Dep't of Pub. Works & Buildings v. Porter

• Decision Date: 22 October 1927
• Docket Number: No. 16294.,16294.
• Citation: 327 Ill. 28,158 N.E. 366
• Parties: DEPARTMENT OF PUBLIC WORKS AND BUILDINGS et al. v. PORTER et al.
• Court: Illinois Supreme Court

327 Ill. 28

158 N.E. 366

DEPARTMENT OF PUBLIC WORKS AND BUILDINGS et al.

v.PORTER et al.

No. 16294.

Supreme Court of Illinois.

Oct. 22, 1927.

Petition for condemnation by the Department of Public Works and Buildings and others, against May O. Porter and others. After an award for property condemned, Thomas Porter and another filed a petition claiming interest in portion of award. From judgment denying their claim, Thomas Porter and another appeal.

Affirmed.Appeal from Macon County Court; John H. McCoy, Judge.

George B. Rhoads, of Shelbyville, and S. S. Clapper, of Meweaqua, for appellants.

John J. Hogan, of Decatur, guardian ad litem, for appellees.

DUNCAN, J.

The department of public works and buildings of the state of Illinois filed a petition in the county court of Macon county in vacation, seeking to obtain by eminent domain a right of way across certain land the title to which is involved in this appeal, to construct route 2 of the Illinois durable hard road system. May O. Porter and 44 other persons, being the children and grandchildren of Ezekiel Prescott, and their spouses, were made defendants to the petition. The land sought to be condemned had formerly been owned by Prescott. On March 8, 1902, Prescott, and Mary, his wife, executed a deed to the land over which the condemned roadway runs, which was recorded in Macon county March 27, 1902. The deed, omitting the date, signatures, and seals, is in this language:

‘This indenture witnesseth, that the grantors, Ezekiel Prescott and Mary E. Prescott, his wife, of Shelby county, and state of Illinois, for and in consideration of the natural love and affection and the sum of one dollar in hand paid, subject, however, and nevertheless burdened with an absolute defeasance of all of the hereinafter mentioned conditions precedent to the vesting of the title to the hereinafter described real estate, convey and grant to May O. Porter, our daughter, also of Shelby county, Illinois, a life estate for and during her natural life and upon the death of our said daughter then the remainder in fee to the children of her body surviving her the following described real estate, to wit: The east one-half of the southwest one-quarter and all of that part of the west one-half of the southwest one-quarter lying east of the right of way of the Illinois Central Railroad, all in section 17, township 14 north, range 2 east of the 3d P. M., situated in the county of Macon, state of Illinois, the conditions precedent to the vesting of the title of said premises are the following:

‘First. That the said grantee and in case of her death then that the children of her body surviving her shall annually on the first of March beginning with the year 1903 pay the sum of $225 to the grantors and in case of death of either of them, then to the survivor of them for and during the natural life of the grantors and the survivor of them, second, that the said grantee, and in case of her death then the children of her body surviving her shall promptly pay when due for and during the period mentioned in the following paragraph all taxes and special assessments upon the said land and keep the said property insured and in good repair.

‘Third. That the said grantee while living and the children of her body surviving her after her death for and during the entire period of time beginning with the date of this deed and continuing and end at the death of that child of the body of said grantee now living which shall last survive shall in no wise attempt to convey nor incumber the title of the above-described real estate and shall also well and truly keep and perform all the other conditions precedent herein contained then the title of said premises shall vest absolutely until the full expiration of said period of time and until the faithful performance of all of said conditions precedent. This conveyance shall be in the nature ‘of’ a trust estate and be contingent upon the performance of said conditions and upon the failure to keep and perform the said conditions precedent, the said title of said real estate shall revert back to the said grantors while living and if dead to such of their heirs-at-law as shall well and truly keep and perform like conditions contained in other deeds executed by ‘the’ grantors to such other heirs. All erasures and interlineations were made before signing.'

As the construction of the foregoing deed was admittedly difficult, by consent of the parties its construction was withheld until after the money awarded in the condemnation proceeding was paid into court and the possession of the land condemned was taken by the department of public works. The jury, upon a hearing, found that the value of the land taken was $746 and the damages to the land not taken $200, or a total of $946. May O. Porter, who it is admitted had a life estate in the land, received $540.51 of the amount of damages obtained and paid into court, the same being the value of her life estate as found by the court. Thereupon the court entered an order that all persons claiming any interest in the remaining $405.49 of the damages file petitions in the county court setting up the ground upon which they based their claim to the remainder of the damages awarded and accumulations thereon. Thomas Porter and Mara E. Metcalf, the children of May O. Porter, filed a petition in the county court claiming that under the deed they had a vested defeasible remainder in the land mentioned in the deed and were entitled to take in equal shares the remainder of the money obtained under the eminent domain proceeding on giving proper bond against the defeasance of their vested remainder. The petition sets forth the following facts: Petitioners are the only living children of May O. Porter, and that Mrs. Porter never had a child who died leaving children or descendants of children. The deed was delivered shortly after its date and Mrs. Porter took immediate possession of the land described in the deed and paid $225 a year to the grantors, and the survivor of them, until their death. At the date of the delivery of the deed the heirs apparent of Ezekiel and Mary E. Prescott were Mrs. Porter, Louisa Simpson, and Agnes Rettig, daughters; John A. Prescott, a son; and Flora Reighley, May Reighley, and Ezekiel Reighley, grandchildren, children of a deceased daughter, Lena Reighley. Mrs. Porter is married, her husband being Dudley Porter, and her children are Thomas Porter and Mara E. Metcalf, who were living at the time the deed was delivered. Thomas Porter is married, his wife being Marjorie, and he has two children, Winifred and Dudley T. Mara E. Metcalf is married, her husband being Guy Metcalf, and they have two children, Virginia and Charles W. The petition recites the names of all of the descendants of Ezekiel and Mary E. Prescott, and of their spouses, and it is therein stated that the list contains every person in any way connected with the title to the land and all persons who might by any possibility be referred to by the words in the deed, and that Ezekiel and Mary E. Prescott are both dead. A copy of the three deeds referred to in the foregoing deed are attached and made a part of the petition, and the four deeds contain the same provisions but convey different land. Mrs. Porter also paid the taxes from the time the deed was made until the land was condemned by the department of public works. John J. Hogan was appointed guardian adlitem for a number of minor defendants and as such guardian ad litem filed a demurrer to the petition of Thomas Porter and Mara E. Metcalf. The court sustained the demurrer and the petitioners elected to stand by their petition. The county court held that the conditions recited in the deed as conditions precedent were conditions subsequent; that the clause in the deed restraining the alienation of the land was void; that the construction of the deed was so doubtful and uncertain that it was not possible to ascertain who was entitled to the residue of the money unil after the death of Mrs. Porter; and ordered that the remainder of the money be impounded and loaned until the death of Mrs. Porter or until the further order of the court. Thomas Porter and Mara E. Metcalf excepted to the last finding and order of the court and have perfected this appeal.

Appellants and appellees are agreed that the conditions mentioned in the deed are conditions subsequent and not conditions precedent; that the clause prohibiting conveyances or incumbrances of the estate of the grantee is void because an attempted restraint on alienation; that the attempt of the grantors in the deed to create a trust failed; and that May O. Porter by the deed in question was vested with a life estate for and during...