McCallum v. Chicago Title & Trust Co.

• Decision Date: 16 June 1903
• Citation: 203 Ill. 142,67 N.E. 823
• Court: Illinois Supreme Court
• Parties: McCALLUM v. CHICAGO TITLE & TRUST CO. et al.

203 Ill. 142

67 N.E. 823

McCALLUM

v.CHICAGO TITLE & TRUST CO. et al.

Supreme Court of Illinois.

June 16, 1903.

Error to Probate Court, Cook County; C. S. Cutting, Judge.

Application by the Chicago Title & Trust Company, as guardian of Laurence S. Koechlin, for an order to sell certain lands belonging to the ward, in which Joseph McCallum petitioned the court to disapprove the sale. An order was entered granting the petition, and the guardian brings error. Affirmed.

Charles L. Mahony, for plaintiff in error.

Pedrick & Dawson, for defendants in error.

This is a writ of error sued out from this court to the probate court of Cook county to review an order of that court disapproving a guardian's report of sale of real estate and ordering a resale of the property.

The Chicago Title & Trust Company, as guardian of Laurence S. Koechlin, a minor, petitioned the probate court of Cook county for an order to sell lot 9, in Huse & Powers' addition to Evanston, Cook county, Ill. An order of sale was entered by the court in accordance with the prayer of the petition. The premises were duly advertised for sale and sold by the guardian to the plaintiff in error, Joseph McCallum, for $705, subject to an incumbrance thereon of $900, and the guardian reported the sale to the court. Thereupon the defendant in error C. W. James petitioned the court to disapprove the report of sale, and to order the premises resold, and offered to bid therefor, in case the same were resold, the sum of $950, subject to the incumbrance thereon of $900, and deposited a certified check for $1,000 with the clerk as earnest money to secure said bid; whereupon the court found that the amount of the bid at the sale was inadequate, declined to approve the report of sale, and ordered the premises resold.

HAND, C. J. (after stating the facts).

A motion has been made to dismiss the writ of error on the ground of lack of jurisdiction in this court to issue the same, which has been reserved to the hearing. It is contended in support of the motion that, this being a proceeding under the guardian act (Hurd's Rev. St. 1899, c. 64), it is purely statutory, and, the statute having failed to provide for the review of orders entered by the probate court under said statute by writ of error, that the only method by which said order can be reviewed is by the method provided by the statute, which is by appeal; and in support of said contention Kingsbury v. Sperry, 119 Ill. 279, 10 N. E. 8,Allerton v. Hopkins, 160 Ill. 448, 43 N. E. 753, and Hart Bros. v. West Chicago Park Com'rs., 186 Ill. 464, 57 N. E. 1036, are cited, wherein it is held that in statutory proceedings, where one form of review is specifically given, all other forms of review are excluded. We are, however, of the opinion that section 43 of the guardian act, which provides for appeals, was repealed by section 88 of the practice act (Hurd's Rev. St. 1899, c. 110), and section 8 of the appellate court act (Hurd's Rev. St. 1899, p. 525, c. 37), and that a writ of error from this court to the probate court to review said order was properly sued out under said sections of said acts, as the same have been heretofore construed by this court in Lynn v. Lynn, 160 Ill. 307, 43 N. E. 482, and Sutton v. Read, 176 Ill. 69, 51 N. E. 801. In Jennings v. Dunphy, 174 Ill. 86, 50 N. E. 1045, this court entertained a proceeding brought here by writ of error to review the order of the county court of Jersey county disaffirming a conservator's report of a sale of real estate and ordering a resale of the property. The provision providing for appeals in the act under which that sale was made is substantially the same as the provision providing for appeals in the act under which this sale was made. The effect of the approval of the report of said sale would have been to have invested the plaintiff in error with the title to the premises, and its disapproval prevented him from obtaining the title thereto, and a freehold is involvedin this proceeding. A guardian's sale differs from an administrator's or executor's sale to pay debts, as the minor is powerless to relieve his land from sale upon the petition of the guardian, where it appears that the statutory grounds authorizing a sale of his real estate exist, and the approval of the report of the sale invests the purchaser with the title to his land, while, as held in Richie v. Cox, 188 Ill. 276, 5, N. E. 952, the heir or devisee has the right to pay claims against the estate of the former owner of the land sought to be sold at administrator's or executor's sale to pay debts, and thereby relieve the land from sale; hence no freehold is involved in such a proceeding unless the title of the former owner is drawn in question by some person claiming to own the land, when a freehold is involved. Lynn v. Lynn, supra. The motion to dismiss the writ of error will be denied.

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