First Congregational Church of Harvard v. Page

• Decision Date: 20 February 1913
• Parties: FIRST CONGREGATIONAL CHURCH OF HARVARD v. PAGE et al.
• Court: Illinois Supreme Court

257 Ill. 472

100 N.E. 975

FIRST CONGREGATIONAL CHURCH OF HARVARD

v.PAGE et al.

Supreme Court of Illinois.

Feb. 20, 1913.

Error to Circuit Court, McHenry County; Charles H. Donnelly, Judge.

Suit by the First Congregational Church of Harvard against William Page and others. There was a decree striking from the files the answer of the heirs at law of William Hart, Jr., deceased, made parties defendant, and dismissing their petition for the vacation of a decree for complainant, and they bring error. Reversed and remanded, with directions.

See, also, 255 Ill. 267, 99 N. E. 453.

David R. Joslyn, of Woodstock (E. H. Waite, of Woodstock, of counsel), for plaintiffs in error.

Calvin J. Hendricks, of Harvard, for defendant in error.

COOKE, J.

Defendant in error filed its bill in the circuit court of McHenry county to quiet its title to certain premises therein described, and on September 27, 1911, a decree pro confesso was entered in accordance with the prayer of the bill. On February 6, 1912, plaintiffs in error, heirs at law of one William Hart, Jr., who had been made parties defendant to the bill and who had been served by publication, filed their petition in the cause under section 19 of the Chancery Act (Hurd's Rev. St. 1911, c. 22) and having complied with all the provisions of that section were permitted to file their answer to the bill. Upon motion of defendant in error this answer was stricken from the files and the petition dismissed. This writ of error has been sued out to review that decree.

The bill, in substance, sets up defendant in error's chain of title, by sundry mesne conveyances from the government, to lots 4 and 5, in block 3, of Hart's addition to Harvard, Ill., and alleges that the land from which these lots were thereafter platted was conveyed by the government to one George R. Page, who executed a bond for deed to one William Hart, Sr., whereby he agreed to convey said premises to Hart on January 14, 1853; that before said Hart had complied with the provisions of the bond on his part said Page died, and thereafter said Hart, upon a full compliance with the bond upon his part, filed a bill for specific performance; that in said bill one of the sons and heirs at law of Page was not properly made a defendant or served with summons; that thereafter, in November, 1855, pursuant to a decree of the circuit court of McHenry county, conveyance was made by a special commissioner appointed by the court to William Hart, Sr., of the premises described in the bond for deed; that thereafter William Hart, Sr., conveyed the premises to his son, William Hart, Jr., who platted the same and caused the plat to be recorded as Hart's addition to Harvard; that on March 19, 1866, the said William Hart, Jr., and wife, by long-form warranty deed, conveyed said lots 4 and 5 to the trustees of the First Congregational Church of Harvard, McHenry county, Ill., which deed, in the granting clause, contained the following provision: ‘And it is agreed and understood by the parties to these presents that the above-described lots are deeded to the above trustees for the purpose of building thereon a Congregational church and for no other purpose; and it is further understood that whenever the said lots cease to be used for the above-described purpose they shall revert to the makers of this deed or to their heirs or assigns.’ The bill then recites that the trustees took possession of the property, built a church thereon, and have ever since had possession of the same, paying taxes thereon, and using the property for church purposes. The heirs at law of said George R. Page and of William Hart, Jr., were made parties defendant to the bill, and the prayer is that the defendant in error may be decreed and declared to be the absolute owner in fee simple of said lots 4 and 5, free and clear of all clouds and imperfections, and that its title to the same may be corrected and made perfect, and that the defendants be forever barred from claiming any interest in the premises, and for general relief. The decree found that all the material allegations of the bill were proven and granted the relief prayed for.

The petition of plaintiffs in error filed February 6, 1912, made the showing required under section 19 of the Chancery Act, and, plaintiffs in error having complied with all the provisions of that section, leave was given them to answer the bill. This answer denies that defendant in error is the owner in fee simple of said lots, and avers that under the clause of the deed above quoted plaintiffs in error, as heirs of William Hart, Jr., have a reversionary interest in the property, denies that the possession of the defendant in error has been adverse to them, and avers that the premises have not been used for church purposes by defendant in error for a long time past. The other allegations are either admitted or not controverted. No replication was filed to this answer, but, instead, defendant in error filed its motion to strike the same from the files and to dismiss the petition, and assigned as grounds for its motion the following: ‘First, that said answer and amendment thereto of the said defendants does not disclose any defense by them to said suit; second, that the answer of said defendants, and amendment thereto, does not set forth any facts to show that the decree heretofore entered against them in said cause ought not to have been made; third, that if the answer of the said defendants, and amendment thereto, were true, such facts as are set forth therein would not make it imperative upon the court to set aside the decree heretofore entered in said clause.’ This practice is somewhat novel.

[1] Section 19 of the Chancery Act, under which the petition of plaintiffs in error was filed, provides, in part, as follows: ‘When any final decree shall be entered against any defendant who shall not have been summoned or been served with a copy of the bill, or received the notice required to be sent him by mail, and such person * * * shall, within one year after notice in writing given him of such decree, or within three years after such decree, if no such notice shall have been given as aforesaid, appear in open court and petition to be heard touching the matter of such decree, and shall pay such costs as the court...