Fienhold v. Babcock

• Decision Date: 24 October 1916
• Docket Number: No. 10825.,10825.
• Parties: FIENHOLD et al. v. BABCOCK et al.
• Court: Illinois Supreme Court

275 Ill. 282

113 N.E. 962

FIENHOLD et al.

v.BABCOCK et al.

No. 10825.

Supreme Court of Illinois.

Oct. 24, 1916.

Appeal from Circuit Court, Livingston County; G. W. Patton, Judge.

Bill by Fred W. Fienhold and Ogden P. Bourland against Joseph S. Babcock, Sr., in which a guardian ad litem was appointed for his minor children, with cross-bill by such guardian, praying for a sale of land to clear up incumbrances. A decree for a sale was entered and sale made thereunder to May H. Babcock, and on order to show cause, she answered, seeking to avoid the sale. Decree against the purchaser, and she appeals. Affirmed.H. G. Greenebaum, of Pontiac, for appellant.

H. E. Torrance and Tuesburg, Wilson & Armstrong, all of Pontiac, Guy L. Louderback, guardian ad litem, of Chicago, and E. A. Simmons, of Pontiac, for appellees.

James T. Terry, of Pontiac, pro se.

CARTER, J.

This is an appeal by May H. Babcock, the purchaser at a master's sale held under a decree of the circuit court of Livingston county, from an order of that court that she pay to the master in chancery the balance of her bid at said sale and interest thereon, and that in default of such payment execution should issue against her therefor.

March 10, 1899, Joseph S. Babcock, Sr., was the owner in fee simple of about 320 acres of land in Livingston county, subject to the dower right of his mother, Mary O. Babcock. On that date, his wife and mother joining with him, he gave a trust deed to Ogden P. Bourland on 160 acres of said land to secure a note for $5,000. About two years later said Joseph S. conveyed said land, subject to said trust deed, to his mother. In 1903 the mother Mary O. Babcock, died leaving a will, whereby she devised a life interest in said 320 acres to her son, said Joseph S., and provided further that:

‘After his death I give, devise and bequeath said lands in fee simple to the children of said Joseph S. Babcock, share and share alike, and should any child of said Joseph S. Babcock die leaving children or descendants of children, such descendants shall take the share of the parent.’

At the time of these proceedings in the trial court said Joseph S. Babcock, Sr., had four children, namely, Mary K., Joseph S., Jr., Bertha A., and Edward R. During their minority he acted as their guardian, having been appointed by the county court of Livingston county. Under leave of that court he extended the indebtedness secured by said trust deed five years, and also executed a note for $1,200, individually and as guardian on behalf of said children, secured by another trust deed to Ogden P. Bourland on the same 160 acres of land covered by the first trust deed. These two notes came into the ownership of Fred W. Fienhold, conservator of Rebecca Converse. Thereafter, by leave of the county court, these two trust deeds were extended to March 1, 1914. In October, 1908, Joseph S. Babcock, Sr., by leave of the county court, executed a note, individually and as guardian, for $5,000, securing the same by trust deed to J. M. Lyon on the 160 acres of said land not included in the other two trust deeds. This last-named $5,000 note became the property of the Savings Bank of Peoria. This loan was given to take up a trust deed of $5,000 executed October 4, 1903, by said guardian under leave of the county court, which last-mentioned trust deed appears to have been given for the purpose of taking up a still earlier incumbrance, and for the support and education of said minors. In August, 1911, Mary K. Babcock, then of age, quitclaimed her interest in said real estate to her father. Later, in January, 1912, individually and as guardian of the three minors, he gave a trust deed to D. S. Myers on said 320 acres of land to secure a note of $4,000. At the time of the hearing said land was leased to the Lewis McMurray Packing Company for a term ending March 1, 1918, for an annual rental of $2,700. On April 11, 1914, said Bourland as trustee and said Fienhold as conservator filed a bill in the circuit court of Livigston county, asking for a foreclosure of the two trust deeds in which they were interested. A guardian ad litem was appointed for the minor children, and answered in the usual form. A cross-bill was thereafter filed by said guardian, which set forth that said three minors were then the owners of an undivided three-fourths interest in said 320 acres of land, subject to the life estate of their father and to the provisions of the will of their grandmother as to after-born children, and also subject to the various trust deeds and incumbrances heretofore set forth. In addition to the incumbrances already referred to there seem to have been at that time certain small liens against various interests of the father and children in said land, amounting to something less than $200. The cross-bill further represented that on account of the fact that the father had the life use of the land and said minors had no other property, no way existed in which said incumbrances and interest thereon could be taken care of except by the land itself, and that therefore they, through said guardian ad litem, prayed the court to authorize the master in chancery to sell outright enough land, free and clear of all liens and without equity of redemption, to clear up the incumbrances against the entire 320 acres. After the issues were joined the case was referred to the master in chancery, who reported recommending that the complainants were entitled to foreclosure as prayed in the original bill, but that if Joseph S. Babcock, Sr., and his adult daughter, Bertha A., would assent thereto, there should be a public sale of 80 acres outright, free from all incumbrances and without equity of redemption, to furnish proceeds sufficient to be used in paying the incumbrances on the whole 320 acres. The court thereafter entered a decree, which, as finally modified, found that said Joseph S. and Bertha A. Babcock would consent to the sale of their interests, and that the master in chancery should sell outright 120 acres of said land, free from incumbrances and without equity of redemption, and should use the proceeds thereof to pay off said incumbrances, costs, and charges. The master thereafter reported that the sale had been held as ordered by the decree, and that 120 acres of said land were sold to May H. Babcock, appellant herein, for $19,200. She paid down 10 per cent. at the time of the sale, but when the time came to pay the remaining 90 per cent. she failed to do so. On being ruled to show cause why she should not be required to pay the same, she filed an answer, alleging that the court was without jurisdiction to order the sale of said real estate, and particularly that it was without jurisdiction as to the defendants Joseph S. Babcock, Jr., and Mary K. Babcock, on account of irregularity in the service; that the proceedings were irregular and void, and that she would not obtain by the master's deed a good title; that she had applied for a loan on the premises, and her application was refused on the ground that her title would not be good; that the 10 per cent. paid to...