Fyffe v. Fyffe

• Decision Date: 08 November 1937
• Docket Number: Ag. No. 2.
• Citation: 11 N.E.2d 857,292 Ill.App. 539
• Parties: FYFFE ET AL. v. FYFFE ET AL.
• Court: United States Appellate Court of Illinois

292 Ill.App. 539

11 N.E.2d 857

FYFFE ET AL.

v.FYFFE ET AL.

Ag. No. 2.

Appellate Court of Illinois, Fourth District.

Nov. 8, 1937.

Appeal from Circuit Court, Lawrence County; Roy E. Pearce, Judge.

Suit by Lee Fyffe and another against Charles Fyffe and others. From an adverse decree, defendant International Oil & Gas Company appeals, and appellees assign cross-errors. On transfer from the Supreme Court [364 Ill. 281, 4 N.E.(2d) 368].

Affirmed in part, reversed in part, and remanded, with directions. McGaughey & McGaughey, of Lawrenceville, and P. J. Kolb and Walter F. Kolb, both of Mt. Carmel, for appellant.

Gee & Shaw, of Lawrenceville, for appellees.

MURPHY, Justice.

The land which furnishes the subject matter of this litigation consists of 38.71 acres located in Lawrence county and was owned by Ella Fyffe at the time of her death in 1893. She died intestate and left her surviving Charles Fyffe, her husband, and four children, Grace, Roy, Pearl, and Julia as her only heirs. In 1896 Charles Fyffe remarried and Lee Fyffe, Cynthia Fyffe, now Holsen, and Fred Fyffe, appellees herein, were the only children of that marriage. Pearl and Julia, children of the first marriage, died intestate in April 1905, unmarried, leaving their father, the brother, and sister of the first marriage and appellees as their heirs.

In 1906 Charles Fyffe, individually and as guardian of Roy and Grace, who were then minors, executed an oil and gas lease to C. L. Wise. The lease granted and conveyed to the lessee all the oil and gas in and under said premises and granted the exclusive right to enter and drill for wells, to erect and maintain buildings and other equipment necessary in the development and operation of the wells. The lessors were to have one-eighth of the oil produced and provision was made for payment for gas. The lease was for a period of 5 years and as long thereafter as oil and gas was produced. A well was to be developed within 180 days or the lessee was to pay $1 per acre each year that the completion of the well was delayed.

The lessee, Wise, assigned his interest in the lease and by successive assignments the International Oil & Gas Company, appellant herein, became the owner of an undivided one-half interest in said lease in March, 1907. On the trial it was stipulated that appellant has since 1911 operated the lands and sold all of the working interest oil and, after paying the expenses, distributed the money to the other owners of the lease. A number of wells were developed and large quantities of oil and gas have been taken out covering a period from 1907 when the first well began to produce to the institution of this suit in August, 1931.

Lee Fyffe and Cynthia Holsen, two of the three appellees, filed a bill for partition of the lands and for an accounting of the oil and gas taken. Charles Fyffe, Roy and Grace, the surviving children of the first marriage, Fred Fyffe, International Oil & Gas Company, and other oil companies engaged in the purchase and transportation of oil and gas, were made defendants. The title of appellees as tenants in common was contested by Roy Fyffe and Grace Denison on the grounds that their interest was barred by the 20-year statute of limitations (Smith-Hurd Ill.Stats. c. 83, § 1) but a decree was entered finding that Lee, Cynthia, and Fred, children of the second marriage, each had a two-twenty-eighths' interest subject to the dower of their father, and on appeal by Roy Fyffe and Grace Denison that decree was affirmed. Fyffe v. Fyffe, 350 Ill. 620, 183 N.E. 641, 643.

After the decree was affirmed by the Supreme Court, the case was referred to a special master who stated an account. A decree was entered ordering partition and finding that there was due from appellant to each of appellees the sum of $5,237.83. This appeal is from that decree and involves questions in reference to the accounting feature of the litigation. The suit having been instituted prior to the adoption of the Civil Practice Act (Smith-Hurd Ill.Stats. c. 110, § 125 et seq.), all pleadings have been filed under the former chancery practice.

When the cause was redocketed in the trial court for further proceedings, appelland, resisting appellees' demand for an accounting, asked leave to file an amended answer which specially pleaded the 5-year statue of limitations (Smith-Hurd Ill.Stats. c. 83, § 16). The court reserved ruling on appellant's motion until after the special master's report was filed, and then denied leave to file it.

