Robertson v. Wheeler

• Decision Date: 12 May 1896
• Citation: 162 Ill. 566,44 N.E. 870
• Parties: ROBERTSON et al. v. WHEELER.
• Court: Illinois Supreme Court

162 Ill. 566

44 N.E. 870

ROBERTSON et al.

v.WHEELER.¹

Supreme Court of Illinois.

May 12, 1896.

Appeal from circuit court, Cook county; R. W. Clifford, Judge.

Bill by John O. Wheeler against Caroline M. Robertson and others. There was a judgment for complainant, and defendants appeal. Reversed.

Sawin & Vanderploeg, for appellants.

U. P. Smith, for appellee.

MAGRUDER, J.

The original bill in this case was a bill to foreclose a mortgage executed by M. O. Walker on May 24, 1871, to the Globe Insurance Company, upon the south half of lot 7, being a lot between Forest and Prairie avenues and Thirty-Third and Thirty-Fifth streets, in Chicago, for the purpose of securing a note of that date for $10,000, signed by said Walker, payable to the order of said insurance company five years after date, with 6 per cent. interest, payable annually, which note is alleged to have been assigned in 1875 to George F. Harding, and afterwards, on May 7, 1883, to have been assigned to the appellee, John O. Wheeler, a citizen of New York. We are satisfied that, though the appellee is the nominal complainant, the real complainant is George F. Harding. M. O. Walker died on May 28, 1874, leaving a widow, Martha A. Walker, and two sons, Samuel O. Walker and Edward S. Walker, as his only heirs at law. On January 14, 1875, Augustus L. Chetlain was appointed administrator of the estate of M. O. Walker. The original bill makes parties defendant thereto the sons, widow, and administrator aforesaid, and also the appellants Caroline M. Robertson, James D. Robertson (her husband), James Stroud, P. W. Snowhook, S. D. Ward, Thomas B. Bryan, Jennie B. Bryan, Joseph T. Anthony, and others. On February 8, 1890, an amended bill was filed in the name of appellee, which seems to be a bill with a double aspect,-so framed as to be considered a bill by a mortgagee to foreclose the mortgage above described, when looked at from one point of view, and also so framed as to be considered a bill by the holder of the legal title to remove a cloud from such title, when looked at from another point of view. Its prayer is in the alternative,-either that an account may be taken of what is due the complainant, in principal and interest, upon said mortgage, and that a sale may be made of said premises, and that out of its proceeds payment may be made to complainant of what is found to be due on said mortgage, or that, if the court see fit, a decree may be entered setting aside the deed hereinafter mentioned, from Carrie Walker, wife of said Samuel O. Walker, to the appellant Caroline M. Robertson, and declaring the same fraudulent and void as against complainant. The bill sets out certain conveyances from the owners of the equity of redemption of said mortgaged premises, executed to George F. Harding while owning said note and mortgage. Ordinarily, where the owner of the mortgage becomes also the owner of the equity of redemption, a merger takes place, and the mortgagee is the owner in fee of the whole title. If the complainant here is to be regarded, not as a mortgagee, but as the owner of the full title, and if the bill is to be treated as a bill by such owner to remove a cloud from his title, then the court below erred in taking jurisdiction of the cause, becauseit is conclusively shown that the defendants Robertson and Stroud, and those holding under them, were in possession of the premises when the original bill was filed, and also when the amended bill was filed. To maintain a bill to remove a cloud from a title, it must be alleged and proved either that the complainant is in the actual possession of the lands, or that they are unimproved and unoccupied. Lundy v. Lundy, 131 Ill. 138, 23 N. E. 337. In the case at bar the complainant was not in the actual possession of the premises, nor were they unimproved and unoccupied, at the time of filing either the original or amended bill. We do not regard the stipulation between the parties found in the record as being broad enough to amount to an agreement that the jurisdiction of the court should not be objected to. But whether the stipulation is capable of the construction claimed for it or not can make no difference, for it is well settled that jurisdiction over the subject-matter cannot be conferred upon a court by consent of parties. Leigh v. Mason, 1 Scam. 249;Beesman v. City of Peoria. 16 Ill. 484;Peak v. People, 71 Ill. 278.

