Stark v. Brown
| Decision Date | 18 January 1882 |
| Citation | 1882 WL 10173,101 Ill. 395 |
| Parties | CHARLES H. STARK et al.v.ANSEL L. BROWN et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Circuit Court of Madison county; the Hon. AMOS WATTS, Judge, presiding.
William P. Hall, now deceased, in his lifetime was the owner of the patent title to the south-west quarter of the south-west quarter of section twenty-eight (28), in township four (4) north, of range seven (7) west of the third principal meridian. Said William P. Hall died intestate on the 8th of October, 1839, leaving certain children surviving him as his heirs at law, who have all since conveyed their interest in said tract of land to William H. Hall, and subsequently said William H. Hall conveyed an undivided half of said tract to Ansel L. Brown. Brown filed his petition for partition in the office of the clerk of the circuit court of Madison county, to the October term, 1879, of that court, against William H. Hall and the plaintiffs in error. A guardian ad litem was appointed to answer and defend for William Prunse, Charles Prunse, Dorris Prunse, Henry Prunse, and Frederick Prunse, who were minors, and without guardian. He answered, praying the protection of the court for his wards, and denying that either the said petitioners or the said Hall had any interest in or title to the premises.
Amelia Fressen, one of the children and heirs at law of William Prunse, deceased, together with her husband, George Fressen, answered, denying that Brown or Hall had any interest in or title to said real estate, in possession, remainder, reversion, or otherwise, and averring that she, together with her co-defendants, William Prunse, Charles Prunse, Dorris Prunse, and Frederick Prunse, are the owners in fee simple of said premises, and derive title thereto by descent from their deceased father, William Prunse, and deny that petitioner is entitled to the relief prayed for. Charles H. Stark, Nicholas C. Stark, and Rachel M. Stark, answered, denying that either Brown or Hall have any interest in said tract of land, and alleging that said tract was owned by Solon Stark, their father, in fee, in his lifetime; that he sold and conveyed the same to William Prunse, since deceased; that the heirs at law of said Prunse are the owners of said land, subject to a deed of trust or mortgage executed by said Prunse to said Stark; that said Prunse was, at the time of his death, in the actual possession of said premises, and had been for years past, and has placed upon the same valuable and permanent improvements; that said Stark and said Prunse have paid the taxes on said land for thirty years, consecutively. On hearing, the circuit court decreed in conformity with the prayer of the petition, declaring that the title and claim of the plaintiffs in error was void and of no effect, etc.
Messrs. KROME & HADLEY, and Mr. DAVID GILLESPIE, for the plaintiffs in error.
Messrs. IRWIN & SPRINGER, for the defendants in error.
Whatever title Solon Stark, in his lifetime, obtained to the tract of land in controversy, the plaintiffs in error have, and they therefore, on the hearing, gave evidence tending to show that he had color of title, made in good faith, and paid all taxes assessed thereon for more than seven successive years, and so that their defence against the claim of Brown and Hall, under the patent title, was complete, by virtue of the second section of the act of March 2, 1839, entitled, “An act to quiet possessions, and confirm titles to land.”
But the objection is made that this defence is not set up in the answers, and can not, therefore, be sustained,--and the consideration of this question necessarily precedes all discussion upon the merits. William Prunse, Charles Prunse, Dorris Prunse, Frederick Prunse, and Henry Prunse, were minors at the time of the hearing, and answered by their guardian ad litem. It was the special duty of the guardian ad litem to submit to the court, for its consideration and decision, every question involving the rights of his wards. Knickerbocker v. De Freest, 2 Paige, 304. And the court will protect the rights of infants, where they are manifestly entitled to something, although their guardian ad litem neglects to claim it in their behalf. Stephens et al. v. Van Buren et al. 1 Paige, 479. The principle has been approvingly recognized by this court in Peak v. Pricer, 21 Ill. 164; Rhoads v. Rhoads, 43 Id. 239; Chaffin v. Heirs of Kimball, 23 Id. 36; Fischer v. Fischer, 54 Id. 231; Cartwright v. Wise, 14 Id. 417. We are, therefore, of opinion that under the answer filed by the guardian ad litem, all defences that could be legally availed of, under any answer, are to be considered as interposed on behalf of the minors.
The answer of the Starks, who claim as holders of a mortgage executed by William Prunse to Solon Stark, is, undoubtedly, not technically sufficient to present a defence under the second section of the Limitation act of March 2, 1839, supra, upon the authority of Nichols v. Padfield, 77 Ill. 253. Still, it does show that title in Solon Stark, and payment of taxes by him, are relied upon as a defence, and no exception was taken to its sufficiency, and no objection was urged to the introduction of evidence tending to show color of title in Solon Stark, or payment of taxes, etc., by him, upon the hearing. The case would seem to have been tried precisely as if the defence of color of title in Solon Stark, made in good faith, and payment of taxes thereunder by him for seven successive years, had been specifically set up in the answer as a defence under the second section of the Limitation act of 1839. Had exceptions been sustained to the answer for this reason, or had objection been urged to the introduction of evidence on the hearing, upon the ground that this defence was not set up in the answer, it would have been within the power of the court to have allowed the answer to be amended, so as to obviate all...
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MacFadden v. Jenkins
...main cases, among others cited by the appellant to sustain this contention, are the case we have just discussed, and the case of Stark v. Brown, 101 Ill. 395. The cases cited some extent tend to support the appellant's theory, but even so, we do not believe they are the weight of authority,......
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