Le Moyne v. Harding

• Decision Date: 21 January 1890
• Citation: 132 Ill. 23,23 N.E. 414
• Parties: LE MOYNE v. HARDING.
• Court: Illinois Supreme Court

132 Ill. 23

23 N.E. 414

LE MOYNE

v.HARDING.¹

Supreme Court of Illinois.

Jan. 21, 1890.

Error to Circuit court, Cook county.

Wilson & Moore, for plaintiff in error.

Wm. J. Ammen, for defendant in error.

WILKIN, J.

This is a proceeding in chancery begun in the circuit court of Cook county, to the April term, 1885, by defendant in error against plaintiff in error, one George B. Carpenter, William Scully, Dennis Doran, and certain other parties, named as trustees of the Illinois & Michigan Canal. The prayer of the bill is for the partition of the S. 1/2, and that part of the N. W. 1/4 south of the canal, of section 3, township [132 Ill. 26]38 N., range 13 E., Cook county, Ill., between the complainant, George F. Harding, and the defendant John V Le Moyne, in equal parts or shares, and to set aside a certain tax-deed. On the hearing the only controverted question was as to whether or not the complainant Harding was liable to pay the defendant Le Moyne one-half of a large amount of money alleged by him to have been paid on taxes assessed against said lands, and to discharge a lien thereon by way of tax-sale and deed. On this question the court below held with the complainant, and decreed according to the prayer of the bill, and appointed commissioners to make partition, and ordered the defendant Le Moyne to pay all cost, awarding execution therefor. From that decree this writ of error is prosecuted.

Two questions arise in this court for decision: (1) Did the circuit court err in decreeingcreeing that Harding was entitled to one-half of said premises free from liability to Le Moyne for taxes paid by him? and (2) did the circuit court err in decreeing that Le Moyne should pay all the costs?

The first of these questions arises out of the following state of facts: Prior to August 5, 1864, the title to these lands was in the canal commissioners of the Illinois & Michigan Canal, who had issued certain certificates therefor, which were then held by one George C. Smith, who at that date conveyed the same by deed to Charles W. Ricketson; Ricketson, however, holding said deed as to one-half of said lands in trust for H. Brady Wilkins and Silas Merrick, one-third thereof for Wilkins, and one-sixth for Merrick. Charles W. Ricketson died September 29, 1866, seised of said lands, being in possession of the whole of them by his tenant, William Scully. By his last will and testament he bequeathed his property, real and personal, to Polly H., his widow, and Lizzie W., a daughter and only child. On the 22d day of January, 1870, said Polly H. and Lizzie W. conveyed all their right, title, and interest in the premises in question to defendant John V. Le Moyne. On the [132 Ill. 27]20th day of May, 1870, H. Brady Wilkins and wife also conveyed to him an undivided one-third thereof, and on August 7, 1871, Silas Merrick and wife conveyed to him an undivided one-sixth thereof. Prior to June 19, 1870, Henry M. Sheppard had been appointed administrator de bonis non of Charles W. Ricketson, deceased, by the county court of Cook county, and he then filed his petition in the circuit court of said county for an order to sell all the interest of said Ricketson in said lands to pay debts theretofore probated and allowed against the estate of his intestate. The order was duly granted, and in August, 1875, said administrator, in pursuance thereof, offered the lands for sale, and they were struck off to said George F. Harding and one Benjamin F. Quimby; the latter after the sale assigning his bid to Harding. The amount bid at said sale remaining wholly unpaid, in September, 1881, the said circuit court directed said administrator to resell the premises, unless said bids were paid within 30 days. In pursuance of this last order, a resale was made March 6, 1884, at which said Harding purchased in separate tracts all of said premises, for the aggregate sum of $54,793.82, and on that date received administrator's deeds for the several tracts so purchased, conveying to him all of the interest of the said Charles W. Ricketson, deceased, therein, to the extent of one undivided one-half thereof. At the death of said Ricketson, William Scully was living on said premises under a lease from Ricketson, which he says expired in 1869. About that time he contracted with Le Moyne or the right to cut grass on an undivided half of the W. 1/2 of said section 3, south of the canal, and from year to year thereafter, until 1884. Five or six years prior to the filing of this bill Dennis Doran also obtained a lease from him to cut grass on the undivided half of the S. E. 1/4 of said section, from year to year, until 1884. Le Moyne paid the taxes on the whole of the said premises from the year 1871, to the year 1873, inclusive, except the sum of $463.69 of the taxes of 1872, which Harding paid, for the purpose of protecting an interest's which he had in a contract made by Ricketson in his life-time with one Tiernan, by which the latter was to have a certain per cent. of the profits in the sale of said lands. The taxes from 1874 to 1880, inclusive, remaining unpaid, in August, 1881, the premises were sold for the taxes of 1880 and previous years, and bid off by one P. E. Stanley, who on December 27, 1883, took a tax-deed therefor. On March 13, 1884, he conveyed to the said George B. Carpenter. In January, 1884, Le Moyne leased half of N. W. 1/4, south of canal, to William Scully for one year, and from year to year thereafter, to the bringing of this bill; also January 7, 1884, to Dennis Doran half of said S. E. 1/4 for one year, and from year to year thereafter, to the bringing of this suit. About the same time the said George Carpenter also leased an undivided half of the same premises to the same tenants for the same term. It is not denied by Le Moyne that all that was done by way of purchasing said lands at said tax-sale, obtaining tax-deed therefor, conveyance to Carpenter, and his leases to Scully and Doran, was done at his (Le Moyne's) instance, and for his sole benefit; nor is it now claimed by him that said tax-deed vested in him any title to said premises. Other facts appear in the record, but they are unimportant in the consideration of the question involved here.

All the interest which Charles W. Ricketson had in these lands immediately upon his death vested in his devisees, Polly H. and Lizzie W. Ricketson, subject only to be taken from them to pay the debts of Charles W. in the mode prescribed by law. They were entitled to the possession thereof, and all the rents and profits accruing after that date. Green v. Massie, 13 Ill. 364;Foltz v. Prouse, 17 Ill. 493;Walbridge v. Day, 31 Ill. 383;Stark v. Brown, 101...