Dodge v. Cole

• Decision Date: 03 February 1881
• Citation: 37 Am.Rep. 111,97 Ill. 338,1881 WL 10416
• Parties: WILLIAM DODGE, Conservator,v.ALMIRON S. COLE et al.
• Court: Illinois Supreme Court

97 Ill. 338

1881 WL 10416 (Ill.)

37 Am.Rep. 111

WILLIAM DODGE, Conservator,

v.ALMIRON S. COLE et al.

Supreme Court of Illinois.

Filed at Ottawa Feb. 3, 1881.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Peoria county; the Hon. J. W. COCHRAN, Judge, presiding.

This was a bill in chancery, brought by William M. Dodge, conservator of Maria Sharp, against Almiron S. Cole, Archibald McMasters, Charles Raymond, Thomas L. Davis, John R. Smith, Washington Cockle, William C. Henry, August Weber, Joseph Miller, Theobold Pfeifer, Jacob Rabold, Henry B. Rouse, Margaret Rouse, Horatio N. Wheeler, The Mechanics' National Bank of Peoria, William Heck, George Schmidt, Carl Wagoner, Philip Messerschmidt, John McMasters, Maurice Maroney, Samuel Seiler and Henry Kreiger, to set aside a certain sale of land made by a former conservator.

Mr. H. B. HOPKINS, and Mr. ENOCH P. SLOAN, for the appellant:

None of the statutes of limitation which are or have been in force in this State, can have any application to this case, Maria Sharp having always been a lunatic or insane person.

The title to the property being vested in the lunatic, was not divested by the proceedings in the Peoria circuit court, under which the defendants claim title.

Maria Sharp had no notice of the proceeding to adjudge her insane, and therefore the appointment of the conservator was void, for want of jurisdiction.

The rule of law is universal, that a court is without jurisdiction, and its judgments are null and void, in all direct or collateral proceedings, when the party against whom they are rendered has received no notice, actual or constructive, of the pendency of the proceedings, and did not appear. Buckmaster v. Carlin, 3 Scam. 104; Swiggart v. Harber, 4 Id. 364; Rockwell v. Jones, 21 Ill. 279; Lawrence v. Lane, 4 Gilm. 354; White v. Jones, 38 Ill. 160; Miller v. Hardy, 44 Id. 448; Campbell v. McCohan, 41 Id. 45; Huls v. Buntin, 47 Id. 396; Goudy v. Hall, 30 Id. 215; Clark v. Thompson, 47 Id. 25; Botsford v. O'Conner, 57 Id. 72; Haywood v. Collins, 60 Id. 328; Donlin v. Hettinger, 57 Id. 348; Fell v. Young, 63 Id. 106; Osgood v. Blackmore, 59 Id. 261; Swearengen v. Gulick, 67 Id. 209; Eddy v. People, 15 Id. 386.

The proceeding to sell the property of Maria Sharp was, upon its face, a proceeding adversary to her, and for the purpose of subjecting her property to the payment of a claim set up against her by Lisk, and she was not made a party to it, was not summoned, did not appear, no guardian ad litem was appointed for her, therefore she never had any day in court.

Neither the Peoria circuit court nor any other court in this State had jurisdiction or power to entertain a proceeding or make any judgment or decree for the sale of the real estate of any lunatic or insane person. We maintain that no court in this State then had power to decree a sale of the real estate of an insane person or lunatic.

Courts of chancery have no such authority by virtue of any inherent powers, or general acts concerning jurisdiction.

To show that there was no jurisdiction in the English courts, either by the prerogative warrant to the Lord Chancellor or otherwise, to decree an alienation of the lands of lunatics until the 43d year of George III, 1803, and none in this State until conferred by the act of 1853, counsel cited a great many authorities, among which are the following: Berry v. Rogers, 2 B. Mon. 308; Shelford on Lunatics, 225, marginal p. 355; Seargeson v. Sealey, 2 Atk. 412; 8 Ves. 79; Rogers v. Dill, 6 Hill. 416; Taylor v. Phillips, 2 Ves. 23; Russell v. Russell, 1 Mallony, 525; McPherson on Infants, 311; Baker v. Lorillard, 4 Com. 262; Snowhill v. Snowhill, 2 Green, Ch. 20; 3 Washb on Real Prop. 197.

No rule of law is better settled in this State than that any one who is authorized to make, or whose duty it is to make, sale of property in an official capacity, in a fiduciary capacity or in the capacity of agent or trustee, can not become the purchaser of such property on his own account, whether such sale purports to be made to him directly, or is made indirectly through the intervention of a third party; and it makes no difference whether the consideration paid be adequate or not, nor what the motive for the transaction may have been, all such sales being voidable at the instance of the party injured, if steps to avoid them be taken in a reasonable time. Directly in point are the following authorities: Thorp et al. v. McCullom et al. 1 Gilm. 614; Sweetser et al. v. Skiles, 3 Id. 529; McConnel v. Gibson et al. 12 Ill. 128; Pensonneau et al. v. Bleakley, 14 Id. 15; Follansbe v. Kilbreth, 17 Id. 522; Wickliffe v. Robinson et al. 18 Id. 545; Robins v. Butler et al. 24 Id. 387; Dennis et al. v. McCagg et al. 32 Id. 429; Lockwood v. Mills, 39 Id. 602; Miles et al. v. Wheeler et al. 43 Id. 123; Kruse v. Steffins, 47 Id. 112; Sloan v. Graham et al. 85 Id. 26; Michoud et al. v. Girod et al. 4 How. 503; 2 Wash. on Real Prop. 209, marginal; Ogden v. Larrabee, 57 Ill. 389; Nelson v. Hayner et al. 66 Id. 493; Demster et al. v. West, 68 Id. 613; Hartz et al. v. Brown et al. 77 Id. 226; Davoue v. Fanning, 2 Johns. Ch. 251.

