Denk v. Fiel

• Decision Date: 06 April 1911
• Parties: DENK et al. v. FIEL et al.
• Court: Illinois Supreme Court

249 Ill. 424

94 N.E. 672

DENK et al.

v.FIEL et al.

Supreme Court of Illinois.

Feb. 25, 1911.

Petition for Rehearing Stricken April 6, 1911.

Appeal from Superior Court, Cook County; Albert C. Barnes, Judge.

Action by William Denk and others against Anna Fiel and others. From a decree dismissing the bill, complainants appeal. Affirmed.John Stelk, for appellants.

Robert L. Stephens and A. C. Anderson for appellees.

VICKERS, C. J.

Anton Denk died intestate in Chicago, January 31, 1896, leaving him surviving Anna Denk, his widow, and William, Annie, Josefa, and Antonie Denk, his children by a former wife, as his only heirs at law. At the time of his death he was the owner of lot 27 in Evans' subdivision of a part of the south half of block 38 in the subdivision of section 19, township 39 N., range 14 E., of the Third principal meridian. This property was improve with a one-story house, and was occupied by said Anton Denk as his homestead, and his wife, Anna, and one child Josefa, were living with him at the time of his death. It was stipulated by the parties that the property was worth about $2,500, and was subject to a mortgage given by Anton Denk for $1,100. Upon the application of the widow, Karl H. Frankl was appointed administrator of the estate of said Anton Denk, deceased, by the probate court of Cook county. The administrator filed an inventory, in which he stated that no personal property of the estate had come to his hands, and that the deceased died seised of the above-described real estate. Appraisers were appointed, who reported no property subject to appraisement and at the same time fixed the widow's award at $1,380, which was approved by the court. On March 6, 1896, the administrator filed his petition in said probate court for a decree to sell the real estate of the deceased to pay the debts of the estate. The petition alleged a deficiency in the personal estate to pay the widow's award of $1,380 and the expenses of administration then due and to accrue; that no other claims would be presented against said estate; that said Anton Denk departed this life intestate, leaving him surviving his widow and children above named as his only heirs at law; that all of said children were minors, unmarried, and had no legal guardian residing in this state; that he died seised of the real estate above described, which was improved with a one-story brick building occupied by said widow and her family; and that it was subject to the dower and homestead rights of the widow and to a trust deed to secure the payment of $1,100. The widow and children and the holder of the indebtedness secured by said trust deed were made defendants to the petition. The appointment of a guardian ad litem for the minors and a decree for the sale of the real estate were prayed for. Upon the filing of the petition, a summons was issued out of said court, dated March 6, 1896, and returnable on March 16, 1896. It was returned by the sheriff of Cook county with an indorsement thereon that he had served the said summons on the said William Denk, Annie Denk, Josefa Denk, and Antonie Denk by reading the same and delivering a copy thereof to each of them on March 14, 1896. The other defendants were served with summons on March 6, 1896. No decree was entered at the March term of court, but afterwards, on the 5th day of May, 1896, being one of the days of the April term of said probate court, a decree was entered finding the material allegations of the petition to be true, and that it was necessary to sell said real estate for the payment of debts, and ordered that the same be sold subject to the dower interest and homestead rights of the said widow and subject to the incumbrance of $1,100. Said decree also contained the following finding: ‘And it further appearing to the court that the defendants William Denk, Annie Denk, Josefa Denk, and Antonie Denk were duly and personally served with summons in this cause by the sheriff of Cook county more than 10 days prior to the first day of the present term of this court, that they are minors and have no guardian residing in this state, it is therefore ordered by the court that E. P. Eastman be appointedguardian ad litem for said defendants.’ Under this decree the administrator sold the real estate in question on June 12, 1896, to the widow, Anna Denk, for the sum of $1,200, subject to her dower and homestead rights and to the lien of said trust deed. The report of sale was approved by the court, and the administrator thereupon executed his deed conveying said premises to said widow, Anna Denk, and she executed to him a receipt for $1,200. On October 5, 1898, she conveyed said premises to James Pitlik and Katerina Pitlik, his wife, and in November of that year said widow, Anna Denk, married Frank Fiel. James Pitlik and Katerina, his wife, conveyed said premises to Frank Fiel and Anna Fiel by warranty deed dated May 30, 1899, for an express consideration of $1,200. Frank Fiel paid off the indebtedness against the property, and caused the trust deed above mentioned to be released. He made some additions to the house, and subsequent to the filing of the original bill in this suit he and his wife, Anna Fiel, sold and conveyed the property to the defendant James M. McManus for a consideration of $5,400. The original bill in this case was filed May 19, 1908, in the superior court of Cook county, by the children of Anton Denk, except Annie, who had married Frank Weiss and departed this life leaving a child named Alice Weiss surviving her, who, with its father and guardian, Frank Weiss, joined as complainant. All of said children of Anton Denk had attained their legal majorities, but this suit was commenced within five years thereafter. The prayer of the bill is that the decree of the probate court be declared null and void and set aside for want of jurisdiction of the complainants, and that the deeds made purporting to convey the premises, based on said administrator's sale, be declared void, and that the dower interests of Anna Fiel and Frank Weiss be set off to them, and that the estate of homestead be set off to complainants Josefa and Antonie Denk, and that said real estate be partitioned among the complainants, claiming a one-fourth undividedinterest for each of the said complainants. The master to whom the cause was referred, with directions to report his conclusions of law and fact, reported adversely to the complainants, and recommended a decree dismissing the bill. On the hearing before the court on exceptions to the master's findings, a decree was entered dismissing the bill, from which William Denk and Josefa Denk have prosecuted an appeal to this court.

