Holman v. Gill

• Decision Date: 01 October 1883
• Citation: 1883 WL 10324,107 Ill. 467
• Parties: MARTIN HOLMANv.LEE M. GILL et al.
• Court: Illinois Supreme Court

107 Ill. 467

1883 WL 10324 (Ill.)

MARTIN HOLMAN

v.LEE M. GILL et al.

Supreme Court of Illinois.

Filed at Springfield Oct. 1, 1883.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Macon county; the Hon. C. B. SMITH, Judge, presiding.

Messrs. OUTTEN & VAIL, for the appellant:

It is contended that appellant is estopped, by reason of his presence and silence at the master's sale, from now claiming any interest in the property. A master's sale in a partition proceeding is a judicial sale, and the rule of caveat emptor applies. McManus v. Keith et al. 49 Ill. 388; Bassett v. Lockard, 60 Id. 164.

A purchaser at a judicial sale is bound to know the title. England v. Clark, 4 Scam. 486; Owings v. Thompson, 3 Id. 502; Bishop et al. v. O'Connor et al. 69 Ill. 431; Walden v. Gridley, 36 Id. 523.

The sheriff's return to the execution is immaterial. Phillips v. Coffee, 17 Ill. 154; Kinney v. Knoebel, 47 Id. 417.

The certificate of purchase has no necessary connection in the chain of title.

The omission of the word “dollars,” in that part of the sheriff's deed which recites the judgment, is a mere clerical error of an officer.

The sheriff's deed could convey only the interest of the Gill heirs. The deed purporting to convey all the lots must include the lesser interest--an undivided interest, which is included in the whole. Fisher v. Eslaman et al. 68 Ill. 78.

It is sufficient if the sheriff so recites the judgment that it may be fully identified. Hayes v. Bernard, 38 Ill. 297; Loomis v. Riley, 24 Id. 307; Phillips v. Coffee, 17 Id. 154; Durham v. Heaton, 28 Id. 264; Swiggart v. Harber, 4 Scam. 364; Stow v. Steel, 45 Ill. 328; Kinney v. Knoebel, 47 Id. 417; Jackson et al. v. Spink, 59 Id. 404.

Mere non-compliance with the statute by the officer does not of itself make the sale a nullity. Rev. Stat. 1845, p. 302, sec. 11.

The purchaser has the right to rely upon the judgment, execution and levy upon the property, and his deed. He can not be affected by an imperfect return, or by the fact that no return whatever was made. The statute says that the deed shall be evidence that the law has been complied with, until the contrary be shown. Phillips v. Coffee, 17 Ill. 154; Doe ex dem. Wolf v. Heath, 7 Black, 154; Wheaton v. Sexton's Lessee, 4 Wheat. 503; Kinney v. Knoebel, 47 Ill. 417.

It has been fully settled by this court, in cases somewhat analogous to the present case, that a sale under the circumstances is only voidable; can only be corrected by the defendant in the execution; that he must act promptly, and that it can not be disturbed in a collateral proceeding. Swiggart v. Harber, 4 Scam. 364; Phillips v. Coffee, 17 Ill. 154; Wimberly v. Hurst, 33 Id. 166; Fergus v. Woodworth, 44 Id. 374; Hamilton v. Quimby, 46 Id. 90; Nixon v. Cobleigh, 52 Id. 387; McConnell v. Gibson, 12 Id. 128.

Mr. J. A. BUCKINGHAM, and Mr. W. C. JOHNS, for the appellees:

When there is a variance between the allegations of the bill and the proofs, the complainant must fail. McKay v. Bissett, 5 Gilm. 499; White v. Morrison, 11 Ill. 361; Rowan v. Bowles, 21 Id. 17; Chaffin v. Heirs of Kimball, 23 Id. 36; Fish v. Cleland, 33 Id. 238; Bush v. Connelly, Id. 437; Ohling v. Luitjens, 32 Id. 23; Fergus v. Tinkham, 38 Id. 407.

When tenants in common, or joint owners, hold property incumbered or burdened, either may take up outstanding title, or make advances to preserve title or save property from destruction; and the one not doing so, seeking partition, must offer to contribute. Wilton v. Tazewell, 86 Ill. 29; Louvalle v. Menard, 1 Gilm. 39; Harvey v. Goings, 13 Ill. 108; Dean v. O'Meara, 47 Id. 120; Kurtz v. Hibner, 55 Id. 514.

There should be entire uniformity in the return to the execution, the certificate of sale, and the deed, where real estate is sold, or the sale will be invalid. Dickerman v. Burgess, 20 Ill. 267; Johnson v. Adleman, 35 Id. 265; Kinney v. Knoebel, 47 Id. 417; Harmon v. Larned, 58 Id. 167; Johnson v. Baker, 38 Id. 102; Johnson v. Bantock, Id. 111; Herman on Executions, 476, 477.

