Sharp v. Sharp

• Decision Date: 20 December 1928
• Docket Number: No 17612.,17612.
• Citation: 164 N.E. 685,333 Ill. 267
• Parties: SHARP v. SHARP et al.
• Court: Illinois Supreme Court

333 Ill. 267

164 N.E. 685

SHARP

v.SHARP et al.

No 17612.

Supreme Court of Illinois.

Dec. 20, 1928.

Suit by John Henry Sharp against Virgil Sharp, and others. Decree for complainant, and defendant Alan L. Straus and others appeal.

Reversed and remanded, with directions.

Stone, J., and De Young, C. J., dissenting.Appeal from Circuit Court, Edgar County; Augustus A. Partlow, judge.

Norbert B. Tyrrell, of Chicago, and O'Hair, McClain & Bristow, of Paris (Charles L. Bartlett, Sherman C. Spitzer, and George Gillette, all of Chicago, of counsel), for appellants.

Donald B. Craig, James W. Craig, Jr., Craig Van Neter, and Fred H. Kelly, all of Mattoon, for appellee.

PER CURIAM.

The appellee filed in the circuit court of Edgar county an original bill in the nature of a bill of review to set aside and impeach as void a decree of that court reforming a certain deed executed by John Sharp, the appellee's grandfather, to Virgil Sharp, the appellee's father. The bill avers that the decree of reformation was entered during the appellee's minority, and that the circuit court in said cause did not have jurisdiction of him and his infant brother, Larkin Sharp. The bill in this case was exhibited within two years after the appellee reached his majority. The appellants demurred to the bill, and the demurrer being overruled they abided the same, and a decree was entered granting the prayer of the bill.

The facts are not disputed. The appellee's grandfather, John Sharp, was the owner of a farm of about 200 acres in Edgar county. On July 16, 1918, he, with his wife, executed a warranty deed to the farm to Virgil Sharp, his son, the father of the appellee, which deed was in statutory form, and conveyed the land ‘to Virgil Sharp for and during his natural life, remainder in fee simple to his bodily heirs.’ The conveyance was also made subject to a life estate in the grantor. On February 3, 1922, John Sharp filed a bill setting forth that the scrivener who prepared the deed to Virgil Sharp had misunderstood the instructions of John Sharp and had erred in reserving a life estate to the grantor and in giving Virgil a life estate with the remainder to the bodily heirs of Virgil. It alleged that it was complainant's intention to convey a feesimple title to Virgil, his son, and that he had instructed the scrivener to so draw the deed, and that he did not discover the error until some time later. The bill prayed that the deed should be reformed so as to put the feesimple title in Virgil. The appellee, his brother, Larkin, and their father, Virgil Sharp, were made defendants. Summons was issued against the defendants, and the sheriff's return of service of the summons was as follows:

‘State of Illinois, County of Edgar-ss.

‘I duly served the within by reading the same to the within named Virgil Sharp and at the same time delivering to him a true copy thereof, this 3d day of February, 1922.

‘O. M. Sizemore, Sheriff.

‘I duly served the within upon the within named Larkin Sharp and Henry Sharp by leaving a true copy thereof for them at their usual place of abode, with Virgil Sharp, a person of the age of ten years and upward, and a member of the family of the within named Larkin Sharp and Henry Sharp, and at the same time making known to him the contents thereof, this third day of February, 1922, as I am therein commanded.

‘O. M. Sizemore, Sheriff.’

To the bill, Virgil Sharp filed an answer admitting all of the allegations of the bill. A guardian ad litem was appointed for the appellee and his brother, and such guardian ad litem filed a formal answer. A decree was rendered on the bill and answer and hearing of evidence, finding that the allegations of the bill were true and decreeing the reformation of the deed so as to vest the fee-simple title to the property in Virgil. This is the decree attacked in the appellee's bill. Some time after the decree was entered, Virgil and wife conveyed the premises to one Gee, who sold the same to the appellant Straus, and the latter executed a mortgage thereon to the appellant the First Trust & Savings Bank of Bloomington, Ill.

