Penn Mutual Life Insurance v. Heiss

Mr. Justice Shope delivered the opinion of the Court: The principal question presented in this case is, whether the judgments in favor of appellees, severally, were entitled to priority of payment out of the funds produced by the sale of the railroad in the foreclosure proceeding instituted by appellants, or was the lien of the mortgage of July 1, 1882, paramount, and entitled to priority of payment as against those judgments. The court below decreed that the judgments, aggregating $11,205, were entitled to priority, and directed the master to pay the same out of the proceeds of the sale. The Jacksonville Southeastern Railway Company was organized under the laws of this State, to construct, build and operate a line of railway from the city of Jacksonville to the city of Centralia, in this State. It acquired title to an existing railway from Jacksonville to the town of Yirden, and thereupon issued three hundred bonds, of $1000 each, and executed a first mortgage on the road from Jacksonville to Yirden, and upon its projected line from Yirden to Litchfield, to secure the same. Subsequently, on July 1, 1882, it executed the mortgage in question upon all of its line of road then constructed and thereafter to be built from Jacksonville to Centralia, to secure eleven hundred and twenty bonds, of $1000 each, the bonds held by appellants being parcel thereof. These bonds upon their face contained a condition that the trustees therein named, or their successors in trust, might enter upon and take possession of the mortgaged road if the interest provided for therein should remain due and unpaid for six months, or the taxes on the mortgaged property should remain unpaid six months after the same became due, and might declare the principal of the bonds due and payable. By the terms of the mortgage the bonds were to be issued as the work of construction progressed, at a rate not exceeding $10,000 for each mile of completed road. The length of the proposed road was one hundred and ten miles. The road was completed to the city of Centralia from Yirden in October, 1883. By ordinance of the city of Centralia, passed January 10, 1883, the railway company was authorized to lay its tracks upon and along Chestnut street in said city, which was done. Appellees were owners, some in fee and others by leasehold interests, of lots abutting upon Chestnut street, each of.whom, with others, claims that his abutting property was damaged, and, as to appellees Heiss, Prill and Buehler, also that their business then and theretofore carried on on said street was damaged. In December, 1887, and January, 1888, suits were brought by appellees, severally, against the railroad company to recover damages therefor, which resulted in judgments for the plaintiffs. Executions issued upon these judgments, and were returned nulla bona. As will be seen from the preceding statement, these judgments were opened by the chancellor, at the instance of appellants, and such proceedings had as resulted in the several assessments, by a jury, of damages to the property of appellees, as shown by the decree. The authority of the city to authorize the laying of the railroad tracks in Chestnut street, and its use for railroad purposes, is not questioned. The constitution of 1870, article 2, section 13, provides “that private property shall not be taken or damaged for public use without just compensation. Such compensation, when not made by the State, shall be ascertained by a jury, as shall be prescribed by law.” It has, however, been repeatedly held that a railroad company acquiring the right to lay its tracks in the streets of a city is not required to institute condemnation proceedings in respect of damages which may accrue to owners of property abutting such streets, and where no part of the land of an abutting lot owner is entered upon or sought to be condemned for public use, the owner is not entitled to have proceedings instituted under the Eminent Domain law to ascertain what damage his property may sustain in consequence of the construction and operation of a railroad, (Peoria and Rock Island Railway Co. v. Schertz, 84 Ill. 135, Stetson v. Chicago and Evanston Railroad Co. 75 id, 74) but the land owner is remitted to his action at law to recover his damages. The right to recover damages for injury to private property occasioned by the occupation of a public street by a railroad, or the taking of other property for the public use, is secured to the property owner by the provision of the constitution quoted. (Chicago and Western Indiana Railroad Co. v. Ayres, 106 Ill. 511.) And the railroad company will be liable for all. direct physical damages accruing from the construction and operation of such railroad, to such contiguous or abutting owner. Stone v. Fairbury, Pontiac and Northwestern Railroad Co. 68 Ill. 394; Eberhart v. Chicago, Milwaukee and St. Paul Railroad Co. 70 id. 347. We said in the Loeb case, (118 Ill. 203): “The just compensation to be made for damages to land was, in our opinion, intended as an indemnity, not for successive, constantly accruing damages recoverable as they may afterwards be suffered, but for all the damages the land owner may suffer from all the future consequences of the careful and prudent operation of a railroad, it being the immediate damage done to the land owner’s estate by changing its permanent condition and impairing its present value. The action for damages may be regarded as in the nature of one kind of condemnation pro-And-we there held, that under the clause of the constitution of 1870 restrictive of the exercise