On this appeal appellant contends that the 5-year limitation act was applicable and the court's ruling denying it leave to file the amended answer deprived it of that defense. Appellees contend that the original decree entered 1932 was a final decree on the question of appellant's liability to account and that, since appellant did not appeal from such decree, it is final and appellant waived the right to plead the 5-year limitation act.

The bill alleged the execution of the lease March 22, 1906, by Charles Fyffe, individually and as guardian for Roy Fyffe and Grace Fyffe, to C. L. Wise, assignments of the lease by Wise, and various successive assignments vesting the title to part of the lease in appellant. It alleged the development of the wells and the productions of oil and gas by appellant and the sale of it to certain other companies who were made parties defendant. It was alleged that oil and gas had been produced since 1906 but that appellant had produced and marketed oil and gas from the premises since June 11, 1911. The prayer was for partition of the lands and accounting for rents and profits and for oil and gas produced from said premises.

Appellant's answer admitted the execution of the lease, alleged various successive assignments of the leasehold interest leading to its title and ownership of a part thereof. It was alleged that it had paid to its lessors the one-eighth part of the oil and gas provided for in the lease, that it did not know until April, 1931, that the appellees had any interest in the lands, that they expended large sums of money developing the wells and pumping the oil, that the appellees lived in the vicinity of the wells and never made any protest or claim of interest, and that therefore they had been guilty of laches. It neither admitted nor denied the complainants' allegations of heirship but prayed strict proof, alleged that it and its predecessors in title had been in possession under said lease from 1906 to April, 1931, without knowledge of complainants' interest that they acted in good faith and under the belief that the lessors named in the lease were the sole owners of the premises; that such possession had been open, visible, and exclusive. The answer was amended specifically pleading the 20-year statute of limitations.

Evidence was heard before the court and a decree entered finding that Charles Fyffe farmed the lands prior to the development of the oil wells; that the premises were unimproved with buildings at that time; that Charles Fyffe executed an oil and gas lease in 1906; that the appellant became the owner of it in 1907 and has since that date operated the wells and produced oil and gas which have been marketed in large quantities; that the records of the amounts the prices are in the custody of the defendants; that in order to fix and determine the rights of complainants with reference to the defendants that an account be taken between the parties. The decree ordered that an account be taken “between the parties hereto with reference to the rents and profits that have issued or arisen from said above described premises, including all oil and gas that have been produced and marketed from said premises and that said accounting shall be taken between the parties hereto as between the complainants and the defendants.” It ordered that defendants produce the books, records, etc., and that said accounting shall be taken by this court “that this court reserves the determination of all matters touching the said accounting until after the same has been taken and due consideration thereof has been had.” The appellant did not perfect an appeal from that decree.

A decree is final and appealable only when it terminates the litigation between all the parties on the merits, so that when it is affirmed the court below has only to proceed with its execution. A decree is final and appealable even though incidental matters may be reserved for consideration and it directs a reference to a master to state an account. Free v. Successful Merchant, 342 Ill. 27, 173 N.E. 753;Eich v. Czervonko, 330 Ill. 455, 161 N.E. 864.

In Barnes v. American Brake-Beam Company, 238 Ill. 582, 87 N.E. 291, it was held that a decree for an accounting which fixes the complainants' rights as to some of the defendants but reserves for final consideration the question of the liability of some other defendants is merely interlocutory. In Gray v. Ames, 220 Ill. 251, 77 N.E. 219,5 Ann.Cas. 174, the decree contained findings of fact as to some of the items involved in the accounting and ordered that the parties produce before the master all books and papers relating to the accounting and specified four subject matters of accounting. It was held that the decree was interlocutory and not a final appealable decree. In Hynes v. Jennings, 262 Ill. 268, 104 N.E. 697, which was a suit for partition and accounting the decree contained findings of fact in reference to the collection of rents by certain tenants in common and then concluded that the matter of the accounting should be reserved in toto for the future consideration of the court, and it was held that the decree was interlocutory and not appealable. In Smith v. Bunge, 358 Ill. 229-231, 193 N.E. 122, 123, it was said, “A final decree is one which fully decides and finally disposes of the rights of the parties to the cause. Where accounts are to be settled between the parties and the decree contains an order of reference...