Manternach v. Studt
| Decision Date | 16 June 1909 |
| Citation | 240 Ill. 464,88 N.E. 1000 |
| Parties | MANTERNACH v. STUDT et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Cook County; Farlin Q. Ball, Judge.
Action by John Manternach against August T. Studt and others. From a decree for plaintiff, defendants appeal. Affirmed.Bulkley, Gray & More, for appellants.
Mason & Wyman, for appellee.
Most of the questions presented and argued by counsel for appellants were before the court on a former appeal and were then finally settled. Manternach v. Studt, 230 Ill. 356, 82 N. E. 829,120 Am. St. Rep. 310. The court decided: That the proceeding in the probate court of Cook county to divest the appellee, John Manternach, of the undivided one-fourth of the lot described in his bill for partition, inherited from his father, Peter Manternach, was null and void for want of jurisdiction over appellee; that he was not bound by the warranties contained in a deed of said lot executed by his mother, for the reason that he did not claim any title through her; and that his suit was not barred by any statute of limitations. When the cause was reinstated in the superior court, a cross-bill was filed by the appellants, August T. Studt, Sofie Studt, John Nagl, and Mary Nagl, the principal defendants to the original bill, by which they made Alexander S. Maltman, administrator de bonis non, an additional party, and set up proceedings in the probate court in the guardianship of appellee; the payment of $42.20, balance of the proceeds of the sale, to appellee's mother, as guardian; the fact that she supported and cared for him as a minor up to her death; and the payment of taxes on the premises and the improvement of the same by the erection of a flat building thereon in the year 1897. Appellee filed exceptions to portions of the cross-bill, and the exceptions were sustained. The same evidence taken before the former appeal was heard by the court and some additional evidence, and the court entered a decree dismissing the cross-bill as to the appellee for want of equity, and finding that he was the owner of an undivided one-fourth of the lot and the appellants John Nagl and Mary Nagl each owned three-eighths thereof. By the decree commissioners were appointed to make partition of the lot if susceptible of division without manifest prejudice to the parties, and, if not susceptible of such division, to appraise its value, and it was ordered that the cause be referred to a master in chancery to take an account of rents and profits and to report the same to the court, that in case of sale the proceeds should not be disbursed untill the settlement of the account, and that the question of solicitors' fees be reserved for further consideration by the court. From that decree said August T. Studt, Sofie Studt, John Nagl, and Mary Nagl took this appeal.
The first question proper to be considered is whether the court erred in sustaining exceptions to the portions of the cross-bill setting out that appellee's mother supported him in his minority, up to her death; that he admitted the correctness of the guardian's account, and was bound to take notice of what estate his father left and from what estate he got his support; and that he had notice of the proceedings in the probate court or was bound to take notice of them. The care, maintenance, and education of appellee by his mother, alleged in the cross-bill, could not operate to estop him from denying the validity of the sale, which was void and had no effect to transfer his property. None of the accounts showed that he received or retained, when he became of age, any part of the proceeds of the sale, or that he ratified or confirmed the proceeding in any manner, and the court did not err in sustaining the exceptions.
Alexander S. Maltman, the administrator de bonis non who made the sale, was a defendant to the cross-bill and answered it, and it is now insisted that the decree ought to be reversed because he was not made a defendant to the original bill. If there was anything in the point, it was in the case when it was considered before, and the point was not made then; but he was not a necessary party. The estate had been settled and the administrator discharged for more than 15 years before the original bill was filed. It was simply a bill for partition, and there was not only no administrator, but the bill sought no relief against Maltman. His interest was in no way affected by the decree.
On the former appeal it was hld that the suit was not barred by any statute of limitations, but it was stated that there was some controversy as to the age of appellee, and the fact was not decided. Some further evidence was taken under the claim that the suit was barred; but, whether the filing of the cross-bill and the taking of such evidence was proper or not, the legal conclusion was unaffected. The evidence was that appellee was 24 years old on July 27, 1906, and he was therefore within the exception to sections 6 and 7 of the statute of limitations (Hurd's Rev. St. 1908, c. 83). Section 4 of the statute does not apply, for the reason that appellants did not show a connected title in law or equity, which is required by that section.
The principal argument is that the court erred in entering a decree for partition without requiring appellee to reimburse the appellant August T. Studt with the amount of money received by appellee's mother for his share of the purchase money, and onefourth of all taxes and special assessments, and a like share of the value of the improvements on the lot. At the same time appellants deny that appellee is entitled to any interest in the improvements, and propose, as an alternative to the foregoing, that the court ought to have ordered the real estate sold separate from the improvements, and, if it should not sell for more than $1,975, that the appellee would not be entitled to anything. Counsel say that both these propositions are based on the maxim that ‘he who seeks equity must do equity,’ and that the appellee must not be permitted to eat up the proceeds of the sale while he is an infant, and within three years after becoming of age claim the property without recompensing the purchaser for the nourishment received. As a matter of fact, the court found that the $42.20, balance of the proceeds of the sale, was never received by the appellee from his guardian, and that subsequent to attaining his majority he never had any part of said sum, and this was in accordance with the evidence. We have already expressed an opinion that the care and maintenance of the appellee by his mother had no effect to validate the void...
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