Borders v. Murphy

• Decision Date: 30 June 1875
• Citation: 78 Ill. 81,1875 WL 8425
• Parties: JAMES J. BORDERS et al.v.WILLIAM K. MURPHY.
• Court: Illinois Supreme Court

78 Ill. 81

1875 WL 8425 (Ill.)

JAMES J. BORDERS et al.

v.WILLIAM K. MURPHY.

Supreme Court of Illinois.

June Term, 1875.

APPEAL from the Circuit Court of Perry county; the Hon. AMOS WATTS, Judge, presiding. Mr. EDWARD V. PIERCE, and Mr. E. B. RUSHING, for the appellants.

Mr. GEO. W. WALL, and Mr. LEWIS HAMMACH, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

Appellee filed his bill in the Perry circuit court, against appellants, for the partition of 80 acres of land, of which John Osborn, in 1854 or 1855, died seized. At his death, he left surviving him a widow, since deceased, and four children: William and Henry, his sons, and Martha and Mary J., his daughters. The latter married Archibald Beggs.

It is admitted that Samuel Montgomery is the owner of an undivided one-fourth of the entire tract; that Absalom and Moore H. Wilson own another one-fourth, in which their mother has dower. Appellee claims an undivided fourth, but his title is disputed; and appellee claims that Magill owns the remaining fourth, subject to the equitable title of appellee, of six and a half acres, and the incumbrance of an equitable mortgage, held by Borders.

It also appears that, in July, 1858, on a petition for partition, filed by Magill against all of the heirs of John Osborn, deceased, except William, a decree for partition was rendered, and a partition was made and subsequently approved. Prior to that time, the dower of the widow had been assigned, under a decree rendered in a proceeding had for the purpose, and although William was not, in any manner, a party to the decree of July, 1858, or the petition therein, it is urged that he is bound by that decree.

It is further insisted, that Wm. Osborn's interest was sold and conveyed, under execution sale and sheriff's deed, under an execution from the Perry circuit court. It appears that M. G. Maxwell. as administrator of John Osborn, deceased, recovered a judgment against Wm. Osborn and Wm. Gamble, for $219.75, and under an execution issued on that judgment William's interest in this land was sold and bid off by the administrator; and after the expiration of twelve months thereafter, and within fifteen months, one Samuel Halliday commenced an attachment suit, before a justice of the peace, against Wm. Osborn, who had gone out of the State, but neither found property to levy upon nor procured service upon him, but the justice of the peace rendered judgment against him for $49. Halliday afterwards procured a transcript from the docket of the justice of the peace, and filed it in the office of the circuit clerk of Perry county, and sued out execution, and placed it in the hands of the sheriff; paid to him the requisite sum to redeem from Maxwell's sale; caused the land to be levied upon, and on a sale he became a purchaser, and received a certificate of purchase, and, no redemption having been made, he received a sheriff's deed. He afterwards sold to Archibald Beggs, who had married one of the daughters of John Osborn, deceased, who then held another fourth of the land. Halliday took back a mortgage of not only the interest he had sold to Beggs, but also the interest his wife held in the premises, to secure the purchase money. Subsequently Halliday foreclosed this mortgage, and purchased in the property at a master's sale, and received a certificate of purchase. This he assigned to J. J. Borders, who was acting for David Magill; and it appears that Borders was to give Magill time to repay him the money, with interest. Magill had paid, perhaps, about $50 towards the redemption, he having previously purchased of Beggs. Borders subsequently obtained a deed, under his purchase, from the master in chancery.

It appears that Magill was in possession of one-half of the premises not occupied by the widow of John Osborn, deceased, which had been assigned to her under decree. He also read in evidence tax receipts for the years from 1862 to 1870, inclusive, for the taxes on a part of the land, under his plea of the Statute of Limitations. It likewise appears that, in May, 1871, Magill and wife entered into an agreement with appellee, that if he would erect a depot building in the town of Swanwick, which adjoined this land, and have a side track laid, and have the 26 acres on the south side of the south-west quarter of the north-west quarter of section 22, town. 4 south, range 4 west of the third principal meridian, laid off and platted into town lots, they would convey to him the undivided half of the undivided half of that tract of land. He built, at his own expense, the depot, at a cost of $1000, procured the side track to the railroad to be put in, and surveyed and made the town plat at his own expense, as agreed, but Magill refused to make the conveyance. Appellee, before filing his bill, purchased and received from Wm. Osborn a conveyance of all his interest in the 80 acres in controversy.

On a hearing, the court below found that appellee owned the interest of Wm. Osborn, and was entitled in equity to six and one-half acres of Magill's interest in the land; that Sam'l Montgomery owns an undivided one-fourth of the tract; that Absalom Wilson and Moore H. Wilson are each seized of an undivided one-eighth part, subject to the dower of their mother, Rose Ann Wilson; and that Magill is seized of an equitable title to...