116 Ill. 442 | Ill. | 1886
delivered the opinion of the Court:
We perceive no difficulty in the questions presented by this record. The apj)ellees, claiming to be the owners in fee of an undivided seventh part of the land in controversy, on the 15th day of April, 1885, filed a bill against the appellants in the Tazewell circuit court, praying for a partition of the same. The parties all claim through Thomas F. Railsback, who died testate on the 24th of May, 1884. By his last will and testament he gave the land in question, which constituted the homestead premises, to his widow, Louisa Y. Railsback, during her natural life, with remainder to his six children and two grand-children, the latter to take the share,of their mother, a deceased daughter of the testator. The will also authorized the executors, with the concurrence of the widow, to sell the land for money, in which event the interest thereon was to be paid the widow during her life, and the principal, upon her decease, was to be divided among the children and grandchildren, according to their respective interests in the land. The widow died in 1884, no sale of the premises having ever-been made under the power in the will. Prior to her. death, however, the appellees obtained a judgment against Ben. T. Railsback, one of the testator’s children, and devisee under the will, which became a lien upon 'his interest in the land. An execution was sued out upon the judgment and served on said interest. After due notice, the same was sold by the sheriff under the execution, and bid off by the appellees, who subsequently received a sheriff’s deed therefor.
The suit in which the judgment at law was obtained was brought by Wm. B. Lovejoy & Co., and it appears from the judgment itself that the firm consisted not only of appellees, but also of one Albert P. Lovejoy. It appears, however, from the execution docket, that appellees alone constituted the firm. This being so, the point is made that the .execution appears to have been issued on a different judgment from the one relied on to support the execution sale and sheriff’s deed, through which appellees claim. There was evidence aliunde, showing beyond all question that, there was but one judgment in the Tazewell circuit court in,favor of Wm. B. Lovejoy & Co. and against the said Ben. T. Railsback. The execution and judgment docket both show that this judgment was for $659.30, and costs taxed at $14, and that it was recovered on the 7th day of February, 1871. This, in connection with the positive proof that there was but one judgment in the court on which the execution could have issued, establishes conclusively that notwithstanding the variance the execution was issued on the proper judgment, and it is well settled by the decision's of this court that when this is made to appear, such a variance, being necessarily a merely clerical error, can not be taken advantage of in a collateral proceeding, as is sought to be done here. Durham v. Heaton, 28 Ill. 264; Johnson v. Adleman, 35 id. 281; McClure v. Engelhardt, 17 id. 50; Kinney v. Knoebel, 47 id. 421; Keith v. Keith, 104 id. 401. This is especially true in equitable proceedings. Stow v. Steel, 45 Ill. 333.
It is next urged, that inasmuch as Albert P. Lovejoy was a member of the firm of Wm. B. Lovejoy & Co., he is necessarily interested in the property sought to be partitioned, and is therefore a necessary party to the suit. It is to be observed in the first place, that this one-seventh interest in the land, when conveyed by the sheriff, became a part of the partnership assets of the firm of Wm. B. Lovejoy & Co., but the legal title thereof, by virtue of the sheriff’s deed, vested in William B. Lovejoy alone. This transaction occurred nearly fifteen years ago, and as he does not join in the suit, he may have retired from the firm altogether, upon a final accounting and settlement between the partners, by .the terms of which he may have ceased to have any further interest in the partnership effects.
But conceding Albert P. Lovejoy still has an equity, of which there is no proof other than afforded by the original sale and sheriff’s deed, it is not perceived how his equity can be injuriously affected by the present decree. Assuming there will be a division of the land itself, the only difference in his present and former relation to this seventh interest is, that by virtue of the decree it will be set apart from the balance of the land, and when so set apart, the legal title thereto, instead of being vested, as before, in William B. Lovejoy alone, will then be held by appellees for the use of the partnership, which, of course, will include any claim Albert P. Lovejoy, as partner, may have against it upon a final accounting between the partners. His interest, in that case, might equal its entire value, or it might amount to nothing at all, depending upon the firm’s liabilities to outside creditors and the state of the accounts - between the partners themselves. In short, we are of opinion that whatever interest Albert P. Lovejoy had in the land, it was fully represented by William B. Lovejoy, who, as we-have seen, alone held the legal title. (1 Washburn on Real Prop. 667.) As to appellants, they have no concern whatever as to how this matter shall be settled between the partners.
It is further contended by appellants, that by reason of the power of sale in the will, which might have been exercised after the execution of the deed by the sheriff, the children, including the defendants in the execution, had a contingent remainder only, and that consequently nothing passed by the sheriff’s deed. This view is clearly unsound. The power had nothing whatever to do with the vesting of the estate. It is obvious the estate vested in the children upon the testator’s death, subject to the power. Had the executor, with the concurrence of the widow, seen proper to sell the land after the sheriff’s sale, they might well have done so and made a good title to the property. The appellees, however, in that ease would have been entitled to one-seventh part of the purchase money upon the death of the widow. With respect to the proceeds, their rights would have been precisely the same as the child’s whose interest they purchased would have been had the execution sale never occurred.
The decree will be affirmed.
Decree affirmed.
