Murch v. Epley

• Decision Date: 13 January 1944
• Docket Number: No. 27303.,27303.
• Citation: 52 N.E.2d 125,385 Ill. 138
• Parties: MURCH v. EPLEY et al.
• Court: Illinois Supreme Court

385 Ill. 138

52 N.E.2d 125

MURCH

v.EPLEY et al.

No. 27303.

Supreme Court of Illinois.

Nov. 16, 1943.

Rehearing Denied Jan. 13, 1944.

Action to quiet title by Hettie Epley Murch against Lawrence Epley and others, wherein Jessie Epley and others filed a counterclaim. From the decree, the plaintiff appeals.

Affirmed.Appeal from Circuit Court, White County; Blaine Huffman, judge.

Kern, Pearce & Pearce, of Carmi, for appellant.

Pyle & McCallister, of Carmi, and Thomas H. Daily, of Shawneetown, for appellees.

WILSON, Justice.

This appeal presents for decision the correctness of a decree of the circuit court of White county in an action to quiet title.

Jarrett Epley, a resident of Gallatin county, died August 30, 1924. By his last will and testament, he devised all his real estate, located in Gallatin and White counties, to his wife, Hettie M. Epley, for her life and, upon her death, to his nephew, Lawrence Epley, for his life only and, upon the death of the nephew, to the latter's heirs in fee simple. The widow renounced the will and elected to take her statutory interest in the real estate, namely, an undivided one-half interest of the property and dower in the other undivided one-half. November 11, 1926, Hettie Epley instituted an action in the circuit court of White county to partition the land owned by her husband. Lawrence Epley, and his four children, Elsie, Lida, Hazel and John Epley, were made parties defendant. Plaintiff's bill for partition set forth her husband's will and alleged that, upon her renunciation, she became the owner of one-half of all the real property of her husband and that Lawrence Epley and his heirs were the only other persons having any interest in, or title to, the property. A decree was entered on October 16, 1929, finding that, by virtue of her renunciation of the will, Hettie Epley became seized in fee simple of an undivided one-half interest in and to all of the lands owned by Jarrett Epley; that Lawrence Epley took a life estate only in the property and that the remainder, at his death, would vest in the heirs of his body. Commissioners were appointed to make partition between Hettie Epley and Lawrence Epley and the heirs of his body by allocating to Hettie Epley one-half of the property, according to its relative value, and to Lawrence Epley and the heirs of his body the other one-half. The report of the commissioners, filed October 22, 1929, discloses that they divided the real estate in kind and, pursuant to the decree of the circuit court, set off and allotted to Hettie Epley the property in Gallatin county. Similarly, the commissioners set off and allotted to Lawrence Epley a life estate in the real estate in White county, and to the heirs of his body the remainder, conformably to the decree. The same day the report of the commissioners was confirmed. During the progress of the partition proceeding, on June 7, 1929, Lawrence Epley, by a quitclaim deed, joined by his wife, conveyed all his interest in the property to the latter. Lawrence Epley rented the land to tenants and collected the rents but did not pay the taxes assessed against the property. In the meantime, Hettie Epley remarried and will be referred to hereafter as Hettie Epley Murch. D. E. Parker purchased the property at a tax sale and, on June 11, 1932, obtained from the county clerk of White county a tax deed to the land allotted to Lawrence Epley and his children, as recounted. This property in White county is the only portion of the land owned by Jarrett Epley, deceased, involved in the present controversy. By a quitclaim deed, also dated June 11, 1932, Parker and his wife conveyed the property to Hettie Epley Murch. She paid the taxes due in 1932, gave notice of the termination of the tenancy to Lawrence Epley's tenant, and, in August, 1933, placed her own tenant upon the property. She continued in possession of the property, paid the taxes assessed against it and collected the rents for more than eight years.