In the present case, however, no ratification of the unlawful sale is possible, or can be presumed, because the claimant is an insane person, and, as no limitation can run against her, she is yet within all the statutory limitations for real actions.

Laches is never imputed to idiots, lunatics and insane persons. Shelford on Lunatics, p. 404; 2 Parsons on Contracts, p. 374; Perry on Trusts, p. 782, sec. 860.

Mr. D. MCCULLOCH, and Mr. R. G. INGERSOLL, for the appellees:

The title at law to the land became vested in Jane Sharp (Lisk) by the patent dated July 10, 1844, and her title was never divested until she conveyed the same by the several deeds under which the defendants claim. This was the only method by which her title could be divested.

On the 6th day of June, 1836, Sarah J. Sharp caused the purchase money to be paid at the Quincy Land Office, in pursuance of her pre-emption, and obtained a receiver's receipt. This receipt was the only evidence of title to support the bill for partition subsequently filed. This instrument is not nor ever was evidence of title. Session Laws, 1827, 199; Rev. Stat. 1833, 280; Laws, 1839, 196; Rev. Stat. 1845, 232; Rofer v. Claybaugh, 3 Scam. 166; Carson v. Merle, 4 Id. 363; Aldes v. Abbott, 23 Ill. 61.

The court of chancery could not, by its decree, vest title in any of the parties to that suit. Even if the legal title had vested in Mrs. Lisk so as to countervail the effect of the patent subsequently issued, still the court had no power to divest that title without a conveyance of the land. A judgment in a partition at law severs the joint tenancy. A decree in chancery does not. Louvalle v. Menard, 1 Gilm. 39; Greenup v. Sewell, 18 Ill. 53; Tibbs v. Allen, 27 Id. 129; Gregory v. Grover, 19 Id. 608.

The decree in chancery operated only in personam, and partition could only be perfected by conveyances, and this the court would order only where the parties were under no disability to convey. Wadhams v. Gay, 73 Ill. 429; Chickering v. Failes, 29 Id. 294; Smith v. Crawford, 81 Id. 299; Walker v. Laflin, 26 Id. 475; Sabadie v. Hewitt, 85 Id. 341; Whaley v. Dawson, 2 Sch. & Lef. 371; Penn v. Ld. Baltimore, 1 Ves. Sen. 447; 2 Daniell's Ch. Pr. 1134-5; Miller v. Warrington, 1 J. & W. 493; Youngs v. Cooper, 3 Johns. Ch. 295.

The proceeding in every essential feature was in chancery, and consequently the legal title then residing in Mrs. Lisk was not divested by these proceedings.

Was Mrs. Lisk estopped, by this decree, to re-assert her title, or does she, by virtue of the decree, hold in trust for Maria? Express trusts must be in writing. Rev. Stat. 1833, p. 314.

No act of the husband is binding upon the wife without her acknowledgment. Rev. Stat. 1845, chap. 34, sec. 14; Spurck v. Crook, 19 Ill. 427.

The rule is inflexible, that a married woman can not give away, or convey, or authorize the conveyance of her property, by joining with her husband or being joined with him as plaintiff in a suit. Spurck v. Crook, supra; Grant v. Schoonoven, 9 Paige, 255; Reeve v. Dulby, 2 Sim. & Stu. 464; Wake v. Parker, 2 Keen, 73; England v. Downs, 1 Beav. 96; Owden v. Campbell, 8 Sim. 551; Simmons v. Howard, 1 Keen, 9; Graydon v. Graydon, McM. (South Car. Eq. Rep.) 63; Sigel v. Philips, 7 Sim. 239; Hughes v. Evans, 1 Sim. & Stu. 185, n; Pawlet v. Delavel, 2 Ves, 666; Griffith v. Hood, Id. 452; Thorpe v. Yeates, 1 Y. & C. Ch. 438; Davis v. Prout, 7 Beav. 288; Story's Eq. Pl. (8th ed.) p. 59, sec. 61.

She is not estopped by the decree, and the whole question of Maria Sharp's equities is open for investigation in this suit. Wadhams v. Gay, supra.

Another reason why the decree has no binding force is because Jackson Sharp was not served with process, and consequently there could be no binding decree of partition even in equity.

The partition being incomplete on these grounds, and requiring the aid of a court of equity to give it effect, the whole subject of complainant's equities is open for inquiry.

The facts do not raise a trust for the benefit of the idiot. The administrator had no lawful right to enter the land with moneys of the estate.

This unauthorized use of the money created no resulting trust in favor of the heirs, for no title to the money vests in them until the debts are paid and an order of distribution made. This was never done. Leamon v. McCubbin, 82 Ill. 263; Neubrecht v. Santmeyer, 50 Id. 74; Wisdom v. Becker, 52 Id. 342.

The wrongful investment of the money of a non compos in land creates a lien for its repayment, and nothing more, and when the lien is discharged, the title is freed from the equity. 1 Lomax on Exrs. 223; Adams Eq. 297; Dyer v. Dyer, 1 Lead. Cases Eq. (3d Am. ed.) 277; Earl of Winchelsea v. Norcliffe, 1 Vern. 435; Awaley v. Awaley, 2 Id. 192; Ashley v. Palmer, Merivale, 296; Wallace v. Duffield, 2 W. & S. 529....