Ebelmesser v. Ebelmesser

• Decision Date: 21 June 1881
• Citation: 1881 WL 10579,99 Ill. 541
• Parties: CHARLES EBELMESSER et al.v.CAROLINE EBELMESSER et al.
• Court: Illinois Supreme Court

99 Ill. 541

1881 WL 10579 (Ill.)

CHARLES EBELMESSER et al.

v.CAROLINE EBELMESSER et al.

Supreme Court of Illinois.

Filed at Mt. Vernon Jun. 21, 1881.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Fayette county; the Hon. CHARLES S. ZANE, Judge, presiding.

This was a suit in chancery, instituted in the court below, by Caroline Ebelmesser, the widow, and Peter Ebelmesser, Carl Ebelmesser, and Erestine Ebelmesser, the children and heirs at law, of David Ebelmesser, deceased, against Charles Ebelmesser and Samuel W. Rode.

The bill alleges that David Ebelmesser died intestate, in May, 1876, being at the time of his death the owner of a tract of land described in the bill. The defendant Charles Ebelmesser was appointed administrator of the estate, and, in that capacity, at the January term, 1877, of the county court of Fayette county, obtained an order for the sale of a portion of the land mentioned, to pay the debts of the estate.

It is charged in the bill that Charles Ebelmesser, the administrator, and Rode, each desiring a portion of the land which was to be sold under the order of the county court, arranged with one Charles Humpeler to buy the property in at the administrator's sale, and then convey the respective parts to the administrator and to Rode, who were to pay the purchase money; that in pursuance of this arrangement Humpeler did purchase the land at the administrator's sale, received a deed therefor, and afterwards conveyed to the administrator and Rode, these grantees of Humpeler paying the entire purchase money. It is alleged that in the transaction Humpeler did not act on his own behalf, but as the agent of the administrator and Rode. The bill prays that the administrator's sale be set aside, and for general relief. Issues were made up upon the matters contained in the bill, and upon the hearing the court found, from the evidence, that David Ebelmesser died intestate in 1876, leaving complainants his widow and heirs; that Charles Ebelmesser was appointed administrator of his estate; that David Ebelmesser resided on a forty acre tract of land, worth $600 or $700, cornering with the lands mentioned in complainants' bill; that the personal estate of the said David Ebelmesser was not sufficient to pay his debts; that said Charles Ebelmesser, the administrator, obtained a decree in the county court of Fayette county, in January, 1877, to sell the tract of land in complainants' bill mentioned, to pay his debts. The land was sold by the said Charles Ebelmesser, as such administrator, on the 17th day of February, A. D. 1877, and the same was bid off by Humpeler for the sum of $300. The court further found that said land was of the value of about $500.

The court further found from the evidence that there was collusion between the two defendants herein. Each of them wanted half of the said land,--one the north half, the other the south half,--and that there was an understanding between them that the administrator should have a third party bid off the land, and then deed one-half to one of the defendants and the other to the other, and that defendant Rode should not bid at the sale. The court further found that defendant Charles Ebelmesser procured Humpeler to bid off said land for him, Ebelmesser; that immediately after the sale, in February, 1877, Charles Ebelmesser took possession of one-half of said land, and defendant Rode the other half, and that in April, 1878, Humpeler made to each a quitclaim deed to half of said tract of land, and that Humpeler never paid the administrator for said land,--but that said administrator furnished the money to pay $300 of the indebtedness of David Ebelmesser's estate, and that he now holds the title to the north half of said tract of land, and defendant Rode has the title to the south half of said tract.

It was therefore ordered and decreed by the court that the sale made by Charles Ebelmesser, as administrator of David Ebelmesser, on the 17th day of February, 1877, of the land in controversy to Humpeler, be set aside, annulled, and made of no effect and void, and that the deed made to said lands by said Charles Ebelmesser, as administrator of said estate, to Humpeler, in pursuance of said sale, be canceled and set aside as a cloud on the title of complainants, and that the two deeds made April 17, 1878, by Humpeler, one conveying the north half of said tract to Charles Ebelmesser and the one conveying the south half of said tract of land to the defendant Rode, be canceled and rendered null and void; that the cloud they create upon complainants' title be removed; that said defendants surrender the possession of said land back to complainant Caroline Ebelmesser, and upon failure to do so that writ of restitution issue in the name of complainants, and that defendants pay the costs of this suit, and that execution and fee bill issue therefor.

Thereupon defendants filed the following objections to the approval of said decree:

“And now come defendants and object to the approval of the decree filed herein, and ask that the same be re-opened and a new decree be entered, or that the decree filed be modified, for the following reasons, viz:

First--The finding of facts is not sustained by the evidence heard.

