Lewis v. Rose

• Decision Date: 30 September 1876
• Citation: 82 Ill. 574,1876 WL 10259
• Parties: JOHN P. LEWIS et al.v.ALONZO ROSE.
• Court: Illinois Supreme Court

82 Ill. 574

1876 WL 10259 (Ill.)

JOHN P. LEWIS et al.

v.ALONZO ROSE.

Supreme Court of Illinois.

September Term, 1876.

APPEAL from the Circuit Court of Jo Daviess county; the Hon. WILLIAM BROWN, Judge, presiding.

Mr. M. Y. JOHNSON, for the appellants.

Messrs. D. & T. J. SHEEAN, for the appellee. Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action of ejectment, brought by the plaintiffs, to recover possession of lot 8, block 2, in the city of Dunleith. The court, before whom a trial was had by agreement, without a jury, found the issues in favor of the defendant, and the plaintiffs appealed. Both parties claim title from a common source, the plaintiffs under mesne conveyances from Simon E. Lewis, while the defendant claims title under a judgment in the circuit court of Jo Daviess county, in the case of Wm. G. Melville against Taylor S. Graham and Simeon E. Lewis, petition to enforce a mechanic's lien, rendered at the May term, 1858. If the judgment and sale were sufficient to divest the title of Lewis in the premises, then it is clear plaintiffs failed to establish title, and the judgment of the court was correct. It will therefore only be necessary to inquire into the legality of the proceedings in so far as they related to the title of Lewis in the premises, as the decision of that question will necessarily settle the controversy in the case.

In the petition to enforce a mechanic's lien, it was averred that Graham, for whom the building was erected, assumed to be the owner of the lot, and acted as such, and in fact was, in right and equity, owner thereof, but that the legal title to the lot was vested in Simeon E. Lewis. Graham and Lewis were made parties defendant to the petition, and required to answer the same. They appeared and filed separate answers.

Lewis, in his answer, set up that Graham had no title, either legal or equitable, to the lot, and that, in equity, he was the owner thereof.

Graham, in his answer, stated that he was neither legal nor equitable owner of the title, but merely had possession of the premises from Lewis.

To these answers replications were filed, and at the March term of the circuit court, 1858, a trial of the cause was had before a jury, which resulted in a verdict in favor of the plaintiff in the action, for $1120.25. The court did not, on the return of the verdict, render judgment thereon, but continued the cause for the purpose of hearing proof as to the interest of the defendants in the premises, and at the following May term a final judgment was rendered, which was as follows:

+-----------------------------------------------------------------------+
                ¦“WILLIAM G. MELVILLE                 ¦)¦                               ¦
                +-------------------------------------+-+-------------------------------¦
                ¦v.                                   ¦)¦Petition for mechanic's lien.  ¦
                +-------------------------------------+-+-------------------------------¦
                ¦TAYLOR S. GRAHAM and SIMEON E. LEWIS.¦)¦                               ¦
                +-----------------------------------------------------------------------+
                

This cause having been tried at the last term of this court by a jury, who found a verdict for the plaintiff, against the said defendant Graham, for the sum of $1120.25, and the said cause having been continued to this term, and the court having heard further testimony as to the interest of said parties in said lot in said petition described, it is ordered by the court that judgment be entered upon the verdict of the jury herein, and that said plaintiff have and recover of and from the said defendant Taylor S. Graham the said sum of $1120.25 so as aforesaid assessed by the jury, together with his costs in that behalf expended. It is further ordered by the court that, in case said defendant Graham or Lewis fails to pay the said judgment and costs within thirty days from this date, a special writ of execution shall issue against the lot of land described in the said petition, to-wit: lot eight (8) in block number two (2) in the town of Dunleith, in the county of Jo Daviess, in the State of Illinois, and that the said lot and house thereon be sold by the sheriff, and that the sheriff have the moneys received from said sale in this court at the next term thereof, to await the further order of this court as to the distribution thereof, and that this cause be continued to the next term of this court.”

Upon this judgment a special execution was...