| Ill. | Dec 15, 1857
Whether we consider this as a bill in chancery, as it is now insisted, for the defendant in error, or as a petition for partition, under the statute, the final result will be the same. In either case, the decree or judgment of the court must be reversed. If it is a bill in equity, then the decree must be reversed, for the want of proper and necessary parties. The answers which were sworn to, and filed by these defendants, who did appear, show that Lemon Stark claimed to own, and had an equitable title to, one-half of the entire premises described, and which, by its decree, the court adjudged to belong to the complainant. And even the depositions taken by these defendants, to say the least, go very far towards establishing that fact. But be this as it may, the statements of the answers were sufficient to make it incumbent upon the complainant to make him a party, that he might come in and assert and maintain his right, that all of the rights of the parties might be settled and finally disposed of, in the one suit. It is no answer to say, that as he was not a party, he is not bound by the decree, and may, at any time he may choose, come in and file a bill against Kester, as his trustee, and make him convey the legal title to his portion of the premises. All of the other defendants have a right to have such a partition made as shall bo binding upon all of the other joint owners with them, so that they may know that they have a title which cannot be disturbed by any subsequent suit by new parties to the portion of the lands set off to them.
But, considering that this record shows a proceeding for partition, under the statute, and not in chancery, the seventh section of the seventy-ninth chapter, R. S., which ¡prescribes this proceeding, is as follows: “ During the pendency of any such suit, or proceeding, any person claiming to bo interested in the premises to be assigned or aparted, may appear and answer the petition, and assert his or her rights, by way of interpleader; and the court shall decide upon the rights of persons appearing as aforesaid, as though they had been made parties in the first instance.” After the commissioners, appointed to make the partition, according to the directions of the order of partition which had been made, had made their report, setting off a portion of the premises to some of the parties to the proceeding, and recommending the sale of the balance, for the benefit of the other defendants, and before that report was acted upon, and confirmed, and the portion ordered to ibe sold which had not been divided, Spencer Stark, who resides in California, and who had not been made a party to the proceeding, appeared by his attorney, and filed his answer to the petition, by way of inter-pleader, under the statute above quoted, in which he alleged, and showed, that the deed which he made to Hiram Stark, for one-half of the premises, was but a mortgage, executed to Hiram, for the purpose of securing him for certain moneys which Hiram agreed to pay to certain creditors of Lemon, amounting to between four hundred and five hundred dollars, but that, in fact, he had never paid those debts. The answer also shows, that Kirby, at the time he purchased the premises of Hiram, had notice of these facts. To this answer, by way of inter-pleader, a demurrer, as it is called, and so considered by the parties and the court, was filed, and argued and sustained by the court, and an order was then entered, confirming the report of the commissioners, and ordering a sale to be made of that portion of the premises which had not been partitioned, and that the proceeds be divided among the original parties, according to their respective rights, as established in the first order.
That the averments in this answer, are such as to entitle the party to interplead under the statute, we cannot, for a moment, doubt, and the only possible question which could, with any show of plausibility, be made, is, whether the interpleader was filed in due time, although, upon this'point, no question seems to have been made in the court below, but it was considered upon its merits, and field insufficient. The statute says, the interpleader may be filed “ during the pendency of such suit or proceeding.” Any time before the case is finally disposed of, must be considered as during its pendency. Until that time, it is before the court, and entirely subject to its control and jurisdiction, and any previous orders or proceedings may be changed, altered, or amended, to meet the exigencies of new facts which may be brought before the court by new parties, by their interpleaders. Here, everything was in fieri when this interpleader was filed. The suit or proceeding was not yet finally determined, but was still pending, and the interpleader was filed in proper time.
We have not deemed it necessary to consider the interpleader filed by Boyer and wife, at the same time, further than to observe, that it clearly failed to show that Mrs. Boyer had any interest in the premises. Her claim rests upon the assumption that her minority continued until she was twenty-one years of age. We have decided that it terminated at the age of eight-teen, after which time, she executed the deed, and she must be bound by it. Stevenson and Wife v. Johnson, 18 Ill. R. 209.
The judgment must be reversed and the cause remanded.
Judgment reversed.