Warford v. Mcqueen

• Decision Date: 12 February 1941
• Docket Number: No. 25914.,25914.
• Citation: 31 N.E.2d 599,375 Ill. 372
• Parties: WARFORD et al. v. McQUEEN et al.
• Court: Illinois Supreme Court

375 Ill. 372

31 N.E.2d 599

WARFORD et al.

v.McQUEEN et al.

No. 25914.

Supreme Court of Illinois.

Dec. 16, 1940.

Rehearing Denied Feb. 12, 1941.

Suit by William H. Warford and others against John W. McQueen and others for partition of land and to remove as a cloud on the record an oil and gas lease. From the portion of a decree which held that the lease was valid and subsisting against plaintiffs, plaintiffs appeal.

Affirmed.Appeal from Circuit Court, Marion County; Josiah T. Bullington, judge.

Charles A. O'Connor, of Aurora and Frank E. Dingle, of Chicago, for appellants.

Green & Palmer, of Urbana, Walter E. Will, of Mattoon, and John L. Kagy, of Salem (Henry I. Green, Oris Barth, and Enos L. Phillips, all of Urbana, of counsel), for appellees.

Carl E. Person, of Chicago, pro. se., cross-appellant.

STONE, Justice.

Appellants filed their complaint in this cause in the circuit court of Marion county for partition of 216 acres of land. They also sought to enjoin and to remove as a cloud on the public record an oil and gas lease of the same premises executed by John W. McQueen to Harry F. Corbin and assigned by him to the Texas Company. The trial court granted the partition, but held the oil and gas lease valid and subsisting against appellants. It is from this latter portion of the decree that appeal is taken.

The issues grow out of a foreclosure, some years previous, involving the same premises. In 1919, Albert W. Wallace, as owner, executed a trust deed conveying the property to C. Alex Stone, as trustee, to secure the payment of notes aggregating $6,500. The firm of Ranstead & McQueen, composed of Julia M. Ranstead and John W. McQueen, underwrote the mortgage and sold the notes to seven different persons, among whom were George P. Fischer and Warford Bros., a partnership made up of John H. and Albert S. Warford. In 1925, John H. Warford died testate. He left his property to Emma Warford, his wife, who was named executrix, with a provision that if she predeceased him, it was to go to appellants, William H. Warford and Mary W. Dingle. At the time of the suit at bar, Emma Warford was dead and appellants had succeeded to the estate.

In 1930, C. Alex Stone, trustee, Thomas L. Whittaker, George W. Egger, Elizabeth P. Eakin, Emil Fehrman, executor of the will of George P. Fischer, deceased, Emma Warford, as executrix of the wills of Albert S. Warford and John H. Warford, and John W. McQueen and Julia M. Ranstead, under the firm name of Ranstead & McQueen, as holders of the notes, filed a bill to foreclose the mortgage of 1919. A decree of foreclosure was entered directing a sale for cash and that a master's certificate of indebtedness under the 1917 act be issued to the various complainants who were noteholders. Only one such certificate of indebtedness was issued which was to Ranstead & McQueen. The sale was held February 27, 1932, and the property bid in by Ranstead & McQueen, as copartners, for $7,500, leaving a deficiency of $1,873.98.

According to the decree of foreclosure, the master's certificate of sale, the master's deed and the master's term report, the sale was for cash. The master testified in this suit that he received only the costs of the proceeding, in cash, and that in satisfaction of the bid, he was given receipts executed by Earl H. Gromer, as attorney in fact appointed by the noteholders, for their distributable shares of the purchase money. In this way the noteholders contributed to the purchase price in the amounts of their respective notes. The master's deed was made out to Julia M. Ranstead and John W. McQueen, as copartners, and vested title in them.

In December, 1931, an agreement was signed by all complainants in the foreclosure whereby Julia M. Ranstead and John W. McQueen were made agents and attorneys in fact of the other complainants to bid off and hold the property for all until it could be resold and the proceeds distributed. They were to take title to the premises ‘free from restrictions of record’ and with ‘full and complete power to manage, possess and control the same and to sell and convey and to execute and deliver all proper instruments of sale and conveyance without liability on the part of the purchaser to see to the application of the purchase money.’ In accordance with the agreement, the title Ranstead & McQueen took from the master was in their own names as copartners. No time was mentioned in the agreement for its termination or for the resale. The agreement was neverrecorded, but remained at all times in the private office files of the master until this suit was begun in 1938.

Albert S. Warford, one member of the Warford Bros. firm, was not a party to the foreclosure, individually or as a partner. Although he was purportedly represented by an executrix, Emma Warford, he did not die until 1932, two years after the decree of foreclosure and a few months after the master's deed was issued. The heirs of Albert are William H. Warford and Mary W. Dingle, appellants, who claim his interest in the premises through a note owned by Albert and used to satisfy the bid at the foreclosure sale. George P. Fischer died in 1928 leaving a will by which his estate went to his brothers and sisters. Appellants claim that the executor had no power to represent the estate in the foreclosure.

On July 9, 1936, Julia M. Ranstead, by quitclaim deed, later duly recorded, conveyed her interest in the premises to John W. McQueen. Thereafter, McQueen executed an oil and gas lease to Harry F. Corbin on September 24, 1937. Corbin and his wife assigned the lease to the Texas Company, October 7, 1937. None of the other parties interested in the premises signed the lease.

Between March and May, 1939, Mary W. Dingle and William H. Warford, both of whom had inherited interests from John H. and Albert S. Warford, purchased the interests of all persons in the land with exception of that of McQueen. In May, 1939, McQueen assigned his lessor's interest in the lease and deed any other interest he had in the premises to Carl E. Person, cross-appellant, who reserved all rights to have the gas and oil lease set aside.

The court below held that the legal title was vested in appellants and cross-appellant, subject to the rights of the Texas Company under its lease. While appellants claim the foreclosure was invalid, they are claiming under the title acquired at the foreclosure sale. At...