Where a case is commenced in a court having general jurisdiction of the class of actions to which it belongs, the court has jurisdiction of the subject-matter; and, if it also acquires jurisdiction of the parties litigaut, its judgment therein is not open to collateral attack, however erroneous it may be. Having jurisdiction of the class of cases, it is, of necessity, clothed with power to decide upon the sufficiency of the jurisdictional averments in the specific case presented. The power to decide involves the power to decide wrong as well as right. Having the power to decide the question, an erroneous decision does not oust its jurisdiction. The right and the power to decide protects its decisions from collateral attack, whether they are right or wrong. The following, with many other, authorities will be found to fully sustain the foregoing propositions: Elliott, App. Proc. §§ 501,502, and 503; Jackson v. Smith, 120 Ind. 520, 22 N. E. Rep. 431; State v. Wolever, 127 Ind. 306, 26 N. Ē. Rep. 762; Railway Co. v. Sutton, (Ind. Sup.) 30 N. E. Rep. 291; Alexander v. Gill, (Ind. Sup.) 30 N. E. Rep. 525; McCoy v. Able, (Ind. Sup.) 30 N. E. Rep. 528. The subject-matter of this proceeding was the construction of a public drain. Of this class of cases the circuit court has jurisdiction. The objection raised is that the specific drain sought to be constructed will have an effect not contemplated by the legislature in the enactment of the drainage law. It is plain that the question of jurisdiction goes to the particular case, and is within the rules above stated. The objection is not that the circuit court of La Grange county has not jurisdiction to direct the construction of a public drain, but that it had no authority to direct the construction of this particular drain. In other words, that while its power to direct the construction of public drains is clear, if a sufficient petition is filed, and the proper preliminary steps have been taken, it erred in the case at bar in holding the petition sufficient, and proceeding on that assumption. While, as we have said, the question of jurisdiction was not raised, either in the circuit court or in the supreme court, the circuit court inferentially affirmed its jurisdiction by taking cognizance of the case, and deciding it. If it erred by so doing, the appellants could only avail themselves of the error by a direct attack. In like manner, this court, by taking cognizance of the appeal and affirming the judgment, inferentially affirmed that the case made by the petition was within the jurisdiction of the circuit court. We find no error in the record.

The judgment might well be affirmed, also, upon other grounds than that the attack upon the judgment is collateral. In our opinion, there was a complete waiver of the question by the appellants by their failure to raise it at the proper time. The rule in such cases is thus stated in McCoy v. Able, supra: "There was here jurisdiction of the general subject,-that is, of the

general class; and, when such jurisdiction exists, specific objections to the jurisdiction must be opportunely made and duly brought into the record." See, also, Elliott, App. Proc. § 776. Objection to the jurisdiction, when objections are necessary to save the question, must be promptly made, or they will be lost by waiver. It must be understood, of course, that we are still speaking of a case where the objection goes to the jurisdiction of the court over the particular case, and not to its jurisdiction over the class of cases to which that case belongs. The conduct of the parties in pursuing the case to final judgment in the court of last resort, without even a suggestion of the jurisdictional question, and raising it for the first time when the judgment of affirmance by the supreme court is spread on the records of the circuit court, is, in our opinion, an entire waiver of the error, if there was any, so that the appellants are not in a situation to raise the question even in a direct attack on the judgment.

Judgment affirmed, with costs.

SONTAG V. BIGELOW et al.1 (Supreme Court of Illinois. June 18, 1892.) COLOR OF TITLE-ADVERSE POSSESSION-TENANTS IN COMMON.

1. A parol partition between tenants in common, followed by possession in conformity therewith, does not give each cotenant color of title to the entire fee of the part held by him.

2. Exclusive possession by one tenant in common is not adverse to his cotenant where he does nothing to apprise his cotenant that he claims the entire fee, except to receive the rents and pay the taxes, even though he acquires during that time title from another source.

Error to circuit court, Monroe county; W. H. SNYDER, Judge.

Ejectment by Walter W. Bigelow and Martha Krueger, heirs at law of Walter Bigelow, Sr., deceased, against Theodore Sontag, Jr. Plaintiffs obtained judgment. Defendant brings error. Reversed.

