Allison v. Drake

• Decision Date: 23 November 1892
• Citation: 32 N.E. 537,145 Ill. 500
• Parties: ALLISON v. DRAKE et al.
• Court: Illinois Supreme Court

145 Ill. 500

32 N.E. 537

ALLISON

v.DRAKE et al.¹

Supreme Court of Illinois.

Nov. 23, 1892.

Appeal from circuit court, Grundy county; DORRANCE DIBELL, Judge.

Bill of review brought by George A. Drake against John Allison and Lavina Davis. Defendant Allison died, and by an amended bill W. S. Allison, as executor, and in his own individual right, was made a party defendant. Defendant Davis also died, and by an amended supplemental bill Mary A. Mayer, her executrix, and Allen M. and Lee Davis were made defendants, Elizabeth Marsh and William Marsh, her husband, joining as co-complainants therein. The amended and supplemental bill prayed that the partition proceedings be set aside and vacated. Complainants obtained a decree, and defendant Allison appeals. Reversed.

The facts appear in the following statement by BAILEY, C. J.:

On the 26th day of January, 1889, George A. Drake filed his bill in chancery in the circuit court of Grundy county against John Allison and Lavina Davis to review a certain former decree of that court, to set aside an execution sale and subsequent conveyances of certain lands of the complainant, and for an accounting. The bill alleges that on or about August 7, 1862, Jacob Mayer departed this life intestate, leaving, him surviving, his widow and 13 children; that at the time of his death he was seised in fee of certain lands in Grundy county, described in the bill by courses and distances, nad containing 171.71 acres, excepting 4.70 acres lying in the south west corner of the land, which had been sold by Mayer, in his lifetime to William Marsh, his son-in-law, by contract, but never conveyed, leaving 167.01 acres; that Mayer's widow died January 13, 1876, and that the title of said land became vested in his 13 children, disincumbered of dower; that Catherine Mayer, one of the children, intermarried with Alonzo Drake, and that the complainant is the sole issue of such marriage, and was born April 27, 1866; that the complainant's mother died intestate, leaving, her surviving, her husband and the complainant, her only child and heir at law, whereby the complainant became vested with an undivided one thirteenth of said 167.01 acres of land, subject to the dower estate of his father, who resided in Gage county, in the state of Nebraska; that in April and May, 1877, ten of the children of Jacob Mayer sold and quitclaimed their respective interests in the land to Lavina Davis; and that in December, 1879, one other of the children sold and conveyed his interest to Mary A. Davis, who, on the 15th day of February, 1888, conveyed her interest thus acquired to Lavina Davis. The bill further alleges that, at the March term, 1881, of said court, Elizabeth Marsh, a daughter of Jacob Mayer, and wife of William Marsh, filed her bill for the partition of said lands, making the present complainant, Lavina Davis, Mary A. Davis, and certain other parties, defendants; that on the 15th day of March, 1881, a rule was entered in that cause requiring all the defendants to plead, answer, or demur to the bill by the coming in of court on the following Wednesday; that on the 17th day of the month an order was entered referring the cause to the master to take proofs; that on the 23d day of the same month an order was entered which, after reciting that it appeared to the court the present complainant was a minor, appointed W. T. Hopkins his guardian ad litem, and ordered such guardian to answer instanter; that thereupon this complainant, by his guardian ad litem, filed his answer, and that on the same day the order of reference to the master was vacated, and by agreement of the parties a decree was entered a warding partition of the land, and appointing commissioners to make the same. It is further alleged that the commissioners made partition of the land and platted the same, and awarded to Elizabeth Marsh lot 1, to the present complainant lot 2, to Mary A. Davis lot 3, and to Lavina Davis lot 4; lots 1, 2 and 3 containing 12.84 acres each, and lot 4 containing the residue of the land; that the commissioners filed their report November 29, 1881, and on the following day a final decree was rendered approving and confirming the report, and partitioning the land in accordance therewith; that such final decree ordered that the costs and expenses of the proceedings, including the sum of $300 solicitors' fees, be taxed and paid to the complainant's solicitors; that Lavina Davis, Mary A. Davis, Elizabeth Marsh, and the present complainant each pay one fourth of the costs, and that, in default of such payment, execution issue therefor, and be a lien upon all of the several interests in said land, and be collected from all or either of such interests. The bill further alleges that Elizabeth Marsh, the complainant in the partition proceedings, was an elderly lady, of little education and no financial means, and that she made a special