The defendants below (appellants here) seek to defend against the bill, not only as being a bill to remove a cloud, but also as a bill to foreclose the mortgage in question, upon the alleged ground that said mortgage has been discharged, and is no longer a subsisting incumbrance, and that the defendants Caroline M. Robertson and James Stroud are the owners of the title, freed from the lien of the mortgage. In order to understand this contention, it will be necessary to state the history of the conveyances already referred to, and the facts in regard to the same: By deed dated September 20, 1875, and recorded September 22, 1875, Samuel O. Walker and his wife, Carrie Walker, conveyed said lot 7 and other property to Charles Fargo. By another deed, also dated September 20, 1875, and recorded September 22, 1875, Edward S. Walker conveyed said lot 7 and other property to Charles Fargo. While Charles Fargo was thus the holder of the title to the south half of lot 7 subject to the widow's dower, the administrator, Chetlain, filed a petition on April 4, 1876, in the county court of Cook county, for leave to sell real estate to pay debts owing by the estate of M. O. Walker, making Samuel O. Walker, Edward S. Walker, Martha A. Walker, Charles Fargo, and others parties defendant thereto, and thereafter, on February 8, 1877, filed an amended petition therein for the same purpose, which described said lot 7, stated that the south half thereof was subject to said mortgage for $10,000, that said Walker died leaving said widow and two sons, his sole surviving heirs, ‘and that said heirs have conveyed their interest to one Charles Fargo.’ This petition was answered by the two sons, admitting the facts, and consenting to a decree for the sale of the real estate. By deed dated March 23, 1877, and recorded on November 2, 1878, Charles Fargo and his wife conveyed said lot 7, and other property, to Carrie Walker, the wife of Samuel O. Walker. Thereupon, on August 13, 1878, upon motion of the administratrix, the petition was dismissed as to Charles Fargo. Afterwards, on August 30, 1878, a decree of sale was entered therein, ordering that said south half of lot 7 be sold for cash, subject to the widow's dower. Subsequently the administrator made his report to the county court, stating that on October 15, 1878, he struck off and sold the south half of said lot for $100 to George R. Grant, and prayed that he might be allowed to make a deed to the purchaser, and that his report might he approved. Said report was approved, and the sale confirmed, on October 22, 1878. By deed dated July 20, 1878, and recorded July 1, 1885, Carrie Walker and her husband conveyed the south half of said lot 7 to George F. Harding. By deed dated May 7, 1883, recorded July 1, 1885, George F. Harding and wife conveyed said south half of lot 7 to the appellee John O. Wheeler. By deed dated October 15, 1878, and recorded July 1, 1885, Augustus L. Chetlain, administrator, etc., conveyed the said south half of lot 7 to George R. Grant. By quitclaim deed dated February 25, 1883, and recorded July 1, 1885, George R. Grant and wife conveyed said south half of lot 7 to George F. Harding. It will be observed that none of these deeds-neither the deed from Carrie Walker to Harding, nor the deed from the administrator to Grant, nor the deed from Grant to Harding, nor the deeds from Harding to appellee, were recorded until July 1, 1885. The deed from Carrie Walker to Harding and the administrator's deed were withheld from record for nearly seven years. Before the recording of any of the foregoing deeds, the appellant Caroline M. Robertson, who had obtained deeds from Thomas B. Bryan and his wife to the said south half of lot 7 in December, 1884, and had gone into possession of the same and built a house thereon, obtained a deed, dated June 9, 1885, executed to her by Carrie Walker and her husband, conveying said south half of lot 7, which deed was recorded June 15, 1885. The deeds here mentioned are also described in Anthony v. Wheeler, 130 Ill. 128, 22 N. E. 494. In addition to said deed dated June 9, 1885, recorded June 15, 1885, executed by Carrie Walker and her husband to Caroline M. Robertson, and conveying the south half of lot 7, etc., defendants also introduced here, as they did in Anthony v. Wheeler, supra, ‘two tax deeds, one dated March 23, 1877, recorded the 26th of that month, and another dated March 31, 1881, recorded April 5, 1881; and from these, through mesne conveyances, the said Caroline Robertson on December 17, 1884, received a deed from appellants Jennie B. Bryan and husband, which was recorded December 19, 1884.’

The question which arises upon the foregoing statement of facts is this: Who owns the equity of redemption in the south half of said lot 7, which M. O. Walker owned when he died, and which descended to his two sons, Samuel O. Walker and Edward S. Walker, subject to the widow's dower? Unquestionably, the title stood in Carrie Walker on June 9, 1885, so far as the records showed. When, on that day, she deeded the property to appellant, Caroline M. Robertson, the latter obtained a good title, unless she had notice of the previous deed to Harding, or was put upon inquiry in relation thereto in such a way that she was bound to take notice of that deed. We find no proof in the record to show that she had any actual notice of the deeds to Harding, either when she bought Bryan's title, in December, 1884, or when she obtained the deed from Carrie Walker, in June, 1885. But it is said that she was put upon inquiry...