Hunter v. Stoneburner
| Decision Date | 30 June 1879 |
| Citation | 92 Ill. 75,1879 WL 8480 |
| Parties | JOHN B. HUNTERv.SAMUEL G. STONEBURNER. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Bond county; the Hon. WILLIAM H. SNYDER, Judge, presiding.
Messrs. METCALF & BRADSHAW, and Mr. JOSEPH SHIPPEN, for the appellant.
Messrs. ROBINSON, KNAPP & SHUTT, Mr. DAVID GILLESPIE, and Mr. S. A. PHELPS, for the appellee. Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:
John and William Stoneburner, of Bond county, in this State, owned, as tenants in common, 870 acres of land. They lived on the same and cultivated a portion of it. In the month of August, 1848, John died, leaving appellee, then nine years old, as his only heir. He had previously made a will, by which his brother William was appointed executor. The will was probated, and William took upon himself the burthen of settling the affairs of the estate.
Amongst other provisions the will contained this:
In 1849, John S. Hall was appointed and qualified as the guardian of appellee, and so acted during his minority. In October, 1851, William Stoneburner filed a petition for partition of the 870 acres of land owned by him and the devisee of his deceased brother, John, in the Bond county circuit court. A summons was issued, on which the sheriff made this return: Signed, “S. H. Crocker, sheriff.”
The court appointed for appellee a guardian ad litem, who appeared and answered, requiring strict proof of the allegations of the petition. The case was heard, and the court decreed a partition of the lands, and appointed three persons to make and report a division. They reported, after taking the oath prescribed by the statute, that they had gone on the premises, and found they were not susceptible of division without manifest injury to the owners. This report was approved by the court, and a decree was thereupon passed ordering the sale of the lands, that there might be partition of the money arising from the sale, and the court appointed a special commissioner to execute the decree. The commissioner advertised and sold the land, and William Stoneburner, who owned the other half, became the purchaser, as the highest and best bidder, for the sum of $635, and received a deed for the premises. The commissioner reported the sale and conveyance to the court, and it was approved.
In March, 1852, William Stoneburner sold and conveyed the land to John B. Hunter, the appellant, for $6715, mostly on time, but $1000 in hand, $1000 in one year, $1000 in two years, $1700 in three years, and $2000 in nine years. In this sale to Hunter was included 80 acres in which appellee or his father had no interest; also, 17,000 rails, worth about $255. And the evidence shows that William placed about $1000 worth of improvements on the land after he purchased at the commissioner's sale, and before he sold to appellant. None of the deferred payments drew interest. The note last falling due was made payable to appellee after he arrived at age, and he collected it and entered satisfaction of the mortgage given on the land to secure its payment, after he was twenty-three years old.
In 1870, appellee filed this bill, to set aside the sale by the commissioner to William Stoneburner, and his sale to appellant; also, the proceedings in partition, charging that he was not served with process; that William Stoneburner fraudulently procured the report of the commissioners that the land was not susceptible of division, and purchased the land in fraud of appellee's rights, and that appellant had notice of the fraud, and is not protected in his purchase. On a hearing in the court below the relief was granted as asked, and defendant brings the record to this court.
It is insisted that the return fails to show that the summons was read to appellee. We think this is clearly a misconception of its meaning. The sheriff says that he executed the writ on the defendants by reading, and giving the date of its execution. The language of the return might be transposed to state that he executed the writ by reading it to the within named defendants on the day named, but that would not more certainly show that it was read to them than does the language employed. This is its true meaning, and we think no other reasonable construction can be given to the language.
It, then, appearing that appellee was served with process, he must be bound by the officer's return. It is in rare cases only, that the return of the officer can be contradicted, except in a direct proceeding by suit against the officer for a false return. In all other cases, almost without an exception, the return is held to be conclusive. An exception to the rule is, where some other portion of the record in the same case contradicts the return, but it can not be done by evidence dehors the record. See Botsford v. O'Conner, 57 Ill. 72; Barnett v. Wolf, 70 Id. 76; Harris v. Lester, 80 Id. 307. And if this return was defective, the court in the decree finds there was due service of process, and that is binding unless contradicted by the record itself. It, as well as the return, can not be impeached by the oath of the person on whom the service appears to have been made.
If it were conceded, or proved, that William Stoneburner procured the report of the commissioners that the lands were not susceptible of division, and procured the order of sale of the land, and purchased it, by fraud, still that would not, in the least, affect appellant's title, if he purchased in good faith without actual or constructive notice of the fraud. This is a rule that is found in all of the books, and has, so far as we know, never been controverted; and the rule is so eminently just and equitable, that we are unable to conceive that it ever can be controverted, with success. To hold otherwise would be flagrantly unjust and perpetrate monstrous injustice. If, then, appellee was a bona fide purchaser from William Stoneburner, he must be protected in his purchase.
We have carefully examined the entire record, in vain, to find the slightest actual notice of any fraud before appellant consummated the purchase. He bought the land of the person in whom the title stood, one-half by conveyances to him independent of the decree, and sale by the commissioner. The other half was in his grantor by a sale under the decree of the court, made by its commissioner and approved by the court. There is no witness who says that he or any one else notified him, as a fact or as a rumor, that there was any fraud or the least suspicion of a fraud. He denies all, or any such notice, in the most positive terms, and his evidence seems to be fair, consistent and truthful. He lived, at and before the purchase, some five or six miles from the land, and is not, therefore, presumed to have known of the neighborhood comments on the transaction, if there were such. There is not,...
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Smoot v. Judd
...the same view. Accordingly a decree by the circuit court in favor of the plaintiffs was reversed by the House of Lords. Hunter v. Stoneburner, 92 Ill. 75, was a bill in equity to set aside a judgment in partition, and a sale thereunder, on the ground that the plaintiff had not been served w......
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Smoot v. Judd
...the same view. Accordingly a decree by the circuit court in favor of the plaintiffs was reversed by the House of Lords. Hunter v. Stoneburner, 92 Ill. 75, was bill in equity to set aside a judgment in partition and a sale thereunder, on the ground that the plaintiff had not been served with......
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Smith v. Herdlicka
...whether there was any such fraud, will be protected in his purchase as against the person claiming to have been defrauded. Hunter v. Stoneburner, 92 Ill. 75. Moreover, the law is well settled that, when a decree affecting the title to property has been rendered by a court of equity having j......
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Herrington v. Herrington
...85; Baxter v. Bd. of Trade, 83 Ill. 146; Pfeltz v. Pfeltz, 14 Md. 376. In this action the return of the officer is conclusive: Hunter v. Stoneburren, 92 Ill. 75; Owens v. Ranstead, 22 Ill. 161; Botsford v. O'Connor, 57 Ill. 72; Barrett v. Wolf, 70 Ill. 76; Fitzgerald v. Kimball, 86 Ill. 396......