Howe v. South Park Com'rs
| Decision Date | 14 May 1886 |
| Citation | 119 Ill. 101,7 N.E. 333 |
| Parties | HOWE and othersv.SOUTH PARK COM'RS and others.LAWRENCEv.SAME.SMITHv.SAME.FRAZIER and othersv.HOWE and others. |
| Court | Illinois Supreme Court |
Appeal from appellate court, Cook county.
The facts in these cases are set forth at length in the opinion of the court (per BREESE, J.) in the case of Harris v. Cornell, 80 Ill. 54, which is given in full herewith:
The bill of complaint set out in this record was exhibited on the chancery side of the circuit court of Cook county, at the February term, 1871, by John P. Harris and three others, complainants, claiming to be heirs at law of one Benjamin Harris, deceased, and against Paul Cornell, Elisha C. Fellows, and others, the scope of which will appear from the allegations therein. It appears the parties to the bill make claim of title to the premises through the same person, namely, one Mark Noble, Jr. The title of Benjamin Harris, the ancestor of complainants, comes through regular conveyances from the patentee of the land, one Jonathan Smith, who first conveyed it, by deed of May 20, 1836, to one Robert M. Draper, who, on the seventeenth June of the same year, conveyed it by deed to Mark Noble, Jr., by a misdescription. By deed, containing the same misdescription, dated October 6, 1836, Noble and wife conveyed the land to Benjamin Harris, which deed was not recorded until August 1, 1837. One Jefferson Gardner, at the July term, 1837, of the municipal court of the city of Chicago, recovered a judgment against Noble for $252.68 1/2, on which no execution issued or other proceedings had until February 5, 1840, on which day a fi. fa. issued out of the clerk's office of said court, under which the sheriff, on the tweenty-seventh November, 1840, sold the land to Gardner, but issued to the purchaser no certificate therefor, or, if issued, the same was lost or mislaid. In September, 1847, Gardner and wife executed a deed to Nathan W. Watson, by the same erroneous description of this land, who, on May 10, 1849, executed a deed, with the same wrong description, to one Charles B. Phillips. Phillips, on the twenty-eighth June, 1849, executed a deed, with the same wrong description, to Electa Watson, who, having intermarried with one Garnsey, on the tenth of August, 1853, executed a deed for an undivided half of the tract, with a correct description thereof, to the defendant Paul Cornell, and on the eleventh May, 1854, she, with her husband, executed a deed for the other undivided half, with a correct description, to the defendant Elisha C. Fellows. By this it appears appellants' title is derived wholly through deeds from the patentee; appellees Cornell and Fellows,' through and under the judgment obtained by Gardner against Noble.
In August, 1854, Cornell and Fellows impleaded, by bill in chancery in the Cook circuit court, Draper, Mark Noble, Jr., Benjamin Harris, and others named therein, to reform these deeds misdescribing the land, and to establish their title to the same, and to require the sheriff to execute a deed under the sale to Gardner. At the June term, 1855, a decree passed, reforming the deeds, and finding that Gardner had never received a certificate on the sale of the land by the sheriff, nor a deed for the same, and that he was entitled to a deed, and ordering the sheriff to execute such deed, to be delivered to complainants Cornell and Fellows, to be by them recorded in the proper office for the benefit of all parties interested in the premises. It was further ordered that these complainants, as the grantees of Electa Garnsey, late Watson, stand seized of the premises; that the deeds with erroneous descriptions be reformed, etc. In pursuance of this decree, the sheriff, on the eighteenth October, 1855, executed a deed to Jefferson Gardner.
