Mansfield v. Wallace

• Citation: 217 Ill. 610,75 N.E. 682
• Parties: MANSFIELD et al. v. WALLACE et al.
• Decision Date: 24 October 1905
• Court: Supreme Court of Illinois

217 Ill. 610

75 N.E. 682

MANSFIELD et al.

v.WALLACE et al.

Supreme Court of Illinois.

Oct. 24, 1905.

Error to Circuit Court, Shelby County; Truman E. Ames, Judge.

Bill in chancery by Aaron B. Mansfield and others against William O. Wallace and others. There was a decree dismissing the bill, and complainants bring error. Reversed.

Braz D. Tull, Robert M. Peadro, and George B. Rhoads, for plaintiffs in error.

W. C. Kelley, Richardson & Whitaker, and William H. Ragan, for defendants in error.

This is a bill in chancery, filed on October 10, 1903, by the plaintiffs in error, Aaron B. Mansfield, Freeman Mansfield, David Nanney, Frank M. Shannon, Minnie E. Dush, Wilmay Torrence, Iva Brewer, Zimroad M. Elder, Sarah McMillen, George E. Shannon, Rachel Clark, Emaline Warren, William W. Mansfield, Bertha McGowan, Fenton Mansfield, Della Curlin, Sarah Riggs, Inez E. Shannon, A. Grover Shannon, Alen Presseler, Matty Wilcox, and Sallie Popple (the last three of whom were the heirs of Emily Presseler one of the defendants to the original bill, who has since died), against the defendants in error, William O. Wallace, John A. Tackett, Jacob Mansfield, John W. Yantis, W. E. Walker, Douglas Frailey, George A. A. Dieckmann, Martha Gubser, Ross R. Mattis, and William R. Liston. The bill was subsequently amended in various particulars, and by making Jacob Mansfield a party complainant, instead of a party defendant. The object of the bill is to set aside a sale made under a decree in a partition proceeding theretofore had and prosecuted to decree and sale. The charge in the bill is that the defendant in error William O. Wallace was the solicitor for the complainants in the original partition proceeding, and also undertook to act for and represent the interests of all the other owners of undivided interests in the property besides the complainants, and that at the original partition sale he purchased the property for himself and for one John A. Tackett, who was associated with him, and that he violated his duty as attorney and obtained the property for himself, and in doing so was guilty of various acts of actual and constructive fraud such as would justify a court of equity in setting aside the sale and the deed or deeds executed in pursuance thereof and all the other proceedings had thereunder. The prayer of the bill is that, upon a hearing, the report of the commissioners in the original partition proceeding be set aside and held for naught, and that new commissioners be appointed to partition the premises and appraise the same, in case they cannot be partitioned and divided without manifest injury to the parties interested in the same; that the said pretended sale, made by the master in the original partition proceeding, be decreed to be void and of no effect, and that the premises be sold under the direction of the court; that by reason of the betrayal of the trust of the said Wallace of fee of $1,200 allowed to him be ordered to be refunded, and that an accounting be had of the rents, issues, and profits of the premises, so held since the pretended sale to Wallace and Tackett and Yantis, for the use and benefit of the parties interested in the premises; and that the deed from the master to Wallace and Tackett, and the deed to Yantis, be canceled. The bill, as finally amended, charges that the execution and delivery of the deed by the master to Wallace and Tackett constitute in equity a mortgage in favor of Wallace and Tackett and against the owners of the premises, and as such secure to Wallace and Tackett the amount of money actually paid by them to the master, with 5 per cent. interest; that upon said mortgage the owners of the premises are entitled as credits to the proceeds derived from the sale of any part of the premises conveyed by Wallace and Tackett to innocent purchasers without notice, as well as the rents, issues, and profits received by Wallace and Tackett, less the taxes paid and improvements made, if any, by them, which amount, less said credits upon said accounting, the complainants offer to pay to Wallace and Tackett; that the premises are now held by Wallace and Tackett as trustees; that the defendants have no interest therein save as equitable mortgagees, and that an account be taken, and that Wallace and Tackett be charged with the rents, issues, and profits, and the reasonable value of any parcel of the premises sold by them; that upon the stating of said account the amount, if any, which may be found to be due to Wallace and Tackett, be decreed by this court to be secured by such equitable mortgage, and if they have from the rents, etc., received an amount sufficient to pay such amount as may be found due them, then said mortgage may be canceled, and if the amount so received by them be in excess of the amount so found to be due to them then that they be decreed to pay over such excess to the master, and that the proceeds thereof be brought into court to be distributed under the direction of this court. All the proceedings in the original partition suit and the records and papers in said suit, as well as other documentary evidence and oral testimony, were produced before the court upon the hearing of the cause. The circuit court entered a decree dismissing the bill for want of equity, to which the complainants below, the present plaintiffs in error, excepted, and have prosecuted this writ of error for the purpose of reviewing such decree of dismissal.

