Humphreys v. Sayer

• Decision Date: 26 October 1909
• Citation: 89 N.E. 637,242 Ill. 80
• Court: Illinois Supreme Court
• Parties: HUMPHREYS v. SAYER et al. HORN v. HUMPHREYS et al.

242 Ill. 80

89 N.E. 637

HUMPHREYS

v.SAYER et al.

HORN

v.HUMPHREYS et al.

Supreme Court of Illinois.

Oct. 26, 1909.

Appeals from Circuit Court, Moultrie County; W. G. Cochran, Judge.

Suit by Clara E. Humphreys against Polly A. Trower and others, in which Isaac Horn intervened. From a decree for defendants upon remand after reversal of a decree for complainant and intervener, the latter prosecuted separate appeals, which were consolidated in the Supreme Court. Affirmed.

See, also, 216 Ill. 426, 75 N.E. 170.

J. C. & W. B. McBride and E. J. Miller, for appellant humphreys.

Harbaugh & Thompsen, for appellant Horn. James A. Connelly, W. H. Ragan, A. J. Fryer, and George B. Rhoads, for appellees Sayer and others.

HAND, J.

This was a bill in chancery filed by Clara E. Humphreys against Polly A. Trower and others, in the circuit court of Moultrie county, to enforce the specific performance of a contract in writing signed by Polly A. Trower and X. B. Trower, whereby it was claimed that Polly A. Trower had agreed to convey to X. B. Trower a business house situated in Sullivan, Moultrie county, and a quarter section of land in Edgar county and a quarter section of land in Shelby county. Answers and replications were filed, and Issac Horn, a judgment creditor of X. B. Trower, by leave of court intervened, and by way of cross-bill sought to enforce a lien against said real estate if the same should be decreed to Clara E. Humphreys, as the devisee of X. B. Trower. A hearing was had and a decree of specific performance was entered in favor of Clara E. Humphreys, and the judgment of Isaac Horn was established as a lien against said real estate. An appeal was prosecuted by Sallie F. Sayer and Sinia Norfolk and others to this court, and the decree was reversed and the cause remanded to the circuit court for further proceedings in accordance with the views expressed in the opinion filed by this court. 216 Ill. 426, 75 N. E. 170. On the case being redocketed, Clara E. Humphreys abandoned the case made by her bill for specific performance of the contract claimed to be in force between her mother-in-law, Polly A. Trower, and her deceased husband, X. B. Trower, and sought to amend her bill so as to recover, as devisee of X. B. Trower, deceased, the interest of her deceased husband in his deceased father's estate, and Horn sought to amend his cross-bill so as to enforce his judgment against the estate so sought to be recovered. The trial court, upon the motion of the appellees, struck the amended bill and cross-bill from the files and entered a decree dismissing the original bill of Clara E. Humphreys and the cross-bill of Horn for want of equity, and entered a decree in favor of appellees in bar of the action. Clara E. Humphreys and Isaac Horn have prosecuted separate appeals to this court to reverse said decree, and their appeals have been consolidated in this court.

When the case was here on the former trial, this court considered and disposed of all the questions then involved, and held that Clara E. Humphreys was not entitled to a specific performance of the contract sued upon, and that, as she was not entitled to the land sought to be recovered, the claim of Horn against said lands, as the judgment creditor of X. B. Trower, necessarily failed, so far as that suit was concerned. The question then arises upon this appeal: Could Clara E. Humphreys abandon the claim made by her bill against Polly A. Trower for specific performance, and so amend her bill as to recover, as devisee of her deceased husband, her deceased husband's interest as devisee in his deceased father's estate?

In Noble v. Tipton, 222 Ill. 639, 78 N. E. 927, where many of the authorities in this state are cited and reviewed, it was held that when a case is reversed and the cause remanded by this court, with directions to the trial court to...