Reynolds v. Mccurry

• Decision Date: 30 September 1881
• Citation: 100 Ill. 356,1881 WL 10630
• Parties: CHARLES E. REYNOLDSv.MARY ANN MCCURRY et al.
• Court: Illinois Supreme Court

100 Ill. 356

1881 WL 10630 (Ill.)

CHARLES E. REYNOLDS

v.MARY ANN MCCURRY et al.

Supreme Court of Illinois.

Filed at Springfield Sept. 30, 1881.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Morgan county; the Hon. CYRUS EPLER, Judge, presiding.

Messrs. BROWN, KIRBY & RUSSELL, for the appellant:

The whole proceeding in which the sale was made is void, for want of jurisdiction of the subject matter. It is a proceeding for partition where there was but one heir. The widow had no estate with the heir. She was not a co-tenant, but held a dower interest only. A tenant in dower has no right to demand a partition. Freeman on Partition, 523, 544; Wood v. Chute, 1 Sandf. Ch. 200; Coles v. Coles, 15 Johns. 320; Loyd v. Malone, 23 Ill. 43.

No act done or sanctioned by the guardian can bind a ward as a ratification; nor will he be held to affirm the sale merely on the ground that during his minority the proceeds were applied to his use or for his benefit. Requa v. Holmes, 26 N. Y. 338; Wilkinson v. Filby, 24 Wis. 441; Freeman on Judicial Sales, 70.

In the absence of all fraud, a court of equity can not release a purchaser at a judicial sale on the ground that the title fails. The maxim caveat emptor applies the same in equity as at law in respect to such sales. Holmes v. Shaw, 78 Ill. 578; Bassett v. Lockard, 60 Id. 164; Bishop v. O'Connor, 69 Id. 431; Roberts v. Hughes, 81 Id. 130.

An infant who is aggrieved by a decree in chancery may file an original bill for redress. Loyd v. Malone, 23 Ill. 43. See, also, Hodgen v. Guttery, 58 Ill. 431; Gage v. Billings, 56 Id. 268; Gage v. Rohrbach, 56 Id. 262.

Messrs. KETCHAM & HATFIELD, for the appellees:

It is but equitable that if the sale be set aside, it should be upon the repayment of the purchase money paid by the purchasers. Wickiser v. Cook, 85 Ill. 68.

The purchaser is not bound to see to the application of the purchase money, nor that the guardian rendered a true account. Mulford et al. v. Beveridge et al. 78 Ill. 460.

Mr. JUSTICE MULKEY delivered the opinion of the Court:

Charles E. Reynolds, by his guardian, Ralph C. Curtis, on the 5th of March, 1879, filed in the Morgan county circuit court a bill in chancery against appellees, setting forth, in substance, that his father, Abraham Reynolds, died intestate on the 12th of October, 1868, leaving him surviving, his widow, Mary Ann Reynolds, now Mary Ann McCurry, and complainant, an only child, then about two years old; that the said Abraham, at the time of his death, was the owner of personal property which the administratrix sold for $6758.13, and real estate worth from $11,000 to $12,000, being 250 acres of farming land in Morgan county; that on the 22d day of April, 1871, one Harry Rembach was appointed guardian of complainant, and received as his share of the proceeds of the personal property, after payment of debts, costs, etc., $2269.18, which Rembach converted to his own use; that Rembach, with the design of injuring complainant and depriving him of his inheritance, conspiring with the widow of the said Abraham Reynolds, on the 4th day of August, 1871, filed in the circuit court of Morgan county an ex parte petition for the assignment of the widow's dower, and for the partition of said lands; that notwithstanding the petition showed upon its face the complainant was the sole owner in fee of said lands, subject to the widow's dower, the court, nevertheless, by its order, directed a partition thereof, and for that purpose appointed commissioners, who reported the lands not susceptible of partition, and thereupon the court ordered the lands sold and the proceeds divided between the guardian of complainant and the widow of the said Abraham Reynolds, which was accordingly done; that so much of the proceeds of the sale of said lands as came into the hands of the said Rembach, as guardian of complainant, was appropriated and converted by the said Rembach to his own use; that complainant never received any part of said fund, nor derived any benefit or advantage therefrom. The bill is brought against the late widow of the said Abraham Reynolds, and the purchasers at the so-called partition sale, and their assignees, and prays that the said partition proceedings and sale of the lands be set aside and declared null and void, that complainant be restored to the possession of the same, and that the purchasers and their assignees be required to account for the rents, issues and profits.

To this bill the court below sustained a general demurrer, and entered a decree dismissing the same, and the appellant brings the record to this court for review.

It is clear, from the facts admitted upon the record, that at the time of these so-called partition proceedings appellant was the sole and exclusive owner of the lands in question, subject to the widow's dower, which was then unassigned. There was no foundation for any other claim upon them. After the payment of all debts and expenses of administration there was a surplus of the personal estate belonging to complainant, which passed into the hands of his guardian, amounting to $2269.18, so that there was not the slightest occasion for selling these lands for his support or maintenance. Indeed, it is not pretended they were sold for any such purpose, and nothing of that kind is intimated in the proceedings under which the sale was made. While the widow had the right to have her dower assigned in the lands, she had no estate in them, nor was she in any sense a co-tenant with the complainant.

In discussing this subject, Lomax, in his Digest of the Law of Real...