Tassell v. Wakefield

• Decision Date: 21 February 1905
• Citation: 214 Ill. 205,73 N.E. 340
• Parties: VAN TASSELL v. WAKEFIELD.
• Court: Illinois Supreme Court

214 Ill. 205

73 N.E. 340

VAN TASSELL

v.WAKEFIELD.

Supreme Court of Illinois.

Feb. 21, 1905.

Appeal from Circuit Court, Peoria County; N. E. Worthington, Judge.

Petition by William Wakefield against Robert Van Tassell. From a judgment in favor of plaintiff, defendant appeals. Dismissed.

Arthur Keithley, for appellant.

Barnes & Boulware and George B. Foster, for appellee.

This is an appeal from an order or decree based upon a petition filed by leave of court in an ejectment suit, by the terms of which it is ordered, adjudged, and decreed that the present appellant, Robert Van Tassell, plaintiff in said ejectment suit, ‘shall and may have the option of paying the said petitioner, William Wakefield, for said improvements mentioned in the foregoing findings, the sum of $5,755 upon giving said petitioner or his attorney, within ten days of the date of this order, written notice of his election so to do, such payment to be made within ten days; or by giving within said ten days to petitioner a good and sufficient bond, with security to be approved by the clerk of this court, for the payment of the said sum of $5,755 within one year from the date of this order, with interest at the rate of five per cent. per annum; and in default of such payment or such notice of election and giving of bond as aforesaid, said petitioner, William Wakefield, shall and may have the right to enter upon said premises, and to remove therefrom all lasting and valuable improvements mentioned in the finding herein, at his own expense, within thirty days from and after the expiration of the time fixed by the court for the taking of an appeal herein; * * * that the said petitioner, in removing the said improvements from the said premises, shall put said premises as far as practicable in the same condition they were in before said improvements were placed thereon.’

MAGRUDER, J. (after stating the facts).

The order or decree, from which the present appeal is taken, was entered in a proceeding begun by petition, which is a part of the ejectment suit heretofore decided by this court, and reported as Wakefield v. Van Tassell, 202 Ill. 41, 66 N. E. 830,65 L. R. A. 511, 95 Am. St. Rep. 207. The facts involved in the ejectment suit are set forth in Wakefield v. Van Tassell, supra, and need not be here repeated. The decision as made by this court in that case held that the conditions or restrictions in the deed executed by appellant, Robert Van Tassell, to Adam J. Best, under whom the present appellee, William Wakefield, holds, were valid. When the second judgment was rendered in the ejectment suit in favor of the present appellant on May 3, 1902, a stipulation was entered into between the parties to the suit in the words and figures following, to wit: ‘Said cause having come on to be heard at said term by the court without the intervention of a jury, and the court having found the issues for the plaintiff, and being now about to render judgment herein, and the said cause being about to be appealed to the Supreme Court: Now, upon the final decision of said cause by said last-mentioned court said cause may, if the same should be affirmed, be remanded to said circuit court for further proceedings touching questions as to the improvements upon the premises in controversy and the assessment of the same, and said circuit court may in such event then make any and all orders it could now make therein under and by virtue of the ejectment laws of said state.’ Upon the basis of said stipulation, and in pursuance thereof, the present appellee, William Wakefield, filed in said ejectment suit his motion, supported by affidavit, for the nomination and appointment by the court of seven commissioners to assess the value of all lasting and valuable improvements erected upon said premises, the value of said premises, exclusive of said improvements, the time when said improvements were erected, and to do all other acts required by the provisions of the ejectment laws of the state. The cause had been redocketed in the circuit court by the consent of the parties, and Adam J. Best, the grantee in the deed from Van Tassell, and one of the original defendants, having died, and prior to his death conveyed all his interest in said premises to his codefendant, James E. Wakefield, and said James E. Wakefield having been adjudged a bankrupt, and said William Wakefield having at a sale of said bankrupt's estate become the purchaser of said premises involved in said ejectment suit, he was, on his own motion, substituted as defendant in said cause. In pursuance of appellee's motion, the circuit court nominated and appointed commissioners for the purposes mentioned in the ejectment statute, and in manner and form as there required. These commissioners duly qualified, went upon the premises, heard evidence of witnesses, and, at the time and in the manner provided in the ejectment act filed their report of their acts and doings as such commissioners with the court, together with the evidence taken by them relating to the value of the improvements, from which it appeared that the value of the improvements amounted to $5,755, and that the value of the lot, exclusive of the improvements, was $950. To this report appellant filed exceptions, and upon the hearing of the same the court found that appellee's claim for the value of said improvements did not come within the provisions of the ejectment statute, as shown by the testimony in the case. Thereupon, on June 13, 1904, in the ejectment suit, the appellee filed the petition already referred to, wherein the appellee set up the terms of the deed dated June 17, 1893, and recorded June 29, 1893, from Van Tassell to Best, which was made upon the express condition that no building should ever be erected on all or any part of the premises thereby conveyed, in which to handle grain; and, further, that no grain should ever be handled on said land by the grantee therein, his grantee, administrator, executor, assigns, or lessee, or by any one holding by, through, or under him; and also upon condition that, if the said agreement should be broken, said land should revert to and become the property of the grantors therein, Van Tassell and his wife; and in which petition appellee also set up all the proceedings in the ejectment suit from its commencement on ...