Alexander v. Hoffman

• Decision Date: 30 September 1873
• Citation: 1873 WL 8559,70 Ill. 114
• Parties: GRANVILLE W. ALEXANDERv.FRANCIS A. HOFFMAN et al.
• Court: Illinois Supreme Court

70 Ill. 114

1873 WL 8559 (Ill.)

GRANVILLE W. ALEXANDER

v.FRANCIS A. HOFFMAN et al.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

This was a bill in chancery, filed by Granville W. Alexander against Francis A. Hoffman and the heirs of Andrew J. Miller, deceased, for specific performance. The opinion of the court states the substance of the leading facts.

Messrs. GOOKINS & ROBERTS, and Messrs. LAWRENCE, WINSTON, CAMPBELL & LAWRENCE, for the appellant.

Mr. OBADIAH JACKSON, for the appellees.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was a bill in chancery, filed by appellant against appellees, to enforce the specific performance of a contract for the sale of a certain tract of land, in Chicago.

It is alleged in the bill, that Hoffman, who held the land in trust for one Andrew J. Miller, on the 16th day of October, 1854, sold it, by contract in writing, to one John Ades, for $1200, $400 paid down, $400 to be paid in one year, $200 in two years, and $200 in three years; property to be conveyed on payment of the purchase money; that Ades paid the purchase money to Hoffman and to Miller. It is also alleged, that Joseph G. Alexander, in 1858, recovered a judgment in the Cook County Court of Common Pleas, against Ades; that an execution was issued on the judgment, upon which the land was sold by the sheriff to one Daniel B. Heartt, and, not having been redeemed, it was deeded to him by the sheriff; that Heartt conveyed to appellant.

This bill was filed May 27th, 1869. The answer admits Hoffman held the legal title, but that he held it as security for money Miller had borrowed of him; denies all knowledge of the contract between Hoffman and Ades; avers, if any such contract was made, it was long since abandoned by Ades, and forfeited and cancelled by Hoffman; insists that Ades is a necessary party to the bill, and the rights of the defendants can not be adjudged without he is made a party; denies all knowledge of the judgment or sale thereunder. The answer further states that, from 1852 until the time of his death, Miller was in possession of the property, claiming it as his own, and paid all taxes thereon; that appellees, his heirs, since his death, have continued in possession and paid all taxes, and are still in possession, claiming the land; insists that, from lapse of time, complainant's claim is stale, and, on that ground, ought not to be enforced.

Replication was filed, cause heard on proofs, and a decree entered dismissing the bill.

The first question presented for our consideration is, was Ades a necessary party to the bill?

The general rule is, all persons in interest, and whose rights may be affected, should be made parties to the bill.

The theory of complainants was, that Ades had purchased this land, and, at one time, held it by contract entitled to a deed. They say he never transferred his contract or conveyed the land, but it was taken from him by sale on execution issued on a judgment, and that they acquired his title in that way.

The defendants had a right to insist, before a decree should be rendered against them, that complainant should show a valid judgment and execution against Ades. It was clearly the right of Ades to contest the validity of the judgment and execution. Unless the judgment and execution were valid, then complainant had no standing in court. The court, in passing upon their validity, would be adjudicating upon the rights of Ades, when he was not before the court. Had the court rendered a decree in favor of complainant, it would not have been binding on Ades. For aught that we see, he could, on the next day after the court had rendered a decree, file his own bill, and the same matters would have been subject to a readjudication.

The case of Lane v. Erskine, 13 Ill. 501, relied upon by appellant, is not decisive of this question.

In the case of Packwood v. Gridley, 39 Ill. 388, where a bill was filed for a specific performance, based upon a contract of sale, and where the vendor, subsequent to making sale by a contract, had conveyed the premises by deed, this court held, that the vendor was a necessary party, and while the question is not fully discussed in the opinion, we must regard it as authority in this case.

Ades being, then, a necessary party to the bill, the next point that presents itself is, was his evidence admissible, which related to payments made to and conversations with Andrew J. Miller, he being dead, and the suit predicated on a contract made by him, in his lifetime, against his legal representatives?

Section 1 of the law of 1867 provides, that parties to the record, and in interest, may testify. Section 2 of the same act declares, no party to any civil action, suit or proceeding, or person directly interested in the result thereof, shall be allowed to testify therein of his own motion, or in his own behalf, by virtue of the foregoing section, when any adverse party sues or defends as executor, administrator, heir, legatee or devisee of any deceased person, unless when called as a witness by such adverse party, etc., except in...