Paine v. Root

• Decision Date: 12 May 1887
• Citation: 13 N.E. 541,121 Ill. 77
• Parties: PAINE v. ROOT.
• Court: Illinois Supreme Court

121 Ill. 77

13 N.E. 541

PAINE

v.ROOT.

Supreme Court of Illinois.

May 12, 1887.

Appeal from appellate court, Second district.

J. T. Kenworthy, for Lyman Paine, appellant.

H. Bigelow, for John Root, appellee.

MULKEY, J.

It appears from the record before us that some time before 1853 there was formed in Henry county, this state, a voluntary association for the promotion of religious, social, and business objects known as the ‘Bishop Hill Society.’ By an act of the legislature, approved January 17, 1853, the society was incorporated under the name of the ‘Bishop Hill Colony;’ the corporate company succeeding to all the society's property rights. The company seems to have been managed very successfully for a number of years, during which time it became the owner of a vast amount of property, particularly real estate; but in doing so it had incurred a mortgage debt of $50,000, together with other indebtedness. Factions and issensions, however, finally sprung up in the society, which led to a division of the property of the company among the members, except what was supposed to be sufficient to pay off and discharge the company's indebtedness, which was left in the hands of the trustees of the company for that purpose. After this, the members of the colony held their allotments in severalty, subject to whatever conditions were imposed by the terms of the allotment.

The foregoing is but an imperfect and much condensed account of the beginning, progress, and practical dissolution of the society out of whose affairs the present litigation has its origin. But even this imperfect outline has no practical bearing upon the real question to be determined. The trustees of the colony having failed to apply the property left in their hands to the payment of the company's debts as they should have done, and otherwise neglected the performance of their trust generally, certain members of the colony, suing on their own behalf as well as that of other members, on July 27, 1868, filed a bill in the Henry county circuit court against the Bishop Hill Colony, its trustees, and certain other parties, charging the trustees with various breaches of duty, and praying that they be required to account for all money and property that had come into their hands; that certain mortgages and judgments be canceled and set aside as fraudulent; that the affairs of the company be closed up, and the corporation dissolved. Numerous orders and so called decrees were from time to time entered in the cause; even a cursory examination of which, we think, fully justifies the claim of appellant that it is ‘a case sui generis.’ Under the compendious title of ‘The Bishop Hill Colony Case,’ after the manner of Dickens' celebrated case of Jarndyce v. Jarndyce, it has been ‘dragging its slow length along’ for a period of over 18 years, and, so far as we are able to perceive, those who have been chiefly benefited by it are the immediate parties to the suit, their counsel, and the officers of the court; notable the master in chancery, who has received some $9,000 out of the fund as fees in the case.

Without going into further detail upon this subject, and coming at once to the facts directly affecting the present inquiry, it appears that the appellant, Lyman M. Paine, on the twenty-fifth of September, 1882, filed a petition in the said Bishop Hill Colony Case, setting forth that by virtue of ‘decrees' entered in said cause April 25 and July 28, 1879, and prior thereto, William H. Gest, special master, sold to Charles C. Bonney, for $2,868.50, certain lands, describing them; that the master, on April 14, 1881, executed a deed to Bonney for the purchased premises, and that the latter conveyed the same to petitioner, July 28, 1881; that appellee, John Root, being in possession of the premises, after demand, refuses to surrender the possession thereof to petitioner. After setting up various matters and things not necessary to repeat here, the petition concluded with a paryer for a writ of assistance. On the hearing, the circuit court made an order awarding the writ as prayed. The...