Haas v. Righeimer

• Decision Date: 21 February 1906
• Parties: HAAS v. RIGHEIMER et al.
• Court: Illinois Supreme Court

220 Ill. 193

77 N.E. 69

HAAS

v.RIGHEIMER et al.

Supreme Court of Illinois.

Feb. 21, 1906.

Appeal from Circuit Court, Cook County; John L. Healy, Judge.

Suit by Emma Ottilia Haas against Louisa F. Righeimer and others. Bill dismissed, and complainant appeals. Affirmed.William D. Petzel, Lorenzo E. Dow, David S. Geer, and John F. Haas, for appellant.

David K. Tone and Morse Ives, for appellees.

This was a bill for partition and accounting, filed in the circuit court of Cook county by appellant, Haas. A verified plea was filed by a part of the defendants, setting up the pendency of a prior suit. Upon the filing of that plea the defendants pleading moved to dismiss the bill. The chancellor heard the evidence offered in support of the plea in open court, and entered a decree dismissing the bill, and the cause comes here by appeal.

The plea set out the original bill and amendments thereto in the case of Stahl v. Stahl, which was before this court at the February term, 1905, and which is reported in 214 Ill. 131, 73 N. E. 319,68 L. R. A. 617, 105 Am. St. Rep. 101, the answer of certain of the defendants in that case to the amended bill, the decree of the superior court entered in that cause, the material portions of the opinion of this court entered in that cause, and the mandate which issued from this court, and avers other facts common to a plea of this kind. It appears from the record that on November 2, 1903, Gustave A. Stahl, a brother of appellant, Haas, filed a bill in the superior court of Cook county, making his brother, Frank A. Stahl, and other parties interested in the real estate described in the bill, defendants. That bill averred that a certain deed executed by Fredericka L. Stahl (mother of the complainant and of six of the defendants) on August 18, 1900, conveyed to Frank A. Stahl, one of the sons, the said real estate without valuable consideration, and that thereafter Frank A. Stahl conveyed the same, without valuable consideration, to his brother, John Stahl; that by reason of said deeds John Stahl claimed to be the owner in fee of said real estate; that said claim was in fraud of the rights of the other children of Fredericka L. Stahl. No trust was expressed in either deed, both of which were absolute in form. It further appeared from the bill that Fredericka L. Stahl died intestate, and that the real estate in question was in equity the property of her seven children as tenants in common, as the same, pursuant to an oral agreement, had been conveyed to Frank A. Stahl for the use and benefit of all her children, as John Stahl well knew when he received the conveyance from Frank A. Stahl. The bill prayed that the two deeds be set aside and declared null and void, that there be an accounting for rents, that a receiver be appointed, and for general relief. Certain of the defendants answered; Frank A. Stahl and John Stahl interposing the statute of frauds. A replication was filed and a hearing had. The superior court dismissed the bill on the ground that the trust set up by the bill was within the statute of frauds, and an appeal was prosecuted to this court, where it was held that the deed to John Stahl created a constructive trust in him for the benefit of all the children of Fredericka L. Stahl, deceased, who in equity were held to be the beneficial owners of said property. The decree of the superior court was reversed and the cause remanded, with directions to enter a decree in accordance with the views expressed in the opinion of this court. Six days after judgment was entered in this court, appellant, one of the equitable owners of the property in question, filed the bill in this case in the circuit court of Cook county for partition of the real estate in question and seeking an accounting of rents and profits. Thereafter the case of Stahl v. Stahl was redocketed in the superior court, and a decree was entered therein, from which an appeal has been prosecuted to this court, and a judgment was entered in this court at the present term reversing the decree and remanding the cause (Stahl v. Stahl, 77 N. E. 67), for the reason that the decree so reversed was not in accordance with the mandate of this court issued upon the determination of the earlier appeal.

SCOTT, J. (after stating the facts).

It is urged that the plea herein does not fully set out the facts relied upon by the defendants. We have carefully examined the averments of the plea and consider this...