It is necessary the sheriff's deed should recite the judgment upon which execution was issued and sale had. Gross' Stat. 1869, p. 381, sec. 22.

If one so far countenance the sale of his own property as to stand by and see it sold by the sheriff or other officer as the property of, and on execution against, another, without objecting to the sale, he will be estopped to deny the validity thereof as against a bona fide purchaser. Rorer on Judicial Sales, 164; Epley v. Witheren, 7 Watts, 163; Carr v. Wallace, Id. 394; Read v. Heasley, 2 B. Mon. 254; Markham v. O'Connor, 52 Ga. 183.

Mr. JUSTICE MULKEY delivered the opinion of the Court:

John Gill, on the 19th of March, 1865, died intestate, leaving a widow and eight children. At the time of his death he was the owner in fee of lots 8 and 9, in block 2, of Plant & Tuttle's addition, and lots 5 and 6, in block 8, of Smith & Co.'s addition, to the city of Decatur, this State, being the same property now in controversy. The lots in question constituted the homestead of the deceased, and continued to be occupied by the widow as such after his death, without any allotment of her dower. In August, 1866, Martin Holman, the appellant, recovered in the Macon circuit court a judgment against John and William Gill, two of the children and heirs of the deceased, for the sum of $121.35, which became a lien upon their interests in the lots. An execution was issued upon the judgment on the 21st of September, in the same year, which, in the month of October following, was levied by the sheriff on the undivided two-eighths of said lots. The execution was subsequently returned with the following indorsement thereon: “This execution satisfied in full by sale of real estate to Martin Holman, on the 3d day of November, 1866, all costs paid clerk, except my own.

A. A. MURRAY, Sheriff.”

No redemption having been made from said sale, John E. Jones, the then sheriff of Macon county, and successor in office of Murray, on the 24th of February, 1868, executed to Holman a deed, in the usual form, for said lots 8 and 9, and for the undivided two-eighths of lots 5 and 6. It also appears that in pursuance of a decree of the circuit court of Macon county, rendered in a partition proceeding, at its December term, 1876, said lots were sold at public vendue to Lee M. Gill, one of the present appellees, who received a master's deed therefor in pursuance of the sale. Clinton Payne, the remaining appellee, purchased one of these lots of Lee M. Gill, and claims title through him. It is conceded appellant was not made a party to the partition proceeding, and that the rights of the other heirs to the lots in question have, by virtue thereof, become extinguished. On the 29th of April, 1881, appellant brought the present bill for a second partition of the same lots, making the said John M. Gill and Clinton Payne parties. The court, upon the hearing, found the equities with appellees, and rendered a decree dismissing the bill, to reverse which Holman brings this appeal.

It is a fundamental doctrine of the law of partition that all co-tenants must be made parties to the proceeding, otherwise the decree will be no bar to a second partition at the suit of the omitted parties. (Freeman on Co-tenancy and Partition, sec. 463.) We do not understand this view of the law to be controverted; but the contention of appellees, if we do not misapprehend counsel, is, first, that the proceedings under the judgment against John and William Gill, through which appellant claims title to two undivided eighths of the land in controversy, were so irregular and defective that appellant took nothing by them; and second, that, conceding his title to be good, the allegations in his bill with respect to those proceedings are fatally variant from the proofs,--hence it is concluded the bill, on either ground, was properly dismissed on the hearing. We do not think either of these positions tenable. In the presentation of our views we shall confine ourselves to such of the questions discussed in appellees' brief as we deem worthy of notice, and in doing so shall pursue, substantially, the same order there observed.

The first point made by appellees is, that the bill charges upon the death of John Gill his “children became seized in fee simple, as tenants in common of said premises, of an undivided one-eighth share each,” while the proofs show the premises on his death were subject to the widow's dower and homestead. We discover no variance in this. There were eight of the children, and they consequently took an undivided eighth part, each, in their father's real estate, including these lots. The interest thus taken was a present vested interest, subject to no contingency whatever, and of indefinite duration, hence, in technical language, the heirs were severally seized in fee of their respective shares or interests, and the mere fact the estate was subject to the widow's dower made no difference in this respect. As to the homestead, there was none, as against the heirs, as the law then stood. But suppose there had been, that would have made no difference. Like any other intervening life estate it would only have postponed the possession of the reversioner in fee till its termination.

It is next objected the bill avers that complainant recovered a judgment against William and John Gill for $121, and costs of suit, whereas the proofs show the judgment was for $121.35, thus making a difference of thirty-five cents between the amount of the judgment as charged and proved. We do not think a variance like the one shown,--where it is clear, as it is here, no one could have been misled or otherwise injured by it,--should be visited with consequences so fatal as to defeat the right of recovery in a mere collateral proceeding like this, especially in a court of equity, where the substance of an averment, rather than its literal accuracy, is always looked to. The substance of the charge in the...