Noble v. Tipton

• Decision Date: 23 October 1906
• Citation: 222 Ill. 639,78 N.E. 927
• Parties: NOBLE v. TIPTON et al.
• Court: Illinois Supreme Court

222 Ill. 639

78 N.E. 927

NOBLE

v.TIPTON et al.

Supreme Court of Illinois.

Oct. 23, 1906.

Appeal from Circuit Court, Carroll County; O. E. Heard, Judge.

Action by Elizabeth Tipton and another against Thomas Noble and others. From a decree in favor of complainants, defendant Thomas Noble appeals. Affirmed.

C. L. Hostetter, for appellant.

Ralph E. Eaton, for appellees.

HAND, J.

This was a bill in chancery filed on the 15th day of June, 1904, in the circuit court of Carroll county, by Elizabeth Tipton and Ada Ostandere, against the other sons and daughters of John Noble, deceased, who died testate in said county on May 22, 1904, to set aside a deed bearing date August 24, 1897, from John Noble to his son Thomas Noble, purporting to convey to said Thomas Noble 503.56 acres of farm lands located in said county, on the ground said deed had not been delivered by said John Noble to Thomas Noble in the lifetime of said John Noble, and for the partition of said lands among the three sons and six daughters of said John Noble. Thomas Noble answered said bill and filed a cross-bill, in which cross-bill he alleged, as he had alleged in the answer filed by him to the original bill, that said deed, on the day of its date, was deposited with Joseph S. Miles, the cashier of the First National Bank of Mt. Carroll, by John Noble, to be delivered to him upon the death of John Noble, and that, relying upon the validity of said deed and his ownership of said lands, he had made large expenditures of money in improving said lands by the erection of buildings thereon, and that subsequent to the death of John Noble the deed had been delivered to him by said Joseph S. Miles and recorded in the office of the recorder of deeds of said Carroll county, and that by reason of such delivery the title to said premises vested in him, and asked the court to declare said deed was duly executed and delivered, and that by reason thereof the other sons and daughters of said John Noble were barred from claiming any interest in said lands. The complainants in the original bill and three of the other heirs answered the cross-bill, denying the delivery of the deed, and the other sons and daughters disclaimed or made default, and upon a hearing the court found that the deed was made and acknowledged but that it was never delivered, and entered a decree declaring the deed null and void for want of delivery, and ordered that said lands be partitioned among the sons and daughters of said John Noble, and that a credit of $3,000 be allowed to Thomas Noble upon certain notes executed by him to John Noble, which were then held by him as executor of John Noble, deceased, and which notes were for the repayment of moneys which he had expended in improvements placed by him upon the said lands, and dismissed the cross-bill of Thomas Noble for want of equity. Thomas Noble prosecuted an appeal from that decree to this court, where it was determined (Noble v. Tipton, 219, Ill. 182, 76 N. E. 151) the trial court properly held said deed was not delivered and rightfully ordered said lands partitioned among the sons and daughters of John Noble, deceased, but erred in allowing a credit of $3,000 to Thomas Noble upon his said notes in payment and satisfaction of his claim for improvements placed by him on said lands, and that the court, instead of allowing said credit to Thomas Noble, should have provided in its decree that the portion of the lands upon which said improvements were situated, if practicable, in the division and allotment of said lands, should be set off and allotted to said Thomas Noble, and if a partition of said lands could not be made between the parties in interest so that Thomas Noble should receive the portion thereof upon which said improvements were situated, without manifest injury to the other parties in interest, that then and in that case Thomas Noble be reimbursed for the increased value of said lands caused by the improvements placed thereon by him, and the decree was reversed and the cause remanded to the circuit court for further proceedings in accordance with the views expressed in the opinion of this court filed in this cause upon said appeal. A certified copy of the mandate of this court was filed, and the cause, upon notice, redocketed in the circuit court, whereupon the solicitor for the complainants entered a motion in said cause that the circuit court enter a decree in accordance with the opinion and mandate of this court, and the solicitor for Thomas Noble entered a motion that Thomas Noble be permitted to withdraw from the files the deed from John Noble to Thomas Noble and also the promissory notes of Thomas Noble, and that Thomas Noble be allowed to file a supplemental answer showing that four of his brothers and sisters, since the opinion of this court had been filed in said cause, had conveyed to him all their interest in said lands, and that said Thomas Noble be permitted to amend his answer to the original bill, and his cross-bill, by striking out all averments in said answer and cross-bill to the effect that said deed from John Noble to Thomas Noble had been delivered to said Thomas Noble, and by inserting in said answer and cross-bill, in lieu of such averments, that said deed was a testamentary disposition of said lands by said John Noble to Thomas Noble, and asked the court to continue the hearing of said cause until said deed could be admitted to probate as the last will and testament of John Noble, deceased, in the county court of Carroll county, whereupon the court permitted Thomas Noble to withdraw said deed and promissory notes from the files upon filing certified copies in lieu thereof, also to file a supplemental answer showing that he had acquired by quitclaim deed the interests of four of his brothers and sisters in said lands since the decision of this case in this court upon the former appeal, but denied him leave to amend his answer to the original bill or his cross-bill, and entered a decree finding that said John Noble died seised of said lands, that the deed from John Noble purporting to convey said premises to Thomas Noble was null and void for want of delivery, that Elizabeth Tipton, Ada Ostandere, Anna Herrington, and Maggie Fickes were each the owner of an undivided one-ninth part of said premises exclusive of the value of the improvements placed thereon by Thomas Noble, and that Thomas Noble was the owner of an undivided five-ninths part of said premises including the improvements placed thereon by him, and appointed commissioners to make partition of said premises between said parties, and ordered that in the division and allotment of said lands the commissioners set off and allot to Thomas Noble, if the same could be done without manifest injury to the rights of the parties in interest, the portion of said premises as and for his share upon which were located the barns, corncribs, granaries, scalehouse and windmills erected thereon by him, from which decree Thomas Noble has again prosecuted an appeal to this court.

The main contention of the appellant as a ground of reversal on this appeal is that the circuit court erred in refusing to permit him to amend his answer to the original bill, and his cross-bill, by striking out from said answer and cross-bill the averments therein contained that the deed from John Noble to him had been duly acknowledged and delivered and was a valid conveyance to him of said lands by his father, John Noble, and inserting therein, in place of said averments, that said deed was a testamentary disposition to him of said lands by said John Noble, and not a deed of conveyance to him of said lands, as he had averred in his answer to said original bill and in his cross-bill. Upon the first trial of this cause the appellant, Thomas Noble, filed his answer to the original bill, and his cross-bill, upon the theory, and the case was tried by him upon the theory that said deed, bearing date August 24, 1897, was a valid deed of conveyance from his father to him of said lands. The issue made and tried at that time was, had said deed been delivered by John Noble to Thomas Noble in the lifetime of John Noble, so as to vest the title to said lands in Thomas Noble? The trial court held the deed was null and void for want of a delivery. When the case was here before it was said (page 184 of 219 Ill., and page 152 of 76 N. E.): ‘There was a hearing of the evidence, and the court entered a decree finding that the deed was made and acknowledged but that it was never delivered,’ and after an exhaustive discussion of the law and evidence involved in the decision of the case it was further said (page 187 of...