Fitch v. Miller

• Decision Date: 16 December 1902
• Citation: 200 Ill. 170,65 N.E. 650
• Parties: FITCH et al. v. MILLER et al.
• Court: Illinois Supreme Court

200 Ill. 170

65 N.E. 650

FITCH et al.

v.MILLER et al.

Supreme Court of Illinois.

Dec. 16, 1902.

Error to circuit court, Cook county; R. S. Tuthill, Judge.

Action by John H. Fitch against William Miller and others for partition, and continued against Robert Miller, as executor of the will of William Miller, after the latter's death. From a judgment in favor of defendant Robert Miller, the plaintiff and certain defendants bring error. Affirmed.Gage & Deming, for plaintiffs in error.

Willard & Evans, for defendants in error.

This is a petition for partition filed by the plaintiff in error, John H. Fitch, in the circuit court of Cook county on August 21, 1897, against William Miller, the South Chicago Railroad Company, the city of Chicago, _____ Van Arkle, Garrie S. French, Mary A. Fitch, Timothy S. Fitch, and Beatrice Fitch; the latter being three of the plaintiffs in error. The petition or bill seeks partition of the south 20 acres of the E. 1/2 of the S. E. 1/4 of section 24, township 38 N., range 14 E. of the third P. M., in Cook county, Ill., and alleges that the petitioner below, John H. Fitch, one of the plaintiffs in error here, and Mary A. Fitch, Timothy S. Fitch, and Beatrice Fitch, defendants below, and the three other plaintiffs in error here, are owners each of an undivided 3/32 part of said 20 acres, and that Garrie S. French, one of the defendants below, and one of the defendants in error here, was the owner of the other 5/8 or 20/32 of said 20 acres. The bill or petition prays for a partition, subject to such alleged cloud or lien as may have existed by reason of the circumstances hereinafter stated. The bill alleges that John Fitch was the owner of said 20 acres in his lifetime, and that he died intestate at Nettleton, Kan., on July 20, 1878, leaving, him surviving, as his only children and heirs at law, the plaintiffs in error, John H. Fitch, Mary A. Fitch, Timothy S. Fitch, and Beatrice Fitch. It is also alleged that said plaintiffs in error conveyed an undivided five-eighths of said premises to said Garrie S. French. By amendment to the bill, the Illinois Central Railroad Company was made a defendant. William Miller filed an answer to the bill, denying that John Fitch owned any of said premises at the time of his death. Answers were filed by Garrie S. French, and by Mary A. Fitch, Timothy S. Fitch, and Beatrice Fitch, substantially admitting the allegations of the bill. William Miller, who resided in London, England, died testate on June 18, 1898, in England, died death was suggested, and his unknown heirs and devisees were made defendants; and thereafter his executor and trustee and heirs filed an answer denying, substantially, the material allegations of the bill. On February 13, 1900, after hearing had, the court below rendered a final decree, in which, after finding that the city of Chicago had by condemnation acquired the title to a part of certain lots described in the bill, but not here in controversy, and that the South Chicago Railroad Company had acquired by condemnation the title to a certain strip of land for a right of way over a part of said premises, which had been leased to the Illinois Central Railroad Company, the court further found that the complainant below, the plaintiff in error John H. Fitch, had not proved the material allegations of his bill, and that the same was without equity, and dismissed the bill for want of equity. The present writ of error is prosecuted from the decree of the circuit court so dismissing the bill.

