Thomson v. Morris

• Decision Date: 30 September 1870
• Citation: 1870 WL 6637,57 Ill. 333
• Parties: HENRY W. THOMSONv.BUCKNER S. MORRIS et al.
• Court: Illinois Supreme Court

57 Ill. 333

1870 WL 6637 (Ill.)

HENRY W. THOMSON

v.BUCKNER S. MORRIS et al.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Chicago.

Mr. THOMAS S. MCCLELLAND, and Messrs. ROSENTHAL & PENCE, for the appellant. Mr. JAMES R. DOOLITTLE and Mr. R. H. FORRESTER, for the appellees.

Mr. CHIEF JUSTICE LAWRENCE delivered the opinion of the Court:

In July, 1844, Hubbard and Davis filed their bill in chancery against Egan, Blanchard and others, for the purpose of subjecting certain lands therein described to the payment of certain judgments obtained by Hubbard and Davis against Egan in the Municipal Court of Chicago. A large quantity of lands was described in said bill, and there were numerous defendants, besides Blanchard, who were distinctly charged with holding fraudulent titles under Egan. Blanchard, at that time, claimed title to a part of the lands described in the bill by virtue of a sale under a judgment against Egan in favor of one Church, rendered in 1837, at the same term of the same court at which Hubbard and Davis obtained their judgments. At this sale Blanchard, who was the assignee of the judgment, became the purchaser, and in 1840 received a sheriff's deed. Subsequently he conveyed to Thomson, the complainant in this case. The only distinct allegation in the above mentioned bill of Hubbard and Davis affecting the title of Blanchard, who had not then conveyed to Thomson, was, that at the time when Hubbard and Davis obtained their judgments against Egan, and at the close of the term when said judgments were obtained, Egan was the owner of the lands described in their bill, which included the land bought by Blanchard. The bill, however, charges that Blanchard claims some right or title to a part of said lands in some way through Egan, and that he knew of complainant's superior equity in said lands when he acquired his interest therein, and asks that he may set forth what title or claim he has. Blanchard did not answer the bill, and it was taken pro confesso as to him. In 1846 the court pronounced a decree ordering a sale of the lands to pay the Hubbard and Davis judgments. Under this decree the lands were sold in 1847, and the sale and deed having been subsequently reported to the court, they were approved, and a final order was pronounced confirming title in the purchasers, and decreeing that the deed of the commissioner be considered as a conveyance of the rights and interests of the defendants and each of them in the premises. This title has passed to the defendants in this proceeding, and the bill in this case was filed to set it aside as a cloud upon the title of complainant claiming under Blanchard, and being in possession. The superior court decreed in favor of the defendants and dismissed the bill. The complainant appealed.

It is urged by counsel for appellant that the decree pro confesso in the former suit, only established against him the allegations of the bill, and as there was no specific allegation to the effect that the title claimed by Blanchard was, for any reason, subject to the judgments in favor of Hubbard and Davis against Egan, the default of Blanchard admitted nothing to his prejudice, and the court had no right to decree the sale of whatever title he might have. It is insisted, in other words, that the bill did not bring Blanchard's title before the court for adjudication, and that in attempting to adjudicate upon it, the court was exceeding its jurisdiction as to the subject matter, and its decree was void. On the first argument of this case we adopted this view, but a rehearing having been awarded, we have given the case further consideration, and are satisfied our first opinion was erroneous.

The difficulty in the reasoning of appellant's counsel is, that they confound, and are obliged to confound, for the purposes of their argument, the difference between a decree merely erroneous and one void for want of jurisdiction. It may be conceded, for the purposes of this case, that the court should not, on the allegations in the bill of Hubbard and Davis, have decreed the sale of Blanchard's title, though he was in default. It may be conceded that Blanchard might, in proper time, have brought that decree to this court and have had it reversed. But, nevertheless, it was not, as to Blanchard's title, a void decree. The court had jurisdiction over him by due service of process, and the subject matter of the bill was one of ordinary chancery cognizance. The bill was filed to subject certain lands situate in the county where the court was held to the payment of certain judgments. Blanchard was in court by service, the land was under the jurisdiction of the court, the bill brought the question of its sale before the court for adjudication, and the decree which the court was asked to make, and did made, in regard to it, was but an exercise of the plainest of chancery powers. The power may have been improperly exercised. Neither the bill nor the proof may have justified the decree. Nevertheless, the naked power or jurisdiction to make it can not be denied. The bill alleged that the complainants had obtained certain judgments against Egan, that the lands in question belonged to him at the date of the...