230 Ill. 243 | Ill. | 1907
delivered the opinion of the court:
Under the third clause of the will of William Claridge there can be no doubt that the testator intended that his wife, Elizabeth M. Claridge, should have the two hundred acres of land in controversy during her natural life, and that his daughter, Mary J. Dixon, and her children, John W. and Elzina, and the survivors of them, should have a vested fee simple title in remainder, subject only to the life estate of the widow. The title of the tenants in fee being vested upon the death of .the testator, it became subject to the' laws of conveyance, partition and sale on execution for the debts of the owners.
That reversioners and remainder-men owning interests in fee in land subject to an unexpired life estate are entitled to partition is well established law in this State. (Scoville v. Hilliard, 48 Ill. 453; Hartmann v. Hartmann, 59 id. 103; Drake v. Merkle, 153 id. 318; Ruddell v. Wren, 208 id. 508; Miller v. Lanning, 211 id. 620; Dee v. Dee, 212 id. 338.) It is equally well established that a vested remainder is subject to levy and sale on execution against the remainder-man. (Railsback v. Lovejoy, 116 Ill. 442; Springer v. Savage, 143 id. 301; Ducker v. Burnham, 146 id. 9; Brokaw v. Ogle, 170 id. 115.) In the case last above cited it is held that the remainder-man’s interest encumbered with a homestead may be levied upon and sold subject to the homestead right of the widow, and that such premises are subject to partition among the heirs, subject to the right of dower and homestead estate of the widow. The rule appears to be otherwise with respect to contingent remainders. Hayward v. Peavey, 128 Ill. 430.
Since it is contended that the titles of Mary- J. and John W. Dixon and Elzina Deadman were divested at different times and by different methods, it will be necessary to consider the case as applicable to each of these parties separately.
First, as to the interest of Blzina Deadman.—The evidence shows that the partition proceeding set up in the answer of John W. and Cordelia Yantis was regularly conducted and resulted in a decree for the sale of the premises; that there was personal service upon Elzina Deadman, as shown by the return of the sheriff of Moultrie county and by the finding of the court in the decree; that in pursuance of the decree a sale was had and that the premises brought approximately their appraised value; that Cordelia Yantis became the purchaser at the sale and received a certificate of purchase, which she assigned to C. W. Steward, upon which a master’s deed was issued to Steward April 1, 1895. The evidence also shows that Steward immediately took posession of one hundred and twenty acres of the land in question and continued to hold the same until June 10, 1904, when he conveyed the premises to Cordelia Yantis. Elzina Deadman made no defense to this bill for partition. Without regard to the validity of the Yantis title to the two-thirds interest which she claimed in that suit as against Mary J. and John W. Dixon, it is clear that, so far as Elzina Dead-man is concerned, she is bound by that decree, and will not be heard to say in this or any other suit that Cordelia Yantis had no title. If she desired to question the title of Cordelia Yantis to the interest she claimed, she should have done so in the original partition suit between herself and Cordelia Yantis. Having failed to question her title in that suit she will not be heard now to say that Cordelia Yantis had no interest and that the shares claimed by her belonged to other persons. She is estopped by the adjudication in that case from asserting the non-existence of the Yantis title, which was directly involved and passed on in that litigation. She received the proceeds of her one-third interest, which she has held from the time distribution was made and still holds the same, and does not, by her bill, offer to restore the same to the purchaser at the sale. After the receipt of her share of the proceeds of the sale Elzina Deadman remained silent when in conscience she should have spoken; now equity will debar her from speaking when in conscience she ought to remain -silent. Relying on his title obtained with a knowledge of this appellant, the purchaser took possession and has expended large sums of money in improvements and taxes, and it would be highly inequitable, if not positively fraudulent, to permit his title to be disturbed by one whose silence justified a belief that her claim had been abandoned.
