Davis v. Hall

• Court: Illinois Supreme Court
• Writing for the Court: DICKEY
• Citation: Davis v. Hall, 92 Ill. 85, 1879 WL 8481 (Ill. 1879)
• Decision Date: 30 June 1879
• Parties: WILLIAM H. DAVISv.JAMES H. HALL et al.

92 Ill. 85

1879 WL 8481 (Ill.)

WILLIAM H. DAVIS

v.JAMES H. HALL et al.

Supreme Court of Illinois.

June Term, 1879.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Jackson county; the Hon. M. C. CRAWFORD, Judge, presiding.

For a particular statement of facts in this case reference is made to Hall et al. v. Davis, 44 Ill. 495, (June term, 1867,) where one branch of this case was before this court. The cause having been remanded, Mary J. Hall filed her cross-bill against Davis and others, on May 19, 1868, for partition, and for an account of rents; and Harriet B. Hall filed her cross-bill on May 20, 1868, for dower, and for partition and an account of rents. The cause was continued from time to time until the November term, 1872, when it was referred to the master to take proof, and report.

At the September term, 1873, James H. Hall filed his cross-petition, as one of the heirs of Samuel B. Hall, for partition and account.

At the March term, 1874, Davis moved to set aside defaults against him in the cases made by the cross-bills of Mary J. Hall and Harriet B. Hall.

April 11, 1874, William H. Davis filed his plea to the cross-petition of James H. Hall, setting up that for the period of 15 years last past he had been in the actual and adverse possession of the lands and tenements in the cross-petition mentioned, under claim and color of title made in good faith, and has also, during all said time, paid all taxes legally assessed on such lands and tenements.

At the March term, 1875, Davis was granted leave to file answers to the cross-petitions. The answers were excepted to, and replication to the plea was filed. The answer of William H. Davis to the cross-bill of Harriet B. Hall was filed March 17, 1875, and alleges that Davis had acquired the dower right of said Harriet B. Hall by certain conveyances through one of the heirs, and that on or about the 25th of March, 1858, he had received the commissioners' deed of all the premises under the partition suit referred to, in good faith; that ever since the death of Samuel B. Hall, in 1845, said Harriet had been free from disability, and never claimed dower until the 11th of May, 1865. The answer then set up the Statute of Limitations, under the act of 1839.

The answer of Davis to the cross-bill of Mary J. Hall also set up the Statute of Limitations.

Exceptions to the answer of Davis were overruled, and replications to the answer were filed at the June term, 1875.

July 25, 1875, a motion was made by Davis to dismiss his original partition suit, and that the cases made by Mary, Harriet and James, who severally filed their bill in chancery against him, be re-docketed, with said parties filing said bill as complainants, and said Davis as defendant,--which motion was by the court denied.

Motion was then made by Davis that the issue of good faith be tried by a jury.

October 4, 1875, decree upon the cross-petitions of Mary J. Hall and Harriet B. Hall, and the separate answers of Wm. H. Davis thereto, and upon the petition of James H. Hall, and the pleas thereto by Davis, and the replication of James H. Hall, upon the depositions, exhibits and proofs, and the arguments of counsel finding the interest of the cross-petitioners, and appointing commissioners to allot dower, to make partition, and report, and ordering master to take an account.

Appellant assigns as error--

“1st. The circuit court erred in refusing and overruling appellant's motion for leave to dismiss his original partition suit. "2d. The court erred in refusing appellant's motion that the parties filing cross-bills in said cause should docket the case made thereby, with the parties filing said cross-bills as complainants, and appellant as defendant.

"3d. The court erred in refusing appellant's motion to have the question of good faith made by the pleadings tried by a jury.

"4th. The court erred in decreeing partition of the premises in controversy in said cause.

"5th. The court erred in decreeing that any of the parties to said suit, excepting appellant, was entitled to share in the lands in controversy in said suit.

"6th. The court erred in not decreeing that the title to and the right to the possession of the lands in controversy were exclusively in appellant.

"7th. The court erred in decreeing an assignment of dower to Harriet B. Hall in any of the lands in controversy in said cause.”

Mr. L. P. BUTLER, for the appellant.

Mr. THOMAS G. ALLEN, for the appellees.

Mr. JUSTICE DICKEY delivered the opinion of the Court:

As to errors assigned as one and two, we have to hold that appellant has acquiesced too long a time in the chancery procedure of the cause, in the blending of his original proceeding at law (by petition for partition) with defendants' cross-bills in equity, and in the conducting of the whole cause as if it had been commenced in chancery. Cross-bills were filed in May, 1868, and not until July, 1875, did complainant move to dismiss his original partition suit. The inference is unavoidable, and fully justified, that he submitted to the equity jurisdiction of the court in a cause of the subject matter of which courts of law and courts of equity have concurrent jurisdiction. He thus waived his position at law, and ought not to have been allowed at that late day to dismiss his suit without defendants' consent. It is true defendants did not answer Davis' petition for partition before filing their cross-bill, nor at any time, (the original petition having been lost.) But we can not find from the record, nor is it claimed, that Davis ever obtained or applied for a rule upon defendants to answer his petition, nor did he ever restore it. It was in his power, at the proper stage of the proceedings, to have raised this objection. Not having done so, we must consider he waived that part of the pleadings, as well as many other irregularities apparent in the conduct of this cause, of which both sides were guilty. Considering it, as we do, one chancery proceeding, it was a matter of discretion with the court to refuse to submit the question of good faith as an issue of fact to a jury trial.

The other errors assigned go mainly to the merits, and on these this cause will be decided. Davis' main defence by plea to the cross-bill of James H. Hall, and by answer to the cross-bills of Mary J. Hall and Harriet B. Hall, consists in pleading in bar claim and color of title made in good faith, and seven years continuous payment of...