98 Ill. 510 | Ill. | 1881
delivered the opinion of the Court:
It seems to be conceded that appellee, in February, 1858, was, on her own application, divorced from her husband, Thomas H. Collins. The parties had one child, Eliza Collins, whose care and custody was decreed to appellee, and a decree subsequently rendered, on the 15th of December, 1860, required Collins to pay to appellee annually $50 until Eliza should arrive at twenty-one years of age, or until her marriage before that time. The decree declared a lien on 120 acres of land to secure its payment, and provided that on default of payment execution might issue, and the land be sold for its satisfaction.
Eliza lived with and was supported by her mother from December 15, 1860, until the 11th of March, 1866, when she was married to Joseph Desland. During that time no portion of the annual sum of $50 was paid to appellee. Eliza died in October, 1866, intestate, leaving no heirs of her body. Hothing has been heard of Desland since Eliza’s death.
One Strader, at the February term, 1861, of the Kane circuit court, recovered a judgment against Collins for $257, and costs of suit. An execution was issued, and levied on the 120 acres of land, subject to the lien of the decree, and other lands. They were sold by the sheriff and bid'off by Strader, who afterwards assigned the certificate of purchase to one Seth Marvin, and not having been redeemed he obtained a sheriff’s deed for the lands. He went into possession under the deed and made improvements, and subsequently died, leaving his heirs in possession.
A. J. Marvin took out letters of administration on the estate of Collins, and debts to about the sum of $1000 were proved up against the estate, and the personal assets being insufficient to satisfy them, he petitioned for and obtained an order of sale of the lands of which Collins died seized, for the payment of debts. The lands were sold on the 17th day of June, 1863, to Seth Marvin, and he received a deed from the administrator for the same lands that had been sold under Strader’s execution.
On a hearing, the court found that the sale by the administrator was void, because no notice was served on appellee of the intended application for license to sell these lands for the payment of the debts against Collins’ estate. It also found that all of the lands had been sold under the execution in favor of Strader, and a deed made to Seth Marvin under that sale. It also found that appellee and Desland were the only heirs of Eliza, deceased, and that appellee had a lien on the 120 acres of land, for the amount of alimony, of $50 per annum; that she was the owner in fee of one 40 of the 120 acres upon which the lien existed, as against all of the defendants except Desland, and decreed she was entitled to the immediate possession of the 40-acre tract. Also, that a tax title held by Seth Marvin conferred no title on him, and that for the use of the 40-acre tract by the Marvins the defendants pay her $246.58,—the amount found due after deducting improvements and payment of taxes. Defendants bring the case to this court by appeal, and assign various errors on the record.
"Appellee has preserved no evidence in the record, and, according to the practice in courts of equity, as announced in many cases in this court, the party in whose favor the decree granting relief is rendered, to maintain it must preserve the evidence, or the decree must find specific facts that were proved on the hearing. It is not the duty of the party against whom the decree granting relief ,is rendered to preserve the evidence, as appellee’s counsel seem to suppose.
■ We find no evidence establishing the invalidity of the sale under the execution in favor of Strader, as to the 40 acres which the court finds to belong to appellee, except as to Desland. The court finds the recovery of the judgment against Collins, the date, the amount, that execution was issued, levied, and sale and sheriff’s deed to Marvin, and there is nothing to show that he did not acquire title to this as well as to the 80-acre tract. There is no evidence or finding of facts that show that appellee had a superior title to Marvin. He, no doubt, purchased subject to the lien of the alimony; but at the marriage of Eliza it could be a lien for no more than was then due, and such a lien does not, as all know, constitute a fee simple title. It is but a lien, and no more.
There were no allegations in the bill in reference to Marvin’s tax title. In fact, the first time it appears in the record is in the decree holding it invalid. In this there was error. The decree must be confined to the pleadings. One case can not be made by the bill, and relief granted on another and different case made by the proofs. There is no cáse made by the bill or proofs, so far as this record discloses, nor does the finding in the decree state in what respect the notice for judgment was defective. We suppose the decree refers to the notice of the collector, that he would apply for judgment against the land for taxes, but it is not so stated. The decree should have pointed out the specific defect, or a copy of the notice should have been embodied in a certificate of evidence, that it might be seen whether the ruling of the court was correct on that question.
The court found that Desland and appellee were heirs of Eliza, and, so far as the record discloses, correctly. Eliza died intestate, leaving no children, or descendants of a child or children. She, however, left Desland, her husband, and appellee, her mother, surviving her, and under the statute of Descents then in force, the husband became, on her death, invested with one-half of the real estate of which she died seized, and appellee, as her mother, of the other half, and the title vested at once in them on the death of Eliza, nor, as seems to be supposed, would his subsequent death affect his title to these lands. If living, and Eliza was seized of any lands, he still owns them unless he has parted with the title, or has been deprived of it by the administrator’s sale, or otherwise. If he died intestate, and he, at the time of his death, held any interest in the lands, that interest descended to his heirs at law. There can be no claim that appellee is such an heir. Then, if any of the land in controversy belonged to Desland and appellee by inheritance, they held it in equal parts, as tenants in common, and each was entitled to one-half of the rents and profits, and it was error to decree the payment of all of them to appellee. If entitled to anything, as the finding of the decree now stands she was entitled to but half of the rents.
As the decree must be reversed, and the cause remanded for further proceedings, it would be useless to consider the exceptions to the- master’s report, as, on another hearing, the evidence may be different, or it may appear that appellee is not entitled to an account for rents and profits. We will not, therefore, examine the account.
We are of opinion that appellee had a lien on the 120 acres of land for the yearly alimony until paid, and that as it was found, allowed, and ordered to be paid by decree of the court, it was not barred by the statute of Limitations or by laches. It was a decree for the payment of money in installments.
There may be other errors in the record, as it now stands, but as the evidence, were it before us, might obviate them, we shall not discuss them on this record.
The decree of the court below is reversed, and the cause remanded for further proceedings.
Decree reversed.
