Roof v. Rule

• Decision Date: 23 April 1932
• Docket Number: No. 21062.,21062.
• Parties: ROOF et al. v. RULE et al.
• Court: Illinois Supreme Court

348 Ill. 370

180 N.E. 807

ROOF et al.

v.RULE et al.

No. 21062.

Supreme Court of Illinois.

April 23, 1932.

Suit by Jackson A. Roof against Keiturnia Ann Rule and others, wherein the heirs of Jackson A. Roof were substituted as complainants on his death. From a decree ordering partition of certain real estate, the defendants Hannah Hovey and others appeal, and the defendant named and the complainants assign cross-error.

Decree reversed, and the cause remanded.

Appeal from Circuit Court, Mason County; A. Clay Williams, judge.

Joseph E. Barnes, of Havana, Robert H. Allison and William A. Potts, both of Pekin, for appellants.

Scott W. Lucas and Lyman Lacey, Jr., both of Havana, for appellees.

EDMUNDS, C.

This is an appeal from a decree of the circuit court of Mason county ordering partition of certain real estate.

On July 18, 1862, Pollard Simmons was seized of the property in question. The bill alleges that on said date he conveyed it to his daughter, Harriet E. Rule, and her bodily heirs, ‘as by the said deed when produced and by a certified copy of the same hereto attached and marked ‘Exhibit A’ and made a part of this bill for greater certainty will more fully appear.' The premises of Exhibit A read as follows: ‘This indenture, made this eighteenth day of July in the year of our Lord one thousand eight hundred and sixty-two, between Pollard Simmons, of Mason county, Illinois, of the first part, and Harriet E. Rule, of the same county and State, of the second part: Witnesseth, that the said party of the first part, for and in consideration of eight hundred dollars and _____ cents in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged and the said party of the second part forever released and discharged therefrom, has granted * * * and by these presents do grant * * * unto the said party of the second part, and to her heirs and assigns forever, all the following described lot, piece or parcel of land,’ etc. The habendum reads as follows: ‘Together with all and singular the hereditaments and appurtenances thereunto belonging, * * * to have and to hold the said premises above bargained and described, with the appurtenances, unto the said party of the second part, her bodily heirs and assigns forever.’ Then the exhibit proceeds: ‘And the said Pollard Simmons, party of the first part, his heirs, executors and administrators, do covenant, grant, bargain and agree to and with the said party of the second part, _____ heirs and assigns, that * * * and the above bargained premises, in the quiet and peaceable possession of the said party of the second part, her bodily heirs and assigns, against all and every person or persons lawfully claiming * * * will warrant and forever defend.’

On January 4, 1863, for a consideration of $1,100, ‘John A. Rule and H. E. Rule, his wife,’ executed a warranty deed conveying the land in fee to Harvey J. Hedrick. All of the defendants named in the bill, except Keiturnia Ann Rule, are in possession of the premises, claiming by the through a connected chain of conveyances from Hedrick. Mrs. Rule died August 17, 1926. Four children were born to her. Two of these children died during her lifetime and before the death of her husband, John A. Rule, leaving no descendants. One daughter, Sophia Roof, died during the lifetime of Mrs. Rule, leaving as her heirs her husband, Jackson A. Roof, her mother and her sister, Keiturnia Ann. Keiturnia is still living, but is an incompetent person, being represented in this proceeding by a conservator. Roof was the original complainant in this suit. He died after filing the bill and heirs were substituted as parties complainant. The prayer of the bill is that the premises be partitioned between Keiturnia and the heirs of Roof and that all other parties be decreed to have no interest therein.

The chancellor found that the deed executed by Simmons conveyed the property to his daughter, Harriet E. Rule, ‘and her bodily heirs'; that Harriet, by reason of the statutes of this state, became seized of the property for her natural life only, with a vested remainder in fee in her children; that after the execution by her of the warranty deed to Hedrick she became vested by inheritance from her three deceased children with an undivided 655 20/241920 of each of the tracts into which the property was divided by conveyances from Hedrick; that by reason of the covenants in her deed this after-acquired title passed to, and now is vested in fee in, the grantees of Hedrick; that certain of said grantees have made substantial improvements upon the property, and in the partitioning that portion of the premises upon which the improvements have been made should, if possible, be set off to said grantees; and that Keiturnia Ann Rule and the heirs of Jackson A. Roof are entitled to the other interests in the property. The decree ordered partition to be made among the several parties according to their respective rights and interests therein. The appeal was brought to this court by the defendants claiming under the deeds from Hedrick, and cross-errors have been assigned by counsel for Keiturnia and the heirs of Roof.

Appellants take the position that the deed from Simmons to Harriet E. Rule should be construed to...