Kirby v. Kirby

• Decision Date: 02 December 1908
• Parties: KIRBY et al. v. KIRBY et al.
• Court: Illinois Supreme Court

236 Ill. 255

86 N.E. 259

KIRBY et al.

v.KIRBY et al.

Supreme Court of Illinois.

Oct. 26, 1908.

Rehearing Denied Dec. 2, 1908.

Appeal from Circuit Court, Champaign County; Salon Philbrick, Judge.

Action by Frances S. Kirby and others, against Ellsworth Kirby and others, in which a part of defendants filed a cross-bill. From a decree for complainant dismissing the cross-bill, the cross-complainants appeal. Reversed and remanded, with directions.Ray & Dobbins and Schneider & Schneider, for appellants.

Frank H. Boggs (George W. Gere, A. D. Mulliken, and C. M. Matthews, of counsel), for appellees.

This suit originated by Frances S. Kirby, widow of Joshua Kirby, deceased, filing a bill for the partition of certain real estate. The bill alleged Joshua Kirby died intestate, seized in fee simple of the undivided one-half of the N. W. 1/4 of the S. E. 1/4 and the N. 1/2 of the S. W. 1/4 of section 18, town 20 N., range 10 E., of the Third principal meridian, in Champaign county, Ill. The bill alleged that complainant was the owner of the other undivided one-half, and prayed for partition and for the assignment of homestead and dower to the complainant in the undivided one-half alleged to have been owned by her deceased husband.

Joshua Kirby had been married three times. By the first wife he had one son, who survived him. By the second wife he had a son and daughter, Ellsworth Kirby and Dora Trickle, who survived him. By the third wife, complainant in the original bill, he had seven children, who survived him, one of whom was born after his death. All of these children were made defendants to the original bill, as were also John R. Trevett and the Mutual Benefit Life Insurance Company, as mortgagees.

Ellsworth Kirby and Dora Trickle, children of Joshua Kirby, deceased, by his second wife, Mary E. Kirby, filed their answer to the bill, denying that complainant in the original bill owned any interest in the lands in the said bill described, and denying also that their deceased father owned any interest in the fee of said lands, but alleged that said lands were owned in fee by their mother, Mary E. Kirby, at the time of her death, and that said lands descended to them, the said Ellsworth Kirby and Dora Trickle, from their mother in fee simple. The answer alleged that the only interest Joshua Kirby had in said lands was as surviving husband of Mary E. Kirby, deceased; that said interest ceased at his death; and that complainant was not entitled to either homestead or dower in said premises.

John R. Trevett answered the original bill and filed a cross-bill, alleging that Joshua Kirby and Frances S. Kirby owned the land in fee simple, and as such owners in October, 1902, executed to complainant in the cross-bill a trust deed on said lands to secure the payment of a note for the sum of $2,000, payable to Wallace P. Spalding two years after date, and prayed for the forclosure of the trust deed. The Mutual Benefit Life Insurance Company filed an answer to the original bill, and set up its interest in the lands, as mortgagee, of Joshua and Frances S. Kirby, to secure the payment of a note executed by them for the sum of $6,000. Ellsworth Kirby and Dora Trickle filed a cross-bill in which they alleged that their mother, Mary E. Kirby, became the owner of the premises sought to be partitioned in 1876 by or from Peter Arie and wife, and that she owned the same at the time of her death, which the cross-bill alleges occurred August 15, 1879. The cross-complainants further alleged that on the 1st day of October, 1877, a deed was filed for record in the recorder's office in Champaign county purporting to have been executed by their mother and Joshua Kirby, her husband, dated October 1, 1877, to John J. Kirby, a brother of Joshua; that said deed purported to convey to said John J. Kirby the N. W. 1/4 of the S. E. 1/4 and the N. E. 1/4 of the S. W. 1/4 of section 18, part of the premises described in the original bill; that said deed was recorded in record book 41 of the deed records of said county; that afterwards, on the 15th of February, 1882, there was filed for record in said recorder's office a deed purporting to be executed by Mary E. Kirby and Joshua Kirby to John J. Kirby, bearing date October 1, 1877, purporting to convey to said John J. Kirby the N. W. 1/4 of the S. E. 1/4 and the N. 1/2 of the S. W. 1/4 of section 18, being all of the premises described in the original bill, and that this deed was also recorded in the deed records of the recorder's office; that these matters occurred during the infancy and without the knowledge of the cross-complainants. The cross-bill alleges that no deed from Mary E. Kirby conveying any portion of said premises to John J. Kirby was ever delivered to him; that he paid no consideration therefor, and had no knowledge that such deed had been made and recorded until after the death of Mary E. Kirby; that John J. Kirby never claimed any interest in said premises, and never accepted the deeds therefor and had nothing to do with their recording, and that said deeds are therefore invalid and of no effect, and are clouds upon the title of cross-complainants. The cross-bill further alleges that, two years after the death of Mary E. Kirby, John J. Kirby was informed by Joshua Kirby of the making and recording of the deed to him and requested to convey the premises to the said Joshua Kirby, which he did without any consideration whatever, and that said deed conveyed no title to Joshua Kirby, and is a cloud upon the title of the cross-complainants. Said cross-complainants further allege that they were infants of tender years, and had no knowledge of these things until after the death of their father. The cross-bill prays for partition of the premises between the cross-complainants, and that a decree be entered that Frances S. Kirby and her children and the son of Joshua Kirby by his first wife have no title to or interest in said premises.

