Stoller v. Doyle

• Decision Date: 20 February 1913
• Citation: 100 N.E. 959,257 Ill. 369
• Parties: STOLLER v. DOYLE et al.
• Court: Illinois Supreme Court

257 Ill. 369

100 N.E. 959

STOLLER

v.DOYLE et al.

Supreme Court of Illinois.

Feb. 20, 1913.

Error to Circuit Court, Livingston County; George W. Patton, Judge.

Bill by John A. Stoller against Lawrence J. Doyle and others. Decree for plaintiff, and defendants bring error. Reversed and remanded.

Stevens R. Baker, of Pontiac, for plaintiffs in error.

Isaac B. Hammers, of El Paso, and Thomas Kennedy, of Minonk (Robert Henning, of Fairbury, of counsel), for defendant in error.

CARTWRIGHT, J.

On April 13, 1882, Lawrence Doyle and wife executed a warranty deed to Frank Doyle of the W. 1/2 of the S. E. 1/4 of section 18, township 27, range 3, in Livingston county, in the form prescribed by section 9 of the conveyance act, but with the following restrictions and limitations: ‘Said Frank Doyle shall not have power to reconvey this land, unless it be to the grantors. He shall not have power to mortgage the land, and in case the said Frank Doyle should die before his wife dies, and any children survive him, the surviving children and his wife shall have the use of the land above described during the lifetime of his wife, when it shall go to his children, if any are living, but, if at the death of the grantee no children survive him, the title shall be in the grantors. Should any children survive the grantee and his wife also survive him, she shall have no interest in the land only so long as she remains unmarried and is his widow.’ On February 23, [257 Ill. 371]1897, Lawrence Doyle, then a widower, executed a second deed of the same premises, in the same form, to Frank Doyle, omitting the restrictions and conditions, and containing the statement that it was made for the purpose of removing the restrictions contained in the former deed, and was meant to give the grantee an absolute title to the premises. On March 1, 1902, Frank Doyle and wife executed a warranty deed of that tract and other land to the defendant in error, John A. Stoller. On October 15, 1903, Stoller and Eilert Bauman made a contract by which Stoller agreed to convey to Bauman in fee simple, clear of all incumbrances, by a good and sufficient warranty deed, said tract of land and another tract of 80 acres. Bauman paid $1,500 cash, and there was, in the contract, a stipulation fixing $1,500 as liquidated damages to be paid by the party failing to perform. Stoller tendered a deed to Bauman, which Bauman refused to accept, because the abstract delivered in accordance with the contract did not show a merchantable title. Stoller, insisting that his title was a fee simple, filed a bill to compel specific performance of the contract; and, a demurrer to the bill having been sustained, it was dismissed without prejudice. Bauman then brought suit in the circuit court of Livingston county against Stoller to recover the cash payment of $1,500, with interest, and the $1,500 liquidated damages. The case was tried by the court, and the court held, on propositions of law, that by the first deed of April 13, 1882, a contingent interest in the real estate was conveyed to the children of Frank Doyle, the grantee, and that the later deed to him could not affect that interest, and therefore the abstract did not show a merchantable title. Accordingly there was a finding that the title was not merchantable, and a judgment for Bauman for $3,251.81 and costs. The Appellate Court for the Second District affirmed the judgment, and we affirmed the judgment of the Appellate Court, and that case came to an end on October 8, 1908. Bauman v. Stoller, 235 Ill. 480, 85 N. E. 657.These facts appear in the statement preceding the opinion in that case, but for convenience are repeated here.

After the decision, in the action at law, that the title of John A. Stoller was not merchantable, he filed his bill on April 10, 1909, in said circuit court of Livingston county against Doyle's children, alleging that by the first deed Frank Doyle did not take an estate in fee simple, but only an estate for life; that his wife took an estate for life, contingent upon her outliving him; that his children took a contingent remainder in fee; that there was an ultimate reversion in fee to the grantor in the event that no children survived Frank Doyle; and that the second deed to him conveyed the reversion, whereby the life estate was merged in the fee, and the intervening contingent interests were destroyed. The prayer of the bill was that the defendant in error be declared the owner in fee simple of the premises, free and clear of any claims of the children, and that his title thereto should be quieted. The adult defendants were defaulted; but six of the children who were defendants were infants, and they answered by Stevens R. Baker, who was appointed their guardian ad litem. The issue was referred to the master in chancery to take and report the evidence. The court heard the testimony taken by the master, made findings in accordance with the averments of the bill, and decreed that the defendant in error was the owner in fee simple of the premises, and quieted his title. Three of the defendants, who were still infants, John J. Doyle, Augustin D. Doyle, and Theresa Veronica Doyle, by Stevens R. Baker (who had been their guardian ad litem in the circuit court), acting as their next friend, sued out a writ of error from this court to review the decree. We confirmed the action of the next friend, and appointed him guardian ad litem in this court. The adult defendants, who were defaulted in the trial court, and those who had reached their majority, whose names were used in suing out the writ of error, upon being brought into this court were content to abide by the decree, and refused to assign errors, whereupon an order of severance was entered, and it was ordered that the cause proceed in the name of the infants as plaintiffs in error.

When the deeds to Frank Doyle...