Anderson v. Stewart

• Decision Date: 18 December 1918
• Docket Number: No. 12310.,12310.
• Citation: 285 Ill. 605,121 N.E. 198
• Parties: ANDERSON et al. v. STEWART et al.
• Court: Illinois Supreme Court

285 Ill. 605

121 N.E. 198

ANDERSON et al.

v.STEWART et al.

No. 12310.

Supreme Court of Illinois.

Dec. 18, 1918.

Appeal from Circuit Court, Edgar County; A. A. Partlow, Judge.

Bill by Nelle Anderson and others against Newton Stewart and others. From the decree, complainants appeal. Affirmed.

See, also, 281 Ill. 69, 117 N. E. 743.

Wilber H. Hickman, of Paris, for appellants.

Frank T. O'Hair, of Paris, for appellee Edgar Vernon Stewart.

Frank Van Sellar, of Paris, guardian ad litem, and Edward C. Craig, of Mattoon, for appellee Newton Stewart.

CARTER, J.

This was a bill filed in the circuit court of Edgar county by Nelle Anderson and Marsalene Fern Stewart (by her guardian) to partition about 150 acres of land in said county and also for an assignment of dower and an accounting as to rents and profits. A cross-bill was filed by the defendants, alleging that a certain deed under which the complainants claimed title included said 150 acres by mistake, and asking for its reformation so as to omit said land. The circuit court granted the relief prayed for by the cross-bill, and dismissed the original bill for want of equity. On the cause being brought to this court, the decree of the circuit court was reversed (Anderson v. Stewart, 281 Ill. 69, 117 N. E. 743), and the cause remanded, with directions to the trial court to dismiss the cross-bill for want of equity, ‘and for such further proceedings as to law and justice shall appertain.’ The mandate of this court in that case being filed in the circuit court, the cross-bill was dismissed, and an amended answer filed, and a decree of partition and assignment of dower entered. From this last decree this appeal has been taken.

The principal question involved in this appeal is the quantum of the estate taken under said deed. The facts in the case are set out at length in the former opinion of this court, but for convenient reference we will briefly restate the facts which especially bear on the points raised in this case:

Egbert Stewart was a brother of Edgar and the son of Newton Stewart, and at one time owned the land in question. He died testate, leaving a life interest in this land to his mother, and the remainder in fee simple to his four brothers (including Edgar) and two sisters. The mother died the day before Egbert. She had in her own name certainland in two county clerk's surveys, which is sometimes referred to in the briefs and proceedings as ‘mother's land.’ By the death of his mother Edgar Stewart became the owner of an undivided interest in the mother's land, and by the death of his brother Egbert he became the owner of an undivided one-sixth interest in the 150-acre tract in dispute, subject, however, to the payment of the debts of Egbert's estate. Thereafter, on January 27, 1897, Edgar Stewart conveyed by warranty deed to his father, Newton Stewart, all his undivided interest in the mother's land and in the 150-acre tract. On August 2, 1897, the executor of Egbert Stewart's estate sold the 150-acre tract at an administrator's sale to pay debts; the purchaser being Newton Stewart, the father of Edgar and Egbert, at a purchase price of $8,990.40. Apparently this entire amount was necessary to pay debts of the estate, and there was no distribution of a surplus among the heirs of the deceased. Later, February 4, 1898, Newton Stewart made a warranty deed, whereby he conveyed to his son Edgar certain real estate in the following words:

‘All his undivided interest in lot No. five (5) in the county clerk's subdivision of the southeast quarter of section thirty (30) fractional east of the boundary line; also lot No. one (1) in the county clerk's subdivision of the east half of northeast quarter of section thirty-one (31) fractional east of the boundary line, all in township 13 north, range 11 west; also the west half of the northwest quarter section eighteen (18), township fourteen (14) north, range twelve (12) west; also the east one-half of the northeast quarter of section 13, township fourteen (14) north, range 13 west. It being the intention of the grantor to convey by this deed the land conveyed to him by Edgar Stewart in a deed made and dated January 27, 1897, situated in the county of Edgar, in the state of Illinois,’ etc.

This description is identical with the description of the land in the deed of January 27, 1897, from Edgar to his father, except the last sentence of the deed of February 4, 1898, which reads, ‘It being the intention of the grantor,’ etc., which does not appear in the earlier deed.

Newton Stewart, the father, is an aged man, and apparently was of unsound mind at the time of the hearing, and appears in this case by guardian ad litem. Edgar Stewart died in 1912, leaving a widow, Nelle Stewart, who has since remarried and is an appellant here as Nelle Anderson, and he left as his only heirs at law a son by a former marriage, Edgar Stewart, now of age, and a daughter, Marsalene Fern Stewart, a minor, born of his wife, Nelle. This court held, when the case was heretofore in this court, that the portion of the description relating to the 150-acre tract of land was rightly included in the deed and was not included by a clerical error. There is no attempt in this proceeding to reargue that question. The principal question in dispute here is as to whether the father, Newton Stewart, by his deed dated February 4, 1898, only deeded back to his son Edgar a one-sixth interest in the 150-acre tract of land, or whether he conveyed by said deed to Edgar the full fee-simple title in the 150-acre tract, as the father at the time he executed said deed owned the entire interest in the land. Appellants claim that the deed in question conveyed the full fee-simple title, while appellees argue that it only conveyed an undivided one-sixth interest, and the trial court so held. No question is raised as to the proper accounting being made by the decree of the trial court, provided the court was correct in holding that the deed only conveyed a one-sixth interest in said tract.

Counsel for appellants first urges as error that the circuit court, after the reversal of the former case by this court, permitted an amended answer to be filed by appellees; that the mandate of this court required the trial court to execute the decree, and not to give a retrial of the case, or enter any order which would have that effect. The former opinion of this court, after discussing at length the main question involved in that appeal as to whether the deed included this land by clerical error, stated (281 Ill. 78, 117 N. E. 746):

‘Appellants, by their original amended bill, claimed that Edgar Stewart died seized of the entire title to the land in question, and that his children are each entitled to an undivided one-half in fee, subject to the dower interest of the widow, Nelle Anderson. There is no discussion in this case by counsel for either party, and not even a suggestion, that such a claim is or is not supported by the evidence in the record. Inasmuch as the trial court was not called upon and did not pass upon the question of the quantum of land conveyed by the deed of Newton Stewart to Edgar Stewart, we do not deem it proper for this court to finally determine that question on this appeal.’

The decree was then reversed, and the cause remanded ‘for such further proceedings as to law and justice shall appertain.’

The rule is well settled that, when a cause is remanded with directions to enter a certain definite order or decree, the trial court is without authority to allow amendments to the pleadings. But that is not the rule where a question is left open and undecided by the decision of the court of review. It is clear from the former opinion of this court that the question as to the quantum of land conveyed by the deed was intentionally left open for further consideration and decision by the trial court. In Chickering v. Failes, 29 Ill. 294, this court discussed at considerable length the principle here involved, and held, among other things, that it was the duty of the trial court, after reversal by a court of review, to follow the legal principles announced by such court of review, and said (page 302):

‘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...