for partition should always embrace the whole tract held by the co-tenancy, but it does not follow that those who are mutually desirous of continuing the relation of co-tenants in one tract cannot do so without foregoing their right to a partition of other distinct tracts as to which a partition is desirable. It is true that a few cases may be found which seem to hold that a partial partition is improper under all circumstances, but the decided weight of authority is the other way. (Freeman on Co-tenancy and Partition, sec. 508.) But even if the rule were as the appellants contend, the facts set out in the cross-bill would not bring the case within it. So far as the record shows, the original bill brought all of the real estate of which Benjamin Dickson died seized, under the jurisdiction of the court and prayed partition thereof. The legal title to the eighty acres described in the cross-bill was in Sarah J. Dickson, and had been for a number of years before Benjamin Dickson died. Before a partition of this eighty acres could be had among the heirs of Benjamin Dickson it would be necessary to have the deed of Sarah J. Dickson set aside. This would involve litigation of matters entirely foreign to the right of the widow to have her dower assigned and of the heirs to a partition of the one hundred and sixty acres, the title to which was in no way involved in the complications respecting the eighty-acre tract. In our opinion the circuit court decided correctly in holding that the matters set up in the cross-bill were not germane to the original bill.

By their motion for leave to amend the cross-bill appellants sought to have the mortgage of Augustus apportioned upon the two hundred and forty acres which were included in the mortgage. This amendment the court denied. If it be conceded that the proposed amendment would have obviated the objection to the cross-bill, it was within the sound legal discretion of the trial court to deny the motion, and in view of the fact that the application for leave to amend was not made until some days after the final de

cree had been rendered on the original bill, we cannot say that there was an improper exercise of discretion in denying leave to make the amendment. We do not, however, see how the appellants' position would have been any better if the amendment had been allowed. The mortgagee, of course, has a right to a lien upon all the land included in the mortgage, but he is not insisting upon such right in this proceeding. Appellants have no authority to claim those rights for him. If, as appellants seem to assume, the owners of the eighty acres are liable for some part of the mortgage indebtedness and the same is a lien upon both tracts, they can, after paying the debt, file a bill for subrogation and have the equities of the parties adjusted. Clearly, the court cannot foresee how or by whom the mortgage indebtedness will be paid. It may require all of both tracts, for aught that appears at this time. There was no error in denying leave to make the proposed amendment to the cross-bill.

The decree of the circuit court of Edgar county is affirmed. Decree affirmed.

JOHN SPIERLING, Appellant, vs. THEODORE OHL, Appellee.

Opinion filed February 20, 1908.

RAILROADS-a railroad may acquire fee by deed to land desired for right of way-right of company to sell. A railroad company in good faith attempting to secure a right of way by condemnation may purchase from the defendant the strip of land desired, and if the latter conveys by warranty deed, without restriction or reservation, the company acquires a fee simple title, which it may convey to a third person when the land is no longer needed for railroad purposes.

APPEAL from the Circuit Court of Vermilion county; the Hon. M. W. THOMPSON, Judge, presiding.

J. B. MANN, for appellant:

A railroad company can only acquire land, whether by voluntary purchase or otherwise, for railroad purposes, as defined in its charter. It does not hold land as does the ordinary owner, with the right of using it for any purpose to which it may be adapted or with the right to sell it at the highest price which it may bring in the market. Railroad Co. v. Chicago, 149 Ill. 457.

When land is bought by a railroad company and is used as a right of way, its future use must be for the same and no other purpose. Railroad Co. v. Chicago, 149 Ill. 457.

Where land is acquired by a railroad company for right of way purposes by a deed from the owner pending a proceeding to condemn the land and in settlement of such proceeding, the conveyance cannot be deemed a voluntary one within the meaning of the law, and all of the restrictions as to user and conditions as to reverter attach to the land, the same as though the title had been acquired by the exercise of the right of eminent domain. Railway Co. v. VanHoorebeke, 191 Ill. 642.

The law writes into every deed conveying land for right of way purposes a condition that when its use for right of way purposes is abandoned the title reverts to the grantor. Helm v. Webster, 85 Ill. 116.