The material facts are as follows: One John B. Mansfield, of Shelby county, Ill., died intestate on February 5, 1901, leaving no widow or child or children, or descendants of such, and leaving, him surviving, as his only heirs at law, 11 brothers and sisters and 10 nephews and nieces, all of whom, with the exception of Emily Presseler, who has since died, are plaintiffs in error herein. At the time of his death John B. Mansfield owned 724 acres of land in Fayette county, 60 acres in Shelby county, and 120 acres in Jackson county, besides some town lots and blocks in the city of Cowden, in Shelby county. The original bill for partition was filed on April 17, 1901, a little more than two months after the death of John B. Mansfield, by Jacob Mansfield and Freeman Mansfield, two brothers of the deceased, as complainants, through William O. Wallace, as their solicitor, and the other heirs were made defendants to the bill, and the bill set forth the interests of the parties in the premises, and alleged that Sarah Shellenberger, Ross R. Mattis, William H. Craig, George A. A. Dieckmann, Douglas F. Frailey, Martha Gubser, Louis L. Lehman, and the AEtna Life Insurance Company claim some interests in said premises. The bill also alleged that the defendants A. Grover Shannon and Inez E. Shannon were minors under age. The bill prayed for the appointment of a guardian ad litem for the minors, for partition and division of the property, or, in case the same could not be divided, for a sale of the same. The guardian ad litem filed answers for the minors on June 4, 1901. George A. A. Dieckmann filed an answer to the bill for partition, alleging that he held a mortgage upon a part of the premises to secure $1,500, and filed a cross-bill on June 3, 1901, for the foreclosure of his mortgage, to which cross-bill an answer was filed for the minors by their guardian ad litem on June 4, 1901. Mattis also filed an answer to the bill for partition, alleging that he held a mortgage on the premises to secure a note for $1,300 and interest and attorney's fees. None of the defendants who were heirs of the deceased, John B. Mansfield, except the two minor defendants, answered the bill for partition, and defaults were taken against all the adult heirs, who were defendants to the original bill. The cause was referred to a master in chancery, who found the facts in regard to the death of John B. Mansfield and the heirship of the parties named; that the said John B. Mansfield had executed a bond for a deed to Douglas F. Frailey in his lifetime for 120 acres of land situated in Fayette county; that certain premises in Fayette county had been sold by one Hunold to Sarah Shellenberger, and subsequently conveyed to John B. Mansfield. A decree for partition and appointment of commissioners was entered on June 4, 1901, which finds that John B. Mansfield executed the bond for a deed to Douglas F. Frailey, and that the AEtna Life Insurance Company held a mortgage upon the property sold to Shellenberger, whose interest in the same had been forfeited; that on May 15, 1899, the deceased executed a note and mortgage to Dieckmann, upon which there was then due $1,657.33 and costs and $100 solicitor's fees; that on April 1, 1898, he executed a mortgage or trust deed to Mattis to secure $1,300; that on June 25, 1900, the deceased and Frailey executed two notes to Martha Gubser for $350 each, and to secure the same mortgaged the premises included in the bond for a deed executed by the deceased to Frailey; that Martha Gubser owns said notes, upon which there is now due $700 and interest from June 25, 1900; that the rights of Frailey under said bond have been forfeited, and that the same should be canceled as a cloud upon the title. The decree of partition found that the interests of Frailey and Shellenberger had been forfeited, and that Mattis and Dieckmann and Gubser held mortgages upon portions of the property, specifically describing the same, and that each of 11 brothers and sisters of the deceased, John B. Mansfield, was entitled to one-twelfth of the premises in question in fee simple, and that certain nephews and nieces were entitled to the other one-twelfth thereof.

The commissioners reported that the premises were not susceptible of division, and appraised the total value of the same at $19,020, valuing the property in Shelby county, including the lots and blocks, at $1,850, that in Fayette county at $16,330, and that in Jackson county at $840, including the 120 acres in ...