Smith v. Hall

• Decision Date: 28 February 1886
• Citation: 19 Bradw. 17,19 Ill.App. 17
• Parties: ROBERT B. SMITH ET AL., Adm'rs, etc.,v.WILLIAM H. HALL, Adm'r, etc.
• Court: United States Appellate Court of Illinois

19 Ill.App. 17

19 Bradw. 17

ROBERT B. SMITH ET AL., Adm'rs, etc.,

v.WILLIAM H. HALL, Adm'r, etc.

Appellate Court of Illinois, Fourth District.

February Term, 1886.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Madison county; the Hon. AMOS WATTS, Judge, presiding. Opinion filed April 15, 1886.

Messrs. WISE & DAVIS, for appellants; as to agency, cited Thompson v. Elliott, 73 Ill. 221; Draper v. Rice, 56 Ia. 114; Dutcher v. Beckwith, 45 Ill. 460; Peabody v. Hoard, 46 Ill. 242; Meyers v. Barnes, 65 Ill. 70; Mathews v. Hamilton, 23 Ill. 470. Messrs. METCALFE & BRADSHAW, for appellee; cited Noble v. Nugent, 89 Ill. 522; Anderson v. Conly, 21 Wend. 279; M. State Life Ins. Co. v. Advance Co., 80 Ill. 549; Harris v. Simmerman, 81 Ill. 413; Doan v. Duncan, 17 Ill. 274; Story on Agency, § 127; 2 Kent's Com., 8th Ed., 798.GREEN, J.

The claim which is the subject-matter of this suit was filed by the heirs of Maria Merchant in the County Court of Madison county against the estate of Sarah P. Smith, and upon a hearing there was a finding and judgment by the court for the defendants, Robert B. Smith and Sarah B. Smith (administrators of the estate of Sarah P. Smith), for costs. From this judgment the claimants appealed to the Circuit Court of Madison county, and at the March term, 1884, thereof, said cause was tried by the court and a jury, and a verdict for plaintiffs was rendered for the sum of $500; which verdict on the motion of defendants was set aside and a new trial awarded. The cause was then continued from term to term until the March term, 1885, of said circuit court, at which term leave was granted by the court to substitute William H. Hall, administrator of the estate of Maria Merchant, as plaintiff, in the place and stead of said claimants, and at the same term (Hall then becoming plaintiff) the cause was tried by the court without a jury by consent of all the parties, resulting in a finding and judgment by the court in favor of appellee as administrator, and against appellants as administrators, for the sum of $1,706 and costs of suit, to be paid in due course of administration; to reverse which judgment appellants took this appeal. The said claim is for the value of a lot in Minneapolis, Minn., sold by appellant's intestate under a power contained in a mortgage, and is based upon the alleged facts that said intestate, Sarah P. Smith, conveyed said lot to one Ole H. Mahla by warranty deed, on February 28, 1872, and received from him in part payment therefor his three promissory notes for $100 each, payable to her in one, two and three years respectively, with ten per cent. interest, secured by mortgage upon said lot; that all of said notes were paid to her at maturity, or before maturity, and were so paid during her lifetime; that after all of said notes and interest had been so paid, she caused said mortgage to be foreclosed by advertisement and sale in the county where said lot was situated, claiming that about one hundred dollars of the sum secured by said notes and mortgage was due and unpaid; that at said sale one Charles Woods purchased said lot for the amount so claimed to be due and unpaid, and interest, costs and attorney's fee; that the time had expired for redeeming from said sale before said claimants or any one of them had any knowledge of said foreclosure, or knowledge that any claim was or had been made that said lot was not fully paid for; that the Supreme Court of Minnesota had decided in a suit brought by claimants against said Woods to recover said lot; that the title thereto had passed to and become vested in him by said purchase at said foreclosure sale; that said lot was deeded by Ole H. Mahla to John Fallon on July 5, 1872 and by Fallon to William H. Connelly on October 2, 1873; that Connelly died in August, 1874, intestate, leaving him surviving Anna M. Connelly, his daughter and only heir, who died intestate and without issue in January, 1875, leaving as her only heir, her maternal grandmother, said Maria Merchant, who died in February, 1877, testate, and devised said lot to claimants, and that the value of lot at time of filing claim in the county court was $1,100.

The evidence establishes satisfactorily these facts: That, William H. Connelly died intestate in August, 1874, leaving only one heir, said Anna M. Connelly, a minor, who died unmarried and without issue and intestate in January, 1875, leaving no heir other than said Maria Merchant, her maternal grandmother, who died in February, 1877 (but not testate as shown by any competent evidence in the record); that said claimants, Harvey N. Merchant, Mary Hewins, Emeline Hewins and J. G. Merchant, are the children and only heirs at law of said Maria Merchant; that said lot was conveyed (as alleged in said claim,) by Sarah P. Smith, appellant's intestate, to Ole H. Mahla, by him to John Fallon and by him to William H. Connelly, subject to the mortgage from Mahla to said Sarah P. Smith; that said mortgage and three notes secured thereby for $100 each were executed by said Mahla to secure part of the purchase money of said lot and were delivered to said Sarah P. Smith as alleged in said claim; that said foreclosure sale of said lot was legally made on May 5, 1877; that said Woods purchased said lot at said sale, received a deed therefor and thereby became the owner thereof in fee, and said children and heirs of Maria Merchant were thereby divested of all title to or in said lot, and that appellee was duly appointed administrator of the estate of said Maria Merchant on March 4, 1885; the value of the lot in the view we take of this case is not important. From these facts established by the evidence, we are of the opinion that the plaintiff below, as administrator, could not maintain this suit, even upon the theory that his...