BUCKINGHAM & TROUP, for appellee:

The fee of lands taken for railroad tracks without the consent of the owners thereof shall remain in such owners, subject to the use for which taken. Const. art. 2, sec. 13.

Every corporation formed under the Railroad act shall have power to take and hold such voluntary grants of real estate and other property as shall be made to it in aid of the construction and use of its railway, and to convey the same when no longer required for the uses of such railway, not incompatible with the terms of the original grant. Hurd's Stat. chap. 114, sec. 20, par. 2.

A corporation authorized to take and hold land for the purposes for which it was created may take a grant of lands in fee. Commissioners v. Mauran, 5 Denio, 389; Nicoll v. Railroad Co. 12 N. Y. 136; Heath v. Barmore, 50 id. 307; Railroad Co. v. Evans, 72 Mass. 25; Davis v. Railroad Co. 131 id. 258.

When a corporation thus acquires land by a deed purporting to convey a fee and the land is no longer needed for its purposes it may sell and convey it. Yates v. Van de Bogert, 56 N. Y. 525; Railroad Co. v. Evans, 72 Mass. 25; Chamberlain v. Railroad Co. 19 S. E. Rep. 743

A deed to a corporation passes the title if the corporation has power to take and hold real estate for any purpose, and the question whether it exceeded its powers in accepting the conveyance can be raised only by the State. Cooney v. Booth Packing Co. 169 Ill. 370; Barnes v. Suddard, 117 id. 237; Railroad Co. v. Keegan, 185 id. 77; Howell v. Land Co. 73 id. 23; Alexander v. Tolleston Club, 110 id. 65; Cowell v. Springs Co. 100 U. S. 55; Bank v. Matthews, 98 id. 621; Leazure v. Hillegas, 7 S. & R. 313; Dillon on Mun. Corp. sec. 444; Jones on Real Property, sec. 169.

Mr. JUSTICE FARMER delivered the opinion of the court: This was an action of ejectment brought by plaintiff to recover a strip of land 200 feet wide across a tract of land 356.4 feet wide. Plaintiff claimed title in fee. Defendant pleaded the general issue. By agreement of the parties the cause was tried by the court on a stipulation of facts, which was, in substance, that on March 14, 1905, plaintiff owned and was in possession of the lands described in the declaration; that prior to said date the Chicago and Southern Railway Company had filed a petition in the county court of Vermilion county to condemn said land for right of way; that on said March 14, 1905, plaintiff, by a statutory form of warranty deed, conveyed the land described in the declaration to said railroad company for the consideration of

$485, which was paid; that said railroad company took possession of said land under said deed and dismissed its petition, and on June 24, 1906, conveyed said land by warranty deed to defendant, who thereupon took possession and has so remained in possession, and that the defendant has not used, and does not intend to use, said land for railway purposes. Plaintiff asked the court to hold as propositions of law that the railroad company acquired by the conveyance nothing but the right to use the land for right of way purposes, and that its title was the same as if it had acquired the land by the exercise of the right of eminent domain; that upon the abandonment of the land by the railroad company the title reverted to plaintiff; that the law does not permit a railroad company to sell land it has acquired for right of way by purchase, and that when defendant accepted the conveyance from the railroad company he took it with notice of the law governing such transactions. These propositions the court refused, and held in propositions of law asked by defendant that the deed from plaintiff vested in the railroad company a fee simple title, and that the railroad company had a right to sell and convey the same and vest the title thereto in its grantee. No question was raised on the trial whether ejectment was the proper form of action or not. The court rendered judgment for defendant, and plaintiff has brought the case to this court by appeal.

So far as we are informed, this case presents a question that has not heretofore been presented to and passed upon by this court. Appellant relies upon Chicago, Burlington and Quincy Railroad Co. v. City of Chicago, 149 Ill. 457, and St. Louis and Belleville Railway Co. v. VanHoorebeke, 191 id. 633, but the question here presented was not involved in either of those cases.

It will be observed from the stipulation of facts that the deed was the ordinary statutory form of warranty deed, purporting to convey to the railroad company the title in