Firke v. McClure

• Court: Illinois Supreme Court
• Writing for the Court: FULTON
• Citation: Firke v. McClure, 389 Ill. 543, 60 N.E.2d 220 (Ill. 1945)
• Decision Date: 21 March 1945
• Docket Number: No. 28207.,28207.
• Parties: FIRKE et al. v. McCLURE et al.

389 Ill. 543

60 N.E.2d 220

FIRKE et al.

v.McCLURE et al.

No. 28207.

Supreme Court of Illinois.

March 21, 1945.

Appeal from Circuit Court, Edwards County; Roy E. Pearce, judge.

Suit in ejectment by Elizabeth Firke and others against Anna McClure and others to recover possession of realty. From a judgment for plaintiffs, named defendant appeals.

Reversed and remanded with directions.

Donovan D. McCarty of Olney, and P. C. Walters, of Albion, for appellant.

Lloyd J. Voyles, of Albion, Mills, Umfleet & Mills of Fairfield, and Hawbaker & Sievers, of Monticello (Elim J. Hawbaker,of Monticello, of counsel) for appellees.

FULTON, Chief Justice.

From a judgment in favor of the appellees in the circuit court of Edwards county, upon an amended complaint for ejectment filed September 10, 1943, the appellant, Anna McClure, brings this appeal. For convenience the appellees will be designated in this opinion as plaintiffs and the appellant as defendant.

The original plaintiffs are the heirs-at-law of William H. Firke who died intestate May 31, 1936, in Piatt county, and claim to be the owners of the 120 acres of land in question and entitled to possession thereof as the heirs of William H. Firke, deceased, because of default on the part of defendant in making payment under a contract of purchase.

The complaint alleged that on September 22, 1913, Minnie Clark died intestate seized of the particular real estate in question and other real estate; that W. H. Burns was appointed as administrator and, pursuant to a decree to sell real estate to pay debts, entered by the county court of Moultrie county in 1917, Alva Jones became the purchaser at the sale and assigned his certificate of purchase to William H. Firke who received an administrator's deed on November 7, 1917; that Firke entered into possession of the premises and retained possession until March 11, 1918, at which time he entered into a contract for deed with W. A. McClure and A1 S. Clark, whereby they agreed to pay Firke $8850 on or before March 4, 1919, and whereby Firke agreed to convey the land to them or to their nominees, Firke retaining the right to declare a forfeiture upon default; that there was paid to Firke under this contract the sum of $4985.49, leaving a balance due of $3764.51, no part of which was paid by McClure and Clark or their successors; that McClure died testate January 24, 1921, while in possession of the property, leaving all of his estate to his wife, and that his widow, Anna McClure, entered into possession January 25, 1921, and continued her husband's possession receiving the rents and profits and paying the taxes thereon to and including the taxes for the year 1940, after which the plaintiffs paid all taxes on said property; that Firke died leaving the plaintiffs as his heirs and that in June of 1940, the plaintiffs first learned that Anna McClure had made a claim of ownership; that she later refused oral demands of the plaintiffs for possession; that William A. McClure took possession of the property on March 11, 1918, under a contract to purchase same and that the defendant Anna McClure entered upon the premises about January 25, 1921, and unlawfully withholds possession from the plaintiffs, who claim title to the whole of the premises and the possession thereof; that prior to the institution of the suit, to wit, on August 14, 1942, written notices were served upon the defendants, declaring the contract made in 1918 to be in default and forfeited and that written demand for possession was made; that the defendant Shelby claims to be a tenant of Anna McClure and has refused written demand for possession.

The complaint concludes with the allegation that the plaintiffs are entitled to possession, setting forth their several interests; that they hold the fee and that the defendants unlawfully withhold possession. The complaint was verified, and to the complaint was attached an affidavit by said Adah K. Sizer that both the plaintiffs and the defendant Anna McClure claim title through William H. Firke.

A motion to dismiss the amended complaint was filed by Anna McClure to the effect that the complaint failed to allege the exercise of the option to declare a forfeiture or that the plaintiffs exercised the option of forfeiture; and that the plaintiffs did not commence their action or make an entry within twenty years after the right to bring such action and, therefore, are barred from maintaining their action pursuant to sections 1, 2 and 3 of the Limitations Act. The court overruled the motion to dismiss.

The defendant Anna McClure thereupon filed her answer on November 19, 1943, wherein she denied the proceedings in the county court of Moultrie county to sell real estate to pay debts and the delivery of deed thereunder to William H. Firke, deceased, denying further his taking possession at any time. She admitted the taking of possession by her husband but denied her retained possession down to the date of his death and denied that she, as his widow, continued the possession but admitted that she received all the rents, issues and profits and paid all of the taxes down through the year 1940 as owner in fee simple and that she has been in the open, notorious, continuous, exclusive, adverse,uninterrupted and hostile possession against the whole world for a period of more than twenty years and denied the heirship of William H. Firke; she admitted that the plaintiffs made claim for ownership in 1940 and averred that William H. Firke up to his death did not at any time make any claim of any right, title or interest in or to the premises involved nor did the plaintiffs do so until the year 1940; that the property is that of the defendant and that the plaintiffs have no right to the property. She further denied the effect of the notices served upon her and averred that she was not guilty of unlawfully withholding possession as the plaintiffs alleged; averred that the action was barred by the Statute of Limitations and that no forfeiture was declared by William H. Firke, deceased, or by his heirs at any time until more than twenty-three years after the time when same could have been done under the terms of the contract.

A witness, Michaels, testified for the plaintiffs that he purchased a portion of the land covered by the contract in 1922 and had all of his negotiations with the defendant Mrs. McClure. Adah K. Sizer, one of the plaintiffs, testified as to the heirship of William H. Firke, deceased, and, over objections, testified that the deceased was her father and was both a banker and farmer; that she served in the capacity of cashier and assistant cashier in the bank from 1918 to 1938 and in her capacity as such posted her father's passbooks, two of which were admitted in evidence. The entries showed payment to William H. Firke of $2089.49 for three lots under the terms of the contract to various persons, together with other entries in the transactions between McClure and Firke. She likewise admitted that as executrix of the estate of Charles Firke, a son of William H. Firke, she did not inventory the 120 acres which is the subject of the ejectment suit.

Anna McClure testified under section 60 of the Practice Act and identified the payment of $2089.49 mentioned int he passbook, and identified certain letters admitted in evidence as exhibits for the plaintiffs, which correspondence took place between the defendant, Anna McClure, and William H. Firke, deceased. These letters pertained to the sale of certain lots and parcels and indicated the sale of five pieces of land, the proceeds of which were turned over to Firke and applied on what he referred to in his passbook as the Minnie Clark note. These credits amounted to $4985.49 and showed a balance of $3864.51 still due under the contract. Further correspondence took place in 1919 relative to an error in the description of certain property which was described to be in township 2 where, in fact, the property should have been described as being located in township 1.

Over objection of the defendants as being irrelevant and immaterial, a decree of the county court of Moultrie county was admitted in evidence authorizing the correction of the error in the description of the property and the issuance of another deed. This exhibit revealed that five years after the closing of the Minnie Clark estate a petition was filed by the administrator to reopen the estate, correct the description of the property included in the inventory, the petition for sale of real estate to pay debts, the report of sale, the deed and other documents in the estate. The petition was granted, whereupon a corrected deed was issued to William H. Firke by the administrator of the Clark estate.

The defendants called Adah K. Sizer, under section 60 of the Practice Act, Ill. Rev.Stat.1943, c. 110, s 184, by whose testimony it was revealed that no forfeiture was declared by her until 1940, nor did s...