Houlihan v. Morrissey

• Decision Date: 10 December 1915
• Docket Number: No. 10089.,10089.
• Citation: 110 N.E. 341,270 Ill. 66
• Parties: HOULIHAN et al. v. MORRISSEY et al.
• Court: Illinois Supreme Court

270 Ill. 66

110 N.E. 341

HOULIHAN et al.

v.MORRISSEY et al.

No. 10089.

Supreme Court of Illinois.

Oct. 27, 1915.

Rehearing Denied Dec. 10, 1915.

Appeal from Circuit Court, Cook County; Thomas G. Windes, Judge.

Bill for partition by Thomas Houlihan and others, against Kate Morrissey, Josephine M. Houlihan, and others. Decree for complainants, and defendant Josephine M. Houlihan appeals. Reversed, and cause remanded.Thomas J. O'Hare, of Chicago, for appellant.

FARMER, C. J.

This is an appeal by Josephine M. Houlihan from a decree of the circuit court of Cook county on a bill for the partition of real estate and for other relief. The real estate belonged to Bridget Houlihan in her lifetime, and consisted of two lots in the city of Chicago, upon which there was a two-story brick house and a frame barn. She died in November, 1911, leaving as her children and only heirs at law James Houlihan, Thomas Houlihan, Simon Houlihan, Josephine Houlihan, Mary Houlihan, Kate Morrissey, Agnes Driscoll, and Margaret Jacoby. She left no surviving husband. The original bill was filed in July, 1912, for partition of the real estate by the sons Thomas and James Houlihan and the daughter Agnes Driscoll. It alleged each of the children of Bridget Houlihan was seised of the undivided one-eighth of the real estate, and asked for partition. Simon Houlihan, Mary Houlihan, Kate Morrissey, and Margaret Jacoby conveyed their interest in the premises to Josephine Houlihan, and they filed an answer disclaiming any interest in the premises. Josephine filed a separate answer, denying complainants Thomas Houlihan and Agnes Driscoll owned any interest in the land, and alleging that she and James Houlihan were sole owners of it as tenants in common, the respondent owning the undivided seven-eighths and James Houlihan the undivided one-eighth. Afterwards, by leave of court, complainants in the original bill filed an amended bill. By the amended bill they alleged that since the filing of the original bill their solicitors found in the recorder's office the record of a quitclaim deed, purporting to be signed by complainants Thomas Houlihan and Agnes Driscoll, conveying all their interest in the real estate to Josephine Houlihan in consideration of $1 and other good and valuable considerations. The purported deed bore date December 12, 1911, and was recorded on the 18th of the same month. It appeared to have been duly acknowledged by the grantors December 12, 1911, before Anthony J. Schmidt, a notary public, in Cook county. The amended bill further alleges said complainants Thomas Houlihan and Agnes Driscoll had no knowledge of the existence of the purported deed until its discovery by their solicitors; that neither of them knowingly executed it, and no consideration was given them, or either of them, therefor; that about December, 10, 1911, defendant Josephine Houlihan and said Anthony J. Schmidt, notary public, came to said complainants and told each of them that Josephine Houlihan desired to be appointed administratrix of Bridget Houlihan's estate, and in order for that to be done it would be necessary for the said Thomas Houlihan and Agnes Driscoll to sign a paper giving their consent to said appointment, and thereupon, believing said paper was as represented, they signed it; that because of the trust and confidence they reposed in their sister they did not read it, and it was not read to them. The amended bill further alleges the complainants Thomas Houlihan and Agnes Driscoll now believe the paper signed by them was the quitclaim deed now of record in the recorder's office, that they were not informed the paper signed by them was a quitclaim deed, never acknowledged it as their deed before said Anthony J. Schmidt, and that it was obtained by fraud, deceit, and misrepresentation. As amended, the bill claimed the three complainants each owned an undivided one-eighth of the premises; that Josephine Houlihan had received conveyances from four of the heirs for their interests, and that she now owned the undivided five-eights. The prayer of the amended bill was that the purported quitclaim deed from Thomas Houlihan and Agnes Driscoll to Josephine Houlihan be set aside, and that the premises be partitioned in accordance with the interests of the parties as set out in the amended bill. Josephine Houlihan answered the amended bill, denying the deed was obtained in the manner alleged, and averring it was knowingly and understandingly executed and delivered by the grantors. The cause was referred to the master in chancery, with directions ‘to take proofs therein and report to the court.’ The master heard the proof and reported the same to the court, together with his conclusions of the law and the facts. He reported, finding from the evidence that Thomas Houlihan and Agnes Driscoll signed and acknowledged the quitclaim deed to Josephine Houlihan, but further found there was no consideration for its execution; that it was executed by the grantors under the belief that it was necessary to do so in order that Josephine Houlihan might properly administer the estate of their deceased mother, and notwithstanding said deed the grantors therein were entitled to their share of the real estate upon partition, each the undivided one-eighth thereof.

The order of reference to the master was drawn by the solicitor for complainants, and it was not discovered by defendant's solicitor that it contained no directions to the master to report his conclusions until after exceptions to the report had been filed and argued before the chancellor. Before the final decree was entered defendant's solicitor moved to suppress the findings of the master, but the motion was overruled and a decree entered, finding that Thomas Houlihan and Agnes Driscoll signed and acknowledged the quitclaim deed to Josephine Houlihan December 12, 1911, but that it was executed by them under the belief it was necessary to do so in order that Josephine Houlihan might properly administer the estate of their mother, and notwithstanding said deed, because of the fiduciary relations existing between the grantors and the grantee, the grantors are each seised of and entitled to a one-eighth share in all of said real estate. Partition is decreed in accordancewith the interests of the parties as set out in the amended bill.

The master exceeded his authority in reporting his conclusions. A master derives his authority from the order referring the case to him. 17 Ency. of Pl. & Pr. 1019-1038; 16 Cyc. 439, 440. Under the order of reference in this case the master was only authorized to take and report the evidence to the court. The fact that he exceeded his authority, however, would not justify the reversal of the decree if it were clearly right under the bill and the proof.

We are of opinion this decree must be reversed, if for no other reason, because the decree finds a different state of facts upon which relief is granted from the facts alleged in the bill. This clearly appears from an examination of the bill and decree, which we have above set out in substance and need not here repeat.

[3] The allegations of the bill and the proofs must correspond. A complainant, to recover at all, must do so on the case made by the bill, and will not be permitted to state one case in the bill and make a different one by the proof. Even though the evidence may make a meritorious case, if it is variant from the case made by...