Johnson v. Gibson
| Decision Date | 27 March 1886 |
| Citation | 116 Ill. 294,6 N.E. 205 |
| Parties | JOHNSON v. GIBSON and others. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Tazewell.
B. S. Prettyman, for appellant.
W. Don Mans, for appellees.
On the first day of July, 1882, Martha E. Rogers and William D. Gibson, the appellees, filed the present bill in the Tazewell circuit court against Elizabeth A. Semmes, L. L. Conrad, Martha E. Johnson, and others, praying for the partition of a certain quarter section of land and two town lots particularly described in the bill. A decree was rendered upon the pleadings and proofs, in conformity with the rights of the parties as set forth in the bill. From that decree Martha E. Johnson alone appeals. All parties to the suit claiming an interest to the property in controversy derive title through appellant's husband, Charles R. Johnson, who it is claimed owned the whole of the property up to the twenty-second of April, 1875. On that day, being in failing circumstances, he conveyed the two lots to one J. C. Frederick, who, in a week or two thereafter, reconveyed to Johnson's wife. On the fifteenth of February, 1877, Johnson conveyed the quarter section of land to Edward A. Trask, who, in like manner, shortly thereafter conveyed the same to appellant. Prior to the execution of these deeds, Johnson had become indebted to said Elizabeth A. Semmes and Martha E. Rogers, respectively, in the sum of $7,397.54, which occurred in the following manner: Mrs. Semmes and Mrs. Rogers, together with Charles R. Johnson, who was their brother, in 1854 acquired by purchase a considerable quantity of valuable land in the state of Iowa. In 1867, Johnson being then a resident of Pekin, this state, and his sisters of the state of Maryland, they, at his request, executed to him a power of attorney, authorizing him to sell and convert into money these Iowa lands, which he undertook to do, and to account to them for their shares of the proceeds. Prior to 1877 the lands, under this arrangement, had all been converted by Johnson into money. The sales made by him amounted, in the aggregate, to $18,123. Nevertheless, by means of false representations, he had led his sisters to suppose they amounted to only $4,000, two-thirds of which amount he had paid over to them. In 1879, upon discovering his treachery and faithlessness, they filed a bill in the circuit court of Cook county, the place of his then residence, for an account. Although personally served, he made no defense to this suit, which, on the thirteenth of February, 1880, resulted in a personal decree against him in favor of each of the sisters for the above-mentioned sum of $7,397.54, and several executions were issued thereon and levied upon the lands now in controversy. It will be borne in mind that, by means of the several conveyances heretofore mentioned, the appellant had succeeded to her husband's title to the land in question. The legal title remained in her till September 30, 1879, when she conveyed to S. G. Paschael the two lots, and on the sixteenth of October following she conveyed the quarter section of land to Z. D. Geddes. Neither of these deeds was recorded until after Mrs. Semmes and Mrs. Rogers had commenced their suit against Charles R. Johnson, as heretofore stated. Z. D. Geddes, on the fourteenth of March, 1880, conveyed said quarter section of land to M. P. Harlow. S. G. Paschael, on the thirteenth March, 1880, conveyed the two lots to E. E. Paschael, who on the nineteenth of June, 1881, conveyed the same to appellant. On the twenty-sixth of the same month M. P. Harlow also conveyed his interest in the property to her. Thus it will be seen on the day last named, to-wit, the twenty-sixth of June, 1881, appellant became again the holder of the legal title to the entire property. Keeping this fact in view, it is proper now to note the additional steps taken by Mrs. Semmes and Mrs. Rogers to make their decree against Charles R. Johnson available. After causing their execution to be levied on the property in controversy, as heretofore stated, Mrs. Rogers filed a bill in the circuit court of Cook county against Charles R. Johnson, the appellant, the two Paschaels, Geddes, Harlow, and Mrs. Rogers, charging that all the deeds above mentioned were made without consideration, and for the purpose of hindering and delaying the creditors of the said Charles; that the indebtedness from the said Charles to complainant and the said Semmes existed before the execution of any of said conveyances; that the said Charles was wholly insolvent, and had been so since 1874; prayer that all of said deeds be set aside, and that the land in question be subjected to the debt of complainant. Of the defendants named there was personal service on Johnson and his wife, and service by publication as to the Paschaels, Harlow, and Geddes. Mrs. Semmes answered, admitting the allegations in the bill, and also filing a cross-bill, setting up the same facts contained in the original bill, and praying the same relief. No defense having been interposed, a decree pro confesso was entered in conformity with the prayer of the bill and cross-bill. The deeds above mentioned having been thus set aside as fraudulent and void, the sheriff, on the twenty-ninth day of January, 1881, sold the property in controversy, under a venditioni exponas, to the plaintiff in the writ for the sum of $12,000, and they subsequently received a sheriff's deed for the same.
In the present suit, Mrs. Semmes and Mrs. Rogers derive title to the premises through the sale under the executions, and the sheriff's deed to them, as heretofore stated. Gibson and Conrad have severally purchased form them partial interests in the property, and consequently claim title through the same source. As between these four parties there is no controversy, the partition decree being satisfactory to them all.
The principal objection urged to the decree in this case is based upon the claim that the circuit court of Cook county had no power or jurisdiction to make the decree in the case of Martha E. Rogers v. Charles R. Johnson and others, setting aside and declaring void the deeds to and from Mrs. Johnson, Geddes, the Paschaels, and Harlow, heretofore mentioned.
It is first urged that the suit was one affecting real estate, and should therefore have been brought in Tazewell county, as required by the third section of the chancery act; that, this not having been done, the decree therein rendered is void, and consequently may be attacked collaterally as is here sought to be done. In support of this position, Richards v. Hyde, 21 Ill. 640, is cited. That case, in most respects, is substantially like the present; the material difference being the way in which the question of jurisdiction is raised. Here it is raised for the first time in a collateral proceeding. There a motion was made in the circuit court to dismiss the bill for want of jurisdiction, which was allowed, and this court on error affirmed the order of dismissal. The opinion in that case makes no reference to the statute, nor does it state the precise ground upon which the order of dismissal was sustained. The propriety of maintaining a bill under the circumstances is discussed as though it was a question of first impression. No authority is cited, nor is any general principle alluded to as controlling the decision. If, in affirming the order, it was intended to hold that a decree rendered upon the merits in such a case would be absolutely void, as is claimed to be the case here, we certainly fail to find anything in the opinion declaratory of such intention. Moreover, if such is...
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