Casstevens v. Casstevens
81 N.E. 709
Ill.
1907
Check Treatment
Mr. Justice Carter

delivered the opinion of the court:

Counsel for appellant insist that as appellee Amanda Casstevens has no legal title in fee to the lands in question she could not maintain her suit to quiet title, particularly as against a person having the record title. “A bill to set aside a cloud on title is a proceeding in equity, and one who holds an equitable fee will be treated as the owner, and such equitable title will support the allegation of ownership of the title.” (Glos v. Goodrich, 175 Ill. 20; 2 Pomeroy’s Eq. Rem. sec. 730.) If this proceeding be a bill to quiet title, then the decree should not have required, as it does, the conveyance by A. T. Casstevens and his wife of the land by deed to the complainant. (Rucker v. Dooley, 49 Ill. 377; Pratt v. Kendig, 128 id. 293; Clay v. Hammond, 199 id. 370.) This bill is more in the nature of a bill for specific performance than to remove- a cloud on the title, but in addition to praying for specific relief it also contains a prayer for general relief. The rule is in such cases, that although the specific relief prayed for in the bill may be denied by the decree, yet under the general prayer such relief should be granted as it may be found, under the allegations of the bill and the proof in support thereof, the complainant is entitled to. (Gibbs v. Davies, 168 Ill. 205; Shields v. Bush, 189 id. 534.) Hence whether this be held to be a bill to quiet title or for specific performance, if the proof justifies it the court, under the allegations in the bill and the general prayer for relief, should grant such relief as in equity the parties are entitled to.

The main point to be decided from the record is, what was the extent of the interest which the three persons chosen to divide the property decided should be given to the widow ? Was it a fee or merely a' life interest ? There is nothing in the record to establish any agreement between the parties subsequent to the finding of these three arbitrators or commissioners directing the partition of the premises. The decision of these three men, duly appointed, if not accompanied by such fraud or mistake as would render it voidable, would be binding upon the parties who signed the agreement, as a common law submission to arbitration. (Eisenmeyer v. Souter, 77 Ill. 515; Phelps v. Dolan, 75 id. 90; Smith v. Douglass, 16 id. 34; 2 Am. & Eng. Ency. of Law,—2d ed.—540.) The evidence as to what these arbitrators or commissioners actually decided in dividing the property is not clear. Two of the three are dead, and the surviving one, Newton Bassett, had moved out of the State and was not located until about the time of the trial. Appellant then made an affidavit for continuance to take the deposition of Bassett, and in the affidavit stated that the witness was residing in Oklahoma, and that he expected to prove, among other things, by Bassett, that he was one of the persons chosen to divide the premises, and that he and the other two commissioners, in pursuance of said article of agreement, went upon said land and assigned to said Amanda Casstevens, as and for her dower and homestead interest in said land, the land described in the bill of complaint; that she was not to be the owner of said land set off to her as a fee simple estate. On this affidavit being presented the court held that it set up sufficient grounds for continuance, and thereupon counsel for the appellee Amanda Casstevens admitted that if the said Bassett were present he would testify as set forth in the affidavit. Such admission having been made, the trial proceeded.

It appears from the evidence that three deeds were made out by a notary public, one M. A. Ewing, who was one of the witnesses called by appellee Amanda Casstevens. He stated that these deeds were made out at the request of the two sons and were taken to the house of the widow, and the two conveying the parts allotted to the sons were signed; that Walter Casstevens signed the deed to his mother’s portion but did not acknowledge it, and that A. T. Casstevens refused to sign it. A document was introduced in evidence which he stated was the deed in question, it being satuto'ry quit-claim in form, conveying from the two sons and the wife of A. T. Casstevens to the widow the one hundred acres in question, no mention being made of a life estate. It does not clearly appear from Mr. Ewing’s testimony as to how much evidence this deed affords of the finding of the arbitrators or commissioners. He stated that he drew the deeds when the three arbitrators were present and that they compared the descriptions to see if they were right. However, later in his testimony, we find the following questions and answers:

Q. “You did not' understand she had any fee simple in the matter?

A. “I did not consider it was any of my business.

Q. “Did you understand that she had any fee simple ?,

A. “By the agreement I inferred she did.

Q. “You inferred she had a right to deed that away?

A. “Yes.”

This would indicate a conclusion based ' on his own judgment as to the meaning and intent of the agreement, rather than a definite knowledge as to the findings of the arbitrators.