H. Clay Homer and G. L. Reiss, for plaintiff in error. Hartzell & Sprigg, for defendants in error.

CRAIG, J. This was an action of ejectment brought by Walter W. Bigelow and Martha Krueger, heirs at law of Walter Bigelow, Sr., deceased, against Theodore Sontag, to recover the W. 1⁄2 of the W. fractional of section 4, township 3 S., range 11 W., in Monroe county, containing 58 acres. On a trial of the cause in the circuit court the plaintiffs recovered a judgment for the land described in the declaration, and the defendant sued out this writ of error. For the purpose of establishing title, plaintiffs read in evidence a deed dated December 1, 1853, from James Moore and wife to N. B. Harlow, conveying the S. W. fractional of section 4, township 3, range 11, Monroe county; also a deed dated January 7, 1857, from N. B. Harlow and wife to Alfred and Walter Bigelow, conveying the same land. The plaintiffs then called as a wit

Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

ness Mrs. Means, who testified substantially as follows: "Walter Bigelow was my husband, and was the son of Alfred Bigelow, and was the father of plaintiffs. He died before this suit was begun, leaving Ellen and Martha and Walter Bigelow, his children and heirs. Ellen, the oldest, and Martha, were by a former wife. Walter is my child. Ellen is dead. Walter Bigelow, Sr., went into possession of this tract of land in 1857. He paid the taxes till he died, and I paid them after he died till 1868. I then moved to Missouri, and afterwards returned to Randolph county, Ill. Walter Bigelow, plaintiff, was born in 1862,-April 15th. Alfred Bigelow and Walter, Sr., divided this land shortly after buying from Harlow. I married Walter in 1861, after the land was divided. Walter took the west part, and Alfred took the east part. Walter built house, well, stable, and smokehouse on this land soon after land was bought, and cleared 25 acres There was a dividing fence. Walter and his family occupied this land until 1868, and paid the taxes." For the purpose, we presume, of proving that plaintiffs and defendant claim title through a common source, plaintiffs read in evidence the following deeds: A deed from Alfred and Walter Bigelow and wives to James Cann, of February 5, 1858, conveying S. E. corner of S. W. fractional 4 of section 4, township 3, range 11, containing 29 acres. Also, deed from James Cann to R. L. Bigelow, of October 4, 1858, for 29 acres, in last deed. Also, deed from S. W. Means and wife to Joseph McGregor, of November 16, 1870, for S. W. fractional of section 4, township 3, range 11. Also, deed from J. Robinson and wife to R. L. Bigelow of February 6, 1863, for "our interest in" same land as last-mentioned deed. Also, deed from R. L. Bigelow and wife to N. B. Harlow, of August 15, 1863, for the 29 acres bought by him from James Cann, (above;) "also, the interest of the above-described land, heired by myself and wife; and also the interest deeded me by John Robinson and wife, being the interest of Alfred Bigelow's estate, being 7% acres, the last two interests; the whole tract containing 116 acres. Also, deed from Ezra Bigelow and wife to A. T. Cann, of April 26, 1865, for "all my interest in" said S. W. fractional, etc. Also, deed from A. T. Cann and wife to B. F. Masterson, of April 6, 1866, for "all my interest in" said S. W. fractional 4. "it being my interest, and that I purchased of Ezra Bigelow and wife, being 7% acres, more or less." Also, deed from N. B. Harlow and wife to B. F. Masterson, of November 4, 1865, for the lands deeded grantors by R. L. Bigelow, (see deed above.) Also deed from B. F. Masterson to Theodore Sontag, (defendant,) of March 1, 1867, for the following described premises: "29 acres in the southeast corner of the southwest fractional qr. of section No. 4, township No. three south, range No. eleven west, being the same conveyed to James U. Cann by Alfred Bigelow and others on the 15th day of February, 1858; also 7% acres on the above-described fractional section heired by R. L. Bigelow and John Robin

son and wife in the estate of Alfred Bigelow, deceased; and also seven and acres more or less in the above-described fractional qr. of the above-described section heired by Ezra Bigelow and A. T. Cann in the estate of Alfred Bigelow, dec'd; the whole tract containing 116 acres. "

