Dunn v. Berkshire

• Citation: 51 N.E. 770,175 Ill. 243
• Parties: DUNN et al. v. BERKSHIRE et al.
• Decision Date: 24 October 1898
• Court: Supreme Court of Illinois

175 Ill. 243

51 N.E. 770

DUNN et al.

v.BERKSHIRE et al.

Supreme Court of Illinois.

Oct. 24, 1898.

Error to circuit court, Champaign county; Francis M. Wright, Judge.

Bill by Mary F. Dunn and others against Jesse B. Berkshire and another. From an adverse decree, complainants bring error. Affirmed.Cunningham & Boggs, for plaintiffs in error.

F. M. Green, for defendant in error.

This was a bill in equity, filed by plaintiffs in error, praying for the partition of certain lands lying in Champaign county, Ill. The bill set forth that Elizabeth Berkshire died seised of an undivided one-half interest in certain lands about 1863, and that in February, 1896, Greenbury Berkshire, her husband, died, testate, seised in fee simple of the other one-half interest, and also of other lands, including the 40 acres in controversy. The bill alleges further that Greenbury Berkshire left an instrument in writing purporting to be his last will and testament, but that at the time of its execution he was not of sound mind and memory, and prayed that it be set aside, and for division and partition of the premises. The inabilityof the testator to execute a will was admitted by all parties interested, and did not become a contested issue. An answer was filed by the defendant Jesse B. Berkshire, admitting the material allegations of the bill as to the death, heirship, and rights and interests of the parties, but averring, as to the S. E. 1/4 of the S. W. 1/4 of section 8, township 20 N., range 10 E. of the third P. M., that Greenbury Berkshire at the time of his death had no interest whatever in said lands, but that the same belonged to him (the defendant). Thereafter he filed his cross bill, which, as counsel for plaintiffs in error say, ‘contains the following averments, which constitute, with the answer thereto, the only controversy in this cause.’ These averments were that at the time of his death Greenbury Berkshire had no interest in this land, but that it belonged to defendant in error, and that he obtained title thereto by paying for it with his own money; that in the year 1873 he was requested by his father to take possession of, cultivate, improve, and purchase said 40 acres; that he was then residing in the state of Missouri, and at the request of his father he came to Illinois, and settled upon and took possession of this 40 acres, and paid his father the purchase price thereof, and continued in possession until the time of the filing of the answer and cross bill; that the father, Greenbury Berkshire, told the defendant in error, his son, repeatedly, that the land belonged to the son, and that he would make him a deed for it, but that defendant in error, being in no hurry for the delivery of the deed, allowed the matter to run along until his father unexpectedly and unfortunately became deranged, and his mental condition so much impaired as to render him incompetent to transact ordinary business, wherefore he could not deliver to defendant in error a deed for such land. An answer was filed to this cross bill, denying the material allegations of it, and specially pleading the statute of frauds and the statute of limitations. Replications being filed, the cause was referred to the master in chancery to take proof and report his conclusions of law and fact. The master's report found the rights and interests of all the parties as set forth in the amended original bill, and recommended partition and division of all the premises, including the 40 acres claimed by Jesse B. Berkshire, and recommended also that the cross bill be dismissed for want or equity. Objections were filed to this report by the defendant in error, he contending that the master should have found him to be the owner of the 40 acres in question. These objections were overruled by the master, and were renewed by way of exceptions on a hearing of the cause. The circuit court sustained the exceptions, and overruled the report of the master in so far as it related to this 40 acres, and found that defendant in error Jesse B. Berkshire was entitled to the relief prayed for in his cross bill, and by decree ordered that the master in chancery execute a deed to him for this land, and directed that the remainder of the premises be partitioned among the parties as prayed for in the original bill. Commissioners were appointed to make partition and assign dower. Upon the coming in of the commissioners' report making partition, complainants' solicitors moved that their fees be assessed by the court, and apportioned among the parties as a part of the costs of such proceeding, which motion was overruled by the court, and a decree entered approving the report of the commissioners and confirming title. To reverse the finding and decree of the circuit court in so far as the same relates to the S. E. 1/4 of the S. W. 1/4 of said section 8, and to the overruling of the motion for the taxing of solicitors' fees, this cause is brought to this court by plaintiffs in error.

PHILLIPS, J. (after stating the facts).

It is urged first by plaintiffs in error that the evidence does not sustain the cross bill, and the decree entered by the trial court. The evidence was of a voluminous and varied character. A full discussion of it would require much space, and serve no better purpose than a brief statement of its substance.

Defendant in error in the year 1873 resided in the state of Missouri, and in the fall of that year, at the request of his father, returned to Champaign county, Ill., and took possession of the 40 acres in question. At that time the improvements were meager, and the land not valuable. This land had been purchased from the Illinois Central Railroad Company about the year 1869 for $390, to be paid in annual installments. The payments were completed in 1869, and a deed issued at that time. The deed was executed to Greenbury Berkshire. It is...