Swift v. Yanaway

• Decision Date: 30 October 1894
• Citation: 153 Ill. 197,38 N.E. 589
• Parties: SWIFT et al. v. YANAWAY.
• Court: Illinois Supreme Court

153 Ill. 197

38 N.E. 589

SWIFT et al.

v.YANAWAY.¹

Supreme Court of Illinois.

Oct. 30, 1894.

Error to circuit court, Cumberland county.

Bill by James Swift and others against Israel Yanaway. Defendant obtained a decree. Complainants bring error. Modified.

This was a bill in equity in the circuit court of Cumberland county, brought by James Swift, Mary A. Broadstone, Susannah Morelock, and Elizabeth Strangle, complainants, against Israel Yanaway, defendant, to remove, as a cloud upon complainants' title to certain lands, certain deeds held by the defendant, upon the ground of fraud and irregularities in the proceedings upon which said deeds are predicated; to require an accounting by the defendant for rents and profits; and for partition of the lands between the complainants, as heirs at law of James Swift, Sr., deceased. The cause was submitted upon bill, answer, and proofs, and a decree entered dismissing the bill for want of equity. To reverse this decree a writ of error was prosecuted by the complainants below. The material facts of the case will sufficiently appear in the opinion.

S. S. Whitehead, for plaintiffs in error.

N. L. Scranton and P. A. Brady, for defendant in error.

SHOPE, J.

The question presented upon this record is whether the court below decreed correctly in dismissing complainants' original and amended bills. It is insisted by plaintiffs in error that the decree of the circuit court of Cumberland county, rendered February 21, 1876, in the cause therein pending, wherein James Gilfillin was complainant, and the plaintiffs in error and Leonidas L. Logan, administrator of the estate of James Swift, deceased, were defendants, and under which the 80-acre tract of land, belonging to the estate of said James Swift, deceased, and mentioned in the bill herein, was sold, was void.

It appears that in 1867 James Swift died in Clay county, Ind., seised in fee of the E. 1/2, S. E. 1/4, sectin 36, township 11 N., range 10 E., containing 80 acres, and also the S. 1/2 of the S. E. 1/4 of the N. E. 1/4 of section 7, in the same township and range, containing 20 acres, more or less, all in Cumberland county, in this state; and that he left surviving him plaintiffs in error, James Swift, Jr., Mary A. Swift, now Mary A. Broadstone, Susan Swift, now Susan Morelock, and Lizzie Swift, now Lizzie Strangle, as his children and only heirs at law. In his last illness, which was of long duration, said Gilfillin was his attending physician; and in order to compensate the later for services rendered, food, nourishment, and care for himself and family, Swift, then a widower, executed to said Gilfillin a warranty deed to all his land in Cumberland county, Ill., intending to include said 80-acre tract of land, among others, to operate by way of mortgage, as security for Gilfillin's claim. After the decease of Swift, Gilfillin filed his claim against his estate in the common pleas court of Clay county, Ind., and such proceedings were had that an allowance thereof, in the sum of $1,696.20, was made and entered by said court. Subsequently, and on October 21, 1870, Gilfillin filed a transcript of said allowance in the county court of Cumberland county, Ill., and asked the same to be allowed against the estate of said James Swift, deceased, in said county. Upon hearing, the Cumberland county court allowed the same, with interest, amounting to $1,775.82, and entered the usual order for its payment in due course of administration. Afterwards, Gilfillin filed his bill in chancery to the August term, 1873, in the Cumberland county court, against the plaintiffs in error, George S. Henderson, their guardian, and the administrator of Swift's estate in Cumberland county in this state; setting up the deed from Swift, seeking reformation thereof in the description of the land, and for foreclosure of the same as a mortgage. The bill set up the allowance to the complainant, by the county court of Cumberland county, of $1,775.82; alleged that said deed was a mortgage to secure the same; and sought to foreclose upon all the land of Swift in Cumberland county, aggregating 112 acres. It appears from the findings of the decree in that cause, that the defendants George S. Henderson, guardian, Leonidas L. Logan, administrator of the estate of James Swift, deceased, and the plaintiff in error James Swift, ‘were each duly served with summons, personally served upon each of them ten days before the first day’ of the term of court at which the decree was entered, and that the defendants Susannah, Mary, and Anna Swift were served with notice of the pendency of the suit by publication in a newspaper of general circulation in Cumberland county for the length of time and in the manner, ‘in all respects, as provided by statute,’ setting out in detail the course pursued in making such publication, etc. The decree also finds that James, Susannah, Mary A., and Anna Swift were all infants; that defendant George S. Henderson, their legal guardian, filed answer for his said infant wards to said bill, but Henderson, as to himself and the administrator of the estate, made default. It is also found that the case was tried upon the bill, the answer of the defendants by their guardian, the exhibits and proofs, and that the allegations of the bill are true, in substance; that the deed made by James Swift in his lifetime to complainant, although absolute on its face, was in fact and in equity a mortgage to secure the money due from Swift to the complainant, and the complainant is entitled to the decree of foreclosure thereon for the amount due. It is further found that by stipulation of the parties the amount due complainant was $500, and that the guardian in charge of the estate had consented and agreed to pay $300 December 25, 1876, and $200 December 26, 1877, and to pay costs, etc. It is then ordered and decreed that Henderson, as guardian, etc., pay said sum of money to the complainant in the amounts and at the times, respectively, above specified, and certain of the costs, etc.; that said deed is a mortgage, and that upon default in making said payment said 112 acres of land therein described, and of which the 80-acre tract before mentioned was a part, or so much thereof as may be necessary for the purpose, be sold to pay the amount due complainant, and the costs, etc., and prescribing the time and manner of such sale, etc.