The contention that the county court had no jurisdiction of the children of Anton Denk cannot be sustained. The decree finds that each of said children (naming them) was duly and personally served with summons more than 10 days before the first day of the term at which the decree was entered, and this finding is not contradicted by any other part of the record. There was ample time for the issuance and service of another summons for the April term, and, nothing appearing to the contrary in the record, it will be presumed that such summons was issued and duly served 10 days before the first day of the April term. Matthews v. Hoff, 113 Ill. 90;Connely v. Rue, 148 Ill. 207, 35 N. E. 824. Other objections to the decree do not involve jurisdictional questions.

The right of an infant to maintain an original bill for relief against a decree entered against him during the minority for fraud or for error appearing upon the face of the proceedings is settled by a long line of authorities in this state. Loyd v. Malone, 23 Ill. 43, 76 Am. Dec. 179;Kuchenbeiser v. Beckert, 41 Ill. 172;Gooch v. Green, 102 Ill. 507;Lloyd v. Kirkwood, 112 Ill. 329;Haines v. Hewitt, 129 Ill. 347, 21 N. E. 930;Griswold v. Hicks, 132 Ill. 494, 24 N. E. 63,22 Am. St. Rep. 549;Coffin v. Argo, 134 Ill. 276, 24 N. E. 1068;Grimes v. Grimes, 143 Ill. 550, 32 N. E. 847;Clark v. Shawen, 190 Ill. 47, 60 N. E. 116;Crane v. Stafford, 217 Ill. 21, 75 N. E. 424;Johnson v. Buck, 220 Ill. 226, 77 N. E. 163. The above authorities settle beyond controversy the jurisdiction of equity to entertain an original bill at the instance of minors whose rights have been prejudiced by a decree rendered against them while they were under lawful age, and that such bill may be filed during minority or within the time fixed by the statute for suing out a writ of error after such infant defendants have attained their majority. There is, however, some confusion among the authorities as to the character of defects in the proceeding sought to be impeached which will warrant a court of equity in granting relief under a bill of this character. This apparent conflict in the decisions of this court results mainly from a failure to keep in mind the distinction between the rights of parties to the record and their privies and the rights of third parties who have acquired interests in the subject-matter subsequent to the rendition of the decree sought to impeached. It is a rule founded on reason and well supported by authority, that a purchaser at a judicial sale who is not a party to the record will be protected against any errors or irregularities in the proceeding anterior to the sale, provided that the court rendering such decree had jurisdiction. Innocent third parties have a right to rely upon a judgment or decree of a court having jurisdiction to pronounce it. They are not required to look beyond the question of jurisdiction, and if the decree is one which the court has jurisdiction to render, both as to subject-matter and the parties, innocent purchasers acting in good faith will be protected notwithstanding the existence of errors which would cause a reversal of such decree or judgment by the court of review. Montanye v. Wallahan, 84 Ill. 355;Thompson v. Frew, 107 Ill. 478;Crawford v. Thomson, ...