Conceding the existence of irregularities in the partition proceeding, there is, in our opinion, such a want of diligence in applying for relief that a court of equity cannot grant it without relaxing its respect for some of the elementary maxims that have ever controlled in the administration of equitable remedies. The summons in the partition case was served on Elzina Deadman on the second day of October, 1894, and the master’s deed was executed on April 1, 1895. She filed her bill in this case on November 1, 1905. There was therefore a delay of more than ten years from the date of the master’s deed and more than eleven years from the service of the summons, and since she offered no defense her acquiescence may well be said to date from the service of the summons. No circumstances exist to shield her from the rule that “equity aids the diligent,—not those who slumber on their rights.” The scope and effect of this rule, irrespective of any statutory limitation, was stated by an eminent English chancellor as follows: “A court of equity, which is never active in relief against conscience or public convenience, has always refused its aid to stale demands when the party has slept upon his rights and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith and reasonable diligence.” This salutary rule has been constantly applied by courts of equity in this State from its earliest history down to the present time, and our Reports abound in cases illustrative of its application. In administering their remedies, courts of equity, while sometimes adopting the statutory period of limitation, by analogy have never regarded themselves bound down by any hard and fast rule, but, looking at the parties, their relation to each other and the surrounding circumstances, have determined the question of diligence in each case according to equity, having due regard for these elementary principles upon which their jurisdiction rests. x .
This much we have said on the assumption that the partition proceeding was so irregular as to give rise to some equities in favor of this appellant had she applied to the court in due season and in a proper manner, but we fail to find any such irregularities. It is probably true that the court erred in circumscribing the life estate of Elizabeth M. Claridge to eighty acres, when, under the will, she was entitled to a life estate in the entire two hundred acres. But even if this should be granted, the life tenant did not complain, but accepted what was awarded her and enjoyed it as long as she lived. Perhaps eighty acres was all she wanted. At all events, this error, if error it was, did the tenants in fee no harm, but was an advantage to them by clearing" off the life estate from one hundred and twenty acres, thereby enhancing the value of the fee. If there is any other irregularity in the partition proceeding it has not been pointed out and'we have been unable to discover it. We can scarcely conceive of a case in which the complaining party has so little to commend her to the favorable consideration of a court of equity. There was no error in dismissing the original bill so far as Elzina Deadman was concerned.
As to the case of Mary J. Dixon.—It will be remembered that Mary J. Dixon is the mother of Elzina Deadman and John W. Dixon. The evidence shows that Mary J. Dixon became surety for her son, John, on certain notes upon which suit was brought, resulting in a judgment for $177 against Mary J. Dixon, and by virtue of an execution issued upon said judgment her interest in the two hundred acres of land was sold to Cordelia Yantis, and that Illinois W. Hess, who had a judgment against John W.‘ and Mary J. Dixon for $200, after the expiration of twelve months and within fifteen months from the sheriff’s sale redeemed the premises and assigned his judgment and certificate of redemption to Cordelia Yantis, to whom a sheriff’s deed was issued for the undivided interest of Mary J. Dixon in 1894. After the sheriff’s deed was issued Mary J. Dixon never took any steps to set aside the sale or redeem therefrom, but appears to have abandoned all claim to any interest in the premises until this suit was brought by her daughter, Elzina Deadman, and she was brought in first as a defendant, and afterwards, by amendment, made a complainant in the original bill. The principal objection made to the judgment against Mary J. Dixon upon which her interest in this farm was sold, is a claim that the debt had been paid by the sale of lumber and ties off the land before suit was brought, and that the judgment was therefore based upon a groundless claim. There is some testimony tending to show that a sufficient amount of timber was removed from the premises and sold to the Chicago and Eastern Illinois Railroad Company, through Richardson, to have paid the debt in full, but the evidence is not at all clear upon this point. We do not deem this a question of controlling importance, and hence will not set out and discuss the evidence bearing upon that question. If it was established that no debt in fact existed at the time the suit was brought and judgment rendered, the judgment would simply be voidable on the ground of fraud. The purchaser at an execution sale is not required to look beyond what is disclosed upon the face of the record to ascertain if the judgment was founded upon a bona fide debt. The judgment thus fraudulently obtained is not absolutely void, but is only voidable, at the instance of the party aggrieved, when relief is applied for in apt time. Mary J. Dixon has failed to pursue her remedy with that diligence that is required to give her a standing in a court of equity. All that has been said upon this question in disposing of the case of Elzina Deadman applies to the case of Mary J. Dixon, and for the reasons there given ’ there was no error in dismissing the bill as to her.
