Davis v. Lang

• Decision Date: 30 October 1894
• Parties: DAVIS v. LANG et al.
• Court: Illinois Supreme Court

153 Ill. 175

38 N.E. 635

DAVIS

v.LANG et al.¹

Supreme Court of Illinois.

Oct. 30, 1894.

Error to circuit court, Morgan county.

Bill for partition brought by Harriet A. Lang and Sarah J. Ransdell against John Kenney Davis. There was a decree of partition and sale. Defendant brings error. Affirmed.

Wm. A. Crawley and Oscar A. De Leuw, for plaintiff in error.

Morrison & Whitlock and Brown & Kirby, for defendants in error.

BAKER, J.

In the year 1873, Daniel B. Davis died, intestate, and seised in fee of 160 acres of land in Morgan county. He left, him surviving, his widow and four children, John Kenney Davis, the plaintiff in error. William R. Davis, Harriet A. Lang, and Sarah J. Ransdell. Said William R. Davis conveyed by quitclaim deed his undivided one-quarter interest in the land to plaintiff in error. In 1885, the widow died. In 1889, Harriet A. Lang and Sarah J. Ransdell exhibited this, their bill for partition, alleging the above facts; that they were each the owner of an undivided one-fourth interest in said land, and plaintiff in error the owner of an undivided one-half interest therein; and that the latter had been in possession of the premises since his father's death, in 1873. The bill prayed for partition, and for an accounting in respect to the rents and profits. Plaintiff in error filed an answer, admitting the allegations of the bill, except as to his use of the premises, and setting up that he had paid all the taxes since his father's death, and that he had made valuable and permanent improvements on the land, of the value of $2,000. Afterwards, and during the same term of court, William R. Ransdell, husband of the said Sarah J. Ransdell, interpleaded, by leave of the court. In and by his interpleader, he alleged and charged that on the 2d day of May, 1889, he had loaned to plaintiff in error the sum of $3,500, to be repaid in one year from that date, with 7 per cent. per annum interest, and had taken and received as security therefor a mortgage from plaintiff in error on his undivided one-half of the 160 acres of land sought to be partitioned; and he asked that his said mortgage should be protected by the decree of the court. Such proceedings were thereafter had as that commissioners were appointed to make partition, and the commissioners made report that the lands were not susceptible of division, and thereupon the court decreed a sale of the same. By the decree the costs were ordered to be first paid, and reasonable ‘solicitor's fees were allowed and fixed at $400,-$200 to the solicitors of the complainants to the bill, and $200 to the solicitor of plaintiff in error. The decree also made an adjustment in the matter of the accounting for rents and profits; and it then ordered that out of the proceeds of the one-half interest of plaintiff in error in the premises the master in chancery should pay to William R. Ransdell the sum of $3,683.07, that being the amount found to be due him for his mortgage debt, with interest to February 1, 1890, and should also pay him interest from said last-named date, at six per cent. per annum. The decree also provided for the execution by the master of a deed to the purchaser, upon the confirmation of the sale. Thereafter the master made report, showing a sale of the lands on March 8, 1890, to said William R. Ransdell, for the sum of $9,968, which sum was paid in cash on the day of sale, although, by the terms of the decree, a credit was provided for as to part of the purchase money. No exception was filed to the report, and it was approved by the court. At a subsequent date, plaintiff in error sued out this writ of error, and brought the record to this court, and made various assignments of error,-that the court below erred in rendering a decree for partition; that it erred in rendering the decree of sale, and in making the sale absolute, and not subject to the Ransdell mortgage; that it erred in awarding solicitor's fees in their contested case; that it erred in decreeing relief upon the interpleader without Mary J. Davis, wife of plaintiff in error, who joined in the execution of the mortgage, being made a party to the proceeding; also, that it erred in denying the right to redeem under the mortgage, and in foreclosing the same before due, and without any allegation or prayer for such foreclosure in the pleadings. Thereupon defendants in error interposed three pleas of release of errors, each of said pleas setting up, in substance, the same fact, to wit, that plaintiff in error had received his distribution share of the proceeds of the sale made under the decree, and had thereby waived and released all and singular the several errors assigned. To these pleas, plaintiff in error filed a replication, setting up that he did not accept and receive his said share of said proceeds, but that one M. T. Layman received his said share of the proceeds without the authority or knowledge of him, said plaintiff in error; and he also filed an answer as demurrer, questioning the sufficiency of the pleas of release of errors, and asking that the same be reserved until the final hearing. To the replication there was a rejoinder to the effect that plaintiff in error did receive of and from said Layman, who was his attorney of record in the case, said share of said proceeds. The issue of fact made upon the pleas of a release of error and the replication thereto and the rejoinder was ordered to be and was certified to the circuit court of Morgan county, for determination by the verdict of a jury thereon; and said circuit court certified back a transcript of record, showing the proceedings in the premises, and that the verdict of the jury upon the issue of fact was as follows: ‘We, the jury, find the issues for the defendants, Harriet A. Lang and others.’

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