Pease v. Sanderson

• Decision Date: 20 December 1900
• Citation: 188 Ill. 597,59 N.E. 425
• Parties: PEASE et al. v. SANDERSON.
• Court: Illinois Supreme Court

188 Ill. 597

59 N.E. 425

PEASE et al.

v.SANDERSON.¹

Supreme Court of Illinois.

Dec. 20, 1900.

Error to circuit court, Cook county; E. F. Dunne, Judge.

Suit by Margaret E. Sanderson against James Pease and others. From a decree for complainant, defendants bring error. Affirmed.

Childs & Hudson, for plaintiffs in error.

Warvelle & Clithero, for defendant in error.

CARTER, J.

The defendant in error, Margaret E. Sanderson, filed her bill in the court below to vacate a sheriff's execution sale, and to set aside and remove, as a cloud upon her title, the certificate of purchase issued to plaintiff in error Charles Hudson, the purchaser at said sale, of 82 acres of land in Cook county, mentioned in the record as lots 7 and 12. It appears from the pleadings and proofs that on July 13, 1896, one Edward M. Edwards obtained a judgment in the circuit court of Cook county against George and George M. Dearlove for $4,651, and that at that time George M. Dearlove was the owner in fee simple of said land and of other tracts, and said judgment thereupon became a lien on the same. Afterwards, on November 14, 1896, by his deed of general warranty, George M. Dearlove, for the expressed consideration of $68,000, conveyed said lots 7 and 12 to said Sanderson, the defendant in error. The Dearloves had appealed from said judgment, but it was afterwards finally affirmed by this court. The plaintiff in error Hudson was the attorney of Edwards in procuring the judgment against the Dearloves, and on February 16, 1898, Edwards, who then lived in the state of Iowa, assigned the judgment to him. Afterwards, on April 7, 1898, one John B. Overmeyer, for the consideration of $100 paid to Edwards, obtained from him a written release to Sanderson of said lots 7 and 12 from the lien of said judgment, and filed it for record the next day. Hudson's assignment of the judgment was not filed for record until April 11, 1898, but on April 9th Hudson caused execution to be issued on the judgment, and placed in the hands of the sheriff, Pease, who is one of the plaintiffs in error. Sanderson served written notice on the sheriff of the release to her by Edwards of said judgment lien, and that the land was no longer subject to sale to satisfy the same, and by her agent appeared at the sale and repeated the notice; but against her protest the sheriff proceeded with the sale, and the land was sold to Hudson on his bid of $750. The court below vacated the sale, and set aside, as a cloud on the complainant's title, the certificate of purchase, and ordered Hudson to deliver it to the clerk for cancellation, and that he and Pease pay the costs. This writ of error was sued out to reverse that decree.

It is first contended that the pleadings put in issue the title of defendant in error to the land, and that the evidence showed that Overmeyer was the real owner, and that defendant in error, Sanderson, merely held the legal title in trust for him, and that, having no beneficial interest in the property, she cannot maintain her bill. It is well settled that, to sustain a bill by an alleged owner to remove a cloud from his title, he must prove title, not as against all the world, and with the same strictness as in ejectment, but by evidence sufficient to make a prima facie case of ownership. Hewes v. Glos, 170 Ill. 436, 48 N. E. 922;Rucker v. Dooley, 49 Ill. 377;Glos v. Huey, 181 Ill. 149, 54 N. E. 905;Glos v. Randolph, 138 Ill. 268, 27 N. E. 941;Hibernian Banking Ass'n v. Commercial Nat. Bank, 157 Ill. 576, 41 N. E. 918. In the case at bar the bill alleged that on November 14, 1896, George M. Dearlove was the owner in fee of the land, and on said day, being such owner, by his deed of conveyance duly conveyed the same to the complainant, who thereupon entered into, and has since remained in, possession of the same. The answers denied these allegations, and denied that the complainant was the owner of the land. The proof was sufficient to sustain the allegations of the bill.

But plaintiffs in error contend that it was shown that Overmeyer paid the whole of the consideration for the land, and that Sanderson paid nothing, and that Overmeyer had the land conveyed to her for convenience, merely, with the oral agreement that she was to convey it on his request,-in other words, that he was the beneficial owner, and that she (the ...