Roberts v. Dazey
| Decision Date | 20 June 1918 |
| Docket Number | No. 12105.,12105. |
| Citation | 119 N.E. 910,284 Ill. 241 |
| Parties | ROBERTS et al. v. DAZEY. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Shelby County; J. C. McBride, Judge.
Bill by Mary Ellen Roberts and others against Elizabeth Dazey. Decree for complainants, and defendant brings error. Affirmed.
Whitaker, Ward & Pugh, of Shelbyville, for plaintiff in error.
A. J. Steidley and George B. Rhoads, both of Shelbyville, for defendants in error.
This is a bill filed by defendants in error in the circuit court of Shelby county for the partition of about 22 acres of land in that county. A demurrer filed by Elizabeth Dazey was overruled and a decree entered for the partition of the premises as prayed in the bill. This writ of error has been sued out to review the decree of the circuit court.
On July 5, 1894, Elizabeth Hendricks owned the land in question. She was a widow, then having an aged stepmother, Eliza Walters, and two living children, defendants in error, Mary Ellen Roberts and Martha Elizabeth Weger. Two other of her children had died prior to that time, one leaving a son, Homer Parris, and the other leaving a daughter, Belle Hoke. On the last-mentioned date, Elizabeth Hendricks made a set of deeds conveying to her two daughters and said two grandchildren each a tract of land. Each of these deeds, except the one to Homer Parris, contained a provision for the payment by the grantee of $10 per year to the stepmother, Eliza Walters, during Eliza's lifetime. Each deed to the grandchildren contained certain other conditions in case of the death of the grantee before reaching 21. The deed to the granddaughter, Belle Hoke, conveyed the 22 acres here in question. It was on a printed statutory short-form warranty blank, and recited that the grantor, Elizabeth Hendricks, in consideration of one dollar and natural love and affection ‘and the performance of the conditions named by the grantee,’ conveyed and warranted to Amanda Belle Hoke the real estate in question. It then continued as follows:
‘This deed to be valid only upon the condition named herein: First, that said grantee shall pay or cause to be paid to Eliza Walters the sum of $10, to be paid annually on or before the 25th day of December during the natural life of said Eliza Walters, and failure to comply with any or all of the conditions of this deed shall render it null and void, and also if the said grantee herein die before attaining the age of twenty-one years the said land hereby conveyed shall revert to Mary Ellen Roberts and Martha Elizabeth Hendricks.’
Amanda Belle Hoke (called in the briefs Belle Hoke and so called in this opinion) died May 9, 1913. She was about 4 months old when the deed in question was executed and was less than 21 years old when she died. Her father died in 1905, and her only heir at law was her father's father, Wilfred Hoke. Wilfred Hoke deeded the premises in question to Elizabeth Dazey, plaintiff in error here. Counsel for plaintiff in error argue that the deed to Belle Hoke gave the title to her in fee simple and that upon her death it descended to her only heir, her grandfather, and by his deed it is now vested in plaintiff in error. Elizabeth Hendricks died in 1901. The stepmother, Eliza Walters, died a few days after the deeds were executed, and no contention is made by counsel that this deed became void on account of the failure to pay said annual payment to the stepmother.
One of the principal contentions of counsel for plaintiff in error appears to be that the provision in said deed whereby the land was to ‘revert’ to the two daughters, defendants in error here, was a reservation and that a reservation made to a stranger to the deed is void, and as defendants in error were strangers to the deed the provision as to the title reverting to them is void.
‘A reservation is the creation, in behalf of the grantor, of some new right issuing out of the thing granted, usually an incorporeal hereditament-something which did not exist as an independent right before the Grant.’ Tiedeman on Real Property (3d Ed.) § 608.
‘It is created by and for the benefit of a grantor or his heirs and not for a stranger.’ 6 Am. & Eng. Ency. of Law (2d Ed.) 515; 3 Washburn on Real Property (6th Ed.) § 2363.
‘Generally, it is declared that a reservation must be in favor of the grantor or party executing the conveyance and not to a stranger; but, as there are some cases holding or intimating the contrary, a better statement of the rule is that a reservation in a deed to a stranger being by the weight of authority invalid as a reservation, the tendency of the courts is to effectuate the intention of the grantor by treating it as an exception.’ 8 R. C. L. 1091, 1092, and cases cited.
The provision in the deed in question which counsel for p...
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...streets and alleys, the title is made to pass to the owners of the abutting property. See the reasoning of this court in Roberts v. Dazey, 284 Ill. 241, 119 N. E. 910. In upholding the validity of a similar statute the Supreme Court of Missouri, in Thomas v. Hunt, supra, said (134 Mo. on pa......
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