O'halloran v. Fitzgerald

• Decision Date: 30 September 1873
• Citation: 71 Ill. 53,1873 WL 8677
• Parties: JOHN O'HALLORANv.JOHN FITZGERALD.
• Court: Illinois Supreme Court

71 Ill. 53

1873 WL 8677 (Ill.)

JOHN O'HALLORAN

v.JOHN FITZGERALD.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of LaSalle county; the Hon. EDWIN S. LELAND, Judge, presiding.

Mr. G. S. ELDRIDGE, for the appellant.

Messrs. GLOVER, COOK & CAMPBELL, for the appellee.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was a bill in chancery, filed by John Fitzgerald against John O'Halloran, in the county court of LaSalle county, on the 22d day of January, 1869, and subsequently transferred to the circuit court.

The bill, in substance, alleges, that John Fitzgerald, the father of complainant, on the 11th day of June, 1847, bought of the United States the south-west quarter of the south-west quarter of section 28, township 35 north, range 3 east, and received a certificate of entry in the name of his wife, Catharine; that at the time of purchase he was in possession of the land, and also of the north-west quarter of the south-west quarter of section 28, and had made valuable improvements on the last named lot, and wished to purchase it, but was informed it had been selected by the Illinois Central Railroad Co. as a part of its land grant under the act of Congress; that Fitzgerald left the State of Illinois, and placed one Patrick Connolly in possession of both tracts, arranged with him to purchase the railroad forty when it came into market; that in 1850 Fitzgerald died in Indiana, leaving Catharine, his widow, and Mary Shehan and complainant as his sole heirs; that on 23d of June, 1853, Connolly did purchase the railroad lot for $100, and received a deed; that previous to the purchase it was agreed between Connolly and appellant, that appellant should furnish the money to purchase the land, and Connolly should turn over possession of both forties as security for the payment of the $100, and that appellant should take care of the premises for the use and benefit of the widow and heirs of John Fitzgerald, all of which was done; that appellant, fraudulently contriving to cheat the widow and heirs of Fitzgerald, procured tax titles upon the premises, and now claimed to be the owner; that he had been in possession, and received the rents and profits from the time he and Connolly made the arrangement alleged, and the rents and profits exceeded all taxes and disbursements, and the $100 loan and interest; that on the 22d day of June, 1868, Connolly and wife conveyed the railroad forty to complainant, and on the same day Catharine Fitzgerald and Mary Shehan and her husband conveyed to him the other forty; that on the 1st day of August, 1868, complainant demanded of appellant possession of the premises, and, on account of his trust, that he refused, and fraudulently claimed to be the owner; that Mary Shehan was married when twenty years of age, and complainant is twenty-four.

The bill prays for an account, surrender of possession of the land, and general relief.

The answer denies the main allegations of the bill; admits defendant claims to be the legal owner of the land under tax deeds and possession and payment of taxes on the land for seven successive years; avers tax deeds were acquired in good faith; insists that the matters alleged in the bill may be tried and determined in a court of law; and that complainant is not entitled to any relief in a court of equity.

To this answer replication was filed, and the cause heard on proofs taken, and decree rendered in favor of complainant, substantially as asked in the bill.

The first point made by appellant is, the bill presents no proper case calling for the exercise of the equitable jurisdiction of a court of chancery--that it is a mere attempt to try the validity of a tax title in a court of equity.

If this was true, the bill could not be maintained; but, upon an examination of the record, it will be seen that it is charged in the bill appellant entered into possession of the premises as mortgagee and trustee for the heirs of Fitzgerald, and that in fraud of their rights, while holding the land in that position, he acquired the tax titles.

The issue tendered by this allegation was one of fraud, and one that raised the question of the responsibilities and duties of a trustee to the cestui que trust, and not the technical validity of the tax titles. We do not entertain a doubt in regard to the allegations of the bill being sufficient to call into exercise the powers of a court of chancery.

It is claimed by appellant, that even were the bill sufficient, the proof offered to sustain the allegations did not warrant the decree.

The main point in dispute in the case, is in regard to the manner in which appellant acquired and held possession of these lands.

The evidence shows that, in 1847, the father of appellee was in possession of the land; that he went to Indiana, leaving one McCartha in possession, who...