of the power of eminent domain, in that private property shall not be taken or damaged for public use without just compensation, the proceedings for the recovery of damages for property damaged but not taken should be similarly regarded as the provision in regard to the taking of property, where there is but one proceeding, and an assessment of compensation for damages once for all; and that in cases where no land was taken or appropriated there should be but one proceeding for recovery of damages, “in which there should be recovery for the entire damage, past, present and future.” The constitution of 1848 provided only that private property should not be taken for public use without just compensation, and it was held that damages were not recoverable for injury to private property not touched by the public improvement. To obviate this supposed defect, the constitution of 1870 provided that private property should not be taken or damaged for public use without just compensation. Property is neither to be taken nor damaged without just compensation. Both provisions are of equal importance, and are alike restrictions upon the exercise of the power of eminent domain. It is true, when compensation is not to be made by the State it is to be ascertained by a jury as may be prescribed by law. But it can not be important that the legislature has failed to provide, in the' Eminent Domain act, for the assessment of such damages. The property owner is not thereby left remediless, but may nevertheless have his action at common law, and thereby have his compensation “ascertained by a jury,” as required by the constitution. It became necessary for the legislature, by the Eminent Domain act, to provide for the right of entry upon and possession of the private property of the citizen, and, as a necessary incident, to prescribe the mode of ascertainment of compensation in cases where the property was to be actually appropriated to the public use. But no such necessity existed when there was not a physical taking or appropriation, for the reason that the common law furnished ample means for the ascertainment of the damages done the property not so entered upon or taken. The right of eminent domain is an essential attribute of sovereignty, inherent in every independent government, and to be exercised in the discretion of the sovereign power, to promote the general welfare of the people. The right of the citizen to own, possess and enjoy his property must necessarily give way to the right of the State to appropriate it to public uses, when, in the judgment of the sovereign power, public interest will be promoted. It is universally conceded that railroads are quasi public corporations, and that the taking or damaging of private property for their construction and maintenance is a public use, within the meaning of the constitution. The sovereign power of the State has seen proper, for wise purposes and in the interest of natural justice, to place an absolute restriction upon the exercise of the right either to take or damage private property, that just compensation for the taking or damaging shall be paid. It has been uniformly held in this country, that the compensation need not be paid before the taking,—it is sufficient that provision be made for compensation afterwards, provided the payment be made certain. So enactments providing for taking possession of property sought to be condemned for public use, upon giving bond, etc., have been held valid. The rule is stated by Chancellor Walworth, (18 Wend. 9,) that the compensation must be either ascertained and paid before the property is appropriated, or an appropriate remedy must be provided, and upon an adequate fund, that it may be reached by the owner through the medium of the courts of justice. And in Gardner v. Village of Newberg, 2 Johns. Ch. 162, Chancellor Kent held, that if, in any ease, the government proceeded without taking these preliminary steps, their agents and officers may and should be restrained by injunction. Potter’s Dwarris, 892. It will be unnecessary to pursue this branch of the subject, for the reason that this court is probably committed to the doctrine that injunction will not lie at the suit of the abutting property owner when the entry upon and occupation of the street by a railroad is by the authority of the municipal agency invested with the control of such street. Stetson v. Chicago and Evanston Railroad Co. supra; Patterson v. Chicago, Danville and Vincennes Railroad Co. 75 Ill. 588; Chicago, Burlington and Quincy Railroad Co. v. McGinnis, 79 id. 269; Truesdale v. Peoria Grape Sugar Co. 101 id. 564; Peoria and Rock Island Railroad Co. v. Schertz, supra. It was held in these cases, that the provisions of the Eminent Domain act providing for the recovery of compensation for property damaged but not taken, applied to cases where, a portion of the land having been taken, damages resulted in consequence thereof to the residue of the land of the same proprietor, but the damages resulting to abutting or adjacent lands in consequence of the construction and operation of a railroad upon its own land or upon the lands of another was not within its contemplation, and that the railroad company, having the right to enter upon its own land or to enter upon the street by license, its act of entry, and of constructing thereon its road, was not unlawful, and hence, there being a remedy at law in an action for the damages occasioned, there was no ground for the interference of a court of equity. After citing numerous English authorities it is said in the Stetson case, supra, “the reason given is, the