Ferbrache v. Ferbrache
| Decision Date | 19 May 1884 |
| Citation | 110 Ill. 210,1884 WL 9873 |
| Parties | HARVEY A. FERBRACHE et al.v.PETER A. FERBRACHE. |
| Court | Illinois Supreme Court |
WRIT OF ERROR to the Circuit Court of Stark county; the Hon. N. M. LAWS, Judge, presiding. On the 2d day of September, 1855, one Peter Ferbrache died intestate, seized of the land in controversy in this case,--a certain described sixty acres of land in Stark county,--leaving surviving him his widow, Elizabeth Ferbrache, and several children, his heirs at law. Soon afterward, Peter A. Ferbrache, one of said children and heirs, filed a petition for partition and assignment of dower as to said land, and other lands of which his father died seized, which resulted in the assignment of the said sixty acres of land to the widow, Elizabeth Ferbrache, as her dower, and an order of sale of all the lands, including the reversion of said sixty acres so assigned as dower. Upon sale being made, the widow became the purchaser of the reversion of said sixty acres, and a commissioner's deed was made to her for the same. The widow thenceforward continued to occupy the land until the 3d day of November, 1856, when she made a warranty deed of the same to her son Daniel D. Ferbrache. Upon receipt of this deed, Daniel D. went into possession of the land, and for some time lived in the same house upon it with his mother, the said Elizabeth. In the course of about a year, however, he removed some five miles distant, to a farm at Lawn Ridge, in Peoria county, leaving his mother in the possession and occupancy of the land.
In the year 1865 or 1866 said Daniel D. Ferbrache died, leaving surviving him five minor children, his heirs at law. Some time in the year 1866, the administrator of the estate of Daniel D. Ferbrache, and guardian of some of his children, finding among his papers the unrecorded deed of Elizabeth Ferbrache to said Daniel D., caused the same to be duly recorded in the recorder's office of Stark county. On the 9th day of January, 1874, the said Elizabeth Ferbrache made a warranty deed of the same land to her son Peter A. Ferbrache, who then resided in El Paso, Woodford county. Said Elizabeth continued to reside upon the land with her son Peter A., up to the time of her death, which occurred in the month of January, 1875, it being the consideration of her deed to Peter A. that he should support her during her life.
On the 11th day of April, 1874, said Peter A. Ferbrache filed his bill in chancery against the minor heirs of Daniel D. Ferbrache, to remove the said deed of Elizabeth Ferbrache to Daniel D., as a cloud upon the title Peter A. had derived from said Elizabeth through her deed to him of January 9, 1874. In this bill Peter A. alleges that some time in the year 1856 or 1857, said Elizabeth, being then the owner of the land in fee, made a contract selling the same to Daniel D., upon a credit, for the sum of $2000, and made him the deed aforesaid; that Daniel D. gave to said Elizabeth his promissory notes for $2000, in payment of the purchase money; that Daniel D. went into possession of the land under the deed, and held possession under the same for about one year; that then said Elizabeth and Daniel D. entered into another contract, by which it was agreed that said contract of bargain and sale of the land should be rescinded, and that Daniel D. should surrender the land, and that she should cancel and return to him his notes for the purchase money; that she surrendered the notes, and he surrendered the land and the deed, and then the deed and notes were destroyed. By an amendment to the bill it is alleged that the deed was not destroyed, but by some mistake, accident or other means the same was left still in existence, and was found among the papers of Daniel D. after his death, and caused to be recorded by his administrator.
