Wight v. Wallbaum

• Citation: 39 Ill. 554,1864 WL 3154
• Parties: THOMAS P. WIGHTv.AUGUST WALLBAUM et al.
• Decision Date: 30 April 1864
• Court: Supreme Court of Illinois

39 Ill. 554

1864 WL 3154 (Ill.)

THOMAS P. WIGHT

v.AUGUST WALLBAUM et al.

Supreme Court of Illinois.

April Term, 1864.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Superior Court of Chicago.

This was an action of ejectment, brought by Thomas P. Wight, to recover from August Wallbaum and others his interest in certain real estate in Cook county. He claimed to own the same as an heir and devisee of his father, John F. Wight, who died at Erie, Pennsylvania, 3d September, 1844, and was the owner thereof at the time of his death. At that time there was a judgment standing on the records of the Circuit Court of Cook county, Illinois, against Wight, in favor of James Dundas and others (who were trustees of the United States Bank) for the sum of $28,568.94 debt, to be discharged by the payment of damages in the sum of $14,665.94 and costs of suit, which judgment was entered by confession on the 23d day of August, 1844, eleven days before the death of Wight.

The records of that court show that said court met on that day, and, after doing some business, adjourned to the next day, first entering an order that the sheriff meet from day to day during the term, or until Judge Young should come and hold the court. The sheriff and clerk did so meet and adjourn until 30th August, 1844, when the court was by them declared adjourned until the next term in course. No execution was issued on the judgment during the life-time of Wight.

The first execution issued February 7, 1845, and was returned March 29, 1845, by order of plaintiff's attorney, wholly unsatisfied. A second execution was issued August 22, 1845, and returned the next day, wholly unsatisfied. A third execution was issued August 23, 1845, and returned unsatisfied August 25, 1845. A fourth execution was issued August 25, 1845, and returned September 5, 1845, in no part satisfied.

On the 10th day of May, 1845, Mr. Scammon, the attorney of the plaintiffs in that judgment, gave to J. B. F. Russell, administrator, with the will annexed, of the estate of J. F. Wight, deceased (he had been appointed such administrator about three months before), a notice, in due form, of the existence, date and amount of the judgment against Wight, and that he intended to have an execution issued upon it against the lands of said Wight, according to law; and Russell, on the same day, acknowledged the receipt of a copy of such notice. On the 5th day of September, 1845, more than three months after the notice of the judgment had been served on Russell, another execution was issued on said judgment, and levied, on the 3d day of December, 1845, “on all the right, title and interest of John F. Wight” in “the following described,” etc., being the demanded premises.

A sale under this levy was made June 24, 1847, at which Scammon bought in the property for $8,520; and, having assigned his certificate of purchase to Ogden & Robbins, and no redemption being made, a deed of the lands and lots sold was made to them March 22, 1850, and duly recorded August 5, 1850. Wallbaum, and the other defendants, derive their title through Ogden & Robbins, and insist that these proceedings vest the legal title in them.

Said defendants also claim the premises by virtue of title through an administrator's sale, and a deed made thereunder.

Wight left a will, and nominated his wife, Jane E. Wight, his brother, Jabez Wight, and George A. Elliott, all of Pennsylvania, executors. Mrs. Wight and Elliott renounced the executorship, and letters testamentary were issued to Jabez Wight by the proper authorities in Erie county, Pennsylvania. On the 11th day of February, 1845, at a Court of Probate, holden in Chicago, Cook county, Illinois, authenticated copies, or transcripts, of the will, and probate of it in Pennsylvania, were presented by J. B. F. Russell to the Court of Probate, and he was appointed administrator, with the will annexed, of of the estate of Wight in the State of Illinois, and executed the proper bond, with J. H. Collins as surety.

At the August Term, 1845, of the Cook County Court, Russell, as administrator, etc., presented a petition to the court for leave to sell the real estate left by Wight in Cook county. It was filed August 15, 1845, and was in the usual form, stating that no personal estate of the decedent had come to his hands, and, to his knowledge, there was none in the State; that the debts amounted to $14,665.38; it contained a correct description of the lands to be sold, and made the widow and children of John F. Wight, deceased, parties defendant. Notice of the filing of the petition was duly published for four successive weeks, the first publication being made on the 17th June, 1845. The notice stated that the petition would be filed on the first day of the August Term, 1845, of the Cook County Court, which was on the first Monday of August, or as soon as counsel could be heard, etc. A guardian ad litem for the infant heirs of Wight was duly appointed, the proper proceedings had thereon, and the usual decree of sale entered.

It appears, from an affidavit of Mr. Collins, that some papers which had been filed in the cause, among which the certificate and abstract of the debts and credits of the estate, made by the Court of Probate, were lost, and could not be found in March 1847, just after the administrator's sale. In March, 1847, the court ordered that duplicates of the missing papers should be filed nunc pro tunc.

On the first of May, 1847, the administrator filed in said court his report of his proceedings under the decree, showing that he duly advertised the time and place of the sale, and that on the 17th day of December, 1846, at his office on Clark street, in the city of Chicago, at twelve o'clock at noon, he sold the premises described in the petition and decree (of which the demanded premises are a part), to J. Y. Scammon, for $93.16, and that said premises were sold subject to the judgment in favor of Dundas et al., against John F. Wight, deceased, dated August 23, 1843, rendered at the August Term, 1844, for $28,568.94 debt, to be discharged by the payment of $14,665.38 damages, and that he had made a deed to Scammon of the premises thus sold to him. The cause stood on the docket of the court until the October Term, 1847, when it was stricken therefrom.

Wallbaum and the other defendants derive their title through a deed from Scammon, and insist that these proceedings also vest the title in them.

The contest in the case was as to the validity of the foregoing proceedings. The jury being about to disagree, both parties, saving their rights to object to the verdict, consented that the minority should give way, and bring in a verdict in conformity with the opinion of the majority; upon which the jury found a verdict for the defendants, and thereupon the plaintiff moved for a new trial, which was overruled, and the case was then brought to this court on his exceptions.

Mr. JOHN BORDEN, for the plaintiff in error.

Messrs. SCAMMON, MCCAGG and FULLER, for the defendants in error.

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

The first question arising upon this record is, whether the judgment entered in the Cook Circuit Court, on the 23d day of August, 1844, against Wight and in favor of Dundas and other parties, became a lien upon the premises in controversy. It appears that the court met on the day the judgment was entered, and was duly opened, and, after the transaction of some business, the presiding judge adjourned until the next day, and left, with the direction to the sheriff and clerk, to meet and open and adjourn the court from day to day, until Judge YOUNG should arrive. As directed, these officers did continue to meet and declare the court opened and adjourned each day, until the thirtieth day of that month, when an entry was made declaring the court adjourned until the next regular term. It also appears that Wight died on the third day of the following September. No execution was issued on the judgment before Wight's death, but the first was issued on the 7th day of February, 1845, which was returned in the ensuing month of March unsatisfied, by order of plaintiff's attorney. Between that time and the fifth day of the following September, three other executions were issued and returned unsatisfied. On the 10th day of May, 1845, plaintiffs in the judgment gave notice to Russell, who had in the mean time become administrator, with the will annexed, of the estate of Wight, of the recovery of the judgment, its date and amount, and that he would have execution issued against the lands which were owned by Wight in his life-time, situated in Cook county. Russell indorsed on the notice an acknowledgment of its service.

On the 5th day of September, 1845, and more than three months after the notice was served, a fifth...