February 17, 1942, the plaintiff, Hettie Epley Murch, filed her complaint in the circuit court of White county against the defendants, Lawrence Epley, his wife, Jessie V. Epley, and their four children, Elsie Stinson, Lida Trayhan, Hazel Epley and John Epley, seeking a decree declaring her the owner in fee simple of the property. Defendants' motion to dismiss the complaint was sustained and, on October 2, 1942, plaintiff filed her amended complaint. By her second pleading, plaintiff alleges that upon her renunciation of Jarrett Epley's will she became seized in fee simple of an undivided one-half of the real estate owned by him, and that Lawrence Epley became seized in fee of the remaining undivided one-half, subject to her dower rights; that no attempt was made in the partition suit to set off dower to her; that the decree of partition erroneously adjudged Lawrence Epley to be seized and possessed of a life estate in an undivided one-half of the property, with remainder in fee to the heirs of his body; that the decree confirming the report of the commissioners was likewise erroneous; that Lawrence Epley's children claim a vested remainder interest in the property at the death of their father and that their remainder has not been barred or cut off but is superior to her title; that Lawrence Epley's wife claims an estate for the life of her husband and that her interest is superior to plaintiff's title; that Lawrence Epley claims to be the owner of the premises; and that the claims of the six defendants are clouds upon her title. The relief sought was a decree finding that Lawrence Epley's children took nothing by the decree of partition and the decree approving the report of the commissioners; that their claim to any interest in the property is a cloud upon plaintiff's title; that Lawrence Epley, by virtue of Jarrett Epley's will, and after plaintiff's renunciation, became seized in fee simple of an undivided one-half of the property which ripened to full ownership of the tract in controversy as a result of the division and partition; that his quitclaim deed of June 7, 1929, passed to his wife this undivided one-half interest in the property; that after the decree of partition and the division of the property and the quitclaim deed of June 7, 1929, Lawrence Epley and his wife owned the property as equal tenants in common; that their interests passed to Parker by virtue of the tax deed of June 11, 1932, and were, in turn, conveyed to plaintiff by the quitclaim deed of Parker and his wife; that she has been in possession of the property, paid the taxes thereon more than seven years, namely, since June 11, 1932; that the claims of Lawrence Epley and his wife are clouds upon her title; that none of the defendants have any interest in the property and that their respective claims are clouds upon the title of plaintiff and should, consequently, be removed.

Defendants answered the amended complaint, denying its material allegations, and averring that, upon plaintiff's renunciation of Jarrett Epley's will, Lawrence Epley became seized of an undivided one-half interest for and during his life only; that the decree of partition properly so provided; that the tax deed issued by the county clerk to Parker was void and improperly issued, proper legal notice not having been given for the redemption of the property from the tax sale, and for the further reason that plaintiff, in an attempt to deprive defendants of their interest in the property, agreed with Parker that he should take a tax deed and forthwith convey the property to her; that Parker's quitclaim deed to plaintiff was void as a conveyance and had the legal effect merely of a redemption by these defendants; that the interest of Lawrence Epley's children in the property is subject to his life estate, which he has conveyed to his wife, is an interest contingent upon them surviving their father, and is impressed with plaintiff's dower rights; that the interest of Lawrence Epley's wife, Jessie V. Epley, is a life estate, determinable upon her husband's death, her life estate being subject to plaintiff's dower interest, and that the interests of the several defendants is not adverse to plaintiff's dower interest but is only subservient to it. Answering further, defendants averred that at the time she obtained the quitclaim deed from Parker, plaintiff had a dower interest in the property; that since it was her duty to protect the property from tax sale the acquisition of the quitclaim deed amounted to nothing more than a redemption of the property from the tax sale, and that the redemption was for the benefit of all the defendants, as well as plaintiff. Four defendants, the children of Lawrence and Jessie Epley, in addition to answering the amended complaint, filed a counterclaim, substantially to the same effect as their answer. They asked the entry of a decree finding that plaintiff was seized and possessed of a dower interest in the property; that Jessie Epley had a life estate therein, determinable upon the death of Lawrence Epley, and that the remainder of the title was vested in the counterclaimants, subject to being divested upon one or more of them predeceasing their father. Plaintiff answered the counterclaim.

The decree, entered March 1, 1943, adjudged that plaintiff is the owner of the property for the life of Lawrence Epley; that the latter's children are the owners of the remainder interest in the property, after his death, subject to being divested in the event of the birth of other children to Lawrence Epley. Observing, in ‘Remarks of Trial Court,’ that ‘Their rights as remaindermen remain fixed by...