Griswold v. Hicks

• Decision Date: 31 March 1890
• Citation: 132 Ill. 494,24 N.E. 63
• Parties: GRISWOLD v. HICKS et al.
• Court: Illinois Supreme Court

132 Ill. 494

24 N.E. 63

GRISWOLD

v.HICKS et al.¹

Supreme Court of Illinois.

March 31, 1890.

Appeal from circuit court, Greene county; GEORGE W. HERDMAN, Judge.

Bill by Norval R. Hicks and Mahlon R. Hicks, by J. M. Riggs, their next friend, against Loyal P. Griswold and others. Decree for complainants. Defendant Griswold appeals.

Palmer & Shutt, for appellant.

James M. Riggs, for appellees.

WILKIN, J.

On the 16th day of September, 1867, William Hicks was the owner of four certain 40-acre tracts of land, and on that day conveyed the same to four of his children by the following deed:

‘This indentrue, made the sixteenth day of September, in the year of our Lord one thousand eight hundred and sixty-seven, between William Hicks, of the county of Greene and state of Illinois, party of the first part, and Isham v. Hicks, Wm. H. V. D. Hicks, Luther M. Hicks, and Laura A. Hicks, and the heirs of their bodies, all of the same county and state, party of the second part: Witnesseth, that the said party of the first part, for and in consideration of the sum of forty dollars, being from each child ten dollars, in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, and the said party of the second part forever released and discharged therefrom, has remised, released, sold, conveyed, and quitclaimed, and by these presents does remise, release, sell, convey, and quitclaim, unto the said party of the second part, their heirs and assigns, as aforesaid, forever, all the right, title, interest, claim, and demand which the said party of the first part has in and to the following described lots, pieces, or parcels of land, towit: To Isham v. Hicks, the north-west quarter of the north-west quarter of section twenty-eight, (28;) to Wm. H. V. D. Hicks, the south-west quarter of the south-west quarter of section No. twenty-eight, (28;) to Luther M. Hicks, the east half of the east half of the south-east quarter of section No. twenty-nine, (29;) and to Laura A. Hicks, the west half of the east half of the south-east quarter of section twenty-nine,-all in twonship No. twelve (12) north, of range No. twelve (12) west of the third principal meridian, containing in all one hundred and sixty acres of land, and to each child forty acres; all lying and being in Greene county, Illinois. Meaning and intending by this conveyance to convey to my said children the use and controlof said real estate during their natural lives, and at their death to go to their children; should they die without issue, to their legal representatives. To have and to hold the same together with all and singular the appurtenances and privileges thereunto belonging or in any wise thereunto appertaining, and all the estate, right, interest, and claim whatsoever of the said party of the first part, either in law or equity, to the only proper use, benefit, and behoof of the said party of the second part, their heirs and assigns, forever. And the said William Hicks, party of the first part, hereby expressly waives, releases, and relinquishes unto the said party of the second part, their executors, administrators, and assigns, all right, title, claim, interest, and benefit whatever in and to the above-described premises, and each and every part thereof, which is given by, and result from, all laws of this state pertaining to the exemption of homesteads. And the said party of the first part, for himself and his heirs, executors, and administrators, doth covenant, promise, and agree to and with the said party of the second part, their heirs, executors, administrators, and assigns, that he hath not made, done, committed, executed, or suffered any act or acts, thing or things, whatsoever, whereby or by means whereof the above mentioned and described premises, or any part or parcel thereof, now are, or at any time hereafter shall or may be, impeached, charged, or incumbered in any way or manner whatsoever. In witness whereof, the said party of the first part hereunto sets his hand and seal the day and year above written.

[Seal.]

‘WILLIAM his X mark HICKS.’

After the execution and delivery of this deed the said Laura A. Hicks, one of the grantees, having intermarried with one Charles Hogg, conveyed the said W. 1/2, E. 1/2, S. E. 1/4, to the said Luther M. Hicks; and the latter thereupon took possession thereof, together with said E. 1/2, E. 1/2, S. E. 1/4, conveyed to him by his father, and continued in such possession until September 20, 1888, when he died, leaving Lucy J. Hicks, his widow, and appellees, his only children. On the 28th day of September, 1886, the said Luther M. Hicks and his wife, Lucy J., conveyed by mortgage deed of that date both of said 40-acre tracts of land to appellant, to secure the payment of $2,400. On the 1st day of October, 1888, Isham Roberts was duly appointed administrator of the estate of Luther M., and afterwards, on his petition, to which said widow and this appellant and these appellees were made parties, the county court of said Greene county ordered him to sell all of said land to pay debts theretofore allowed against said estate. The said widow claimed homestead and dower in said land, but consented in writing that it might be sold, she to take out of the proceeds. Appellant also consented to such sale, his mortgage to be first satisfied out of the fund arising therefrom.

This is a bill in chancery by appellees, infants, by next friend, against appellant, the said widow, and administrator, to remove said order of said county court as a cloud on their title to the E. 1/2, E. 1/2, S. E. 1/4, described in said deed. In addition to the foregoing facts, the bill charges that while complainants were made parties to the petition of said administrator in said county court, being infants, they were represented therein only by a guardian adlitem, who, by agreement and collusion with appellant and said administrator, did not fairly represent their interests, and that their ownership in said lands was concealed from said court. The bill also alleges that the said Laura A. Hogg is still living, but has no heirs of her body. To the bill the appellant filed a general demurrer, which was overruled, and the defendant elected to abide by the same. Thereupon a decree was rendered in favor of appellees, which found and adjudged that said Luther M. Hicks took only a life-estate in the 40 acres conveyed to him by William Hicks, and that appellees took the remainder in fee-simple; and, as to this 40 acres, appellant's mortgage and the said county court proceedings were held to be a cloud upon appellees' title, and were decreed to be null and void. As to the 40 acres conveyed to said Luther M. by Laura A. Hogg, the decree complained of found that, at the time of said Luther M.'s death, he owned an estate therein which is liable to be sold to pay his debts, subject to the appellant's right under his mortgage, and subject to the rights of said...