It is further alleged in the bill now before us that Gardner well knew that he derived, by his purchase, no legal or valid title to the land, and that his said several grantees well knew the illegality and invalidity of Gardner's claim; and that Cornell and Fellows, before their purchase, well knew of the illegality of the sale by the sheriff to Gardner, and that they confederated and planned to defraud complainants of their title, right, and interest to the same, and they aver that they had no knowledge of these proceedings by Cornell and Fellows until a short time before filing their bill of complaint, averring that their father, Benjamin Harris, at the time of filing the bill by Cornell and Fellows, and for many years previous, was absent from this State, and had no knowledge of any attempt by any one to divest him of his right and title; that he had been residing in the state of Iowa many years previously, and died there in August, 1863. It is further alleged that no execution issued on the judgment of Gardner against Noble in sufficient time to make the same a lien upon this land, and that it had ceased to be a lien when the same issued, more than a year and a day having elapsed, and that the said execution was issued out of the municipal court after the same had been abolished by law, and was therefore void. It is also averred that the amount bid by Gardner for the land was but $30, while the same was worth many thousand dollars. The Cornell and Fellows decree is also challenged on the ground that material evidence introduced in the case by them was false, and obtained by perjury; a witness having sworn on the hearing that no deed from Noble to Harris for this land was of record in the recorder's office when in fact there was such a record in Book S of Deeds, at page 315, made August 1, 1837, and that the decree finding there was no such deed was untrue and erroneous. It is also alleged that no process was served upon Benjamin Harris, and none of the defendants answered the bill.
By an amendment to the bill it is alleged that Benjamin Harris, after August 19, 1841, filed his petition in the district court of the United States for the then district of Illinois, to be adjudicated a bankrupt, under an act of congress of that year to establish a uniform system of bankruptcy throughout the United States,-the petition alleging he was a bankrupt, and to which was a schedule of his indebtedness, and duly verified; that the court adjudicated him to be a bankrupt, and appointed Cyrus J. Miller his assignee, whereby all the property of Harris was vested in Miller, as such assignee; concluding with an averment that all these things were done while the bankrupt act was in force, but precise dates cannot be stated by reason of the destruction of the records by fire; that, at the time Cornell and Fellows filed their bill, Miller had the legal title to this land, and resided in this state, but was not made a party to the bill, and was never notified of the pendency of that suit,-claiming, by reason of failing to make Miller a party, the decree and sheriff's deed are void. It is then averred that by several acts of the general assembly of this state certain actions founded on promissory notes, bills of exchange, book-accounts, or simple contracts, were barred after five years from the time the cause of action accrued; averring that all the debts of the bankrupt, Harris, were of this nature, and the causes of action on all his indebtedness accrued more than five years prior to filing this bill of complaint, and thereby all of said indebtedness was barred, and ceased to be a lien on the bankrupt's estate, whereby the assignee became a mere naked trustee of this property for the heirs of Harris, and that they have a right to demand and have a conveyance of the land from the assignee. The benefit of another statute of limitations barring all actions on bonds, or other evidences of indebtedness in writing, after 10 years, is invoked; averring that causes of action on all the indebtedness of the bankrupt accrued more than 10 years, and were extinguished thereby; and claiming the assignee thereafter became a mere naked trustee for the heirs of the bankrupt, and liable to convey the premises to them on request. It is then alleged that about 30 years have elapsed since the title of the assignee in bankruptcy to the land accrued, and none of his creditors have proved their debts against him, or asserted any claim to the bankrupt estate, or to its proceeds; claiming that, after such a lapse of time, they cannot make proof of their debts; alleging that thereby the debts are paid and discharged, and the assignee has become a mere trustee of the premises for the heirs of the bankrupt, and is bound to convey the same to them on request.
The prayer of the original and amended bill was that so much of said decree as finds that Benjamin Harris has no title or interest of record in said 59.75 acres in said N. W. 1/4 section 13, 38, 14, prior to said bill of complaint of said Paul Cornell and Elisha C. Fellows, and that said Cornell and Fellows stand seized of said land, be set aside; that said deed of the sheriff of Cook county, or so much thereof as relates to said land last above described, be declared void, and be stricken from the records of the recorder's office of Cook county; that the execution issued February 5, 1840, upon said judgment in favor of Jefferson Gardner, against said Mark Noble, Jr., be declared void, or that complainants' title to said 59.75 acres be declared not to be impaired thereby, and that the cloud upon their said title to said land, caused by the levy of said execution, and the sale thereunder, be removed, and complainants' right and title thereto be declared; that said Miller may be decreed to hold the premises received by him as assignee in bankruptcy, in trust for the heirs of said Benjamin Harris, and be required to convey four-tenths thereof to said John P. Harris, Benjamin P. Harris, Chauncey W. Harris, and Mary J. Smith; and that partition may be had so as to set off to said last-named four persons their shares in severalty, and that they may be let into...
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