Gibbons v. Hoag

• Citation: 1880 WL 10007,95 Ill. 45
• Parties: JOSEPH G. GIBBONS et al.v.MARY HOAG.
• Decision Date: 18 May 1880
• Court: Supreme Court of Illinois

95 Ill. 45

1880 WL 10007 (Ill.)

JOSEPH G. GIBBONS et al.

v.MARY HOAG.

Supreme Court of Illinois.

Filed at Ottawa May 18, 1880.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. M. F. TULEY, Judge, presiding.

Mary Hoag filed her petition, under the “Burnt Records act,” on the first of June, 1876, in the circuit court of Cook county, to establish her title to certain real estate in the city of Chicago, hereinafter more particularly described.

She alleges in her petition that on the 18th of November, 1858, Joseph W. Wiltberger was owner of one half, and his children, by descent from his deceased wife, were owners of the other half of the north half of north half of the north-west quarter, and the west half of the north-east quarter of section 15, township 38, range 14, in Cook county.

The names of the children so inheriting from their deceased mother are: Louisa Ann, William H., Margaret A., Charles S., Joseph S., and Laura Ann. Louisa intermarried with Isaac W. Edwards, and subsequent to the death of her mother, and before the filing of the present petition, died intestate, leaving an infant as her sole heir at law, who shortly thereafter died intestate, leaving its father, the said Isaac W. Edwards, its only heir at law, so that thereafter the said Isaac W. Edwards was entitled to the share which went by descent to the said Louisa Ann. That about November 18, 1858, said Joseph W. Wiltberger, and said William H. Wiltberger, Margaret A. Wiltberger and Isaac Edwards, all of lawful age, conveyed said land to Jesse Embree, by deed of that date, which was duly recorded in the proper office on the next day--(the 19th of November, 1858); that, at the same time, Jesse Embree executed back to said Joseph W. Wiltberger a mortgage (which was also recorded in the proper office on the next day) of the same lands to secure the payment of $91,200, (the purchase money,) evidenced by nineteen promissory notes, given on that day, to said Joseph W. Wiltberger, eighteen of which are for $2400 each, and two are payable on the first of January in each year from January 1, 1859, until January 1, 1867, both inclusive, and the nineteenth note is for the sum of $48,000, payable January 1, 1868; that said notes were set forth and described in said mortgage, which provided that if default should be made in the payment of either note for $2400, numbered one in red ink, for thirty days, or of either other note for $2400, for ninety days, or of one-fourth part of said $48,000 note for thirty days, then the whole sum unpaid should become due, and said mortgage might be foreclosed at the option of said Wiltberger, or, after publishing notice for thirty days, he might sell at auction all right and equity of redemption of Embree, and, as attorney of Embree, make deed in fee simple, and that such sale should be a perpetual bar of equity of redemption, etc.

It is then alleged that default was made in several of the notes which matured up to and including January 1, 1862, and on May 9, 1862, there was due on said notes, previously matured, about $13,800 of principal, and for such default said Joseph W. Wiltberger advertised said land for sale, under said power, and on the 10th of June, 1862, sold the said north half of north half of the north-west quarter to Egbert W. Wiltberger, for $16,000, and then sold the said west half of the north-east quarter to said Egbert W. Wiltberger for $32,000, and, by deed of that date, recorded September 16, 1862, in pursuance of said mortgage, power of sale and notice, said Joseph W. Wiltberger conveyed, by deed, to said Egbert W. Wiltberger said two tracts of land in fee simple, which deed contained the recitals that default was made, and that the premises were duly advertised and sold to said Egbert W., and that $48,000 was paid to said Joseph; that Egbert W. and wife on the 4th of September, 1862, by deed of that date, which was duly recorded September 17, 1862, conveyed the same tracts of land back to Joseph W. Wiltberger, for the consideration of $48,000, and that at the time of purchasing her five lots these deeds were all on record, and petitioner, in good faith, relied on them.

