Martin v. Martin
| Decision Date | 22 December 1897 |
| Citation | 48 N.E. 924,170 Ill. 639 |
| Parties | MARTIN et al. v. MARTIN. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Whiteside county; James Thorn, Judge.
Bill by Joseph S. Martin against John W. Martin and others for partition, and to correct an error in the description of certain of the lands in question, in a deed under which the parties claimed title. From that portion of the decree ordering partition and sale, respondents John W. and David L. Martin appeal. Reversed.
H. C. Ward, for appellants.
Walter Stager, for appellee.
This was a bill in chancery filed on March 21, 1897, in the circuit court of Whiteside county, by Joseph S. Martin against John W. Martin, David L. Martin, Sarah Jane Dillon, and others. The bill alleges that one Catherine Martin died July 23, 1863, possessed of certain lands described in the bill, and that she left, surviving her, her husband, John Martin, and four children, viz. Joseph S. Martin, the complainant, John W. Martin, David L. Martin, and Sarah Jane Dillon, née Martin, to whom the title to said land descended, the husband taking an interest as tenant by the curtesy, and each of her said children taking an undivided one-fourth interest, subject to the rights of the tenant by the curtesy; that said John Martin departed this life on the 16th day of May, 1896, seised in fee of the title to certain other lands specifically described in the bill, which said lastmentioned lands descended to his said children (he having no widow), the said Joseph S. Martin, John W. Martin, David L. Martin, and Sarah Jane Dillon, and that the said children of the said Catherine and John Martin, being the complainant in the bill, and the hereinbefore named defendants thereto, thereby became seised of, and are the owners of, the undivided one-fourth each of the lands of which their deceased parents died seised as aforesaid. The bill prayed for partition of the lands. The bill also alleged that, in the conveyance of the title to the lands to Mrs. Martin, an error was made in the description of one of the tracts, and made defendants to the bill the legal heirs and devisees of the grantor in the deed wherein the alleged mistake occurred, and prayed for a decree correcting such alleged error. The bill also made defendants thereto certain parties which the bill alleged were in the possession of different tracts of the land under leases executed by said complainant and the other heirs of John and Catherine Martin since the death of said John. Default was entered against Sarah Jane Dillon, and John W. and David L. Martin filed an answer to the bill. The answer, among other things, averred, in substance, that soon after the death of the father of the complainant and the respondents the complainant and the respondents, in view of the fact that the salable value of real estate had become greatly, but as the parties believed only temporarily, depreciated, entered into a verbal agreement that they would not seek to divide the lands, but would allow them to remain as they were, and would jointly rent them, and divide the rentals, and that each of the respondents and the complainant, who were engaged in the real-estate business, would endeavor to obtain purchasers, and then all would join in a conveyance if a satisfactory sale could be obtained; that it was further agreed that the said complainant and the respondent David L. Martin should take charge and control of the lands, and that in pursuance of such contract the lands were rented to the parties named in the bill, as tenants in possession for terms expiring March 1, 1898, and that leases were executed by the said respondents, the complainant, and the said Sarah Jane Dillon to each of said tenants entitling him to possession of the land until the said 1st day of March, 1898, upon terms and conditions set forth in the said leases. Exception was filed by the complainant to such averments of the answer, and the court sustained the exception, and ordered the said averments expunged. Such further proceedings were had in the case as that the court entered a decree correcting the error in the description of the lands in the deed to Catherine Martin, and declaring that the complainant, the respondents, and the said Sarah Jane Dillon were the owners in fee each of an undivided one-fourth of the lands in the bill described, and decreeing partition thereof, and appointing commissioners to make such partition. The commissioners so appointed reported that the property was not susceptible of division among the owners thereof, which report was approved, and a decree entered ordering the lands to be sold by the master, and the proceeds to be divided among the owners thereof. This is an appeal prosecuted by John W. and Daivd L. Martin to reverse the decree of partition and sale.
BOGGS, J. (after stating the facts).
A single question is presented by the record, and that is whether the court correctly ruled that the exceptions to the answer were well taken. The general rule is that an adult tenant in common may demand partition as a matter of right (Hill v. Reno, 112 Ill. 154;Trainor v....
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