impracticability in many cases of knowing whether damage will be sustained or not, and of measuring it if it were certain, ” until after the completion and operation of the road; and it was further said, that the company was not bound to make compensation for expected damages before it entered upon the work it had a lawful right to perform. “The party will be left to his action. "When he has settled his right to damages, and ascertained the measure in an action at law, if any reason exists why he can not have -execution of the same, equity will assist him, but not before.” Dunning v. City of Aurora, 40 Ill. 480; Bliss v. Kennedy, 43 id. 67. Without pausing to note further the rulings in this regard, or to express our approval or disapproval of the same, it will be seen that the right to recover compensation for such consequential damages as may accrue to abutting property, by the appropriate remedy at law, is clearly recognized, and that the want of power of a court of equity to interfere by injunction to restrain the supposed damaging of such property is predicated upon the impracticability of its ascertainment before the damage has been occasioned, and also a clear recognition of the power of a court of equity to interpose, by way of execution, after the exhaustion of the legal remedy. Many' cases are to be found in the books where the question has arisen as to the right of compensation to the land owner where his land has been taken and appropriated, and between the owner and incumbrancers or alienees of the railroad and its franchise and property, and the uniform holding has been, unless the owner has done some act amounting to a waiver of his right to compensation, or by which he is estopped from asserting it, that his right to compensation remains unaffected by the alienation. In many of the cases the right is placed upon the ground that, the compensation not having been paid, the title to the land sought to be taken remains in the original proprietor, and that ejectment will lie at his suit to recover the land, or, where the -amount of compensation has been ascertained by condemnation proceedings, it may be treated as a forced sale of the land, and a lien in the nature of a vendor’s lien enforced against the property. The right to compensation, before the owner can be deprived of his property, being secured by constitutional provision, such title can not be divested, except upon payment of the compensation, (or its equivalent,) by any act of the legislature or of the railroad company, and an alienee or incumbrancer thereof will take cum onere the right of the owner to compensation, and is not, therefore, an innocent purchaser. Rio Grande Railroad Co. v. Ortoz, 75 Texas, 602; Howe v. Harding, 76 id. 17; Borough of Easton, 47 Pa. St. 255; Lycoming Gas and Water Co. v. Moyer, 99 id. 615; Western Pennsylvania Railroad Co. v. Johnson, 59 id. 290; Drury v. Midland Railway Co. 127 Mass. 571; Mims v. Macon Railroad Co. 3 Ga. 333; White v. Nashville Railroad Co. 7 Heisk. 518; Lake Erie Railway Co. v. Griffin, 107 Ind. 464; Pfeifer v. Sheboygan Railroad Co. 18 Wis. 164; 28 id. 317; Adams v. Railroad Co. 57 Vt. 240. A careful study of these and like cases will disclose with what care and pertinacity the courts have sought to protect the constitutional right of the citizen against encroachments upon his property without indemnity against loss, by reason of the appropriation of his property to a public use. It is said in this case, however, that the doctrine of these cases does not apply, for the reason that the title of appellees to their property is unaffected, and it is not sought to interfere with their right of possession or occupancy, and therefore, no right in their property being sought by the railroad, no lien can be declared in their favor for the consequential damages resulting to such property by the building and- operation of the railroad. It must be conceded that the right of appellees, here, can not be predicated upon any supposed sale of their land, so that, by analogy, a vendor’s lien might be declared in their favor. Nevertheless, there is a forced deprivation of property or damaging of property of the abutting owners without their consent, by reason of the appropriation of the street to the particular public use, and there is, therefore, in every just sense, a taking of the private property of the abutting owner to the extent to which it is thus damaged. Property consists, not of the physical thing of which it is predicated, but in the dominion that is rightfully and lawfully obtained over it,—the right to its use, enjoyment and disposition. If a railroad company, by building its road upon the street fronting upon a lot, reduces the value thereof from $5000 to $3000, it has as certainly taken from the owner $2000 of his property as if it had occupied a strip of his land of that value,— and this seems to be the current of later authority, (Lewis on Eminent Domain, secs. 53-59, and cases cited; Rigney v. City of Chicago, 102 Ill. 64.) But for the consent of the city, a mere instrumentality of government, to the occupation of this street by the railroad company, it must have acquired such right under the Eminent Domain laws of this State, and it can not affect the right of the abutting owners to compensation, that the street is appropriated to the public use by the railroad by consent of the government, instead of having been acquired by another exercise of its sovereign power. It is not, however, as we have already seen, an open question in this State, that adjacent lot owners may recover damage occasioned by the building and