On October 17, 1857, Yerby's subdivision of said two tracts of land was recorded, and on August 19, 1859, Embree and wife conveyed lots 1, 2, 3, 25, 26 and 27, in block 2 in said subdivision, to Amos F. Tompkins, in which deed said mortgage from Embree to Wiltberger was referred to and stated to be assumed by said Tompkins; that Tompkins, by deed dated January 7, and recorded January 9, 1861, conveyed to Joseph G. Gibbons said lot 2, subject to said mortgage; that on the 15th of November, 1862, Gibbons and wife, by deed of that date, and which was duly recorded December 6, 1862, conveyed said lot 2 and lot 22, in said subdivision, with warranty against his own acts or persons claiming under him, to the said Joseph W. Wiltberger; that by warranty deed dated January 31 and recorded February 5, 1863, said Joseph W. Wiltberger conveyed to petitioner said lots 2, 3, 25, 26 and 27, in block 2 in said Yerby's subdivision, in consideration of about $900, paid by petitioner to said Wiltberger, which was the full value of said lots, and she purchased in good faith, without notice of the claims of any other person thereto, and paid the entire consideration at the time of such conveyance, and long before she had notice or suspicion that other persons claimed adversely to her, and she believes that by virtue of said conveyance to her and the other matters thereinafter set forth, she acquired good title in fee simple to said lots, both at law and in equity, and she claims to own the same.

The petitioner further alleges that on May 10, 1862, said lots 2 and 3 on the north 134 feet thereof were vacant, and she took possession of said north 134 feet and inclosed the same with a fence on the north, east and west sides; that there was a fence at that time across said lots from east to west about 134 feet from the north line thereof, whereby the said north 134 feet of said lots was completely closed, etc.; that she has never abandoned possession; that said Gibbons, or G. W. Reed, is in possession of the residue of said five lots without her consent.

She further alleges that said Charles L., Joseph S., William H., Margaret A. and Laura A., being of lawful age, by deeds recorded on and before November 16, 1866, conveyed all their interest in said lands to said Joseph W. Wiltberger, whereby petitioner became vested with the legal and equitable title to said five lots in fee simple, but if not so vested, still she insists she became and is vested with title, because October 3, 1865, said Joseph W. Wiltberger filed his bill in the Superior Court of Chicago against said Embree, Tompkins and others, but not including the petitioner, setting up said mortgage and notes, and that for default in 1862 said Joseph had attempted to foreclose under the power of sale, but that the same failed to be effectual, for the reason in said bill stated, that said Embree and those claiming under him had made no effort to pay said notes; that Embree was insolvent; that the whole of the principal sum was due by the terms of the mortgage, and over $41,000 interest, and said premises were worth not over $24,000, and praying that the attempted foreclosure under the power of sale be held null and void, and that Embree be decreed to pay what might be found due, or be barred from all equity of redemption; that on June 18, 1866, a decree was entered in said cause, finding default in the payment of said notes, etc., and that said deed, under the power, was not according to said power, and decreeing that said sale be set aside and said mortgage continued in full force, and that upon defendants paying amount due in thirty days the complainant do satisfy said mortgage, but that in case of default they be barred from all equity of redemption, etc.

It is further alleged that neither Embree nor Tompkins, nor any other person, after the entry of said decree, ever paid any of said moneys, and that the mortgage was then, if not before, fully and finally foreclosed; that on June 3, 1869, Tompkins and wife quitclaimed to Daniel H. Carpenter said lots 2, 3, 25, 26 and 27, and the deed was properly recorded June 4, 1869, and on September 20, 1870, Carpenter conveyed the same to Gibbons, and the deed was properly recorded on the 23d September, 1870; and on September 20, 1870, Gibbons and wife conveyed lots 2 and 3 to James H. Rees, and the deed was properly recorded on the 5th of October, 1870. On the 22d of September, 1870, Rees and wife conveyed to the South Park Commissioners the north 134 feet of said lots 2 and 3, and the deed was properly recorded October 5, 1870, and on May 10, 1871, Rees and wife conveyed the residue of said lots 2 and 3 to Gibbons, and the deed was recorded May 11, 1871.

It is further alleged in the petition that Joseph G. Gibbons and the South Park Commissioners make claim to said premises; that said decree remained in full force for a long time, and has never been reversed by any proceeding in which petitioner was a party, and she believes said foreclosure proceedings were effectual for that purpose, and that Embree was in default for a long time before said proceedings were commenced, and had not paid taxes nor any attention thereto, and said premises were abandoned by Embree and Tompkins and all persons claiming under them, who allowed the same to be dealt with by Wiltberger and petitioner as absolute owners without objection, and it was only after a long time and an extraordinary rise in value that Tompkins and others reasserted their stale claims; that at the time of conveyance by Joseph W. Wiltberger to Egbert Wiltberger, Tompkins was and ever since has been a resident of Chicago, in said county, and knew of said sale and conveyance and of other conveyances by Joseph W. Wiltberger, including the conveyance to petitioner, and acquiesced...