Thorpe v. Helmer

• Decision Date: 24 October 1916
• Docket Number: No. 10845.,10845.
• Citation: 275 Ill. 86,113 N.E. 954
• Parties: THORPE v. HELMER et al.
• Court: Illinois Supreme Court

275 Ill. 86

113 N.E. 954

THORPE

v.HELMER et al.

No. 10845.

Supreme Court of Illinois.

Oct. 24, 1916.

Appeal from Circuit Court, Cook County; Samuel C. Stough, Judge.

Partition by Frederick A. Thorpe against Joseph W. Helmer and others. From a decree, Jacob Glos appeals. Reversed and remanded, with directions.John R. O'Connor and Alben F. Bates, both of Chicago, for appellant.

Buell & Abbey, of Chicago, for appellee.

DUNN, J.

This is an appeal by Jacob Glos from a decree of partition rendered by the circuit court of Cook county in the case of Frederick A. Thorpe against Joseph W. Helmer and Jacob Glos, finding title in fee in Frederick A. Thorpe and Joseph W. Helmer, awarding partition between them, and finding that Jacob Glos had no interest in the premises except the right to repayment of certain taxes. Glos claims sole ownership in fee of the premises.

There is one question going to the merits which is decisive of the case, and will be the only question considered. The appellant's title is derived through a judgment against William G. Waddell and the appellees' through a mortgage from the same person, and the question in the case is, Which has the superior title?

The property in controversy is described as lots 4 and 5, in block 16, in the subdivision by John G. Shortall, trustee, of the north half of the northeast quarter of section 26, township 38, north, range 14, east of the third principal meridian, situated in the city of Chicago, in the county of Cook, in the state of Illinois. Lyman E. Crandall conveyed these lots by warranty deed dated July 5, 1890, filed for record August 11, 1890, to William G. Waddell. By a trust deed bearing the same date, Waddell conveyed to Henry T. Miller property of the same description as that mentioned in the deed from Crandall to Waddell, except that the lots were stated to be in section 16 instead of 26. This trust deed was given to secure the payment of two notes of the same date, one for $825, the other for $800, payable in one and two years after date, respectively, to the order of William G. Waddell, and contained the statement, ‘Above notes are given for part purchase money.’ Waddell died in 1897, leaving a will which disposed of his real estate, but contained no specific description of it. His widow, who was the executrix of the will, included in her inventory of real estate, which was filed on April 21, 1899, the lots by the correct description, reciting that the title was acquired by warranty deed from Lyman E. Crandall dated July 5, 1890, and that they were incumbered by a trust deed to Henry T. Miller, trustee, dated July 5, 1890, for $1,625. On January 4, 1901, a bill was filed in the circuit court of Cook county by James B. White and Henry T. Miller, trustee, to foreclose the trust deed, describing the lots as they were described in the trust deed. A decree of foreclosure was rendered, the premises were sold to James B. White, and later a master's deed was made to Elsie White and Mary S. White, who had succeeded to James B. White's interest, he having died. In this deed, as in all the foreclosure proceedings, the description corresponded with the erroneous description in the trust deed. On November 18, 1913, Elsie White and Mary S. White by quitclaim deed conveyed the lots by the correct description to Joseph W. Helmer. On May 4, 1914, he quitclaimed an undivided one-fourth interest in the lots to Frederick A. Thorpe, who filed the bill for partition on July 31, 1914. On October 30, 1896, the Chicago Title & Trust Company, as assignee of George L. Magill, insolvent, recovered a judgment against William G. Waddell in the circuit court of Cook county on two notes indorsed to George L. Magill, for $5,635.78 and costs, on which an execution was issued November 11, 1896, which was returned ‘no property found.’ On January 28, 1903, an alias execution was issued on the judgment, which bore an indorsement that the judgment had been assigned to Jacob Glos by the Title Guarantee & Trust Company, assignee of George L. Magill. This writ was returned the next day, and, notice having been given to Elsie Waddell, executrix of the will of William G. Waddell, of the rendition of the judgment, the issuance and return of execution thereon, the assignment of the judgment to Jacob Glos, that the same was a lien upon his real estate and at the expiration of three months alias execution would be issued, a pluries execution was issued July 28, 1903, which was levied on the lots in question. They were sold by the sheriff, and after the expiration of the time of redemption a sheriff's deed was executed to Jacob Glos on December 5, 1904.

Under our statutes the lien of a judgment attaches, in the absence of actual notice, not only to the interest which the judgment debtor may actually have in real estate, but to whatever interest the records disclose in him, and a purchaser and a judgment creditor having a lien stand upon the same equity. Martin v. Dryden, 1 Gilman, 187;Massey v. Westcott, 40 Ill. 160;Smith v. Willard, 174 Ill. 538, 51 N. E. 835,66 Am. St. Rep. 313. The judgment of the Chicago Title & Trust Company became a lien on all property appearing of record in William G. Waddell, free from the claims of all other persons of which it had no notice, either actual or constructive. There is no claim that it had actual notice of the trust deed to Henry T. Miller. Its title was therefore not affected by that trust deed unless the record of it was constructive notice that it was intended to convey lots in ...