Conwell v. Watkins

• Decision Date: 31 January 1874
• Parties: SAMUEL C. CONWELLv.MCCLELLAN WATKINS et al.
• Court: Illinois Supreme Court

71 Ill. 488

1874 WL 8704 (Ill.)

SAMUEL C. CONWELL

v.MCCLELLAN WATKINS et al.

Supreme Court of Illinois.

January Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Mason county; the Hon. CHARLES TURNER, Judge, presiding.

Messrs. DEARBORN & CAMPBELL, for the appellant.

Messrs. LACEY & WALLACE, for the appellees. Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

This was a bill, exhibited by Thomas Watkins, on the equity side of the circuit court of Mason county, against Samuel C. Conwell, to remove a cloud upon the title to a certain tract of land therein described, claimed by the complainant, caused by the sale of the same tract of land on an execution issued out of the circuit court of that county, and of which the defendant had become the purchaser.

During the progress of the cause, complainant died, and Mary A. Watkins, the sole devisee under his last will and testament, was, on motion, substituted as complainant. Defendant having answered the original bill, setting up a title derived from a source other than that of the execution debtor and the sale by the sheriff, the complainant filed a supplemental bill, praying that the title thus acquired by defendant should be decreed to her.

The court decreed as prayed in the original and supplemental bills, and further found, on the hearing on the assessment of damages, there was due from defendant to Thomas Watkins, as administrator of the estate of Mary A. Watkins, deceased, as rent for the land in controversy, during the time it was controlled by the defendant, the sum of one hundred and fifty dollars, and decreed that the defendant pay that sum to the said administrator.

To reverse this decree the defendant appeals, and makes the point that proper parties were not before the court--that neither John McCowan nor Joseph Brown was a party.

This objection can not be made in this court for the first time--it comes too late, unless it shall appear parties are omitted whose rights are so connected with the subject matter of the suit, that a final decision thereof can not be made without materially affecting their interests. Scott, Admr. v. Bennett, 1 Gilm. 646; Prentice v. Kimball, 19 Ill. 320, where it was also held, where the want of proper parties is apparent, advantage should be taken of it by demurrer or by motion to dismiss--if not patent, by plea or answer.

But the record shows these persons were made parties, and McCowan brought in by publication, but no default was taken against him. As to Joseph Brown, he was made a party to the bill, but no process was served on him, nor was he brought in by publication; consequently no default could be taken against him. As to McCowan, regularly his default should have been entered, if he failed to comply with the rule to plead or answer the bill. But it was not material, as the record shows he had no real, subsisting interest in the matter in controversy. The judgment he had against Fenan, which caused this cloud, had been satisfied by the purchase of Fenan's land by Conwell. As to Brown, the suit should, regularly, have been dismissed, as he had died before the commencement of the suit, and his heirs had sold and conveyed all their interest in the land to the defendant. The defendant, really, was the only party in interest. He sets up the deed in proof of his claim and interest. He, and he only, had the legal and equitable title, if there was any outstanding. The original bill was filed for the purpose of setting aside the sale under the execution by force of which he claimed, and he, only, was the party to be affected by that.

The next point made by appellant is, that the proof does not sustain the decree. This is based on the alleged duty of complainant to prove that sheriff West returned the execution into the clerk's office, as an officer. The allegation in the bill...