Harding v. Larkin

• Decision Date: 30 April 1866
• Citation: Harding v. Larkin, 41 Ill. 413, 1866 WL 4613 (Ill. 1866)
• Parties: GEORGE F. HARDING, impleaded with H. M. WEAD,v.MARY LARKIN et al.
• Court: Illinois Supreme Court

41 Ill. 413

1866 WL 4613 (Ill.)

GEORGE F. HARDING, impleaded with H. M. WEAD,

v.MARY LARKIN et al.

Supreme Court of Illinois.

April Term, 1866.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Cook county; the Hon. ERASTUS S. WILLIAMS, Judge, presiding.

This was an action of covenant brought by Mary Larkin, William Larkin, Joshua Larkin, Sarah Larkin, Eveline Larkin, James Larkin, John Larkin, Berzilla Larkin and Lydia Larkin by Joshua Larkin, their next friend, in the Cook Circuit Court, against George F. Harding and Hezekiah M. Wead.The declaration counts on the breach of a covenant of warranty contained in a deed of conveyance for a quarter section of land to Curtis Warden and Albert Warden, and that their father, by conveyance, became the assignee of their title and the covenant of warranty, and they succeeded to the same rights by the death of their father.

That defendants had not kept and performed their covenants, but had broken the same by suffering plaintiffs to be evicted from the land by paramount title.Pleas were filed and issues formed.A trial was had by the court and jury, who found the issues for the plaintiffs and assessed the damages at $967.Defendants entered a motion for a new trial which was overruled, and judgment rendered on the verdict.Plaintiffs bring the case to this court on error, and the defendants by appeal, and they assign errors on their several records.

Messrs. GOUDY & CHANDLER, for plaintiffs in error.

Messrs. HARDING & WEADpro se.

Mr. CHIEF JUSTICE WALKERdelivered the opinion of the Court:

This was an action of covenant brought by plaintiffs in error, by their next friend, Joshua Larkin, in the Cook Circuit Court, against defendants in error, on a deed of conveyance containing covenants for title.The declaration avers, that defendants and their wives, on the 26th day of December, 1855, in consideration of six hundred dollars, by their deed of that date, sold and conveyed to Curtis Warden and Albert Warden, the south-west quarter of section thirty-three, township eight, north of the base line, in range two west of the fourth principal meridian; and covenanting thereby that they would forever warrant and defend the title to said land against all patent titles whatsoever, and none other.

That, on the 2d day of February, 1856, Albert Warden and wife, for the consideration of two hundred dollars, sold and conveyed an undivided half of the north eighty acres of the quarter to Curtis Warden; and Curtis Warden, on the same day, on a like consideration, conveyed the undivided half of the south half of the quarter to Albert Warden; Albert Warden quitclaimed the south half to John J. Warden, for the consideration of $320, and on the 21st of September, 1857, Curtis, John J. and Benjamin F. Warden, for the consideration of $3,600, quitclaimed the whole quarter to Samuel Larkin.That he died, on the 25th of October, 1859, leaving plaintiffs his sole heirs, whereby they became invested with his claim to the premises, by descent.

That defendants have not warranted and defended the title against all patent titles whatsoever; but that after the death of Samuel Larkin, one Thomas Cross, by paramount patent title, conveyed to him by Archibald Williams, who derived the patent title from Robert Searles, to whom a patent had been granted by the United States Government, entered upon, and ejected plaintiffs therefrom, by due process of law, and kept and held plaintiffs so ejected, from the possession and occupancy of the land.And that plaintiffs have been obliged to pay the costs and charges sustained in defending the ejectment suit brought by Cross, amounting to $100, and have been compelled to pay large sums of money, amounting to $300, in endeavoring to defend the suit in ejectment.

The second breach avers, that after Samuel Larkin's death, Cross, by virtue of his paramount patent title, on the 6th of April, 1863, evicted plaintiffs and kept them out of possession, whereby they lost the land, and have been obliged to pay costs and charges sustained in defending the ejectment suit, amounting to $100, and were compelled to pay other charges, in and about the defense of the ejectment, the sum of $300.

