Barnes v. Swedish American Nat. Bank of Rockford

CourtSupreme Court of Illinois
Citation371 Ill. 20,19 N.E.2d 929
Docket NumberNo. 24900.,24900.
PartiesBARNES v. SWEDISH AMERICAN NAT. BANK OF ROCKFORD ET AL.
Decision Date22 February 1939

OPINION TEXT STARTS HERE

Error to Circuit Court, Winnebago County; Arthur E. Fisher, Judge.

Suits by William H. Barnes against the Swedish American National Bank of Rockford, executor, and others, to partition two tracts of land. From a decree setting aside the sale of one of the tracts, and consolidating the two suits, plaintiff appeals.

Reversed and remanded, with directions. William H. Barnes, Jr., of Rockford, for appellant.

Karl C. Williams, of Rockford (J. Phillip Dunn, of Rockford, of counsel), for appellees.

GUNN, Justice.

Appellant, William H. Barnes, was plaintiff in two suits filed in the circuit court of Winnebago county to partition land, one suit being designated No. 45381 and the other No. 45382, the tracts involved being referred to hereafter as tracts 1 and 2. Tract 1 was a strip of ground 1146.8 feet long and 16 feet wide, adjoining on the south the right]of]way of the Illinois Central Railroad track in Rockford, Illinois. Barnes owned three]fifths of this tract and appellees Ida May Peterson one]tenth, Ida May Peterson, trustee, one]tenth, and the Ekstrom heirs one]twentieth, each. Tract 2, containing a trifle over 14 acres, was the same length and immediately south of tract 1. The plaintiff owned a two]fifths interest in tract 2, Ida May Peterson one]half, and Ida May Peterson, trustee, one]tenth.

A decree of partition of tract 1 was entered on March 22, 1938. It was O.K.'d by attorneys of appellees and the guardian ad litem. The commissioners made their report finding the property indivisible and appraised its value at $800, and a decree of sale was entered by the court for tract 1 on April 8, 1938. Attorneys for appellees were notified of the commissioners' report and of the proposed decree of sale which was O.K.'d by counsel for appellees and the guardian ad litem.

The decree of partition of tract 2 was entered by the court on March 22, 1938, and bears the approval mark of defendants' attorney. The commissioners appointed reported March 29, 1938, that the property was indivisible and fixed its value at $20,520. Attorneys for defendants were notified that plaintiff would apply for a decree of sale on April 8, and, upon obtaining five days' extension of time, defendants filed objections to the report and claimed that tract 2 was divisible. On May 23, the court overruled objections to the commissioners' report and decreed a sale as recommended by the commissioners.

