Calligan v. Calligan

• Decision Date: 18 June 1913
• Citation: 102 N.E. 247,259 Ill. 52
• Parties: CALLIGAN et al. v. CALLIGAN et al.
• Court: Illinois Supreme Court

259 Ill. 52

102 N.E. 247

CALLIGAN et al.

v.CALLIGAN et al.

Supreme Court of Illinois.

June 18, 1913.

Appeal from Circuit Court, Peoria County; L. D. Puterbaugh, Judge.

Suit for partition by George F. Calligan and others against Alice F. Calligan and others, and the National Fire Insurance Company impleaded. From a decree establishing the rights of the parties, the Insurance Company appeals. Reversed and remanded, with directions.

Judson Starr, of Peoria, for appellant.

George K. Beasley, of Peoria (Chester F. Barnett, of Peoria, guardian ad litem), for appellees.

COOKE, C. J.

On January 20, 1909, George F. Calligan, one of the appellees, filed a bill in the circuit court of Peoria county for the partition of a lot in the city of Peoria, alleging that his father, Daniel J. Calligan, was at the time of his death, on September 18, 1886, the owner in fee simple of said lot, and that by reason of the death of Daniel J. Calligan intestate, and by reason of the death of certain of his children subsequent thereto, complainant and certain other descendants of Daniel J. Calligan are now the owners of said lot as tenants in common, subject to the dower of Elizabeth E. Calligan, the widow of Daniel J. Calligan, except that the interests of the children and heirs of Edward G. Calligan, who was a son of Daniel J. Calligan, are subject to the rights of the National Fire Insurance Company of Hartford, Conn., the holder and owner of the master's certificate of purchase hereinafter mentioned. The National Fire Insurance Company answered the bill, denying that Daniel J. Calligan was at the time of his death the owner of the premises in controversy, and alleging that at the time of the death of Daniel J. Calligan, his wife, Elizabeth E. Calligan, was the owner in fee simple of the lot, and that by subsequent conveyances and court proceedings, it, the National Fire Insurance Company, became the holder and owner of a certificate of purchase entitling it to a deed to the premises, by virtue of which it has, since the filing of the bill herein, received a deed to the lot, and that it, the National Fire Insurance Company, is now the owner of said lot. The decree entered in the cause finds the rights of the parties to be as alleged in the bill, except it finds that the National Fire Insurance Company is the owner of an undivided interest in fee of the value of $1,000, and is also the owner of an undivided one-fourth of the remainder after taking out the $1,000 interest, and that the interest of each of the other alleged tenants in common, except the children of Edward G. Calligan, is a specified undivided part of the remainder after taking out the $1,000 interest of the National Fire Insurance Company in the premises. The decree, after finding the interests of the respective parties, directs certain persons, as commissioners, to make partition of the premises in accordance with the rights of the parties as fixed by the decree. The National Fire Insurance Company has prosecuted this appeal to reverse that decree.

The question for determination in this case is whether Daniel J. Calligan was at the time of his death the owner of the lot in controversy, except an undivided interest of the value of $1,000 therein, or whether his wife, Elizabeth E. Calligan, had obtained the entire title to said lot prior to the death of her husband. The chancellor found that at the time of the death of Daniel J. Calligan, Elizabeth E. Calligan was the owner in fee of an undivided interest in said lot of the value of $1,000, and that Daniel J. Calligan was the owner in fee of the remainder, and that by reason of the death, intestate, such remainder descended to his heirs at law, being his three children and one grandchild, subject, however, to the dower rights of Elizabeth E. Calligan. Appellant contends that this finding is contrary to the evidencein the case, and that the court should have found, from the evidence in the record, that Elizabeth E. Calligan was the sole owner in fee of the lot at the time of her husband's death, and that appellant has succeeded to all her right, title, and interest.

