Mcelheny v. Musick

• Decision Date: 31 January 1872
• Citation: 1872 WL 8185,63 Ill. 328
• Parties: MATTHEW MCELHENYv.SARAH E. MUSICK.MATTHEW MCELHENYv.JAMES MUSICK.
• Court: Illinois Supreme Court

63 Ill. 328

1872 WL 8185 (Ill.)

MATTHEW MCELHENY

v.SARAH E. MUSICK.MATTHEW MCELHENY

v.JAMES MUSICK.

Supreme Court of Illinois.

January Term, 1872.

APPEAL from the Circuit Court of Logan county; the Hon. THOMAS F. TIPTON, Judge, presiding.

Two cases are involved in the opinion, in which both are stated. Messrs. BEASON & BLINN, for the appellant.

Mr. EDWARD LYNCH, and Messrs. ROWELL & HAMILTON, for the appellees.

Mr. CHIEF JUSTICE LAWRENCE delivered the opinion of Court:

This was a bill in chancery, brought by the children of James Musick against their guardian, for the purpose of compelling him to account for the rental value of a farm inherited by them from their father. The court rendered a decree for $350 in favor of each of the two children.

The complaint is not that the defendant has not faithfully accounted for all the rents collected by him, but that he leased the farm for less rent than he ought to have demanded and might have obtained.

James Musick, the father, died in 1853. His widow married one John Thomas, in 1856. The first guardian was Henry Musick, who leased the land to Thomas, in 1856, for nine years. This lease did not provide for repairs by the tenant. Henry Musick ceased to be guardian in 1858, and the appellant was then appointed.

The consideration of the first lease was that Thomas was to maintain the children. Their mother died in 1861, and their grandmother wishing to take charge of them, the old lease was cancelled, by consent, and the appellant gave to Thomas a new one, to run nine years, when the eldest child would become of age. Thomas covenanted to keep the premises in repair, to pay all taxes, to keep the buildings insured, to set out and cultivate an orchard of 100 apple trees, to fence such parts as were not fenced, and to pay $50 per annum. Under this lease, he was to raise on the land only small grain and grass; but in May, 1866, he desired to cultivate 60 acres of meadow in corn, and a supplemental lease was made, by which he was to pay an additional rent of $150 per annum. The farm contained 160 acres, of which 60 acres were wet, and liable to overflow. Thomas sub-let the south 80 acres for $1 per acre.

As might be expected in a case of this character, the testimony is very contradictory as to what the rent of this land should have been from 1861 to 1870, but there is not a particle of evidence tending to show that the guardian did not act in the most perfect good faith, and in accordance with what he deemed the best interests of the children. The county judge testifies that the guardian consulted him before making the lease, and he himself visited the land twice for the purpose of examination,...