maintaining of a railroad in the streets of a city by and with the consent of the municipal authorities,—that is, that damages not common to property in general, resulting to abutting property from the appropriation of the street by the railroad, is damaging private property within the purview of the constitutional provision before quoted. (Rigney v. City of Chicago, supra; Chicago and Eastern Illinois Railroad Co. v. Loeb, supra.) And private property is, by the constitutional guaranty, secured against being thus damaged for such public use without compensation. Therefore to hold that a railroad may occupy the streets of a city, and thereby damage the private property of abutting or adjacent lot owners, and by reason of alienation or its insolvency may continue the occupancy and infliction of the injury without indemnifying such owner, is to render the constitutional provision nugatory, and the safeguards specifically intended by the people to be thrown around the citizen in the protection of the right of private property is rendered of no-avail. It may be, as we have before seen it has been held, that the citizen is remediless until the damage has actually occurred, and by appropriate remedy he has determined the-extent and amount thereof; but when the damages are ascertained in the mode provided by law, the right of the lot owner to the payment of the same, as compensation, is guaranteed to him by the constitution as a condition to the continued appropriation of the street to the public use, whereby the injury to his private property is inflicted. As we have seen, it is not in the power of the railroad, by alienation or otherwise, to defeat this constitutional guaranty, and the alienee, purchaser or successor will be required to-take notice of the provisions restricting the power to take or damage private property for public use, and be held to take subject to the burthen cast upon the railroad by, through or under which the interest is acquired. It by no means follows, as seems to have been supposed in some of the cases, that a right of action would exist against the new company, who-might, as successor to the original railroad company, become- . possessed of the franchise and property; but when a mort(gagee or a successor company insists upon a continuation of the use, or where there is an appropriation of that part of the-railroad whereby the damage has been occasioned, the right-of the lot owner to compensation out of the res is absolute. It is said, however, that appellants, mortgage bondholders, are innocent purchasers of the bonds, without notice of any equities in appellees,—that the mortgage by which the bonds purchased by them are secured, is prior, both in date of execution and recording, to the judgments of appellees, and to the accruing of the damages for which the judgments were rendered. It is true, as we have seen, that the mortgage was executed July 1, 1882 and that the road was not constructed along the street in question until October, 1883. and that the damage suits were not brought until in 1887, and judgments not recovered until August, 1888. If these bondholders were not required to take notice of the rights of appellees, and it is-necessary to bring notice home to them, evidence thereof is-not wanting in this record. They were notified upon the face-of the bond and mortgage that the bonds were issued upon an unfinished line of road, and that they were to be issued attire rate of $10,000 a mile, as the projected line of railroad was completed. The mortgage executed to secure these bonds-was made to cover, not only the small portion of the road then-constructed, but - the franchise and property of the railroad company then owned or thereafter to be acquired, and the projected line of road as it might be completed through to-the city of Centralia. It was apparent on the face of the security that the railroad and property of the company then in existence were not intended as the sole security for these-bonds, but the security was to be appreciated and perfected by the acts of the railroad company in the building and completion of the railroad. Every person buying these must be presumed to have known that the right of way must-be acquired in some of the recognized modes known to the-law, and that when the road was built through cities, ages might be thereby occasioned. They were bound to take notice of the provisions of the constitution of the State, and of the rights of all persons whose property was taken or damaged in the completion of this public work, to just compensation for such taking or damaging. It is apparent, therefore, that in respect of priority over the judgments of appellees, appellants are in no better condition than they would have been had the mortgage been subsequent, to the accruing of the damages or the rendition of the judgments. It can no more be said that the fact that the bonds were executed at a date prior to the building of the road will entitle them to-priority against persons whose property was damaged for the public use, than it could be that they are entitled to priority as against persons whose lands may have been taken and appropriated to the public use,—and in the latter case it will not be contended that the mortgage would have priority. The railroad company was, in a sense, agent of the bondholders to perfect their security, and the latter must be held bound by the acts of the company in respect of the completion of the projected road, so far, at least, as such acts can be held to have been clearly within the contemplation of the parties in appreciating and perfecting the security. By the