The widow, Amanda Casstevens, testified that she understood she was entitled, under the agreement, to one hundred acres in fee, but her testimony does not make it clear whether she was giving her recollection of what the arbitrators found her share to be or her general idea of what she thought it should be. The same may be said as to Walter Casstevens’ testimony. Appellant, A. T. Casstevens, testified on this point that he thought there were plats or a written report made by the commissioners, and that he never heard anything from the commissioners with reference to the land allotted to his mother otherwise than that she was to have a dower interest. The testimony tended to show that these commissioners or arbitrators made a written report of their findings, which was afterwards lost and could not be produced in evidence. With the exception of what it was admitted Mr. Bassett would testify to if present, no positive testimony was given by any of the witnesses as to the contents of their report or the substance of their findings. M. A. Ewing, Walter Casstevens and the mother all testified that they did not understand there was any talk about dower or homestead.

When partition is made by mutual deeds between the co-tenants, the deeds should be read and construed in the light of the circumstances attending their execution, in order to carry into effect the true intent of the parties; and it is competent to show that their only purpose was to accomplish the partition, and that no other consideration passed between the parties. (21 Am. & Eng. Ency. of Law,—2d ed.—1136.) When a voluntary partition takes place, each party transfers or releases the interest which he had in all the land for an exclusive and fixed possession in a part, and he does not derive title or interest from his co-tenant by this transfer so that either can be said to hold under the other. (Berry v. Seawell, 65 Fed. Rep. 746.) It is well established, as a general rule, that co-tenants may partition the property among themselves by mutual agreement, (21 Am. & Eng. Ency. of Law,—2d ed.—1131,) and that the agreement in writing for partition will have the same effect as an actual partition. Lavalle v. Strobel, 89 Ill. 370.

So far as these proceedings partake of the nature of specific performance the rules of equity invoked in such proceedings must be followed. Specific performance of the conveyance of land will not be decreed unless the contract is established by competent evidence, free from doubt or suspicion, clear and definite in terms and upon a valuable consideration. (Wolfe v. Bradberry, 140 Ill. 578.) Specific performance will not be decreed unless it is reasonable and equitable. (Hatch v. Kizer, 140 Ill. 583; Montgomery Palace Stock Car Co. v. Stable Car Line, 142 id. 315.) The enforcement of a contract for specific performance is within the sound discretion of the court, according to the circumstances of each case. (Shovers v. Warrick, 152 Ill. 355.) Equity will never enforce an executory agreement unless there wras an actual valuable consideration. (3 Pomeroy’s Eq. Jur. sec. 1293.) For the mere division of the undivided interests into several interests according to' the proportions taken by each party under the law, the mutual agreement to divide was a sufficient consideration, but there was no sufficient consideration to support a division which would give the widow a fee simple title to one hundred acres instead of a life interest in one-third of three hundred acres.

It must be admitted that the meaning of the written contract in question is somewhat ambiguous. The oral testimony as to its meaning is conflicting. India Casstevens, the wife of A. T. Casstevens, could not be compelled to join in a conveyance when she was not a party to the agreement. (2 Pomeroy’s Eq. Rem. sec. 834; Humphrey v. Clement, 44 Ill. 299; Mix v. Baldwin, 156 id. 313.) But as she has not prayed an appeal this question is not vital. National Bank of Pontiac v. King, 110 Ill. 254.

The evidence is uncontradicted that the agreement to submit the division of the land was made solely for the purpose of saving the expenses of court proceeding. Piad the partition been made in court, Amanda Casstevens would not have obtained, under the law, a fee in the one hundred acres of land. She was not entitled to homestead, and, so far as this record discloses, a life interest in this one hundred acres of land fully equals, if it does not exceed, her dower interest in the entire three hundred acres. Plainly, from the testimony, the parties may not have had, at the time of the division, a clear understanding of what their interests were. The quit-claim deed to the mother, signed by Walter Casstevens and never acknowledged, was left lying carelessly about for years without anything being done concerning it until these proceedings were started. The record does not disclose why at this late date such proceedings were instituted. We are not prepared to hold that she is precluded from obtaining the relief asked for, on the ground of laches; but this delay, if it indicates anything, tends to show that she did not have the clear understanding as to her rights in the premises that she now claims.

Prom the evidence in the record we are of the opinion that Amanda Casstevens did not show such title in herself as would warrant a decree clearing from the record the interest of A. T. Casstevens as a cloud upon her title, or a decree compelling A. T. Casstevens and his wife to convey to her their interest in said one hundred acres. The burden of proof having been upon the complainant to establish her title, either legal or equitable, and she having failed to do so by such satisfactory or tangible proof as would justify either the special or general relief prayed for in the bill, we are of the opinion the trial court erred in not dismissing the bill for want of equity. The decree of the circuit court will be reversed and the cause remanded, with directions to dismiss the bill for want of equity.

Reversed and remanded, zvith directions.