Daniel J. Calligan became the owner of the said lot on August 25, 1868, when he received a deed therefor from George W. H. Gilbert and wife. On February 15, 1878, he, together with his wife, executed and delivered to John A. McCoy, as trustee, a trust deed conveying the premises to McCoy to secure a note for $4,000, payable to the Second National Bank of Peoria. On February 18, 1878, Daniel J. Calligan executed and delivered to Richard H. Whiting, Andrew J. Hodges, and Henry B. Hopkins a deed of assignment, thereby assigning and conveying to them in trust, for the benefit of his creditors, all his property, real and personal, including the premises in controversy, except such portion of his property as was exempt by law from levy and sale. His wife did not join in this deed of assignment. Thereafter, on May 29, 1878, Whiting, Hodges, and Hopkins, as assignees of Daniel J. Calligan, executed and delivered to Elliott Callender, assignee in bankruptcy of Daniel J. Calligan, a quitclaim deed conveying the real estate in controversy. This deed contained the following recital: ‘This deed is made in compliance with an order of the United States District Court for the Northern District of Illinois in the Matter of D. J. Calligan in Bankruptcy, requiring said grantors, as assignees of said Calligan, to convey to said assignee in bankruptcy all property held by them as such assignees.’ Thereafter, by a deed dated July 3, 1878, acknowledged September 4, 1878, and recorded October 7, 1878, Daniel J. Calligan and Elizabeth E. Calligan, his wife, conveyed and quitclaimed to the Second National Bank of Peoria the lot in question. This deed recited that the consideration for the conveyance thereby made was the full satisfaction and discharge of the note for $4,000 held by the bank, and which was secured by the trust deed to John A. McCoy above referred to. For a long period of time prior to the date of this deed of July 3, 1878, Daniel J. Calligan, together with his wife and family, had occupied the premises as a homestead, and they continued to reside thereon until Calligan's death, in 1886. The deed to the First National Bank contained a release and waiver of the right of homestead both in the body of the deed and in the certificate of acknowledgment attached thereto.

On August 2, 1878, the United States District Court for the Northern District of Illinois entered the following order in the Matter of Daniel J. Calligan, Bankrupt: ‘It appearing from the register's report and the receipt of William H. Bradley, clerk, and the receipts of creditors filed herein, that said bankrupt has fully complied with all the conditions of the composition proceedings herein, it is thereupon ordered by the court that Elliott Callender, assignee herein, turn over all the property and assets belonging to said bankrupt's estate remaining in his hands, to the said Daniel J. Calligan.’ On the same day the United States District Court also entered another order in said matter, as follows: ‘On reading the register's final report upon the composition herein, it is ordered that the assignee of said estate turn over the assets in his hands to said bankrupt.’ These are the only orders entered by the United States District Court in the bankruptcy proceedings introduced in evidence in this case, and the only other proceeding here shown to have been taken therein, other than that shown by the recital in the deed from Whiting, Hodges, and Hopkins, as assignees, to Elliott Callender, assignee in bankruptcy, was the filing of a report on August 5, 1878, in the United States District Court, by Elliott Callender, assignee in bankruptcy, in which said assignee shows his receipts and disbursements and the balance of cash on hand, and reports that in pursuance of the order of August 2, 1878, he paid and delivered to Calligan all the balance of cash on hand and all the books, accounts, goods, chattels, and property remaining in his hands as assignee. No mention is made in this report of the real estate in question.

The record further discloses that on October 7, 1878, there were executed, acknowledged, and recorded four instruments affecting the title to the real estate in controversy, as follows: A quitclaim deed from the Second National Bank of Peoria to Eunice Elizabeth Calligan; a deed from John A. McCoy, trustee, to Eunice Elizabeth Calligan, releasing the trust deed of February 15, 1878, and conveying the title to her; a quitclaim deed from Elliott Callender to Daniel J. Calligan; and a trust deed from Eunice Elizabeth Calligan, in her own right, and Daniel J. Calligan, her husband, conveying the premises to Samuel S. Winn in trust to secure a note for $2,500, payable to John Winn. These four instruments, together with the above-mentioned deed from Daniel J. Calligan and wife to the Second National Bank of Peoria, were filed for record at the same time. The trust deed of October 7, 1878, to Winn was released on October 7, 1881, and on the latter date Daniel J. Calligan joined with his wife in another trust deed to John C. Proctor, as trustee, to secure a note for $2,500.

After the death of Daniel J. Calligan, in 1886, his widow, under the name of Elizabeth E. Calligan, continued to deal with the lot in question as her...