Oliver v. Oliver

• Decision Date: 17 February 1899
• Citation: 53 N.E. 304,179 Ill. 9
• Parties: OLIVER v. OLIVER et al.
• Court: Illinois Supreme Court

179 Ill. 9

53 N.E. 304

OLIVER

v.OLIVER et al.¹

Supreme Court of Illinois.

Feb. 17, 1899.

Appeal from circuit court, Livingston county; John H. Moffet, Judge.

Bill by Florence Ross against Revilo Oliver and others. From the decree, Revilo Oliver appeals. Affirmed.

Tipton & Tipton and H. P. Beach, for appellant.

Ezra M. Prince and Charles L. Capen, for all appellees except Edward R. Oliver and Henry H. McDowell.

Henry H. McDowell, for appellee Edward R. Oliver.

CARTER, C. J.

These appeals by Revilo Oliver were taken from decrees entered by the circuit court in the same cause in chancery, were argued here together, and will be considered together.

The original bill was filed in 1892 by Florence Ross and another, as heirs at law of Franklin Oliver, deceased, to set aside certain conveyances of land by said Franklin, in his lifetime, to Lewis E. Payson. The other heirs of said Franklin, including the appellant in these appeals, Revilo Oliver, were made defendants, and answered the bill, and filed their cross bill, claiming interest and title to the property as such heirs, and praying, as in the said original bill, that said conveyances be set aside. The bill and cross bill were, on the hearing, dismissed by the chancellor; but on error to this court the decree was reversed and the cause remanded, with directions to the court below to enter a decree in accordance with the views expressed by this court in the decision of the case. See Ross v. Payson, 160 Ill. 349, 43 N. E. 399. After the cause was redocketed in the circuit court a decree was entered as directed, setting aside certain conveyances of real estate of said Franklin Oliver for 780 acres of land, and requiring said Payson to account for certain rents and profits. There were certain claims which had been allowed against the estate of Franklin Oliver, and other claims of differentparties, affecting the interests of some, only, of the heirs; and it seems to have been thought advisable by all the parties in interest, and by the court, that the estate in litigation should be vested in a trustee. The court, therefore, in its decree, appointed one Torrence as trustee; and the decree provided that Payson should convey the lands in controversy to the trustee, and that the title of the heirs should also be vested in such trustee, who was also authorized to collect and receive the rents and profits, and all moneys to be accounted for by paid Payson. The decree also provided for the filing of a supplemental bill for the division of the property among those found to be entitled. No appeal or writ of error was prosecuted to reverse that decree, and it remains in full force and effect. Afterwards, on the 18th day of March, 1898, the supplemental bill was filed (the greater number of the heirs, including the appellant, joining as complainants) for a partition and division of the property; and later this bill was amended by striking out the names of the appellant and others as complainants, and making them defendants to the bill. Thereupon such newly-made defendants demurred to the bill, and urged as the ground of demurrer that the title to the land was vested in one Brown (whom the court had appointed trustee to succeed said Torrence), as trustee, subject to the order of the court, and that said lands were not held by said heirs ‘in joint tenancy, tenants in common, or co-parcenary,’ and were not subject to partition. The bill was thereafter amended by alleging therein that the said entire estate was in the charge, custody, and hands of the court, and by adding a prayer in the alternative that either partition be decreed, or, inasmuch as it was for the interest of all parties that the said premises be sold under the order and direction of the court, either by said trustee, the master in chancery, or some other discreet person to be appointed by the court, and upon such terms, conditions, and requirements as the court should think proper, and that such sale be reported to the court for its further action. The said demurrants, including appellant, then answered the amended supplemental bill, and, among other defenses, alleged that under the final decree setting aside the conveyances to Payson the title had been vested in a trustee appointed by the court, and that the whole estate was held in trust by him for the heirs of the said Franklin Oliver, and denied that the lands were held by the heirs as tenants in common or in joint tenancy or in co-parcenary, and denied that they were subject to partition. The answer also denied the right of sale until the rights and interests of all the parties had been finally settled and determined, and then set up the alleged equitable lien of Revilo Oliver, the appellant, upon the said estate, arising by virtue of a judgment for $7,781 and costs recovered by him against his father, Franklin Oliver, in the McLean circuit court, on February 14, 1881, and averred that provision should first be made for the payment of said judgment, interest thereon, and costs, before any partition or distribution should be made among the heirs. It was further alleged in the answer that the appellant had commenced proceedings by scire facias in the McLean circuit court, where the said judgment was rendered, to revive the judgment, and that they were still pending. See Oliver v. Oliver, 178 Ill. 527 53 N. E. 303, for the proceedings in, and decision of, that case. Appellant also filed his intervening petition, in which he set up said judgment, and alleged, that he caused execution to be issued upon it within one year after its rendition, and during the lifetime of Franklin Oliver, to the sheriff of Livengston county, where said lands were situated, and that the execution was returned ‘No...