Wolf v. Ogden

• Citation: 1872 WL 8547,66 Ill. 224
• Parties: ISAAC O. WOLF et al.v.ISAAC OGDEN.
• Decision Date: 30 September 1872
• Court: Supreme Court of Illinois

66 Ill. 224

1872 WL 8547 (Ill.)

ISAAC O. WOLF et al.

v.ISAAC OGDEN.

Supreme Court of Illinois.

September Term, 1872.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the County Court of Wabash county; the Hon. JAMES S. JOHNSTON, Judge, presiding.

Messrs. BELL & GREEN, for the plaintiffs in error.

Mr. S. Z. LANDES, for the defendant in error.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This was a proceeding commenced in the county court of Wabash county, at the June term, 1871, for an order to sell real estate to pay debts. The petition is in the usual form, and alleges that Martin Wolf departed this life, in 1856, seized of the real estate described; that defendant in error was appointed administrator the same year; that debts to the amount of $457.98 had been regularly allowed against the estate; that the personal assets had been exhausted, and the debts, together with the interest, remained unpaid.

Fourteen years having elapsed from the death of the intestate before filing the petition, it is insisted the lien of creditors, if any ever existed, is barred, and therefore the decree ordering the sale was improper.

There is no statute barring actions or proceedings of this character, but it has been held in numerous cases in this State, the right to have real estate sold to pay debts will be barred after the lapse of seven years, unless the delay can be explained. Each case must rest upon its own peculiar facts. McCoy v. Morrow, 18 Ill. 519; Rosenthal v. Renick, 44 Ill. 203; Moore v. Ellsworth, 51 Ill. 308; Bursen et al. v. Goodspeed, 60 Ill. 277.

An extraordinary delay of fourteen years has intervened between the death of the intestate, the granting of letters and the filing of the petition, which is not explained by anything in the record. The petition itself is silent as to the cause. There is no certificate of evidence, and the facts found by the court as stated in the decree afford no reasonable explanation. The court found the delay in not applying for leave to sell the estate was the fact the premises were, at the time of Wolf's death, his homestead, and continued to be occupied for a considerable time after his death by the widow and the family, the administrator and creditors being under the belief the homestead was still in the youngest child, Meribah, to whom the rents had been paid for her support during the time the family of the intestate did not occupy the property; that at the time of filing the petition the homestead right had ceased by reason of abandonment, and the widow's right of dower by reason of her death.

The facts found by the court do not bring the case within the exception to the...