It is averred in the third breach, that, on December 4, 1865, Williams filed a bill in chancery, in the Warren Circuit Court, against James Searles and others, to set aside the title conveyed by defendants, in favor of another patent title granted Robert Searles, and conveyed to Williams, and that at the April Term, 1859, a decree was pronounced, upon the hearing of the bill, by which it was ordered and decreed, that the deed, by which defendants claimed title, should be set aside.That, on the 27th of June, 1859, Williams conveyed the land to Cross.That, on the 12th of July following, Cross brought a suit in ejectment, in the United States Court, for the northern district of Illinois, against Samuel Larkin, the father of plaintiffs.That defendant, Harding, appeared as attorney for Larkin, and filed a plea of not guilty.That while that suit was pending, Samuel Larkin died, leaving plaintiffs his heirs, who, as such, were made partiesdefendant.That Cross in that suit recovered a judgment for the land.That, under advice of counsel, plaintiffs prosecuted a writ of error to the Supreme Court, in the name of the Wardens and the defendants, with the knowledge and consent of the latter, to reverse that judgment, and necessarily paid seventy-five dollars costs, and $100 for attorneys' fees.That judgment was rendered against plaintiffs in the ejectment suit for costs and damages, and they were compelled to pay costs taxed in defense of the suit, seventy-five dollars, and $100 for attorneys' fees.

That, on the 7th of September, 1862, Cross conveyed the premises to John H. Williams; that plaintiffs, by reason of the decree in favor of Archibald Williams, and the judgment in ejectment, were in danger of losing the land, and were compelled to purchase the title, and, for the consideration of $1,600, on the 25th day of December, 1862, paid by them, the land was conveyed by John H. Williams to John W. Larkin, for their use and benefit, whereby they were evicted and the covenant broken.

In the fourth breach, it is averred, that, on the 12th of July, 1859, Cross brought ejectment against Samuel Larkin, in the United States Circuit Court, for the recovery of the land, of which defendants had notice, and defendant Harding appeared in the case as an attorney for Larkin, and filed a plea of not guilty.And that, pending that suit, defendant Larkin died, leaving plaintiffs his heirs at law, who were made defendants in that suit: that, in January, 1862, a judgment was rendered by the court against the defendants for the recovery of the land, and one cent damages, and a writ of possession was awarded to Cross for the premises; that the judgment by Cross was recovered by virtue of paramount patent title derived from the patentee; that, by reason of the judgment and decree in favor of Williams, plaintiffs were in danger of losing the land, and to avoid loss, were compelled to purchase the patent title from John Williams, to whom Cross had subsequently sold the premises, and that the conveyance was made to John W. Larkin, for their use and benefit, whereby they were evicted and the covenant broken.

On the 4th of January, 1866, defendant Harding filed three pleas to the declaration: First, a plea of performance, which avers that defendants did keep and fully perform their covenant; second, a plea of non est factum; and a plea of set-off of indebtedness by Samuel Larkin to defendant, for legal services as an attorney in the ejectment suit.Both defendants joined in a fourth plea, which is a plea of set-off for use and occupation of the premises.Plaintiffs filed replications to the first and second pleas, and a demurrer to the third and fourth pleas.The court sustained the demurrer to these pleas, and carried it back and sustained it to the first, second and third breaches in plaintiffs' declaration.A judgment of nil dicit was thereupon rendered against defendant Wead, and a writ of inquiry awarded to assess the damages.A trial was afterward had under the issues on the first and second pleas, when the issues were found for plaintiffs, and the damages assessed against both defendants at $967.Defendants entered a motion for a new trial, which the court overruled, and rendered judgment on the verdict.To reverse that judgment, defendant Harding brings the case to this court by appeal.And plaintiffs also bring the case here on writ of error, to reverse the judgment of the court below in sustaining the demurrer to the first, second and third breaches of their declaration.

Inasmuch as both proceedings in this court are based upon the same record, and each party questions different decisions of the court below, made in the progress of the trial, for convenience, we shall consider the two cases as one.And in discussing the questions, shall first consider the errors assigned by plaintiffs in error.Before proceeding, however, to the main questions in the case, we shall first determine a question of practice involved in these records.It is objected, that, when one party prosecutes an appeal, the other is precluded from prosecuting error on the same record.

Our practice, unlike that of some other appellate jurisdictions, does not allow the assignment of cross errors on the record, in a proceeding at law.And as it may, and sometimes does occur, that, in the trial of a cause, errors may be committed against both part...