Kelly v. Donlin

• Decision Date: 30 September 1873
• Citation: 70 Ill. 378,1873 WL 8618
• Parties: JAMES KELLY et al.v.JOHN DONLIN et al.
• Court: Illinois Supreme Court

70 Ill. 378

1873 WL 8618 (Ill.)

JAMES KELLY et al.

v.JOHN DONLIN et al.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. E. S. WILLIAMS, Judge, presiding.

Messrs. AYER & KALES, for the appellants.

Messrs. ROSENTHAL & PENCE, for the appellees.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was a bill in equity, for partition, filed by John Donlin and Catharine J. Crouse, heirs of John Donlin, senior, against James Kelly and David Mergentheim, and others, the bill alleging that, by reason of the death of their father, John Donlin, intestate, leaving the complainants and Mary Donlin, his children, surviving, and, also, by reason of the death of the said Mary, leaving them and their mother, Julia Donlin, surviving, they, the said John and Catharine, each became seized in fee of the undivided five-twelfths of the premises in question, and that the said Kelly and Mergentheim, by reason of a conveyance to them by the said Julia of the share she inherited from her daughter Mary, became seized of the undivided two-twelfths of the premises.

The decree of the court below found that Catharine J. Crouse had no interest in the property; that John Donlin had an undivided five-twelfths interest therein, and that Kelly and Mergentheim owned the remainder, an undivided seven-twelfths, and partition was decreed accordingly.

Kelly and Mergentheim have appealed, and Catharine Crouse has assigned cross-errors, asking the decree to be reversed as to her.

Kelly and Mergentheim set up title to the whole premises, under a purchase of them by one Lally, at an administrator's sale for the payment of the debts of John Donlin, senior, deceased.

The title acquired under that sale has been decided by this court to be invalid, and the proceedings in administration, whereby it was effected, to be void, for the want of notice to the heirs of Donlin. Donlin v. Hettinger et al. 57 Ill. 348.

Kelly and Mergentheim further set up the Statute of Limitation of 1839, as a bar of all claims of the heirs of Donlin to the land.

The deed of the administratrix to Lally was made August 1, 1851.

November 10, 1854, Lally conveyed the premises to James Donohue.

July 22, 1856, Donohue contracted to sell the property to Hettinger and Oertel, for $8000. Oertel, after receiving the contract, in order to secure a certain indebtedness, made a deed of trust to one Strauss of an undivided half of the premises. About the same time, Hettinger, to secure an indebtedness to Kelly and Mergentheim, made a deed of trust to Burgess of the other undivided half. The indebtedness secured by both deeds of trust was owned by Kelly and Mergentheim.

On December 19, 1859, Strauss and Burgess, in execution of the powers of sale contained in the trust deeds, sold and conveyed, each, an undivided half of the premises to Kelly and Mergentheim.

Also, on May 29, 1860, one Freer, as special commissioner, under an order of court, in a proceeding against the heirs of Donohue, the amount due under the contract with Donohue having been fully paid, executed a deed to Kelly and Mergentheim purporting to convey to them the whole of the premises.

There can be no question, that, under the decisions of this court, there were here claim and color of title in Kelly and Mergentheim, made in good faith. It is admitted by the appellees that Kelly and Mergentheim went into possession of the premises in 1860, and continued such possession, and paid all taxes legally assessed thereon, for seven consecutive years. This, under the Limitation Act of 1839, forms a legal bar of appellees' claim to the land.

But, in avoidance of its operation in the present case, the appellees set up that they were all that time under an injunction, which prohibited them from maintaining a suit for the recovery of the possession.

On the 5th of August, 1859, the appellees, John Donlin and Catharine, brought an ejectment suit in the Superior Court of Chicago, against Hettinger and Oertel, to recover possession of the premises. At the October term, to-wit: October 3, 1859, Hettinger and Oertel filed their bill in chancery, in said court, against the said John Donlin and Catharine, for an injunction to restrain the prosecution of the ejectment suit, and, on the 17th day of November, 1859, a decree was entered in the chancery cause perpetually enjoining the said John and Catharine from prosecuting that ejectment suit, and from ever setting up or insisting upon any estate, title or interest in the land adverse to Hettinger and Oertel, and from commencing any other suit to recover the possession of the land. This is the injunction referred to.

Courts of equity interfere, in many cases, to prevent the bar of the Statute of Limitation being set up where it would be inequitable or unjust. 2 Story Eq. Jur. sec. 1521; Doughty v. Doughty, 2 Stockt. 347; Henry County v. Winnebago Drain. Company, 52 Ill. 300.

It would be unconscientious for a party to take advantage of the holding possession of land for a certain term, to defeat another's right thereto, when the latter, by procurement of the former, had been enjoined by a court, during all the time, from prosecuting and bringing suit for the recovery of the possession. One principle upon which courts of equity give relief, is, to prevent an advantage gained at law from being used against conscience.

But it is answered, that possession alone did not create the bar, but possession coupled with the payment of taxes, and that the Donlin heirs might have arrested the running of the statute, by paying the taxes; that they were not restrained from doing that.

The injunction was, not to set up or insist upon any estate, title or interest in the land. Paying taxes is, under the statute, under certain conditions, a mode of defeating and of acquiring title to real estate, and it would seem like the asserting of an interest in land.

We are not prepared to say that the appellees might not reasonably suppose that an implicit obedience to the injunction required that they should refrain from paying taxes on the land. Besides, it is not certain that they could have stopped the running of the statute by payment of the taxes. Whether they would be able to first pay them, might depend upon the result of a race of diligence with the possessors of the land, who were interested in paying the taxes themselves, that they might strengthen their possession into a bar under the statute. The only sure, effective mode of arresting the running of the statute was, by bringing suit for possession, and that was enjoined.

We are disposed to regard the existence of this injunction as a sufficient equitable ground for not allowing the bar of the Statute of Limitation here set up to prevail.

This, then, leaves the title to John Donlin's interest in the land whole, as it descended to him. There is nothing to affect it.

But with Catharine J. Crouse it is different.

The injunction suit before referred to was taken by writ of error to this court, and the decree reversed as to John Donlin, the case being the one above cited of Donlin v. Hettinger et al. 57 Ill.; but as to Catharine Crouse, then Catharine Fitzgerald, the writ of error was dismissed, as not having been brought within time as to her. So that the decree in that injunction suit remains in full force against her, and it is relied upon, by the appellants, as a conclusive adjudication against her interest.

To that bill, brought by Hettinger and Oertel, John Donlin and Catharine J. Crouse, heirs of John Donlin, senior, Malachi and Daniel Donohue, the children and only heirs of James Donohue, deceased, Strauss, Burgess, and Kelly and Mergentheim, were made parties defendant. The bill was for specific performance as to some of the parties, the Donohues, and for a perpetual...