Penn v. Heisey

• Decision Date: 31 December 1857
• Citation: 19 Ill. 295,1857 WL 5710,9 Peck 295,68 Am.Dec. 597
• Parties: JULIUS A. PENN AND WIFE, Plaintiffs in Error,v.DAVID W. HEISEY, Defendant in Error.
• Court: Illinois Supreme Court

19 Ill. 295
1857 WL 5710 (Ill.)
68 Am.Dec. 597
9 Peck (IL) 295

JULIUS A. PENN AND WIFE, Plaintiffs in Error,
v.
DAVID W. HEISEY, Defendant in Error.

Supreme Court of Illinois.

December Term, 1857.

ERROR TO EDGAR.

If it appears that the land of a deceased party was regularly sold by a guardian, by authority of law, though the sale was not confirmed, but no complaint appears against the fairness of the transaction, the monies having been faithfully applied--a part in the acquisition of other lands, which the children subsequently conveyed--the minors will be estopped in equity, after long acquiescence, from proceeding in ejectment to recover the land sold by the guardian, from an innocent purchaser, not immediately connected with that sale.

THIS was a proceeding instituted on the chancery side of the Edgar Circuit Court, by David W. Heisey against Julius A. Penn and Eliza C. Penn, John C. Minor, Thomas Brock, Catharine Brock, St. Clair Sutherland, and George Stein.

The bill alleges title to lot No. 33, in the town of Paris, in Edgar county, by purchase from said George Stein, who purchased of St. Clair Sutherland, who purchased from one James Hall, who held a sheriff's certificate of purchase for the same for the use of the president, directors and company of the Bank of Illinois, who obtained judgment against John Sutherland, who had purchased said lot from one Gideon Minor, guardian of the minor heirs of Oliver Minor, deceased. That the said Julius A. Penn, who has intermarried with Eliza C. Minor, one of the wards of said Gideon Minor, and heiress of said decedent, Oliver. That, notwithstanding the sale by guardian, the said Julius A. Penn, in right of his wife Eliza, had instituted suit to recover possession of said lot, denying said complainant's title thereto, and concludes with a prayer that Julius A. Penn and Eliza C. Penn be enjoined, etc., from further proceeding in their suit in ejectment, and that a commissioner be appointed

[19 Ill. 296]

to execute said David W. Heisey a proper deed of conveyance for said lot, and that said title be quieted, etc.

This bill was accompanied with various exhibits as set out in the record, being copies of deed from Gideon Minor, guardian, etc., to John Sutherland; the deed of conveyance from the sheriff of Edgar county to St. Clair Sutherland; the deed of St. Clair Sutherland to George Stein, and the conveyance from George Stein to David W. Heisey.

Summons was served on Thomas Brock, and Julius A. Penn and Eliza C. Penn, George Stein and John E. Minor, were brought in by publication, there appearing in the record no notice to or service on Catharine Brock or St. Clair Sutherland, although a guardian ad litem was appointed for Catharine Brock, who filed his answer, October 20th, 1854.

An order, stating that a demurrer was filed by the adult defendants in court, (except John E. Minor,) appears in the record.

Afterwards, at the April term, A. D. 1855, of the Edgar Circuit Court, a demurrer was filed by defendants.

This demurrer was afterwards, at the April term, A. D. 1856, of said court, overruled.

At the October term, A. D. 1856, defendants, Julius A. Penn and wife, answered said bill, the oath thereto being waived, generally denying the allegations of the bill, and the cause was heard upon bill, answer, depositions, exhibits and oral evidence, reduced to writing at the time, and certified by the judge of the...