The case as to John W. Dixon.—By his cross-bill John W. Dixon alleges that his deeds to Chafee and Richardson were intended to secure the grantees for certain indebtedness due from him to them, and that their deeds to Cordelia Yantis were given to secure a loan made for the purpose of obtaining money to liquidate the Chafee and Richardson debts. So far as the deed executed to Chafee is concerned, the evidence satisfactorily shows that it was made as security for a debt of $500, and the same may be said with reference to the conveyance made by Dixon to Richardson; but when these parties conveyed to Yantis, the evidence does not support the contention of John W. Dixon that the conveyance to Yantis was likewise intended as a mere security for a debt. Upon this subject E. A. Richardson testifies that John W. Dixon told him that he wanted to sell his interest and straighten up his debts; that Richardson made an agreement with Yantis by which Yantis was to furnish the money to pay Chafee and Richardson and some other claims against Dixon and give Dixon $400 in cash and take a deed to his interest in the premises, and that this arrangement was consummated. He testifies that the conveyance to Yantis was an absolute conveyance of all interest that John W. Dixon had, and that there was no agreement that Yantis would re-convey to Dixon upon the payment of the amount of money furnished to him by Yantis. Chafee testifies that he made a deed to Yantis in pursuance of some arrangement made by Dixon and Yantis; that he did not know the details of the understanding between them. Yantis testifies that he bought Dixon’s interest outright and paid for it, and that Chafee and Richardson made the deeds to Cordelia Yantis, his wife, by the mutual consent of all the parties. He contradicts the claim of John W. Dixon that he agreed, either in writing or otherwise, to re-convey the premises to Dixon upon the re-payment to him of the money that he had advanced. John W. Dixon is the only witness who testifies to the alleged agreement to re-convey.' He says that he executed his note to Yantis at the time the deed was made, and that a bond was executed to him by Yantis but was not signed by Mrs. Yantis. He claims that he left the bond with Yantis and that he has never had possession of it since. This is substantially all the evidence bearing upon the question involved. The burden of proof is upon the party alleging that a deed absolute on its face was intended only as a mortgage, to establish such fact by clear and convincing evidence. Knowles v. Knowles, 86 Ill. 1; Bailey v. Bailey, 115 id. 551; Keithley v. Wood, 151 id. 566; Burgett v. Osborne, 172 id. 227; Williams v. Williams, 180 id. 361; Heaton v. Gaines, 198 id. 479.
Appellants insist that having established that the conveyances to Chafee and Richardson were mortgages, and Yantis having accepted conveyances from them with notice of the character of title in the grantors, the latter will be held to hold the title subject to the same defeasance that existed in the original conveyances, and authorities are cited to sustain the proposition that having established the character of mortgages in these conveyances they will ever be treated as mortgages. Under the established law of this State a deed absolute with a parol or verbal defeasance is valid, and the party entitled to the equity may maintain a bill to redeem if the fact can be established by that quantity of proof that the law demands. ( Tillson v. Moulton, 23 Ill. 600; Hallesy v. Jackson, 66 id. 139; Pearson v. Pearson, 131 id. 464.) While a condition of defeasance may rest in a parol or verbal agreement between the parties it may be extinguished in the same way. When the legal title is conveyed to secure a loan no action is necessaiy to divest the right to redeem. The entire legal title is passed by the deed. (Pitch v. Miller, 200 Ill. 170.) The right to redeem may be lost by limitation or laches. Where a deed has been made which was intended as a mortgage, and the party having the right to redeem makes a sale and directs the holder of the legal title to convey the premises to the purchaser, such purchaser will take the title divested of the condition of defeasance. (Maxfield v. Patchen, 29 Ill. 39; Carpenter v. Carpenter, 70 id. 457; West v. Reed, 55 id. 242; Cramer v. Wilson, 202 id. 83.) The preponderance of the evidence shows that John W. Dixon made a sale to Yantis, and that the conveyance was made in pursuance of such arrangement and by his direction. There is here also a want of diligence on the part of John W. Dixon to assert his rights. The deeds to Mrs. Yantis were made in 1892, and there is no satisfactory explanation given why twelve years should be allowed to elapse before any attempt was made to set up his right to redeem.
Our conclusion is, upon the whole case, that neither Elzina Deadman, Mary J. Dixon nor John W. Dixon has any title, rights or interests in the premises involved, and that there was no error in dismissing the original and cross-bills for want of equity.
T.he decree of the circuit court of Shelby county will be affirmed. „ , Decree affirmed,.