The material facts, as set up in the pleadings and shown by the proofs, are substantially as follows: On March 5, 1874, John Fitch was the owner of the 20 acres of ground here in controversy, and on that day executed a warranty deed conveying said 20 acres, and also lot 156 in division 3 of the south shore subdivision of the N. E. 1/4 of section 30 in said township 38, to William Miller, of London, in the kingdom of Great Britain, in consideration of the sum of $30,000, which said deed was recorded in the recorder's office of Cook county on April 20, 1874. The deed was executed by Fitch to Miller in pursuance of a sale made by Fitch to Miller of the premises therein described; and Miller paid $5,000 in cash to Fitch, and executed a mortgage upon the 20 acres in question to secure the balance of the purchase money, to wit, the sum of $25,000, evidenced by two notes, one for $10,000, due in 30 days, and the other for $15,000, due in 60 days, after March 5, 1874, which said mortgage was recorded in the recorder's office of Cook county on April 23, 1874. The note for $10,000 was paid by Miller to Fitch, but the remaining note for $15,000 was not paid when it was due. In May, 1874, Fitch brought suit in assumpsit in the superior court of Cook county against Miller upon the note for $15,000. On October 5, 1875, a settlement or arrangement was made between Fitch and Miller, which was reduced to writing by a written contract dated October 5, 1875, which contract, however, was not under seal, and was signed and acknowledged by John Fitch, Elizabeth W. Fitch, his wife, and by William Miller, by Thomas L. Parker, his attorney in fact, which said agreement was recorded on October 7, 1875, in said recorder's office. Upon the same day the suit brought by Fitch against Miller upon the note for $15,000 was dismissed by agreement. The contract of October 5, 1875, recites the execution of the deed of March 5, 1874, by John Fitch and wife to William Miller, conveying said 20 acres and said lot 156 for the consideration of $30,000, and also the execution of the mortgage securing the payment of $25,000, and also recites that ‘it has been agreed between the said John Fitch and the widow and devisee of Timothy S. Fitch deceased, that the entire sum of $30,000, the purchase money of the said land herein described, should become and be treated as a loan of money from the said Miller, and as security for the repayment thereof and interest; that said Miller should retain as security the said lands hereinbefore described, which have been conveyed to him by said John Fitch and wife, as hereinbefore set forth, and in addition thereto, and as additional security for the repayment of the said entire sum, the said John Fitch and wife have on this date executed a certain mortgage for the sum of $7,500 to said William Miller, with interest, conveying’ certain lots in certain blocks in South Shore subdivision No. 5, in Cook county, ‘subject to prior incumbrance.’ And Elizabeth W. Fitch, widow and devisee of Timothy S. Fitch, as further security, has by her deed of mortgage, bearing even date herewith, conveyed to said William Miller all of ‘certain other blocks and lots in said South Shore subdivision No. 5, subject to prior incumbrance to Ezra B. McCagg, to secure a note of $7,500, bearing even date herewith, and payable to said William Miller in five years after date, with interest thereon at ten per cent. per annum, out of property, or the proceeds thereof, received by her as devisee from the estate of Timothy S. Fitch, her husband, deceased, but not out of property acquired by her otherwise.’ And said contract also recited that Miller and his wife had made a certain deed to John Fitch, as grantee, of said south 20 acres and of said lot 156, ‘which said deed has not been delivered, but is held in escrow, in the hands of Robert Hervey, of Chicago, representing said William Miller, to be delivered to said John Fitch on full payment of said sum of $30,000, and interest at the rate aforesaid and at the time aforesaid, and for the securing of the payment whereof the said deed is so held in escrow, and which sum is further secured by the mortgages hereinbefore described, made by the said John Fitch and wife and Elizabeth W. Fitch, respectively, on the property, and for the sums respectively therein set forth, which mortgages are simply additional securities for the prompt and faithful payment of said sum of $30,000, with interest thereon.’ The said agreement then proceeds as follows: ‘Now, it is understood and agreed between the said parties, and is hereby declared to be the true intent and meaning of said transaction, that upon the full payment of the said sum of $30,000, and interest at ten per cent., in five years from the date thereof, said interest being payable annually, the said deed so held in escrow, to said twenty acres, shall be duly delivered, and the respective mortgages executed at this date by John Fitch and wife and Elizabeth W. Fitch, respectively, shall be fully released and discharged of record; all of said property being held in the aggregate simply as security for the payment of the said sum of $30,000 and interest, and no other or greater sum.’ It was also stated in the contract that ‘it is agreed that the taxes shall be promptly paid by John Fitch and Elizabeth W. Fitch, and in case of default in the payment of interest, or of any taxes or assessments, then that the mortgage, hereby created on the twenty acres and lot 156, herein described, may be foreclosed on said default; said Miller having the power on any default to declare the whole sum due and to foreclose.’ It was also therein agreed that on the full payment of the $30,000 and interest, and the closing up of the entire transaction, the mortgage from William Miller to John Fitch on the 20 acres therein described, and lot 156 aforesaid, should be discharged of record. The original deed from William Miller and wife to John Fitch, which was held in escrow by Robert Hervey, was dated July 3, 1875, conveying the premises in question in consideration of $30,000. Late in the year 1875 John Fitch left Illinois, and went to Kansas to live. Upon learning of his death, which took place on July 20, 1878, Robert Hervey handed over the deed he was holding in escrow to Thomas L. Parker, the agent of William Miller. On December 23, 1875, the mortgage which had been executed by William Miller to John...