It will be observed that the plaintiffs did not establish a chain of title from the United States, but the title under which they claim started with a deed from James Moore to Harlow, and this was followed by a deed from Harlow to Alfred and Walter Bigelow. While these two convey. ances did not establish title in Alfred and Walter Bigelow, they were, however, good color of title, which, if followed with seven successive years' possession, and payment of taxes, would ripen into title to the premises; and, as we understand the position of plaintiffs, this is what they rely upon to sustain the judgment. In order to establish title under the act of 1839, three things are requisite: Color of title, seven years' possession of the premises, and seven successive years' payment of taxes by the person in whose name the color of title stands It may be regarded as sufficiently established by the evidence that Walter Bigelow went into possession of the land in controversy in 1857. He continued in possession and paid all taxes until his death, the date of which is not shown. It occurred, however, before the seven years had expired. After his death, his widow and children remained in the possession of the premises, and paid all taxes until 1868, which would make seven years' possession and payment of taxes, and two or three years to spare. But the question arises whether Walter Bigelow and his heirs, while so in possession, and while paying the taxes, had color of title to the entire tract in controversy. Under the deed from Harlow to Alfred and Walter Bigelow, it is plain that Walter Bigelow acquired color of title only to the undivided half of the premises, and upon his death that only descended to his heirs, the plaintiffs, and it nowhere appears that he ever received any other deed of the premises, or any part thereof, from any person. But it is said that, after Alfred and Walter Bigelow received a deed from Harlow, they made a parol partition, under which Walter took the west half and Alfred the east half of the premises conveyed to them, and, under this parol partition, Walter became vested with the color of title to the west half. It is no doubt true, as held in Tomlin v. Hilyard, 43 Ill. 301, and the authorities there cited, that a parol partition between tenants in common, when followed by a possession in conformity there with, will so far bind the possession as to give to each cotenant the rights and incidents of an exclusive possession of his property. But can a parol partition be treated as a deed, and is it sufficient to pass the legal title or color of title, so as to authorize the party claiming under it to maintain ejectment? In the case last cited, it is said, while the legal title might not, perhaps, be considered as passing by such parol partition, unless after a possession sufficiently long

was

to justify the presumption of a deed, yet the parol partition, followed by a several possession, would leave each cotenant seised of the legal title of one half of his allotment, and the equitable title to the other half, and by a bill in chancery he could compel from his cotenant a convey. ance of the legal title according to the terms of the partition. In Shepard v. Rinks, 78 Ill. 188, a parol partition was held to be binding on the parties, and a possession of premises under a partition of that character was held to be sufficient to defeat an action of ejectment. In Best v. Jenks, 123 Ill. 447, 15 N. E. Rep. 173, in a proceeding for partition and assignment of dower, where a parol parti tion of a certain tract of land had been made between a brother and sister, which bad been acquiesced in for a period of 35 years, it was held that the sister was the owner of the portion allotted to her at her death, and that her husband entitled to dower therein. Washb. Real Prop. 685, lays down the rule that a parol partition cannot be effectual unless accompanied by deed, on the ground that the statute of frauds applies; but the author also says, where a parol partition is followed by a possession in conformity with such partition, it will so far bind the possession as to give each cotenant the rights and incidents of an exclusive pos. session of his property. But without citing further authorities we think it is plain, where a parol partition has been made, and the premises occupied accord. ing to the partition by the respective parties, the partition will be valid, and such partition may be set up as a defense, should an action be brought to recover the possession, in violation of the parol partition, and a bill in equity may be inaintained to compel a deed. But in an action of ejectment the plaintiff must recover, if at all, on a legal title, not upon an equity; and we are aware of no case which goes so far as to hold that a plaintiff could treat a parol partition as a deed, and thus recover upon it in an action of ejectment. We entertain no doubt that plaintiffs might maintain a bill in equity for a deed, or, had they been in possession under the partition, they could have relied upon it as a defense; but having lost the possession, we do not think they can in ejectment rely upon a parol partition to establish their title to the premises involved. From what has been said, it follows that plaintiffs recovered the entire premises described in the declaration, when they were only entitled to recover an undivided half.

But it is insisted by the defendant that he established color of title, and possession and payment of taxes for seven suc. cessive years before the action was brought, and the title thus established was sufficient to defeat plaintiffs' action. The defendant first offered in evidence the deeds conveying the premises to him, which had been read in evidence by the plaintiffs. The defendant then offered in evidence: A patent from the United States to Porter, Glasgow, and Nervine, of May 3, 1824, for W. fractional of section 4, township 3, range 11, sigued, "By the