Numerous questions are raised by counsel for plaintiffs in error as to the validity of this decree. In respect of most of these objections, which it will be unnecessary to enumerate, it is sufficient to say that they form no basis for a collateral attack upon the decree. If the bill was insufficient or defective, or if there was a variance between the allegations of the bill and the findings and orders of the court, so that they were not warranted either by the fact or the law, they were subject to correction in a direct proceeding. The bill in this case is not a bill of review, between the parties to the original record, but, both in its frame and prayer, seeks simply to remove the deed to Yanaway, as a cloud upon complainants' title; to charge him with rents and profits, and for waste; and for partitioning the lands between the complainants.

It is, however, insisted that the court had no jurisdiction of the person of the plaintiffs in error, and the decree was therefore void. It has been repeatedly held by this court, and such is the general doctrine, that where a court of general superior jurisdiction, by its decree, finds that it has jurisdiction, such finding, upon its decree being collaterally attacked, will be conclusive, unless it be irreconcilable with the facts disclosed upon the record. Senichka v. Lowe, 74 Ill. 274;Harris v. Lester, 80 Ill. 307. By personal service of summons, voluntary appearance, or by proper publication of notice in conformity with the statute, the court must and may obtain jurisdiction of the parties. When the record shows or the court finds the jurisdictional facts, such finding will not be questioned in collateral proceedings. Osgood v. Blackmore, 59 Ill. 261;Goudy v. Hall, 30 Ill. 109;Searle v. Galbraith, 73 Ill. 269;Wing v. Dodge, 80 Ill. 564. And, where the court recites and finds in its decree the process by which the court acquired jurisdiction, it will be sufficient to establish the fact that it was thus acquired. Bowen v. Bond, 80 Ill. 351;Hobson v. Ewan, 62 Ill. 146;Donlin v. Hettinger, 57 Ill. 348;Miller v. Handy, 40 Ill. 448. So it has accordingly been held that a finding by the court, in its decree, that notice by publication had been given in the time and manner essential to the acquisition of jurisdiction, will be conclusive, and cannot be contradicted in collateral proceedings by evidence dehors the record. Barnett v. Wolf, 70 Ill. 76;Bostford v. O'Conner, 57 Ill. 72;Finch v. Sink, 46 Ill. 169;Moore v. Neil, 39 Ill. 256;Van Matre v. Sankey, 148 Ill. 536, 36 N. E. 628. It appearing ...