When this case was before this court, on a former occasion, the decree was so far affirmed as it related to the lands foreclosed by scire facias, and as to the other lands embraced in the decree, it was reversed and remanded for further proceedings. Before a second trial was had in the court below, appellees applied for and obtained leave to amend their answer. By it, as amended, title to the premises in controversy, is alleged to be in the executors of David Lee, deceased, and that the taxes upon the same had been paid in their name, for the full period of seven years, prior to the-institution of this suit. On the hearing, they were permitted to introduce evidence to prove these allegations, in addition to the evidence heard on the former trial.
It is insisted on the argument, with great apparent earnestness, that the trial of the cause in this court, at a former term, is conclusive upon the parties. That when the case was remanded, the court below had no power to allow an amendment of the pleadings, or to receive additional evidence. That by that decision, the rights of the parties are fixed, and the Circuit Court was only authorized to enter a decree in conformity to the rules announced in the opinion, upon the record as it then stood. The fifty-second section of the Practice Act provides, that “ The Supreme Court, in case of •a partial reversal, shall give such judgment or decree as the inferior court ought to have given; or remand the cause, to the inferior court for further proceedings, as the case may require.” This record presents the question of what is the true construction of this provision. In cases of partial reversals, it requires, that this court shall give such judgment or decree as the case may require, or remand it for further proceedings. On the previous trial, the court deemed it improper to render a decree in the case, but regarded it as equitable, and conducive to justice, .that it should be remanded for further proceedings.
The whole question grows out of the fact, that the directions to proceed are general. If these general directions to the court below, limit its power only to act upon the record of the case, as it then existed, under the rules announced in the opinion, then the amendment of the answer, and the reception of additional evidence, was unwarranted. That the court below, is concluded by the legal principles announced by the appellate tribunal, is undeniable. But it by no means follows, that other facts may not be proved, within the principles announced, and amendments made which obviate objections to granting the relief sought, or to the allowance of a defense interposed. It is conceded, that this court possesses the power to allow them to be made, but it is denied that the previous decision permitted them in this particular case.
Where the decree is affirmed, in all its parts, the controversy is at an end. In such a case, the Circuit Court has no power to allow amendments of the pleadings, or to alter or change the decree. It can only proceed to have it enforced, according to its terms and conditions. Where the decree is reversed, and the cause is remanded with specific directions, the court below has no discretion, but must pursue the- mandate of the appellate court. If such instructions were not observed, it would be error, for which the second decree would be reversed on appeal.
Why remand the cause upon reversal, for further proceedings ? Most assuredly that justice may be attained. If such was not the design, why not require this court to enter a final decree on the merits, granting such relief as the record disclosed the party entitled to, or dismissing the bill ? If on the trial in the appellate court, it appeared by the evidence that the complainant was entitled to relief not sought by the bill, or the defendant to a defense not set up by the answer, that the cause on a reversal might be remanded, amendments made, and justice done to the parties. The uniform practice in courts of chancery has been,, when a demurrer has been sustained, to exercise a discretion, either permitting an amendment, or to dismiss the bill. The great object of instituting courts is the attainment of justice, and in effectuating that object all reasonable and proper amendments should be allowed, especially in courts of equity, where amendments have always been more liberal than in courts of law.
Appellate courts have always exercised a discretionary power, on a reversal, to allow amendments, when it is seen that they are required to promote justice. And this is done without any special application for that purpose. When a reversal of the decree or judgment occurs, the judgment of the court below, as to the parties to the record, is entirely abrogated, and the cause then stands in the court below precisely as if no trial had occurred. The case is then remitted to that court in precisely the same condition, in all respects, as it occupied before the trial in that tribunal. The decree, by its reversal, is in effect expunged from the record. And the court below has the same power over the record which it possessed before its decree or judgment was rendered. It then follows, that where a decree is reversed, and the cause is remanded without specific directions, the Circuit Court has the power to allow amendments to the pleadings, and to permit the introduction of other evidence.
This record discloses nothing from which it can he inferred, that the partition of N. E. 20, 39 N., 14 E., was in any respect irregular. The proceeding was .commenced by Lee, and the partition completed in his lifetime, and no exception was taken to its sufficiency. All the taxes accruing on Lee’s interest in this tract, after he acquired the fee, were paid in his name, until his death, and in the name of-his executors after his death, until this suit was instituted. The legal title to the portion allotted to Lee, was vested in them by Lee’s will, and thus the color of title and the payment of all taxes concurred in the same persons for more than seven successive years, and rendered the bar of the statute complete. So far, then, as these premises are concerned, the objection that deeds were not interchangeably made by the parties, to complete the partition, does not apply, as no such omission appears from the record. The bar of the statute, as to these premises, seems to be complete, and the court did right in dismissing the' bill as to this tract. a
The proceeding against the heirs and executors of David Lee, for a partition of the S. W. 20, 39 N., 14 E., was in equity. Commissioners were appointed, who divided the tract, made a report of their proceedings, which was confirmed by the court, and the parties decreed to hold the portions allotted to them in severalty. But. deeds were not decreed or executed by the parties to the proceedings. The commissioners set off to the heirs of Lee, portions equal to one-half of the tract. Whilst this was, in equity, a good and sufficient partition, which a court of chancery will recognize and enforce between the parties to the bill, it was not such a partition as vested in the parties the legal title to the shares assigned to each of them, for the want of mutual releases. It is the settled doctrine of the courts, that to vest in the parties the legal title to the shares allotted to each, they must execute releases for the portions not assigned to them.
But if this was a sufficient partition to create a statutory bar in equity, still the other statutory requirements are wanting.
Taxes were paid on the undivided half of this tract, in the name of Lee, after he acquired title, and in that of his executors for six years. After the partition was made, the taxes were paid in the name of the executors on the whole of that portion assigned to the heirs of David Lee. It will therefore be observed that the payment of the taxes concurred with the legal title for seven successive years. It concurred for six years with the legal title on the undivided half of the entire tract, and with that title to an undivided half of the portion allotted to Lee’s heirs, during the full statutory period. The legal title, as we have seen, still being in Lee’s executors, the statute had operated as a complete bar to the half of the portion set off to the heirs of Lee. The payment on the whole of that portion was sufficient to create the bar to the undivided half. Dawley v. Van Court, 21 Ill. 463. But as to the remainder of the portion assigned to them, there has not been seven years payment of taxes concurring with color of title.
In the other undivided half of the portion set off to Lee’s heirs, complainants have no claim, as their title does not purport to embrace it, nor do they, by the bill, claim any right as to that portion. Nor can the court decree a redemption of the undivided half of the other portion, inasmuch as it appears that other parties claim by the partition to have acquired rights and interests, and they have the right to be heard. And the bill fails to make them parties. Whether they have a defense, cannot be known until they have been brought before the court, and had an opportunity to be heard. It would have been manifest error to have authorized a redemption of the half originally owned by Lee, embraced in the half allotted to his heirs, as the bar of the statute was complete to protect it; and equally so, to have authorized a redemption of his original half in the remainder, because other parties claim an interest in, or title to that portion, who have not been made parties to this bill.
The decree is affirmed. Decree affirmed»