Eddy v. Eddy

• Decision Date: 13 April 1922
• Docket Number: No. 14189.,14189.
• Citation: 134 N.E. 801,302 Ill. 446
• Parties: EDDY v. EDDY et al.
• Court: Illinois Supreme Court

302 Ill. 446

134 N.E. 801

EDDY

v.EDDY et al.

No. 14189.

Supreme Court of Illinois.

Feb. 22, 1922.

Rehearing Denied April 13, 1922.

Suit by Clarence Y. Eddy against Seward A. Eddy and others. From decree for plaintiff, defendants appeal.

Affirmed.

Appeal from Circuit Court, Whiteside County; F. D. Ramsay, judge.

Kenworthy, Dietz, Shallberg, Harper & Sinnett, of Moline, and McMahon & Bell, of Fulton, for appellants.

L. T. Stocking, of Morrison, for appellee.

CARTWRIGHT, J.

The appellee, Clarence Y. Eddy, filed his bill in this case in the circuit court of Whiteside county of impeach and set aside, for fraud, want of jurisdiction, and disregard of his constitutional rights, a decree of that court in a partition suit, and proceedings thereunder, depriving him of his undivided one-tenth interest in over 400 acres of land in that county. The defendants were Seward A. Eddy, complainant in the partition suit; Newell R. Eddy, Lloyd Y. Eddy and Dana O. Eddy, defendants therein, who purchased the premises at the master's sale; Leonard J. Doll, Riely Greth, and William J. Doll, their grantees; and R. C. Burchell, a mortgagee, who are the appellants. The bill alleged that the appellee was the owner of an undivided one-tenth of the lands by devise from his father, York Eddy, and that the former proceedings to partition were void as to him, for the reasons in the bill and hereafter set forth. The appellants interposed a general and special demurrer to the bill containing 19 specifications of alleged defects therein, and, the demurrer being overruled, they then filed a plea to so much of the bill as sought to set aside the former decree for partition, setting forth in the plea the material parts of the procedure in the former suit, and they answered the residue of the bill which charged fraud in the proceeding. The evidence was heard by the chancellor, and a decree was entered according to the prayer of the bill, finding that the former decree and all proceedings subsequent thereto were void as against the appellee, but were binding on the other parties to the suit, that the appellee was entitled to partition, and that the purchasers at the partition sale were liable for rents of the appellee's interest in the lands from the time of their purchase until a subsequent conveyance by them to other appellants. The former decree and proceedings were set aside as against the appellee, a decree was entered against the purchasers for rents in accordance with the finding, and partition was ordered. From that decree this appeal was prosecuted.

York Eddy, the owner of the lands, died testator on October 31, 1911, leaving a widow, nine children, and four children of a deceased daughter. By his will he devised a life estate to his wife with remainder to his ten children or their heirs, share and share alike. His estate was settled, and, the widow having died, the appellant Seward A. Eddy, one of the sons, filed his bill on November 9, 1914, in the circuit court, making the other devisees defendants, with others, stating the title to the lands as devised, and alleging that the appellee, Clarence Y. Eddy, was the owner, as tenant in common with the other devisees, of an undivided one-tenth of the lands. On January 4, 1915, the complainant by leave of court filed his amended bill, making the same averments as to the land and ownership thereof, against the same defendants, including Clarence Y. Eddy, ‘if he be alive,’ but alleging that Clarence had resided at Erie, Whiteside county, Ill., until about 10 years before that time; that Erie and vicinity were his usual places of abode; that more than 10 years before that time he left Erie and has never since returned; that he had not been heard of by any of his relatives and friends for more than 8 years; that the complainant had made inquiry among the friends and relatives of Clarence and had been entirely unable to ascertain whether or not he was living or dead or to ascertain his whereabouts, residence, or post office address; that Clarence, if living, would be of the age of 54 years; that he had never been married, and the complainant believed that he was dead and died a single man, leaving no children or descendants. The bill then alleged that by virtue of the will of York Eddy and the death of appellee his brothers and sisters were each the owners of an undivided one-ninth part and the grandchildren of an undivided 1/36 part each of the real estate as his heirs at law. The other devisees answered the amended bill, admitting the devise by York Eddy and admitting the averments of the bill as to Clarence Y. Eddy, and that the real estate was then owned, as averred in the amended bill, by the other devisees by virtue of the devise and as heirs at law of Clarence. In the amended bill the appellee was named as a defendant ‘if he be alive,’ but it was averred that he was not living, and facts were stated which raised a legal presumption of his death. The court by the decree found and recited the same facts alleged in the bill concerning the absence of Clarence Y. Eddy, and found that he was no longer living, but departed this life at some time within the last 10 years; that at the time he left Erie he had not been married and was never afterward married, so far as any of his relatives and friends knew; that he died a single man and left no last will and testament; that his estate passed to the other deviseesas his heirs at law; and that when he departed this life he left surviving him as his only heirs at law his brothers, sisters, nieces, and nephews. The decree ordered partition in accordance with the averments of the amended bill, giving to the sons and daughters each a one-ninth part of the real estate and to the four grandchildren each 1/36 part. The commissioners reported that the lands could not be divided and a decree for a sale was entered, and they were sold to the complainant, Seward A. Eddy, and the defendants Newell R. Eddy, Lloyd Y. Eddy, and Dana O. Eddy. The sale was approved and a deed to the purchaser was made by the master and a decree of final distribution was entered on June 28, 1915. On September 1, 1920, the purchasers at the master's sale entered into a contract with the appellants Leonard J. Doll, William J. Doll, and Riely Greth for a sale and conveyance of the lands for $81,350. The payments were to be $7,000 cash, $25,000 by assuming a mortgage, and the balance of $49,350 to be paid on March 1, 1921. An abstract of title was to be furnished showing a good merchantable title and possession to be delivered March 1, 1921, upon the final payment. The cash payment of $7,000 was made and a deed was executed and deposited in a bank at Erie, to be delivered on compliance with the terms of the agreement. The appellee returned to Erie from his residence in Canada on February 20, 1921, and, learning that the lands had been sold, notified the appellants who were purchasers at the master's sale, and Leonard J. Doll, William J. Doll, and Riely Greth, to whom the lands had been contracted, of his claim of title. The appellants refused to recognize such title, and Leonard J. Doll, William J. Doll, and Riely Greth took security from the purchasers at the master's sale against the claim of the appellee, and the deed and possession were delivered.

The grounds of demurrer are again argued, but the demurrer was waived by answering except as to innate substantial defects of which advantage could be taken on the final hearing. Gordon v. Reynolds, 114 Ill. 118, 28 N. E. 455;Gleason & Bailey Mfg. Co. v. Hoffman, 168 Ill. 25, 48 N. E. 143;Bauerle v. Long, 165 Ill. 340, 46 N. E. 227;Baumgartner v. Bradt, 207 Ill. 345, 69 N. E. 912. There was no defect of that character in the bill.

Counsel for appellants contend that the circuit court acquired jurisdiction of appellee in the partition suit instituted by Seward A. Eddy by publication and mailing notice to him as a living nonresident; that, having such jurisdiction of his person, the decree finding that he had died intestate and unmarried, and that his interest...