The bill in the instant case alleges that Virgil Sharp, shown by the sheriff's return to be the person with whom the summons for the appellee was left, is the father of the appellee; that the decree in the suit to reform the deed given by the appellee's grandfather reformed the deed to convey the fee absolute to the appellee's father, and the latter was therefore a party to the proceeding whose interests were adverse to those of the appellee, and service on the appellee, by leaving a copy with his father, did not confer jurisdiction on the person of the appellee, and the appellee's answer by his guardian ad litem did not remedy the fatal defect in the decree rendered in that case. The appellee concedes that his attack on the decree in the reformation case is collateral, and that he can raise no question as against the appellants, who are innocent purchasers for value, other than that of jurisdiction. On the other hand, the appellants concede that the appellee is within his rights, if the record in the reformation case shows lack of jurisdiction of his person. The principal question in the case, therefore, is whether the court in the reformation case had jurisdiction of the appellee. It is to be said at the outset of the consideration of this question that a copy of summons for a minor defendant cannot, under the law, be left with a person who, though not a nominal complainant, is a party interested and benefited by a decree granting the prayer of the bill filed. Manternach v. Studt, 230 Ill. 356, 82 N. E. 829,120 Am. St. Rep. 310.

[2] The right of an infant to maintain an original bill for relief against a decree rendered against him during his minority, for fraud or for error appearing on the face of the proceedings, is settled in this state by many decisions, and such bill may be filed during minority or within the time fixed by statute for suing out a writ of error after the infant has attained his majority. Kuchenbeiser v. Beckert, 41 Ill. 172;Lloyd v. Kirkwood, 112 Ill. 329;Johnson v. Buck, 220 Ill. 226, 77 N. E. 163;Teel v. Dunnihoo, 221 Ill. 471, 77 N. E. 906,112 Am. St. Rep. 192;Denk v. Fiel, 249 Ill. 424, 94 N. E. 672. However, innocent third parties purchasing after the rendition of a decree, in reliance upon its validity, have a right to rely upon it, and will be protected against any errors which might cause a reversal, except errors which show that the court was without jurisdiction to render the decree.

The appellants contend that the record does not show that the Virgil Sharp referred to in the return as the one with whom service on the appellee was left is the same Virgil Sharp referred to in the bill as a party defendant and who is the father of the appellee, and it is urged that, however strongly one may suspect that such is the case, it must so appear from the record in order to overcome the presumption of validity which obtains as to all judgments and decrees of courts of general jurisdiction.

The appellee says, first, that the rule to be observed in a case of this kind is that, where a name appears twice in the decree, the presumption exists that it refers to the same person; and, second, that this particular decree shows the Virgil Sharp referred to in the sheriff's return is the same Virgil Sharp who appears as defendant in the case and who is the father of the appellee; that the decree, in referring to ‘the said Virgil Sharp,’ by the use of that language could have referred only to the Virgil Sharp who received the summons for the appellee.

The general rule is that identity of name raises a presumption of identity of person where there is a similarity of residence, trade, or circumstances. Lawson on Presumptive Evidence, 307. A man's name is the designation by which he is distinctively known in the community. He is identified by his name, rather than by any other description, and this custom gives rise to the rule that identity of names is prima facie evidence of identity of persons. People v. Lawson, 331 Ill. 380, 163 N. E. 149;Brown v. Metz, 33 Ill. 339, 85 Am. Dec. 277;Filkins v. O'Sullivan, 79 Ill. 524;Gray v. Jones, 178 Ill. 169, 52 N. E. 941;Clifford v. Pioneer Fireproofing Co., 232 Ill. 150, 83 N. E. 448;Flournoy v. Warden, 17 Mo. 435;People v. Rolfe, 61 Cal. 540;Bayha v. Mumford, 58 Kan. 445, 49 P. 601;State v. McGuire, 87 Mo. 642.

It is claimed by the appellants that this presumption is overcome by the counter presumptions in favor of the regularity of official acts and the presumption in favor of the jurisdiction of a court of general jurisdiction upon collateral attack. While there is a presumption that the sheriff in serving summons performed his official duty, that presumption does not go to the extent of presuming that he served the summons by delivering a copy of the same to a Virgil Sharp other than the father of the appellee. By statute the sheriff was authorized to serve the summons upon Henry Sharp by leaving a true copy thereof for him at his usual place of abode with a person of the age of 10 years and upwards and a member of the family of Henry Sharp, at the same time making known to him the contents thereof. The sheriff's return is the basis for a presumption that he performed this official duty, but there this presumption ends. The sheriff was not clothed with judicial power, and it was no part of his official duty to determine the rights and interests of the parties to the litigation, and he is not presumed to have had any knowledge that the interest of Virgil Sharp, the father of the appellee, was in conflict with the interest of the appellee. The presumption of the identity of names would, however, be binding in that case, in the absence of proof on the subject, upon the court at every stage of the case, including the entry of the decree.

[7] In case of collateral attack, a presumption in favor of the regularity and...