Osmond v. Evans

• Decision Date: 27 October 1915
• Docket Number: No. 10189.,10189.
• Citation: 110 N.E. 16,269 Ill. 278
• Parties: OSMOND v. EVANS.
• Court: Illinois Supreme Court

269 Ill. 278

110 N.E. 16

OSMOND

v.EVANS.

No. 10189.

Supreme Court of Illinois.

Oct. 27, 1915.

Appeal from Circuit Court, Kendall County; Mazzini Slusser, Judge.

Bill by Mary J. Osmond against Nellie Evans for partition. From a decree confirming a master's decision, defendant appeals. Affirmed.

Benjamin F. Herrington, of Yorkville, for appellant.

McDougall & Chapman, of Ottawa, for appellee.

CARTER, J.

This was a bill filed by appellee June 1, 1914, in the circuit court of Kendall county, for the partition of four tracts of land in that county. After the pleadings were settled a decree of partition was entered, and commissioners were appointed, who reported it impossible to partition the land, and a decree was entered ordering the master to sell. Accordingly sale was made and decree entered confirming the same. From that decree this appeal was prosecuted.

The land in question was formerly owned by Wilson Evans. Mary J. Osmond, the appellee, is the only child of Evans, and the appellant was his second wife and widow. By various deeds made after Evans' death Mrs. Osmond owned an undivided two-thirds of the land and Mrs. Evans an undivided one-third. The first and second tracts of land contained 80 acres each, the third 52.84 acres (being known as the homestead, and upon which all the farm buildings were located), and the fourth 17.55 acres of woodland. The master in his report of sale stated that he first offered the four tracts separately and received no bids, except one of $60 an acre for the woodland and one for $176 an acre for the homestead, but that he could get no bids on the 80-acre tracts unless they were combined with the homestead tract, and therefore he was compelled, in order to sell all the property, to dispose of the homestead and the two 80-acre tracts together; that after offering said tracts singly and in every other combination, and all four together, and receiving no further bids, he finally sold the homestead and the two 80-acre tracts together for $134 per acre and the woodland separately for $60 an acre. The total amount of said sale ($29,573) was more than two-thirds of the appraised value. When the master made his report of sale objections were filed by appellant, and after a hearing by the court they were overruled. At this hearing the testimony was mainly presented in the form of affidavits. The commissioners appraised the two 80's at $180 and $160 an acre, respectively, the homestead at $200 an acre, and the woodland at $75 an acre. One witness offered by appellant stated that he believed the homestead was worth $200 an acre, the 160 acres from $160 to $180, an acre and the woodland from $75 to $100 an acre. The other witness for appellant stated that the homestead was worth $176 an acre, and one 80-acre tract from $160 to $165 per acre, and the other from $140 to $145 per acre. Six witnesses testified for appellee that the land was sold for what it was fairly worth; that the two 80-acre tracts would not sell to any advantage except in connection with the homestead, as all the farm buildings were on that tract.

Appellant contends that appellee and her counsel fraudulently combined together to cause the bidding at the sale to be ‘chilled,’ and thereby prevent a sale to persons not parties to the partition suit. She contends, from her sworn exceptions to the master's report and the testimony of two witnesses, that while the master first offered the four tracts separately, he afterwards refused to receive a bid for the home place from her, or another person bidding for her, at $176 per acre. The occurrences at the sale, according to her contention, were somewhat as follows: That after each of the four tracts was put up separately, and no bid offered, except for the woodland tract, the master then offered the other three pieces together; that the bids started at $120 an acre, and after several bids finally one was made on behalf of appellee for $134 per acre; that, as the master was about to declare the property sold to appellee, appellant, through her counsel, bid $175 an acre for the homestead tract, which the master refused to receive, as he also did a bid of $176 made by another person for appellant, saying, in substance, that it was too late, as he had already offered the property separately, and would not again so offer it. The six witnesses for appellee disagreed with the statement that the master refused to receive this bid. They corroborate the statement as made by the master in his report, that after this bid of $176 was made he tried to get bids for the two 80-acre tracts, and nobody would bid on them separately or the two together, so that, if he sold all the property at that time, it was necessary for him to sell the homestead with the two 80-acre tracts.

Appellant further contends that Mrs. Osmond tried to discourage the bidding by saying, so that all persons present could hear, that she would not allow the homestead to be sold separately from the two 80-acre tracts. Appellant further contends that a conspiracy by the appellee and her counsel to prevent bidding by other parties and to injure appellant is shown by the history of a previous master's sale of this property in this same proceeding, which had been set aside by the court by agreement of all parties. The only proof on this matter outside of the exceptions sworn to by appellant is the bare statement in the record that there was such a sale. Appellant in her sworn exceptions states that at such former sale counsel for appellee stated that his client would allow her two-thirds interest to remain as a loan at 5 per cent., and as a result of this offer she (appellant) bid in the entire tract at $154 an acre, but, when she afterwards tried to make arrangements with appellee and her counsel for the loan, they refused to carry out their promise, and she was unable to raise the money to comply with her bid, and hence it was necessary to have the first sale set aside and the property readvertised.

[1] Conceding, for the purpose of the argument, that the matters contained in the exceptions are true, we do not see, on this...