Gray v. Schofield

• Decision Date: 24 October 1898
• Parties: GRAY v. SCHOFIELD et al.
• Court: Illinois Supreme Court

175 Ill. 36

51 N.E. 684

GRAY

v.SCHOFIELD et al.

Supreme Court of Illinois.

Oct. 24, 1898.

Appeal from circuit court, Peoria county; Nicholas E. Worthington, Judge.

Bill by William A. Gray against John A. Schofield and others. From a decree sustaining a demurrer to and dismissing the bill, plaintiff appeals. Reversed.

William S. Kellogg, for appellant.

H. C. Fuller and Wm. M. Maxwell, for appellees.

CARTWRIGHT, J.

Appellant filed his amended bill in the circuit court of Peoria county against appellees for partition of certain real estate, and an accounting for rents of the same. Dumurrers to this bill were sustained, and it was dismissed at appellant's cost. The following facts were alleged in the amended bill as grounds of the relief prayed for, and were admitted by the demurrers: On July 11, 1881, John Schofield was the owner in fee of lot 12, and 17 feet of even width off the northeasterly side of lot 11, in block 23, in the original town (now city) of Peoria, in Peoria county, with a frontage on Adams street of 89 feet, and extending back 171 feet on Eaton street to an alley, and occupied the same, with his wife, Marion Schofield, as his homestead. On that day he executed a quitclaim deed of all his interest in said real estate to John S. Lee, for the expressed consideration of $100; and Lee on the same day executed a quitclaim deed, expressing a like consideration, conveying all interest in said real estate to the wife, Marion Schofield. Both deeds were recorded in the office of the recorder of Peoria county on the day of their execution. John Schofield continued to occupy the premises, with his wife, as a homestead. On October 3, 1888, said Marion Schofield, with her husband, John Schofield, for the expressed consideration of $10,000, conveyed to James Bennett all of said premises, except a strip fronting on Eaton street, near the middle part of the tract, 37 feet wide, and running back with the same width 89 feet across the premises, upon which was the dwelling house occupied by said John Schofield as his homestead, which was retained. On November 1, 1888, A. R. Warren recovered two judgments before a justice of the peace of Peoria county against John Schofield, for $200 each and costs, upon which executions were issued, and returned ‘No property found.’ Transcripts of said judgments were filed in the office of the clerk of the circuit court of said county, and recorded there. On September 21, 1889, executions were issued on said judgments out of the circuit court to the sheriff of said county, and were returned December 21, 1889. ‘No property found.’ On November 10, 1890, said A. R. Warren recovered another judgment in the circuit court of Peoria county against John Schofield and others for $1,160 and costs. John Schofield continued to occupy the 37-foot strip on which was the dwelling house, with his wife, as a homestead, until November 1, 1892, when they abandoned the same and the possession thereof, and established their residence elsewhere. On September 27, 1893, Marion Schofield and John Schofield executed a mortgage to the Anthony Loan & Trust Company on the premises to secure their note for $1,500. Afterwards, on March 23, 1895, executions were issued on all said judgments, and levied on the interest of John Schofield in the said 37-foot strip; and on May 9, 1895, the premises were sold by virtue of one of said executions to William S. Kellogg for $1,000. Kellogg assigned the certificate of purchase to complainant; and on November 19, 1896, a sheriff's deed was executed to complainant, and duly recorded. The premises were rented to Frank McLaughlin by John Schofield and Marion Schofield, or one of them, for $50 per month, which they received, and refused to account for any part thereof to complainant. The bill made John Schofield, Marion Schofield, Frank McLaughlin, and the Anthony Loan & Trust Company defendants. The prayer for partition was that the estate of complainant in the premises claimed by the bill, of the value of $1,000, should be set off to him, or, if a partition should be impracticable, the premises should be sold, and he should receive the value of his said estate of $1,000. Complainant also asked that the mortgage to the Anthony Loan & Trust Company should be decreed not a lien upon his interest, and that an accounting for the rents of the premises should be taken.

It is stated in the brief for all the appellees (including the unknown heirs of Marion Schofield, now deceased, who have been made parties), except the Anthony Loan & Trust Company, as follows: ‘The only point in this case is, did John Schofield have any interest in the property in question, at the time of the levy and sale under...