Under the decree of sale the master in chancery advertised tract 1 and sold the same at public sale on April 30, 1938, to the plaintiff, William H. Barnes, for the sum of $540, being more than two]thirds of the appraised valuation, and reported such sale to the court on May 5, 1938, and on the same day the court approved and confirmed the sale and ordered the master to deliver a deed of conveyance to the purchaser. On the same day, attorney for plaintiff notified attorneys for defendants and the guardian ad litem, in writing, that on May 6 he would apply to the court for an order of distribution of the funds derived from the sale. On May 10, Ida May Peterson filed a motion that the master's report of sale and master's deed, if any, be vacated and set aside, the motion being accompanied by a bid of $800 and a certified check to guarantee same. On May 13, Ida May Peterson, trustee, joined in the exceptions to the sale and the confirmation thereof. The principal dispute arose out of what occurred immediately after the decree of sale of tract 1 was entered by the judge. Ida May Peterson, in her motion, claimed, in substance, that she did not know there was going to be a sale of the premises ordered until after the court had ruled on the exceptions to the commissioners' report on tract 2, and that both tracts should be sold together, as the value of each was dependent upon the ownership being in the same person, and that she actually did not know of the sale on April 30. It is further claimed the sale was not held in compliance with the decree, in that notice was not given as required. This motion is not verified by Ida May Peterson, either individually or as trustee. The affidavits supporting the motion are made by her attorney, Phillip Dunn, who stated, in substance, that on his appearance in both causes on April 8 he excepted to the commissioners' report on tract 2 and did not object to the report ordering sale on tract 1, and had the exceptions as to tract 2 set for hearing on May 2, and related the conversation between plaintiff's attorney and himself to be: “I understood there would be no judicial sale in said cause 45381 until after the hearing upon the objections to the report of the commissioners in said cause 45382, inasmuch as the principal parties in both suits were the same,]]i. e., William H. Barnes and Ida May Peterson, individually and as trustee, and because the premises involved in each suit were contiguous and the value of each dependent upon ownership of the other; and that I conveyed the substance of said understanding to Karl C. Williams, attorney of record for said two defendants; that from and after April 8, 1938, I made no investigation of the local newspapers or files in said cause 45381, believing, as aforesaid, that no sale would be had until at least after May 2, 1938, and because said partition proceedings had always been friendly.” He also says he did not learn of the sale until May 5, when the notice to apply for decree of distribution was served. Williams, in substance, says that he relied upon the conversation with Dunn. There are further affidavits attached showing that tract 1 was worth more than the amount for which it sold, and that tract 2 would be diminished in value if tract 1 were owned by a different person. The guardian ad litem filed an affidavit that he was present when the decree of sale was entered for tract 1 and that he was with attorney Dunn and Barnes when the order was approved and that he was in the lawyer's room where the order of sale was submitted to both himself and Dunn and that nothing was said about not having a sale; that it was his understanding that there was to be a sale and that when plaintiff's lawyer left the room he said he was going to file the order with the clerk.

Barnes, in his affidavit, denies that anything was said about holding up the sale of tract 1 to await the proceedings on tract 2 or that he did anything to imply the sale would be postponed; that he took the order of sale as approved, left it with the clerk and requested him to have the judge sign it. The clerk of the master in chancery filed an affidavit as to the manner of advertising the sale and posting of notices, but no certificate of the publisher of the notice appears in the record.

On May 23, the court sustained exceptions to the sale of tract 1 and entered an order of resale of the premises. On the same day the court entered an order consolidating the two partition suits and ordered that they thereafter proceed under the title of 45381, which originally affected only tract 1, and provided, among other things: “Said two tracts shall first be offered for sale separately and then together and sold and struck off to the person or persons bidding the highest total sum upon the alternative offers, the total sale price, however, not to be less than two]thirds of the combined appraised value.” This order of consolidation appears to have been made on the court's own motion and no finding is made upon the question of fact raised between the attorneys with reference to postponing the sale of tract 1, nor upon whether the master followed the decree in making sale.

While the trustee's motion refers to certain charities, the decree in said cause for tract 1 finds: Ida May Peterson, trustee under the last will and testament of Pehr August Peterson, deceased, is the owner of an undivided one]tenth interest; that all bequests and...

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9 cases
  • World Sav. and Loan Ass'n v. Amerus Bank, 1-99-1922.
    • United States
    • United States Appellate Court of Illinois
    • November 16, 2000
    ...order, and, unless he follows the directions of the order or decree, his acts will be set aside. Barnes v. Swedish American National Bank, 371 Ill. 20, 28, 19 N.E.2d 929 (1939); Ehrgott v. Seaborn, 363 Ill. 292, 296, 2 N.E.2d 99 The judgment of foreclosure provides that, if the Lees failed ......
  • Keith v. Keith, 11078
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    ...... same nor are their interests the same." Barnes v. Swedish American Nat. Bank of Rockford, 371 ......
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    • United States Appellate Court of Illinois
    • October 7, 1958
    ......415, 47 N.E.2d 706; Barnes v. Swedish American National Bank, 371 Ill. 20, ......
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    ......Barnes v. Swedish American Nat. Bank, 371 Ill. 20, 19 ......
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