Answers were filed by the defendants to the cross-bill, and the cause was referred to the master in chancery to take the testimony upon the original and cross-bills, with directions to report his conclusions of law and fact thereon. After hearing the testimony, the master reported recommending that a decree be entered according to the prayer of the original bill and the cross-bill of Ellsworth Kirby and Dora Trickle be dismissed for want of equity. Objections to the master's report were overruled by him, and were renewed as exceptions before the chancellor. Said exceptions were overruled, and a decree entered in accordance with the recommendations of the master in chancery, from which appellants Ellsworth Kirby and Dora Trickle have prosecuted this appeal.FARMER, J., (after stating the facts as above).

The proof shows the conveyance by deeds of two of the tracts of land described to Joshua Kirby in March, 1874, and of the other one in February, 1875. December 23, 1876, Joshua Kirby and his wife, Mary E., conveyed the premises to Peter Arie, and on the same day Peter Arie and wife conveyed them back to Mary E. Kirby. The proof does not disclose any reason for those deeds having been executed. On the 1st day of October, 1877, the records of the recorder's office show a deed bearing that date from Joshua Kirby and wife, Mary E., to John J. Kirby, was filed and recorded. The record shows the land conveyed by this deed was the N. W. 1/4 of the S. E. 1/4 and the N. E. 1/4 of the S. W. 1/4. The N. W. 1/4 of the S. W. 1/4, which is a part of the land in controversy, is not mentioned in said record. What is known as an ‘entry book’ in the recorder's office contains a memorandum of the names of the grantor and the grantee, the date of the instrument, and of its filing October 1, 1877, and the property described as the N. W. 1/4 of the S. E. 1/4 and the N. E. 1/4 of the S. W. 1/4, and that the deed was delivered to Joshua Kirby February 13, 1882. The book known as a ‘grantors' index’ contains substantially the same memoranda as the entry book, except it does not show when and to whom the deed was delivered, and the land conveyed is described in that book the same as in the record and the entry book. The grantees' index is the same as the grantors' index, except that the names of the grantor and grantee are reversed in their order, and it described the land conveyed the same as the record, the entry book, and the grantors' index. There is a notation on the margin of the record of the deed, which reads as follows: ‘See 41 of deeds for re-recording to correct description.-Filed Feb. 15, 1882.’ On page 470 of the same record is the record of a deed dated October 1, 1877, signed by Mary E. Kirby and Joshua Kirby, purporting to convey to John J. Kirby the N. W. 1/4 of the S. E. 1/4 and the N. 1/2 of the S. W. 1/4. It will be seen this includes the 40 acres omitted from the description in the record and books previously mentioned. On the 13th of February, 1882, which is the same date the entry book shows the deed was delivered to Joshua Kirby, John J. Kirby executed a deed to Joshua Kirby purporting to convey to him the N. W. 1/4 of the S. E. 1/4 and the N. 1/2 of the S. W. 1/4. This deed was filed for record February 27, 1882. On January 29, 1902, Joshua Kirby and wife conveyed all of said premises to a man by the name of Larry, and August 5th of the same year Larry conveyed said premises to Joshua and Frances S. Kirby, his wife. It is by virtue of this conveyance that the widow claims to own the undivided one-half in fee.

Appellants contend that the deed from Mary E. Kirby and Joshua Kirby to John J. Kirby was never delivered; that it was made and left for record without the knowledge and consent of the grantee; and that said grantee was ignorant of the fact that it had been made and left for record until long after the death of Mary E. Kirby. John J. Kirby was a witness in the case, and testified that Mary E. Kirby never said anything to him about the deed, and...