Horn v. Horn
| Decision Date | 03 June 1908 |
| Citation | 84 N.E. 904,234 Ill. 268 |
| Parties | HORN et al. v. HORN et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, St. Clair County; R. D. W. Holder, Judge.
Bill by Bertha Horn and others against Herman Horn and others. Decree for complainants, and defendants bring error. Reversed and remanded.
Treesh & Boyle, for plaintiffs in error.
E. W. Eggmann, for Bertha Horn.
B. H. Canby and Martin D. Baker, for Illinois State Trust Co.
R. H. Flannigen, for minor defendants in error.
Bertha Horn, one of the defendants in error, second wife and widow of Gustav A. Horn, filed her bill in the circuit court of St. Clair county asking to have her homestead set off and her dower assigned in certain property in East St. Louis, which she alleged her husband owned in fee simple at the time of his death, on July 15, 1906. Among the pieces of property in which she claimed dower was lot 12, in block 175, of the town (now city) of East St. Louis. Among the defendants to the bill were the plaintiffs in error, five of the children and heirs-at-law of Emilie Horn, the first wife, and they answered the bill, denying that their father, Gustav A. Horn, was the owner of said lot or that the complainant was entitled to dower or any other interest therein. The answer set forth the fact that Gustav A. Horn had filed a bill in the city court of East St. Louis in 1888, and obtained a decree of said court, under which a master's deed was made purporting to vest in him the interest which plaintiffs in error and their brother, Charles A. Horn, inheritedfrom their mother, Emilie Horn. They alleged that they were minors at the time the bill was filed and the decree rendered; that they were never served with process; that the decree was rendered at the same term at which the bill was filed; and that the city court had no jurisdiction over them. The Illinois State Trust Company and Fred W. Kraft, two of the defendants in error, answered the bill, alleging the ownership of the lot by Gustav A. Horn and the execution of a trust deed to said company to secure Fred W. Kraft in the sum of $10,000, with interest. Three children of the second marriage with Bertha Horn, who were minors, were defendants, and answered by their guardian ad litem. The Illinois State Trust Company filed its cross-bill to foreclose the trust deed to secure Kraft, and plaintiffs in error answered that bill by setting out the facts alleged in their answer to the original bill. Plaintiffs in error then filed their cross-bill, alleging that their mother, Emilie Horn, was the owner at the time of her death, in 1886, of the lot in question; that she left Gustav A. Horn, her husband, and nine children, her heirs-at-law; that three of the children died in infancy, and that Charles A. Horn, one of the surviving children, had conveyed his interest to one of the plaintiffs in error. The cross-bill alleged the same state of facts respecting the suit in the city court of East St. Louis as the answer, and the prayer was that the decree of said city court be set aside, that the deed of the master in chancery pursuant to that decree be canceled, and the trust deed securing Kraft be declared not a lien on the title of plaintiffs in error. That cross-bill was answered by all the defendants to the same, alleging the jurisdiction of the city court and the validity of the decree, and setting up the statutes of limitation of 20 years and 7 years, respectively. Gustav A. Horn left a last will and testament, of which Charles A. Horn was executor, and the widow, Bertha Horn, had renounced the provisions of the will for her benefit. The executor filed his cross-bill, setting up said will, which provided that he should sell the testator's real estate, and he prayed to be allowed to make the sale in case one should be decreed. Replications were filed to all answers, and the cause was heard by the chancellor. A decree was entered finding that Gustav A. Horn was seised of the real estate described in the bill, including said lot; that Bertha Horn, complainant in the original bill, was entitled to homestead in other property and dower in this lot, and that the trust deed was a valid lien. By the decree the defense under the statute of limitations of seven years was also sustained, and the court found that plaintiffs in error had been of age more than three years prior to the filing of their cross-bill. The executor was authorized to sell the property and pay the costs and the amount due on a mortgage on the homestead and the trust deed on this lot, and to bring the remainder of the proceeds into court. The cross-bill of plaintiffs in error was dismissed for want of equity. A writ of error was sued out of this court to review the decree.
The evidence showed the following state of facts: Emilie Horn held the legal title to the lot in question and died in 1886, leaving Gustav A. Horn, her husband, and nine children, her heirs-at-law. Three of the children were infants born at the same time and about a week old, and they died a few days after their mother, leaving their father and the other six children their heirs-at-law. Charles A. Horn, one of the children, has conveyed his interest to his brother Theodore Horn. The January term of the city court of East St. Louis convened on January 2, 1888, and on January 9th Gustav A. Horn filed his bill in that court against his children, who were minors under the age of 16 years, praying that the interest which said children had inherited from their mother in this lot be conveyed to him. He alleged in his bill that in 1877, nine years before the death of his wife, he was in poor health, and, not expecting to recover, made a deed of his property to his wife, includingan undivided one-half interest in this lot, under an agreement with her that in case of his death it was to be her property, but in case of his recovery she would re-convey it to him; that on March 2, 1877, he and his wife joined in a conveyance to John Palish of the undivided one-half of the lot, and on May 10, 1879, Palish conveyed the same to the wife, Emilie Horn, both deeds expressing a consideration of $800; that on August 7, 1885, the owners of the other undivided one-half conveyed their interest to Emilie Horn for a consideration of $550; that he paid the other owners for the other undivided one-half of the lot, and that after he recovered his health his wife requested him to have deeds made reconveying the property, but it was neglected until after her death. He claimed that by reason of the agreement and understanding with his wife he was entitled to a reconveyance of the lot. The original bill was offered in evidence,...
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