President. J. M. G. G., Commissioner of the General Land Office. (Objected to because not properly signed. Objection sus tained. Exception.) Also, deed from Glasgow and wife (one of patentees) to William Henckler, of April 3, 1873, for patent land above. Also, bill in chancery by Henckler against Porter and Nervine, the other patentees, and others, including defendants and Joseph McGregor, for partition of land in controversy. Decree of March 6, 1874, for partition sale. Also, deed of master in pursuance of said partition decree to defendant, Theodore Sontag, Sr., of April 27, 1874, for W. frac tional of section 4, township 3, range 11. The master's deed is relied upon as color of title. Whether the proceedings which led to the sale and execution of the master's deed conformed to the law or not was a question which would properly arise if the deed had been offered as title; but the proceedings, however defective, would not affect the deed as color of title. Mason v. Ayers, 73 Ill. 121; Hardin v. Gouveneur, 69 Ill. 140; Dickenson v. Breeden, 30 Ill. 326. In the last case cited, after referring to several decisions to establish what kind of an instrument constituted color of title, it was said: "The substance of these decisions is that any deed purporting on its face to convey title, no matter on what it may be founded, is color of title." Here the deed contained a grantor and grantee, and purported on its face to convey the land; and, under the uniform decisions of this court, it constituted color of title. As to payment of taxes the defendant proved that he had paid for a period of at least 10 years from 1875 to 1884, both years included. He also proved possession of the land during the same period.

But while the evidence established color of title, seven years' possession, and payment of taxes, we do not think the possession of the defendant was adverse; and upon that ground he cannot invoke the aid of the statute of limitations of 1839. As has been seen, Alfred Bigelow and Walter Bigelow were tenants in common, and on the 1st day of March, 1867, the defendant, Sontag, acquired the title originally held by Alfred Bigelow through deed from B. F. Masterson. Under this title, he went into the possession of the premises. On the trial in 1889, he testified that he had been in possession 20 or 21 years. From this testimony, it is manifest that the defendant went into the possession of the premises in 1868, the same year the plaintiffs moved away, and went in under the Bigelow title, as he had no other title at that time. He therefore acquired possession of the premises as a tenant in common with the plaintiffs; and, occupying that position, he could not acquire color of title in 1874, and reply upon such title to defeat the plaintiffs. In 1 Washb. Real Prop. p. 656, the author, in speaking in reference to the possession of tenants in common, says: "But their possession being common, and each having a right to occupy, not only will such possession, though held by one alone, be presumed not to be adverse to his co-tenant, but it is ordinarily held to be for the latter's benefit, so far as preserving his title thereto; the possession

of one tenant in common being deemed to be the possession of all." In Brown v. Hogle, 30 Ill. 119, it was held that it was fraud for a tenant in common to permit the land he holds in common with others to be sold for taxes, and he himself became the purchaser for his own benefit. In Busch v. Huston, 75 Ill. 344, this court held, where one tenant in common is in possession of land, it requires clear and satisfactory proof of a subsequent disseisin of a cotenant to characterize his possession as being adverse, so as by lapse of time to bar a right of entry. It is not sufficient that he continues to occupy the premises, and appropriates to himself the exclusive rents and profits, makes slight improvements on the land, and pays the taxes. The same doctrine was announced in Ball v. Palmer, 81 Ill. 370. Here the defendant did nothing to apprise the plaintiffs that he was claiming to be the absolute owner of the entire premises, except to receive the rents and pay the taxes, which in the case last cited was held to be insufficient. Had the defendant, before he went into the possession of the property, acquired title or color of title from a stranger, and entered, claiming the land under such title, then he might properly invoke the statute of limitations as a bar; but he does not occupy that position. He acquired the title of the heirs of Alfred Bigelow, who were tenants in common with plaintiffs, and entered into possession under such title, and, so far as appears, never gave the plaintiffs notice that he was claiming under any other or different title.

From what has been said, it follows that the decision of the court as to the defense of the statute of limitations was correct; but for the error indicated the judgment will be reversed, and the cause remanded.

1. In quo warranto proceedings to determine the validity of the incorporation of a village it may be shown that the territory sought to be incorporated had not, at the time the petition for incorporation was filed, the requisite population. Kamp v. People, (Ill. Sup.) 30 N. Ē. Rep. 680, followed.

2. The irregularity of carrying back to the plea an overruled demurrer to the replication is harmless error, where the replication is good, and defendant elects to stand by his demurrer.

Appeal from circuit court, Calhoun county; GEORGE W. HERDMAN, Judge.

Petition by the state's attorney of Calhoun county for leave to file an information in the nature of quo warranto against Edward B. Poor, Conrad Boede, Bartholomew Day, Logan Gresham, W. R. Hallett, William Cockshat, and James Rosa, charging that defendants were usurping the powers of a body corporate. The petition was granted, and judgment of

Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

ouster was entered against defendants, whereupon they appeal. Affirmed.