The heirs of Daniel D., in their answer, deny any such contract of rescission. They also set up the Statute of Frauds in their defence. They also allege that at the time Daniel D. left the land and went to Lawn Ridge there was an agreement between him and his mother that she was to have the land rent free during her life, after which he was to resume possession under his deed. They also filed their cross-bill, setting up Daniel D.'s ownership of the land; that some time in 1856 or 1857 he delivered up possession thereof to his mother, Elizabeth, with the understanding that she should occupy the same, taking the rents and profits, and paying the taxes thereon, during her life, and at her death Daniel D. should become repossessed of the same, and praying that the possession of the premises be decreed to them, and that Peter A. account for the rents and profits from the time of the death of said Elizabeth, and that his deed be declared a cloud upon their title. July 30, 1875, Elizabeth N. Schenck, and the other heirs of Peter Ferbrache, deceased, filed their original bill against Peter A. Ferbrache and the heirs of Daniel D. Ferbrache, alleging that said commissioner's deed to Elizabeth Ferbrache had been rescinded, and vested no equitable title, and that it misdescribed the property, so that no legal title was ever vested by it; that the deed of Elizabeth Ferbrache to Daniel D. Ferbrache had been abandoned and rescinded, and that the deed of Elizabeth Ferbrache to Peter A. Ferbrache was fraudulent and void, wherefore the equitable title of the land was still in the heirs of Peter Ferbrache, deceased, and prayed that said conveyances be set aside as clouds on their title. Answers and cross-bill were filed.
This case was, by a consent order, consolidated, for the purposes of trial, with the cause first named, with a stipulation that evidence taken in either case be also read in the other, so far as material and competent, and both causes were tried together. The court below found that the equities were with Peter A. Ferbrache, and decreed that the deed from Elizabeth Ferbrache to Daniel D. Ferbrache be set aside as a cloud upon the title of Peter A., and all of said bills and cross-bills impeaching his title were dismissed. The heirs of Daniel D. Ferbrache alone sued out this writ of error. Mr. JOHN MUCKLE, for the plaintiffs in error:
The grounds of relief set out in the bill are within the Statute of Frauds, and can not be established by parol evidence.
Where an estate has passed by deed, its cancellation or destruction will not divest the title from the grantee and reinvest the same in the grantor. 2 Blackstone's Com. 309, note by Chitty, and note by Sharswood; Chipman v. Whitlemore, 23 Pick. 231; Morgan v. Elam, 4 Yerg. 375; Shutt v. Large, 6 Barb. 373; Raynor v. Wilson, 6 Hill, 469; Mallory v. Stoddard, 6 Ala. 801; Jordan v. Pollock, 14 Ga. 145.
The bill is without equity, unless tortured into a bill for specific performance. Then the Statute of Frauds applies, and it is indispensable, to avoid the statute, that the contract shall be established by competent proofs to be clear, definite and unequivocal in all its terms, etc. Worth v. Worth, 84 Ill. 442; Langston v. Bates, Id. 524; Pickerell v. Morss, 97 Id. 220; Padfield v. Padfield, 92 Id. 198.
Before a party can maintain a bill to remove a cloud from his title to land, he must show a title, either legal or equitable. Hopkins v. Granger, 52 Ill. 504; West v. Schnebly, 54 Id. 523; Emery v. Cochran, 82 Id. 65.
The complainant was not a competent witness in his own behalf, and Elizabeth Ferbrache, as to matters which occurred in the lifetime of Daniel D. Ferbrache, was incompetent, as she was testifying in her own interest. Boynton v. Phelps, 52 Ill. 210; McCann v. Atherton, 106 Id. 31; Alexander v. Hoffman, 70 Id. 114; Richardson v. Hadsell, 106 Id. 476; Hurlbut v. Meeker, 104 Id. 541.
The second section of the act relating to evidence also excludes Elizabeth Schenck, Judith Joh and Susannah Jones, they being both parties to the suit and parties in interest.
Messrs. HOPKINS & HAMMOND, for the defendant in error:
Where a grantee and grantor, in ignorance of the law, attempt, bona fide, to reconvey land by destroying an unrecorded deed, it is held that the equitable title passes, and a conveyance may be had, and such case is not within the Statute of Frauds. Dunwiddie v. Bell et al. 95 Ill. 360; Bright v. Bright, 41 Id. 97; Kurtz et al. v. Hibner et al. 55 Id. 514; Langston v. Bates, 84 Id. 524; Bohanan v....
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