original bill it was sought to subject the corpus of the railroad to the satisfaction of these judgments for damages. The bondholders and trustees having been made parties, answered, setting up their bonds and mortgage, the bonds having been declared due, as might be rightfully done, for the non-payment of the interest, filed their cross-bill to foreclose the mortgage, and insisting upon the priority of the mortgage over the judgments. The foreclosure was decreed, and the question sharply presented was, as to the right of appellees to satisfaction of their judgments out of the proceeds of the sale of the property. It is apparent that appellants were seeking to avail of the security as it had been perfected by the railroad company. This, appellants could not do without incurring the obligation to discharge the liability of the railroad to appellees. It was necessary in the completion of the road, in the exercise of the discretion committed to the railroad company, to procure the right of way in Chestnut street, which was-done, and the road constructed therein. The road thus constructed formed parcel of the security which appellants were seeking to avail of. Before they could do this, as we have seen, the railroad company was required to pay the damages occasioned to appellees by the building of the railroad and the continued use of the street for that particular public use, which was guaranteed to appellees by the organic law of the land. It is not necessary, as seems to be supposed, that we should hold that a lien was created by the constitutional provision for the damages to abutting property. It is sufficient that appellees were possessed of superior equities, and entitled to be first paid out of the proceeds of the sale of the property. The right to the continued use and enjoyment of the railroad upon Chestnut street, and its availability, therefore, as security to the bondholders, depended upon the payment of compensation to appellees, as ascertained by law. We therefore hold .that the court did not err in decreeing that the damage to abutting property owners, appellees, should have priority of payment out of the proceeds of the sale of the railroad under the decree of foreclosure. . There are some minor contentions which we deem it necessary to notice. It is insisted by appellants that the judgment in favor of Yortride, administrator of the estate of Minnie Yortride, deceased, is erroneous, in that the right of action survived to the heir, and not to the administrator. The suit was originally brought by Minnie Yortride, as owner of the abutting property damaged, and she having died pending the suit, her administrator was substituted as party plaintiff; and the same question is raised in respect of the judgment in favor of Barbara Widmann, administratrix of the estate of Phillip Widmann, deceased. It is conceded that the cause of action accrued during the lifetime of the decedent owners, and the question is, to whom did the action survive? As we have before seen, the recovery in this class of actions, where the structure from which the injury flows is permanent in its character, and the damages therefore permanent, should and may be for all damages arising therefrom, past, present and prospective. It was said in Ohio and Mississippi Railway Co. v. Wachter, 123 Ill. 440, that the decisions of this court go to the length of holding “that all special damages, present and prospective, to the owners of lands, resulting or to result from properly constructing, maintaining and operating a railroad under the laws of this State, constitute, as to such land owner, one single, indivisible cause of action,- which may be enforced under the Eminent Domain act, or any other appropriate form of action.” It is also there held, that when, after such right of action has once accrued, the land is conveyed to another, the latter can maintain no action for damages -which could have been anticipated and allowed as prospective damages in a suit which the grantor might have brought. The right of action accrued in this case when the railroad was built and put in operation. (Chicago and Eastern Illinois Railroad Co. v. Loeb, supra; Wabash, St. Louis and Pacific Railway Co. v. McDougall, 118 Ill. 229; Chicago and Evanston Railroad Co. v. McAuley, 121 id. 160.) And it does not appear, from the record, that any element of damage or depreciation in value of the property entered into the judgments, other than that for which the right of recovery existed in the lifetime of the owners. The right of action was then a personal right, unassignable by conveyance of the land, and it could be enforced by the owner of his personal representatives, only. (1 Chitty’s Pl. 177.) It would not pass with the land to his grantee, devisee or heir, and, surviving under the statute, the suits were properly prosecuted in the name of the personal representative of the deceased owner. It is next insisted, the court erred in instructing the juries called to assess appellees’ damages, under the order of court, opening the judgment, and providing for the trial of the issues of fact as to such damages. It is sufficient to say that, taking the series of instructions together, the law was given in each case with substantial accuracy. No good purpose can be served by an extended discussion of the various points made. Moreover, the verdicts of the juries, while not perhaps advisory to the conscience of the chancellor, merely, as in ordinary submissions of issues of fact out of chancery, were nevertheless peculiarly under the control of the chancellor, and upon :a consideration of the whole case he could