50 N.E. 182 (Ill. 1898), Scharpf v. Schmidt

Citation:50 N.E. 182, 172 Ill. 255
Opinion Judge:[172 Ill. 257] CARTER, J.
Party Name:SCHARPF et al. v. SCHMIDT et al.
Attorney:[172 Ill. 256] Johnson & Morrill, for appellants. Moran, Kraus & Mayer, for appellees.
Case Date:April 21, 1898
Court:Supreme Court of Illinois

Page 182

50 N.E. 182 (Ill. 1898)

172 Ill. 255

SCHARPF et al.

v.

SCHMIDT et al.

Supreme Court of Illinois

April 21, 1898

Appeal from superior court, Cook county; N. C. Sears, Judge.

Bill for partition by Johann Ludwig Scharpf and others against Sophie Scharpf Schmidt and others. Judgment for defendants, and complainants appeal. Reversed.

[172 Ill. 256] Johnson & Morrill, for appellants.

Moran, Kraus & Mayer, for appellees.

[172 Ill. 257] CARTER, J.

This was a bill for partition, filed January 27, 1897, by Johann Ludwig Scharpf, Marie Katherine Hafner, and Sophie Friederike Winter against appellees, praying for partition of lot 7, in block 1, of Herdien, Hoffiund & Carlson's North Shore addition to Chicago, the same being a vacant lot on Columbia avenue, in said city, having a frontage of 50 feet and a depth of 133 feet. The bill alleged that Johann Christian Scharpf, who was the owner of said lot, died intestate August 2, 1894, unmarried and childless, leaving him surviving as his only heirs at law the complainants and defendants to said bill. The complainants are a brother and two sisters of the deceased, and the defendants are Sophie Scharpf Schmidt, a sister, Charles H. Lellman, Jr. (grantee of Albert Scharpf, a brother), three children of John Scharpf, another brother, and the unknown heirs and devisees of Christine Rosine Seffens, another sister. The appellants and Albert Scharpf are all aliens, and subjects of the king of Wurttemberg and of the emperor of Germany, and could not acquire any real estate by descent, under the provisions of the alien land act of 1887, but claim the right to sell the land and withdraw the proceeds thereof by virtue of article 2 of the treaty of 1844 concluded between the United States and the king [172 Ill. 258] of Wurttemberg, which article is as follows: 'Where, on the death of any person holding real property within the territories of one party, such real property would, by the laws of the land, descend on a citizen or subject of the other were he not disqualified by alienage, such citizen or subject shall be allowed a term of two years to sell the same, which term may be reasonably prolonged, according to circumstances, and to withdraw the proceeds thereof without molestation, and exempt from all duties of detraction.' Treaties and Conventions U.S., etc., p. 1144.

To bring themselves within the provisions of the treaty, appellants allege that proof of heirship was not made in the probate court of Cook county until July 24, 1896, and that by the taking of such proof they were for the first time advised as to the names of the heirs of Scharpf; that they were and have been unable to sell their interest in the lot until the expiration of the statutory period of two years after the grant of letters of administration for filing claimes, which letters were granted August 22, 1894, for the reason that it was impossible to know what liens might exist against the property; that, after having ascertained the names of the heirs after proof of heirship was made, they have negotiated with them for a sale of the lot, but have been unable to reach any agreement; that they have frequently applied to the heirs to join in a partition or sale, but that they have refused to do so, alleging as reasons the minority of one of the heirs and the impossibility of obtaining any conveyance from the unknown heirs and devisees of Seffens; that it has been impossible to find a purchaser for their undivided three-sevenths of the lot who was willing to pay any substantial consideration for such fractional part of the lot. Demurrers by several defendants were sustained to the bill, and the court dismissed the bill for want of equity. Complainants have appealed to this court.

Page 183

[172 Ill. 259] That the act of 1887 is suspended by the treaty with Wurttemberg during the time limited in said treaty, and that such treaty was not abrogated by the absorption of that state into the German Empire, and is...

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