Fagan v. Bach

• Decision Date: 03 April 1912
• Citation: 97 N.E. 1087,253 Ill. 588
• Parties: FAGAN v. BACH et al.
• Court: Illinois Supreme Court

253 Ill. 588

97 N.E. 1087

FAGAN

v.BACH et al.

Supreme Court of Illinois.

Feb. 23, 1912.

Rehearing Denied April 3, 1912.

Appeal from Superior Court, Cook County; Farlin Q. Ball, Judge.

Proceedings by James Fagan against Miriam C. Bach and others to register title. From a decree for plaintiff, defendants appeal. Reversed and remanded.

Tinsman, Rankin & Neltnor (Einar C. Howard, of counsel), for appellants.

Charles L. Bartlett and Sherman C. Spitzer, for appellee.

HAND, J.

The appellee, James Fagan, filed his petition under the burnt records act for the purpose of establishing title in himself, in fee simple, to lots 3 and 4, except the part thereof taken and dedicated for an alley, in Fagan's subdivision of that part of lot 10 lying west of the Chicago, Rock Island & Pacific Railroad, in School Trustees' subdivision of section 16, township 38 north, range 14 east of the third principal meridian, in Cook county, Ill., to which petition the appellants were named as defendants. The petitioner prayed that the court would investigate and consider the matters and things stated and charged in said petition, and would find, determine, establish, and decree the title, in fee simple, to said premises to be in the petitioner, and would re-establish and confirm of record the chain of title to said premises of the petitioner, and decree that said defendants have not, nor any of them, any right, title, interest, claim, or lien in, to, upon, or against said premises, and that they be perpetually enjoined and restrained from asserting any right, claim, title, or interest in or to said premises, and that the petitioner be put into the possession of said premises. The appellants filed a joint answer to said petition, in which they denied that appellee was the owner in fee of said premises, and averred that prior to October 3, 1873, Patrick S. Fagan, the father of the petitioner, and through whom, by descent, the petitioner claims title to said premises, was the owner of the said premises in fee, and averred: That on that day said Patrick S. Fagan entered into a contract in writing with Peter Bach, the father of appellants and through whom they claim title, for the sale of the said premises, as follows: ‘Englewood, October 3, 1873. I, the undersigned, have sold to Peter Bach lots 3 and 4 in Fagan's subdivision for thirteen hundred dollars, one hundred paid to me on this day, the balance to be paid in six years, in yearly payments of two hundred dollars each, with interest at ten per cent. P. S. Fagan’-whereby, for and in consideration of $1,300, said Patrick S. Fagan sold to said Peter Bach said premises, which contract was filed for record and was recorded in the recorder's office of Cook county on October 27, 1893. That on the date of said contract said Peter Bach paid to said Patrick S. Fagan of said purchase money the sum of $100 and took possession of said premises, and thereafter paid to the said Patrick S. Fagan the balance of said purchase money, and became thereby owner of said premises and entitled to a deed from Patrick S. Fagan conveying the legal title thereto to him. That Patrick S. Fagan died June 13, 1905, without having conveyed the legal title to said premisesto Peter Bach. That Peter Bach died March 12, 1906. That from the date of said contract to the date of his death said Peter Bach remained in possession of said premises. And that from the date of the death of said Peter Bach to the date of the filing of said petition the appellants, as the children and heirs at law of Peter Bach, continued in the possession of the premises and were in possession of said premises at the time said petition was filed. and averred they were the absolute owners of said premises. Denied that the appellee was the owner of said premises or entitled to the relief, or any part thereof, prayed for in said petition, and asked that they might be dismissed out of court with their reasonable costs. The case was referred to a master in chancery to take the evidence of the respective parties and to report his conclusions as to the facts and the law. The master heard the evidence and prepared a report, in which he found that the premises in question, on October 3, 1873, belonged to Patrick S. Fagan; that on that date he sold said premises to Peter Bach; that Peter Bach paid $100 on said purchase and took possession of said premises and remained in possession thereof until his death, since which time the appellants, the children and heirs at law of Peter Bach, have continued in possession of said premises and were in possession of the same at the time the petition herein was filed; and that the appellee had succeeded to the rights of Patrick S. Fagan in said premises. The master also found that there was no evidence that any part of said purchase money, other than the $100, the payment of which has been acknowledged in said written contract, had been paid, and that there remained, so far as the evidence showed, unpaid of said purchase money the sum of $1,200, and found that the appellee was entitled to the relief prayed for. Objections were filed before the master to said report and overruled, and again renewed as exceptions in the superior court and overruled. A decree was entered by the superior court establishing the title of the appellee to said premises in fee and barring the appellants of all interest in said premises, and canceling said contract as a cloud upon the title of appellee, and perpetually enjoining appellants from asserting title to said premises, and directing appellants to surrender the possession of said premises to appellee and confirming his possession and title to said premises. From that decree the appellants have prosecuted an appeal to this court.

[1] If the appellants had been able to establish, by competent and satisfactory proof, that Peter Bach had paid the entire purchase money agreed to be paid to Patrick S. Fagan by him for said premises, there can be no question but the appellee must have failed in this suit, as the payment of said purchase money would have invested Peter Bach with the full equitable title to said premises, and the only interest which Patrick S. Fagan would have had in said premises would have been the bare legal title, which he would have been required to convey to Peter Bach by a court of equity, and the bare legal title remaining in Patrick S. Fagan would not have been such a title as should have been registered under the burnt records act, but on cross-petition in this case, had proof of the payment of the purchase money been made, the absolute title to said premises would have been established in the appellants and would have been properly registered in them. The main question, therefore, between the parties to this suit, and the one which has been principally argued in the briefs filed in this case, is: Can the want of direct proof of the payment of the balance of the purchase money due upon said premises, as...