Davies v. Gibbs

• Decision Date: 01 November 1897
• Citation: 48 N.E. 120,168 Ill. 205
• Parties: DAVIES et al. v. GIBBS et al.
• Court: Illinois Supreme Court

168 Ill. 205

48 N.E. 120

DAVIES et al.

v.GIBBS et al.

Supreme Court of Illinois.

Nov. 1, 1897.

Error to circuit court, Coles county; Francis M. Wright, Judge.

Bill by Herbert Gibbs and others against G. W. Davies and others. There was a decree for defendants, and plaintiffs bring error. Reversed.

L. C. Henley and J. F. Hughes, for plaintiffs in error.

Neal & Wiley, for defendants in error.

BOGGS, J.

This was a bill in chancery, exhibited by the plaintiffs in error, who are minors, against the defendants in error and others in the Coles circuit court. The bill alleged the complainants and defendants (except defendant in error Davies) were the legal heirs of B. F. Jones, who died intestate, seised in fee of the title to the N. W. 1/4 of the S. W. 1/4 of section 12, township 12 N., range 8 E., in Coles county, Ill., and other tracts of land which descended to his said heirs in fee under the statute of descent; that upon the petition of said heirs for partition of said land, in view of the fact partition could not be made, the Coles circuit court, in chancery sitting, ordered and decreed the land should be sold by the master in chancery, and the proceeds of the sale distributed to the parties according to their interests; that, in due pursuance of said decree, the said master offered the land at public sale; that the track and right of way of the Cleveland, Cincinnati, Chicago & St. Louis Railway passes through the tract of land above described, dividing the tract into two parts, about 2 1/2 acres being south of the track, and the remainder north thereof; that the master offered that tract in separate parcels, as divided by the railroad track; that the parcel south of the railroad right of way was struck off and sold to one William Burgess at and for the price of $69 per acre, and the parcel north of said right of way struck off and sold to one Jack Jeffries for the sum of $79.75 per acre; that the master filed report of the sale with the clerk of the court, and the report, about 30 days afterwards, in vacation, was approved by one of the judges of said court; but the bill alleged that the report falsely stated that the master had sold the entire tract above described, except the said right of way and the town plat of the town of Stockton, to one G. W. Davies, the defendant in error, for and at the price of $79.75 per acre; that, in pursuance of said report of sale and the approval thereof by the said judge, the master executed his deed, conveying to the said G. W. Davies all of the said N. W. 1/4 of the S. W. 1/4 of section 12, except the right of way of said railroad and so much of the tract as was a part of the town of Stockton; that said master, in making settlement with the said Davies, estimated the said tract, except the right of way and the said town plat, to contain 25 acres, and that said master accepted payment from said Davies on the basis that the said tract of land, except the right of way and said town plat, contained but [168 Ill. 207]25 acres of land, and received payment at $79.75 per acre, amounting to a total sum of $1,993.75; that the right of way of said railroad and the portion of said tract platted as a part of the town plat of the town of Stockton contained but 7 acres of ground, and that the remainder of the tract, being that part conveyed to Davies, contained 33 acres of ground; that in consideration of the payment to the master of the said sum of $1,993.75, in cash and notes, in accordance with the terms of said decree, the said master conveyed to said Davies the said N. W. 1/4 of the S. W. 1/4 of said section 12, except said right of way and said part platted as a part of the said town of Stockton; that said G. W. Davies has possession, under said conveyance, of 8 acres of land belonging to the heirs of the said B. F. Jones; and that said G. W. Davies is therefore only equitably entitled to an undivided five-sixths interest in that part of said tract of land lying north of the right of way of said railroad; and that the orators and the other heirs of the said B. F. Jones are entitled to the other one-sixth interest in said part of said tract lying north of said right of way, and to all of that part of the tract south of said right of way. The bill contained prayers for general and special relief. The relief specially asked was that partition should be made of the interest of the parties to the bill in the said tract of land if said land could be allotted and partitioned among the owners thereof, and, if such partition could not be made without manifest prejudice to the parties thereto, that the premises should be sold under the order and decree of the court, and the proceeds of the sale distributed among the parties to the suit, according to their interest in the land.

The defendant in error Davies filed a demurrer to the bill, and assigned the following grounds of demurrer: ‘(1) There is no equity in the bill. (2) Said bill is multifarious in that it does not show that Davies has any interest in the five acres off the south side of N. E. 1/4 of S. W. 1/4, Sec. 12, and cannot be properly joined with others who claim to have an interest therein, and also in the N. W. 1/4 of the S. W. 1/4, said section 12. (3) It is shown by the bill whatever interest Davies has in said N. W. 1/4, S. W. 1/4, Sec. 12, is not an undivided interest, and therefore is not subject to partition. (4) It is shown by the bill that this is a collateral attack upon a decree of this court, and an attack upon the acts of the master, and he is not made a party. (5) Whatever equities complainants have against Davies should have been settled in the partition suit of America L. Sawin and others vs. W. D. Jones and others, referred to in the bill, and the same are not properly before this court in this proceeding.’ The court considered the demurrer well taken, and that there was no equity appearing upon the face of the bill; and, complainants refusing to amend their bill, the court ordered a decree to be entered dismissing the bill at the cost of the complainants. This is a writ of error sued out to bring the record into this court for review.

The deed executed by the master to the defendant in error Davies invested him with the full and complete title to the N. W. 1/4 of the S. W. 1/4 of section 12 in question, except as to the portions excepted in the deed, unless the deed was for some reason, in whole or in part, legally insufficient to transfer the title to the said tract or some portion of it. The only suggestion in the bill against the legal sufficiency of the deed is that the land described in it was struck off by the master at the sale to other persons than the grantee therein, and that Davies, the grantee, did not bid for the land at the master's sale. The bill alleges that that portion of the tract south of the railroad was struck off and sold to William Burgess at $69 per acre, and that the part north of the railroad was struck off and sold to Jack Jeffries at $79.75 per acre. The master's report of the sale showed that G. W. Davies was the purchaser at the sale of both of said above-mentioned parcels, at $79.75 per acre. If we accept the master's report as conclusive upon the point, the deed made to Davies in pursuance of the report operated to transfer to him the full title to all of the said N. W. 1/4 of the S. W. 1/4 of section 12, in which the heirs of the said B. F. Jones had any interest. What is the effect if we accept as being true, and as controlling as against the report, the allegations of the bill that other parties than Davies were the successful bidders at the sale? It will be observed that the master reported that all of the land in controversy was sold at the rate of $79.75 per...