Metzger v. Horn

• Court: Illinois Supreme Court
• Writing for the Court: FARMER
• Citation: Metzger v. Horn, 312 Ill. 173, 143 N.E. 408 (Ill. 1924)
• Decision Date: 14 April 1924
• Docket Number: No. 15857.,15857.
• Parties: METZGER v. HORN et al.

312 Ill. 173

143 N.E. 408

METZGER

v.HORN et al.

No. 15857.

Supreme Court of Illinois.

April 14, 1924.

Suit by Edward F. Metzger against Ernest Horn and others. Decree for defendants, and complainant appeals.

Affirmed.Appeal from City Court of East St. Louis; William F. Borders, judge.

J. R. McMurdo and Keefe, Baxter & Miller, all of East St. Louis, for appellant.

W. L. Proffer, for appellees.

FARMER, C. J.

This appeal is prosecuted from a decree of the city court of East St. Louis dissolving a temporary injunction and dismissing for want of equity a bill filed by appellant to enjoin appellees from further prosecuting a suit in ejectment against appellant until the rights and interests of the parties alleged in the bill should be adjudicated in a court of equity.

The material facts upon which the bill was predicated are, that on and prior to March 2, 1877, Gustav Horn was the owner of the undivided one-half of the premises involved in the ejectment suit, and on that day he and his wife, Emilie, executed a quitclaim deed for the property to John Polish, the father of Emilie, who, pursuant to an agreement with the grantors, conveyed the property to Emilie. In 1885 Horn purchased from the owners the other undivided one-half of the property and caused the deed to be made to Emilie, who thereby became vested with the legal title to the entire interest in the property. At the time the deed was made by Horn and wife to Polish and at the time of the purchase of the other undivided one-half of the premises by Horn he was in bad health and was the father of six minor children by his wife, Emilie. He desired his wife to become the owner of the property if he should die, but it was to be reconveyed to him if he recovered his health. Mrs. Horn frequently expressed her willingness to convey to her husband after his health became good, and requested him to prepare a deed for that purpose. He neglected to do so, and about May 10, 1886, Mrs. Horn gave birth to triplet children. She died six days later, and the triplet children died about one week after her death. In January, 1888, Horn filed a bill against his six surviving children, who were all minors, alleging his wife held the title to the property in trust for him, and that he was the beneficial owner thereof. A decree was rendered against the defendants in the city court of East St. Louis granting the relief prayed in the bill. The decree found Mrs. Horn acquired only the legal title to the property, and that she held it in trust for her husband, who was the equitable owner thereof, and that Mrs. Horn's children, all of whom were minors, acquired only such rights in the property as she had while living, and that Horn was entitled to a conveyance of the legal title then vested in the defendants as heirs-at-law of Mrs. Horn. The decree ordered the master in chancery to execute to Horn a deed for the property. Horn was in the possession of the property, and so remained until 1902, when he conveyed it to Edward Metzger, appellant, by warranty deed, and Metzer went into possession. Horn died in July, 1906, and a few days after his death two of his children, Theodore and Ernest, brought an ejectment suit against Metzger and others, claiming title to an interest in the property as heirs of the three deceased infants. There was a judgment in favor of Metzger, and plaintiffs in the ejectment suit prosecuted an appeal to this court. This court held the decree and the master's deed in the chancery proceeding vested in Horn the title of his six children, who were made defendants to the bill, which descended to them as heirs of Emilie Horn, which was one-ninth to each of them in the property; that Horn's six surviving children, together with their father, acquired the remaining three-ninths as heirs of the three deceased infants, and the decree did not affect or purport to affect that interest in the property, and neither the decree nor the master's deed transferred title to that share of the property to Horn. The judgment was reversed and the cause remanded. Horn v. Metzger, 234 Ill. 240, 84 N. E. 893. At the same term of court that case was decided, another case was presented and decided involving the effect of the decree and the master's deed in the chancery suit of Horn against his six children, and it was again held they did not vest in Horn the legal title to the three-ninths inherited by the three deceased infants from their mother; that the father inherited one-fourth of said three-ninths; that each of the surviving children inherited one-eighth of said three-ninths, and the legal title to said interests was still vested in them. This court remanded the ejectment suit. It was again tried in the city court, and a verdict returned in favor of defendant, and this verdict was set aside. The case was tried again in the same court, and a judgment rendered in favor of plaintiffs on July 26, 1919. An application was granted for the appointment of commissioners, as provided by the statute, to ascertain and report the value of the premises, with and without the improvements, the rents collected by Metzger, expenditures by him for maintaining the premises in repair, and payment of taxes. The property was a vacant lot when Metzger bought it from Horn, and he had erected a brick building on it before suit was brought, with stores on the first floor and living apartments on the second. The commissioners appointed, after making two reports, objections to both of which were sustained, were discharged, and new commissioners appointed, with directions to report April 7, 1923. On April 6, 1923, Metzger presented the bill in this case to the judge of the city court of Granite City, sitting in the city court of East St. Louis at the request of one of the judges, setting out the decree rendered by the city court in 1888 in the suit of Horn against his six surviving children, in which it was adjudged that Emilie Horn held the legal title to the property in trust, and that her husband, Gustav, was the beneficial or equitable owner thereof. The bill alleged Metzger had paid $4,000 for the vacant lot and had erected a building thereon at a cost of $15,000, and prayed that he be declared to be the equitable owner of the interest claimed by plaintiffs in the ejectment suit by purchase from Horn, and that plaintiffs be enjoined from further prosecuting their suit in ejectment or from taking any steps in said suit until the rights and interests of all of the parties should be adjudicated under the bill. The injunction was granted without bond and without notice to the defendants. There are two judges of the city court of East St. Louis, and the case was assigned by the clerk to the division presided over by Judge Borders. Defendants to the bill answered, denying its material allegations, and filed a motion to dissolve the injunction and dismiss the bill for want of equity. The motion was set down to be heard on the 21st of July, 1923, and on that date the complainant filed his affidavit praying a change of venue on account of the prejudice of the judge. The affidavit was sworn to on the 20th of July, and alleged knowledge of such prejudice did not come to petitioner until the 14th of July. No notice was given defendants of an intention to apply for a change of venue. The court denied the motion and entered a decree dissolving the injunction...