Randolph v. Hinck
| Citation | 123 N.E. 273,288 Ill. 99 |
| Decision Date | 05 June 1919 |
| Docket Number | No. 12568.,12568. |
| Parties | RANDOLPH v. HINCK. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Randolph County; J. F. Gillham, Judge.
Suit in ejectment by Mabel Hartzell Randolph against John Hinck. From judgment for plaintiff, defendant appeals. Affirmed.
J. Fred Gilster, of Chester, and Edward Robb, of Perryville, Mo., for appellant.
H. Clay Horner, of Chester, for appellee.
This is a suit in ejectment. The action was originally begun by appellee as a forcible entry and detainer suit, but an amended declaration was filed, and the court decided on the first hearing that the cause was one in ejectment. On the original trial in the circuit court judgment was rendered in favor of appellee, and an appeal was taken to this court, where the judgment was affirmed. Randolph v. Hinck, 277 Ill. 11, 115 N. E. 182. The appellant thereafter, under the provisions of the ejectment statute, made his motion for a new trial in the circuit court, which was allowed, and a second trial was had under the issues joined in the ejectment proceeding. Judgment was again entered in favor of appellee, and this appeal followed.
The facts with reference to the land here in controversy, as to its situation and surroundings and the claims of the parties thereto, are set forth quite fully in the opinion of this court in the former case, and need not be here restated.
Counsel for appellant claim that the former suit was tried originally as if it were a forcible entry and detainer suit, and that much of the proof introduced on this hearing was not heard in the former proceeding. On the former hearing appellant based his claim almost wholly upon so-called ‘water rights,’ and admitted that the record title of the property was in appellee, while here counsel for appellant chiefly base their argument upon the claim that appellee has not shown a title justifying a recovery in ejectment proceedings. They claim, however, that on this proceeding there is a more complete showing as to the washing away of part of the land in controvery, and state that the suit formerly tried and submitted did not raise the question in the same way it is raised here. We cannot so hold. On the first trial the question as to the water rights in the land, largely based on the question of changes in the channelof the Mississippi river, and accretion, reliction, and submergence with reference to the land affected, was gone into thoroughly, and this court held that the land described and conveyed in the chain of title was identical with the land on this island, known as Hinck Island, and could be identified and located by situation, extent, and boundary from the original survey. The additional evidence introduced on this second hearing is largely of a cumulative nature, and is not such as to materially change our views as to the right to the land with reference to changes in the channel by accretion, reliction, or submergence.
Under the statute, in the circuit court the parties are allowed a new trial as a matter of right, if they comply with the provisions of said statute, but this right is confined to the trial court. Lowe v. Foulke, 103 Ill. 58. When a matter is brought to this court, every question which might have been raised and every objection which might have been made is settled, even in ejectment cases. ‘The doctrine of res judicata embraces not only what has been actually determined in a former suit, but also extends to any other matter which might have been raised and determined in it.’ Bradley v. Lightcap, 201 Ill. 511, 66 N. E. 546. After a full review of the authorities the same doctrine is laid down by this court in Spitzer v. Schlatt, 249 Ill. 416, 94 N. E. 504. Under these authorities we think there can be no question on this record that appellant is bound by the former decision of this court with reference to his so-called water rights in this land, and the argument of counsel for appellee that appellant is so bound on the question of the title is not without support in the decisions. We will, however, take up the question of title as if we were assuming that the decision in the former case does not control here.
On the first hearing counsel for appellant stipulated that the title was in appellee, but refused to be bound by that stipulation on the second trial, and counsel for appellee introduced documents showing, as appellee argues, the recordtitle to be in her-among other documents a deed from the master in chancery of Randolph county conveying this and other property to ‘William M. Runk, trustee’; also the will of Runk, authorizing and empowering his trustees and executors, Evelyn T. B. Runk and A. Howard Ritter, ‘to sell any or all of my real estate at public or private sale, upon such terms and conditions and for such price as they or the survivor of them may deem best, either in fee simple or for any less estate, and to make good and sufficient deed or deeds therefor,’ ect.; also a deed from Ritter, executor of the estate of William M. Runk, conveying this and other property to William Hartzell. Appellee also made proof that Evelyn T. B. Runk, executrix and trustee of the will of William M. Runk, renounced her right to serve as executrix, and the deed from Ritter states that the deed was made by him alone, because said executrix and trustee under the will had renounced her right to act. The appellee also introduced the will of William Hartzell, by which he devised this property to his daughter, Mabel Hartzell, appellee herein. The documents offered in evidence by appellee tended to show a chain of title-at least prima facie-in appellee.
There was nothing in the deed from the master in chancery of Randolph county conveying this land to William M. Runk that in any way indicated the terms upon which Runk held the property as trustee, the deed merely stating that the land was conveyed to ‘William M. Runk, trustee.’ The will of Runk was executed in 1890. On the second hearing appellant introduced a document dated in 1887, executed by Runk, in the form of a declaration of trust, wherein he declared that this land conveyed to him in the master's deed was held by him in trust for certain persons (naming them), and to be conveyed to him or his executors, administrators, and assigns when requested by such persons or their legal representatives. It is earnestly insisted by counsel for appellee that in this ejectment proceedingthis declaration of trust, which apparently was obtained by coun...
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