Second--The decree is erroneous, unjust and inequitable.

Third--If it is proper for the court to cancel the sale of the lands, it should find and take an account of the amount of purchase money paid, the amount of taxes paid, and the amount and value of permanent improvements made, and decree that complainants pay the same, with interest, before the deeds be canceled, or decree that the lands be re-sold, and at the sale be offered for the aggregate of these sums, and that in the event there are no higher bidders the sale made by the administrator be affirmed.”

The court overruled these objections and approved the decree. The defendants appealed.

Mr. EDWIN M. ASHCRAFT, for the appellants:

It is believed no case can be found where a court of equity has set a sale aside without placing the parties in statu quo. If an executor, administrator or trustee has purchased at his own sale, in equity he is always in some way protected, either by having his rights subrogated or made a lien upon the property. Donner v. Fortescue, 3 Atk. 130; Hardwick v. Vernon, 4 Ves. 411; Davon v. Fanning, 2 Johns. 252; Thorp v. McCullum, 1 Gilm. 614; Michand v. Girard et al. 4 How. 553; Miles v. Wheeler, 43 Ill. 128; Kruse v. Steffens, 47 Id. 114; Coat et al. v. Coat et al. 63 Id. 73; Ives v. Ashley, 97 Mass. 198; 2 Sugden V. & P. (8th Am. ed.) 687, note (a); Blood v. Hayman, 13 Metc. 231; Robbins v. Bates, 4 Cush. 104; Dunlap v. Mitchell, 10 Ohio, 117; Musselman v. Eshleman,10 Pa. St. 401; Moore v. Helton, 12 Leigh, 1; Mercer v. Newson, 23 Ga. 151; Harrington v. Brown, 5 Pick. 519; Shine v. Redwine, 30 Ga. 780; Boyd v. Blankman, 29 Cal. 19; Anderson v. Green, 46 Ga. 361; Smith v. Cranberry, 39 Id. 381; Grubb v. McGlawn, 39 Id. 672; Flanders v. Flanders, 23 Id. 249; Mead v. Bygton, 10 Vt. 116; Petrie v. Clark, 11 Serg. & R. 377; Green v. Sargent, 23 Vt. 446; Hawley v. Cramer, 4 Cow. 718; Jennison v. Hapgood, 7 Pick. 1; Toney v. Bank of Orleans, 9 Paige, 644.

Such sales will be treated as valid, until avoided. Trimmier v. Trail, 2 Bailey, 480; Dunlap v. Mitchell, 10 Ohio, 117.

The property will be put up again for sale; but if more can not be obtained for it, the executor's purchase will be confirmed. Bailey v. Robinson, 1 Gratt. (Va.) 4.

Where the administrator has purchased and made valuable improvements. Potter v. Smith, 36 Ind. 231; Smith v. Drake, 23 N. J. Eq. 302.

The defrauding party must be placed in statu quo. Lane v. Latimer, 41 Ga. 171; Sanborn v. Batchelder, 51 N. H. 426; Perley v. Balch, 23 Pick. 283; Thurston v. Blanchard, 22 Id. 18; Beetem v. Burkholder, 19 Smith, (Pa.) 249; Manahan v. Noyes, 52 N. H. 232.

In the above cited cases many will be found in which much more fraud is found than in the case at bar.

Appellees now claim that the sale is wholly void, and that the bill is only filed to remove the clouds from their title, and they have drawn their decree upon that theory. If the deeds are void, they can not maintain this action.

The bill, evidence and decree all agree that appellants are in possession, and the decree awards a writ of possession.

A bill to remove cloud from title can not be maintained by a party out of possession, if the lands are improved and occupied by the defendant. Fire Insurance Co. v. Buckmaster, 13 Ill. 201; Kennedy v. Northop, 15 Id. 152; Smith v. McConnel, 17 Id. 139.

The act of 1869 only applies where complainant is in possession, or where the lands are unimproved or unoccupied. If the defendant has possession, there is a complete remedy, if the deed is void, by an action of ejectment. Wing v. Sherrer, 77 Ill. 200.

It will be found, however, that the sale is voidable, and that the court should have found the amount of purchase money, permanent improvements, etc., and made them a lien upon the lands, and ordered a re-sale.

Messrs. HENRY & PALMER, for the appellees:

The bill asks to have all the deeds set aside for fraud, but makes no claim for rents or profits. The answers are, in effect, denials of all the material allegations of the bill, with no allegations showing any right to any sort of...