126 Ill. 550 | Ill. | 1888
delivered the opinion of the Court:
The action of the court in setting aside the verdict of the jury, and in vacating the order for the submission of the cause to a jury, and in proceeding to find the facts and enter a decree without evidence other than that which had been heard upon the jury trial, was not erroneous. In chancery causes in which the right of a trial by jury is not expressly given by law, the verdict of a jury is merely advisory. In such cases, the chancellor may act as his sound judicial discretion, and his judgment and opinion of the weight of the evidence, dictate. He may either predicate his findings and decree upon the verdict, or, if he is not satisfied with it, may set it aside and submit the issues to another jury, or, acting in total disregard of the verdict, may, on the evidence submitted at the jury trial, render a decree that is contrary to the findings returned by the jury. The chancellor may, as matter of course, hear additional testimony. But in the case at bar it does not appear, from the record, that either party to the cause offered or proposed to produce any testimony other than that which had been heard at the jury trial. It is not even now suggested that appellant desired to introduce further evidence at the hearing. An examination of the record shows that the findings and decree of the Superior Court were fully sustained by the proofs.
There is no forcé in the claim that the rights of Mary Kelly, daughter of appellant and appellee, who was not a, party to the suit, were adjudicated therein. The court admitted testimony to show that she earned and paid all the purchase money for the land, except the $35 contributed by her sister, Jennie, who was a minor. This evidence was clearly admissible, not for the purpose of establishing an equity in Mary Kelly or of impeaching the deed to Jane Kelly, but for the object of rebutting the claim of appellant that he had an equity growing out of the payment of purchase money. Proof that the consideration for the land was paid by Mary Kelly, was a legitimate and effective way of showing it was not paid by him.
It is also urged as error,' that the court did' not find that appellant had a right of homestead and dower in the land or its proceeds. In respect to this matter it is sufficient to say that no question of homestead ór dower was involved in the suit. The claim made by the bill of appellant, and all that the evidence offered by him tended to prove, was simply and solely that he had contributed purchase money for the property, and was therefore entitled, in equity, to an interest in its proceeds.
It is insisted that ^as the title to the land was in appellee, :and she purchased the house and moved it onto the lot, it "thereby became a part of the realty, and that it was error for the court to decree that in ascertaining the interest of appellant in the proceeds of the premises, the improvements ■upon the lot should be separated from the realty, and- separate ■compensations made of the values of, and of the moneys received for, the lot and the house, severally. The whole property, including both land and building, realized $7000, and the court was justified in finding, from the evidence, that the building was worth $4200 and the land worth $2800. It was :also found by the court that appellant had contributed nothing to the purchase or repair of the building, but had contributed, through his minor child, $35 of the money paid for the land. The court determined his equitable interest in the proceeds of "the sale of both land and building, by allowing him that proportion of the value of the lot which the $35 contributed by him bears to $700, the whole amount paid for the lot. The rule adapted for ascertaining the interest of appellant in the proceeds of the sale was equitable and just, and afforded the •only reasonable basis for determining the amount he was entitled to receive that was available under the facts of the case.
We find no error in the record. The decree of the Superior ■Court and the judgment of the Appellate Court are affirmed.
Judgment affirmed.
Mr. Justice Bailey, having heard this case in the Appellate 'Court, took no part in its decision here.