reverse or, set them aside. If, therefore, upon consideration of the whole case, it is found that the verdicts were warranted by the proofs, error in instructions would not necessarily reverse the judgments. But as before said, we find no substantial error, either as to the law as given by the chancellor to the jury, or in the verdicts upon the evidence submitted. The particular objection to the instructions, however, seems to present the question as to whether the recovery should be limited to the damages accruing at the time of the completion of the road or within a reasonable time thereafter, or whether the jury would be at liberty to consider the actual depreciation from the location and operation of the road to the time of bringing the suits. As we have seen, the right of action accrued upon the happening of the injury, occasioned; by the completion of the road, to recover not only present but prospective damages. It by no means follows that because the right of action then accrued it must then be enforced. The action may, under the statute, be brought at any time within five years from the accruing of the right, and the railroad company, or appellants, can not complain that the plaintiff has waited until his damages have become susceptible of absolute proof before bringing his action, instead of resorting to proof of prospective damages. The authorities are, that whenever the suit is brought, if within the Statute of Limitations, proof may be made of the permanent damages to the property, and the recovery being once for all, may include all damages flowing from the location and ordinarily skillful operation of the road. It is also said that the court erred in instructing the jury as to the measure of damages to the leasehold interest and business of appellee Buehler. The court instructed the jury, at the instance of appellants, in respect of the loss to his business, that “the measure of.his recovery is limited to the loss of probable profits of his business, if any shown by the evidence, from the time of the construction of the railroad track on Chestnut street, and its operation, and such time as the plaintiff might, in- the opinion of the jury, from the evidence, by the use of reasonable diligence, have procured another place of business equally eligible for the transaction of business of the kind he was engaged in, including a reasonable time for removal to the same.” This instruction, it is conceded, lays down the correct rule. It is, however, said, that the instructions given for appellees were in conflict with this instruction. We have carefully examined the instructions, and there is nothing that, in our judgment, conflicts with the principle announced in the instruction quoted, or to indicate that the jury did not follow it in considering the evidence and making their finding. Other minor objections were insisted upon, but, as before said, we find no prejudicial error. It is next insisted that appellee Heiss is estopped from claiming damages to his property by reason of the location and operation of the railroad in Chestnut street, because it was thus located, as it is claimed, by his invitation. The rule as laid down by Mr. Lewis (Eminent Domain, sec. 120,) is: “Where the owner of property urges or induces a railroad company to locate its road upon the adjacent street, he will, after the invitation has been acted upon, be estopped from claiming damages or enjoining the operation of the road.” And the same principle has found recognition by this court in Illinois Central Railroad Co. v. Allen, 39 Ill. 205, and Toledo, Wabash and Western Railway Co. v. Hunter, 50 id. 325. It appears that Heiss attended meetings of citizens called for the purpose of devising ways and means to procure the building of the road to Centralia, and it is shown by Huisseller, a member of the city council, that his recollection is that Heiss asked bim to vote for the ordinance granting the right to the railroad company to locate their railroad on- Chestnut street, and that afterwards Heiss & Son, of which firm appellee was a member, subscribed $ 100 toward the cost of building a depot at Centralia, a fund having been raised therefor by the citizens as an inducement to build the railroad to Centralia. In respect of the latter, it is clear that it had nothing to do with the location of the road on the particular street in question. The line had been located for a year before that time, to Centralia. Moreover, Heiss & Son, who thus subscribed, are allowed nothing by the decree. If it be regarded as true that Heiss urged the member of the city council to vote for the ordinance, it does not appear that his vote was necessary to its passage, or that the ordinance would not have been passed but for his action. We are of opinion that it can not be said that the railroad company was induced to locate its road upon Chestnut street by the invitation of Heiss. To create the estoppel there must be some affirmative act by the person sought to be estopped, in reliance upon which the company has acted to its prejudice. It was not error for the court to open the judgments and require a re-assessment of the damages by a jury. The original judgments had been entered by default against the railroad company, only. If appellants were liable, or the property in their hands liable to be subjected to damages which had accrued to appellees, it was only for damages actually sustained, and as to such damages appellants were not bound by the original judgments. We find no error in this record for which the decree should be reversed, and it is accordingly affirmed. Decree affirmed.