Mulvey v. Gibbons

• Decision Date: 30 September 1877
• Citation: 1877 WL 9870,87 Ill. 367
• Parties: AMARILLA B. MULVEYv.JOSEPH GIBBONS et al.
• Court: Illinois Supreme Court

87 Ill. 367

1877 WL 9870 (Ill.)

AMARILLA B. MULVEY

v.JOSEPH GIBBONS et al.

Supreme Court of Illinois.

September Term, 1877.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. W. W. FARWELL, Judge, presiding.

The appellant, Amarilla B. Mulvey, on April 9, 1874, filed a petition under the Burnt Record act, Rev. Stat. 1874, p. 838, against the appellees, to establish title to the premises described in the petition, being part of the north half of the north half of the north-west quarter of the north-west quarter of section 15, town 38 north, range 14 east, in Cook county, in this State, situate about six miles south from the court house in the city of Chicago.

The decree rendered by the court below, and now complained of, found that the title to the property was “vested in the lawful grantees and assigns of Jesse Embree, (not naming them,) and not in the petitioner,” and dismissed the petition with costs. The Wiltberger family, consisting of Joseph W. Wiltberger and his children by his deceased wife, Amelia, in 1857, and previously, owned 120 acres of land in said section 15, to-wit: the west half of the north-east quarter, and the north half of the north half of the north-west quarter, of the same. The title, which was found by the decree to be in the lawful grantees and assigns of Jesse Embree, had its origin in a warranty deed of said tract of 120 acres to said Embree, made by Joseph W. Wiltberger, and some of his children, in November, 1858, for the consideration of $94,550. At the same time a mortgage was given back by Embree to Joseph W. Wiltberger, to secure $91,200 of the purchase money. No money has been paid or tendered on the mortgage since the year 1859.

In October, 1865, Joseph W. Wiltberger made a warranty deed of the west half of the north half of the north half of the north-west quarter of section 15, above, to Caroline A. Cleaver, and under her the petitioner derives her claim of title to the land now in question.

A more particular detail of the facts, as show by the record, is, that one Macy, being vested with the legal title to the above 120 acres of land, deeded the same, June 21, 1852, to Amelia, wife of Joseph W. Wiltberger. She died in September, 1852, leaving six children by the said Joseph. He was the owner, by resulting trust, of one-half the property. In 1856, and the early part of 1857, the three children then of age quitclaimed to their father one-half of their interest in the land, so as to vest in him, to that extent, the legal title to his half thereof.

In July, 1857, the property was contracted to be sold by Wiltberger to George W. Yerby, for $96,000, on the terms of $4800 down, and that amount annually for nine years, and at the end of the tenth year, $48,000. Yerby paid $3000, and the odd $1800 was thrown off.

In November, 1858, the said Jesse Embree took Yerby's place, the deed being made to him. A general warranty deed of the property was then made to Embree by Joseph W. Wiltberger, the father, and the three children then of age. In this deed Joseph W. Wiltberger also professed to act as guardian for his three minor children, and to convey on their behalf. The consideration named in the deed is $94,550. Embree gave back to Joseph W. Wiltberger a mortgage to secure the deferred payments, in all $91,200.

The mortgage secures the payment of nineteen notes, of even date therewith, eighteen of them being for $2400 each; two of them being payable on January 1, 1859, and two on the first day of January in each year thereafter, up to and including January 1, 1867. The nineteenth note is for $48,000, payable, conditionally, on January 1, 1868,--that is, conditioned upon the ratification of the sale by the three minor heirs, to be paid then, if they had ratified the sale; if not, thereafter when they should do so.

The mortgage provided that, in case of default in any payment, then the whole sum remaining unpaid should immediately become due and payable as in the notes expressed, and the mortgage might be immediately foreclosed to pay the notes, or sale might be made under the mortgage, it giving to the mortgagee a power of sale in default of payment.

Embree paid no money when the deeds were made, but paid one or two thousand dollars afterward, within about a year; in 1859 two payments, of about $1100 and $600, were made, by purchasers under Embree, making, in all, some $7000 paid, altogether, on the purchase money. No further payments were ever made on the mortgage. In 1857, Yerby made, and had recorded, a subdivision of the land, and threw up streets, but nothing else was ever done on the land by Yerby, Embree, or any of their grantees.