J. R. Ward, F. M. Greathouse, and E. A. - Pinero, for appellants. T. J. Selby, for appellee.

WILKIN, J. This proceeding was begun in the court below by petition by the state's attorney of Calhoun county of his own accord, for leave to file an informa tion in the nature of a quo warranto. The information charged that appellants were usurping and exercising the powers of a body corporate and politic, conferred upon cities not exceeding 5,000 inhabitants, by an act of the general assembly approved April 10, 1872, entitled "An act to provide for the incorporation of cities and villages, and the several amendments thereto," in and over certain territory in said county. The petition having been granted, appellants filed what they called an answer, but which was treated as a plea, alleging that, on the 21st day of January, 1889, a petition by at least 30 legal voters, resident within said territory, was filed in the office of the county clerk in said county, petitioning the county judge thereof (setting out the petition, in which it is alleged said territory has resident therein a population of 300) that the question be submitted, etc., whether said territory should be organized as a village; that in pursuance of said petition all the steps required by the statute in such case were regularly taken, resulting in the organization of the village of Hamburgh, of which village they (the respondents) had been duly elected and qualified president, trustees, and clerk. To this plea the state's attorney replied that there was not, at the time of filing said petition with said county clerk, in the territory designated, a resident population of at least 300 inhabitants, as required by the statute, before a village can be legally organized. To this replication appellants filed a general and special demurrer. It appears from the record that the court held the replication good, but, on motion of the state's attorney, carried the demurrer back to the plea, and held it bad; to both of which rulings appellants excepted, and elected to stand by their plea and by their demurrer to the replication; whereupon judgment of ouster was entered against them. From that judgment this appeal is prosecuted.

The question here raised is whether or not, in this quo warranto proceeding, the number of inhabitants residing within the limits of the territory proposed to be organized into a village could be inquired into. This question we have answered in the affirmative in the case of Kamp v. People, 30 N. E. Rep. 680, (filed at Springfield, 1892.) While it was irregular to carry the demurrer to the replication, which had been overruled, back to the plea, appellants having stood by their de murrer to the replication, and allowed judgment to go against them on that issue, and the replication being good, the error in going back to and condemning the plea was harmless. The allegation in the replication that there were not 300 inhabitants residing in the organized territory

was admitted by the demurrer, and the judgment of ouster was therefore clearly right. The case of Kamp v. People, supra, is decisive of this. The judgment of the circuit court will be affirmed.

GREVE et al. v. GoopsON et al.1 (Supreme Court of Illinois. June 17, 1892.) APPEAL WHEN LIES-INJUNCTION.

An order of a judge in vacation, dissolving a temporary injunction, is not appealable, since such an order, even though the bill prays for no relief except an injunction, is not a final disposi tion of the suit.

Appeal from circuit court, Douglas county; E. P. VAIL, Judge.

Bill by Claus Greve and others against Frank Goodson, William Carroll, William Howe, George Neisteil, J. S. Reeder, and Henry D. Jenkins, drainage commissioners, and Thomas S. Wyatt and C. H. Righter, for an injunction. Complainants obtained a temporary injunction, which was afterwards dissolved by an order made in vacation. Complainants appeal. Appeal dismissed.

Craig & Craig, J. M. Newman, for appellants. Eckhart & Moore, for appellees.

WILKIN, J. This is an appeal from an order made by the Honorable E. P. VAIL, one of the judges of the fourth judicial circuit, at his chambers, in vacation, after the October term of the circuit court of Douglas county, dissolving a temporary injunc tion theretofore issued, on a bill filed in said circuit court by appellants against appellees. It is insisted by appellees that the appeal was improperly allowed, and should be dismissed. The position is well taken. The right of appeal is purely a statutory one, and there is no provision of our statute allowing appeals from the orders of circuit judges granting or dissolving injunctions in vacation. The order in such case is not the judgment, or decree of a court, but only the order of an officer of a court, made by virtue of a statute, conferring certain powers upon judges of circuit courts in vacation. Section 32, c. 37, Rev. St., (1 Starr & C. St. p. 710.) By section 1 of the chapter entitled "Injunctions, " a judge of the circuit court may order an injunction to issue in vacation, but no one would think of taking an appeal from an order of that kind, much less from a refusal to grant the writ; and yet there is as much authority of law for an appeal in such cases as in the present one. The fact that the only relief sought by the bill is an injunction gives no additional right to an appeal when the order of dissolution is made in vacation. The order, as before said, is not the order of a court. It is not a final order in the case from which an appeal will lie, because the judge in varation has no power to make such an order. The bill remains pending in the court as before the order was made, and may be acted upon in term time, precisely as though the temporary injunction had not been dissolved. It may be dismissed at complainant's cost, and damages for the

1 Reported by Louis Boisot, Jr., Esq., of the Chicago bar.