contract with the solicitor who filed her bill, by which the latter undertook to file such bill for partition, and perform all the necessary legal services in effecting the partition, and pay the costs of the proceeding for $150, that sum to be divided into 13 equal shares, and that each share in the land should be charged with one thirteenth thereof,-that is to say, with the sum of $11.54 each; that the claim and allowance of $300 solicitors' fees was in violation of said contract, and that the knowledge of its allowance never reached her until after the execution of the sheriff's deed in pursuance of the execution sale for said costs; that Elizabeth Marsh settled with her solicitor on the basis of said contract, and paid him her share of the costs in full, and took from him a receipt therefor, yet said solicitor, in violation of his agreement, on the 6th day of February, 1882, sued out an execution against all of the parties for $375.40, the amount of the costs; that $184.45 was paid on the execution by Lavina Davis and Mary A. Davis, and the writ was thereupon returned by the sheriff unsatisfied as to the residue; that May 6, 1882, an alias execution was issued for the collection of the residue of the costs, and levied on lot 1 as the property of Elizabeth Marsh, and on lot 2 as the property of George A. Drake, the present complainant, and on June 3, 1882, the sheriff struck off and sold the two lots for $104.79 each, said solicitor becoming the purchaser, and on September 3, 1883, the sheriff executed and delivered to the solicitor a deed conveying the two lots to him, and on the same day the solicitor conveyed the lots to John Allison for an expressed consideration of $386.25. The bill further alleges that the affidavit of nonresidence filed in the partition suit gave the post-office address of George A. Drake and Alonzo Drake, his father, as Steele City, Jefferson county, Neb., instead of Odell, Gage county, Neb., their true post-office address, and that consequently they did not receive any copy of the notice of the pendency of the suit, and that neither of them had any notice or knowledge of its pendency until after the sheriff had levied on the lots as aforesaid; that George A. Drake arrived at his majority April 27, 1887. It is further alleged that Lavina Davis had the use, rents, and profits of the 167.01 acres of land, including the complainant's share therein, from 1877 to 1883, both years inclusive, and that John Allison had the use, rents, and profits of the complainant's share from 1884 to 1888, both inclusive, and that the use of the land during all that time was worth $4 per acre per annum; that the land, at the time of the attempted partition, was worth $40 per acre, and has not since depreciated in value. The bill prays that the decree of partition be reviewed and reformed, so far as it affects the interest of George A. Drake, not as to the quantity or quality of the share allotted to him, but as to the taxation of the costs and the allowance of $300 solicitors' fees, instead of the sum provided for by contract, thus making his share of the costs $11.54, and which sum he tenders and offers to pay into court, or if the court should be of the opinion that the sum of $300 was just and reasonable, he tenders and offers to pay $28.37, with lawful interest, being one thirteenth of such solicitor's fee and court costs, as taxed in pursuance of said decree; also that the alias execution be quashed, the levy and sale thereunder vacated and set aside, and the sheriff's deed and the record thereof be canceled, and that John Allison be decreed to convey lot 2 to the complainant, and for an accounting with Lavina Davis and John Allison in respect to the rents and profits of the land; and also a general prayer for relief.

John Allison having died, his legal representatives were made parties defendant. Lavina Davis also having died, the complainant on the 18th day of July, 1890, filed an amended and supplemental bill, Elizabeth Marsh and William Marsh, her husband, joining as co-complainants therein. By the amended and supplemental bill, the legal representatives of Lavina Davis were made parties defendant. William B. Marsh set up his equitable title under a contract executed by Jacob Mayer, in his lifetime, to a small tract of about three acres in the southwest corner of the lands in controversy, and prayed that the legal title thereto be conveyed to him. Elizabeth Marsh set up her title, as heir at law of Jacob Mayer, deceased, to an undivided one thirteenth of the 167.01 acres of land. The amended and supplemental bill attacked the proceedings in the partition suit by alleging, in addition to the matters alleged in the original bill, there was a variance between the final decree and the commissioners' report, so as to make it impossible to take the descriptions in the decree and report and locate the lands therefrom; that the lot set off as the share of George A. Drake was less valuable per acre than any other portion of the land; that the decree in the partition suit...