In June, 1862, Joseph W. Wiltberger, for default in payment of the mortgage moneys due, exercised the power of sale given in the mortgage, and sold at public auction and conveyed the property to his son Egbert, on June 10, 1862, at the price of $16,000 for the forty-acre tract, which was first sold, and $32,000 for the eighty-acre tract, which was also then next sold. On September 4, 1862, for the expressed consideration of $48,000, Egbert conveyed the property back to his father.

The deed from the Wiltbergers to Embree passed the legal title to one-half the property, and the equitable title to an additional one-fourth, by reason of the resulting trust in favor of Joseph W. Wiltberger. The three minor children quitclaimed to their father as fast as they became of age; one doing so on February 4, 1863; one on January 13, 1865; and the other on November 5, 1866.

On October 3, 1865, Wiltberger filed a bill in chancery, in the Superior Court of Chicago, for the foreclosure of the mortgage, whereon a decree of strict foreclosure was rendered June 18, 1866, the record whereof was brought to this court on writ of error, the transcript of the record being filed August 23, 1869, and such decree of foreclosure was reversed by the judgment of this court, entered May 22, 1871. The cause having been remanded to the Superior Court, afterwards, in that court, and before the present suit was brought, the complainant dismissed his bill of foreclosure without prejudice.

In October, 1865, Jos. W. Wiltberger sold to Caroline A. Cleaver, wife of Edward A. Cleaver, twenty acres of the said land, to-wit: the west half of the north half of the north half of the north-west quarter of section 15, above, and executed to her a warranty deed for the same. This includes the land now in dispute. The deed was dated October 16, 1865, but was not delivered until afterwards, and was recorded June 9, 1866. After foreclosure under the power of sale, and at the time of the sale to Mrs. Cleaver, Jos. W. Wiltberger claimed the land as owner; but, owing to objections made at the time of this purchase by Mrs. Cleaver, the aforenamed proceeding was had to foreclose in the Superior Court. The Cleaver purchase was on the basis of a good title in fee to the twenty acres of land, and the price was $3500, or $175 per acre, which was then its full value. This twenty acres is the same land as that covered by block 1, in Yerby's subdivision. Mrs. Cleaver and her husband made, and had recorded pursuant to the statute, a deed of vacation of said block 1, the deed being recorded April 25, 1867.

On June 20, 1867, Cleaver and wife, by warranty deed, recorded June 25, 1867, sold and conveyed her said twenty acres of land to Perkins Bass and Junius Mulvey. The price was $8500, which was the fair value of the property at the time, and the purchase was made in the belief that the purchasers were getting a good title in fee simple to the property. The purchase money was all paid at or about the time of the delivery of the deed.

Junius Mulvey, by warranty deed dated September 17, 1867, and recorded September 23, 1867, conveyed his undivided one-half of this twenty-acre tract, for the expressed consideration of $5000, to Amarilla Bromley, now Mrs. Mulvey, the petitioner. They were married September 25, 1867. The deed was executed in contemplation and consideration of marriage, which was its real consideration.

There were, subsequently, down to June 17, 1868, five several sales and conveyances, by warranty deeds, duly recorded, made of undivided portions of the Bass interest in this twenty acres, the sales and purchases being made as of a good title in fee simple, and the purchase price, in every case, was paid in cash.

On June 17, 1868, the then three owners of the undivided half Bass interest in the twenty acres, and Mrs. Mulvey, effected a partition of the twenty acres, by deeds, between themselves, whereby the north half became vested in Mrs. Mulvey in severalty, and the south half in the three others. At the same time, all these parties united in a subdivision of the twenty acres, which was recorded June 20, 1868.

There was another suit, brought by Joseph W. Wiltberger and one Martin Andrews, in the Superior Court of Chicago, for a further foreclosure of the Embree mortgage, against James T. Daniels and others, and all such unknown persons as might claim any interest in the premises through or under Jesse Embree or George W. Yerby. The bill was filed April 5, 1868, and a decree entered October 26, 1868, finding the amount due upon the mortgage to be $106,916, and by an order entered November 14, 1868, the mortgage was finally foreclosed against all of the defendants in that suit, for non-payment of the mortgage debt. In that suit, neither Embree, nor any grantees under him of the land now in dispute, were made parties defendant by name.

The title exhibited by the defendants, Gibbons and his grantees, and the South Park commissioners, is as follows: A deed from Jesse Embree and wife to Amos F. Tompkins, dated August 19, 1859, recorded March 8, 1861, for lots 6 to 21, inclusive, in block 1, and sundry lots in block 2, in Yerby's subdivision, above referred to, with warranty, “except as to a mortgage on said property, executed by Jesse Embree to Jos. W. Wiltberger, to secure the...