131 Ill. 309 | Ill. | 1890
delivered the opinion of the Court :
This was an original bill by appellants, to impeach the decree and proceedings in a partition suit on the ground of fraud, and for error apparent on the face of the proceeding. By the-demurrer all the facts well stated in the bill are admitted to-be true, and the question of the sufficiency of the bill to authorize the relief sought is presented.
The right of an infant defendant to a bill, at any time during his minority, by his next friend or guardian, to file an. original bill to impeach a decree against him, either for fraud or for error appearing on the face of the proceedings, is well, established in this court. (Loyd v. Malone, 23 Ill. 43; Johnson v. Johnson, 30 id. 215; Kuchenbeiser v. Beckert, 41 id. 172; Hess v. Voss, 52 id. 472; Gooch v. Green, 102 id. 507; Lloyd v. Kirkwood, 112 id. 329). The minor defendant is entitled to his day in court, whether it is expressly reserved by the-, decree or not. He is not bound to proceed by way of rehearing, or by bill of review.
A bill to impeach a judgment or decree for fraud must specifically state the facts relied on as constituting the fraud.. The pleader is not required to plead the evidence, but should state the specific facts which go to establish the fraud. Elston v. Blanchard, 2 Scam. 420; Roth v. Roth, 104 Ill. 45; Story’s. Eq. Pl. secs. 251, 428; 1 Daniell’s Ch. Pl. and Pr. 324.
The first charge of fraud in this bill is, that under an agreement between the guardian ad litem and the appellee, to that effect, the rights and interests of appellants were neglected and disregarded by said guardian, and sacrificed in the interest and for the benefit of appellee; that in pursuance of such fraudulent agreement the guardian made no objection, and offered no opposition to the proceedings in the partition suit, but consented to the same, paying no regard or attention to the interests of appellants; that such proceedings were brought, and the sale of the premises obtained, for the sole purpose of divesting appellants’ title and giving the same to appellee; that there was no just ground or occasion for the institution of the partition proceedings, and that appellee instituted the same from a base and corrupt motive, and to appropriate to her own use the greater part of the estate; and that she carefully and intentionally concealed all knowledge of the commencement and pendency of that suit from the relatives of appellants, and thereby enabled herself to bid in and purchase premises worth $10,000 for $5100.
If it be true that the partition suit was brought by Mrs. Stunz for the corrupt purpose stated, and that she concealed the institution and pendency thereof from those who might have looked after the interests of her stepchildren, and entered into a corrupt agreement with the guardian ad litem, whereby he should neglect the duty of his position as an officer of the court and suffer his wards’ interest to be sacrificed, and make no objection or opposition to the allowance of improper and unjust claims against the property made by her, and the decree was entered and the proceeding carried on in pursuance of such corrupt motive and agreement, then she was clearly guilty of gross fraud upon the rights of appellants, and can not be allowed to retain any undue advantage that she thereby gained, to the injury and prejudice of her minor stepchildren. If by such schemes and practices she succeeded in acquiring title to the property at a much less price than its value, a court of equity, at the suit óf the injured parties, and on proper bill, should set the sale aside, and restore the heirs to their just rights and former condition, so far as is practicable, and such heirs should, as before stated, be allowed their day in court for the purpose of asserting such rights.
The next charge of fraud is, that at Mrs. Stunz’ request, and acting under her directions, the commissioners appointed to make partition did not perform their duties or obligations in that behalf, but were grossly negligent, and valued said premises at only $5125, when they well knew they were worth over $10,000, and it is alleged that they made this valuation at the request and under the direction of appellee, and were controlled, governed and influenced by her in fixing the value of the premises at $5125, thereby enabling appellee to purchase the property for about $1700 less than she would have been obliged to pay for the same under a law forbidding a sale for less than two-thirds of the appraised valuation. There can be no question that if this allegation of the bill be true, and the commissioners suffered themselves to be influenced and controlled to the injury of appellants, such action will be fraudulent, and if procured by appellee, will furnish the ground for a bill to set aside the subsequent proceedings, and in any. event will furnish a legal ground for setting aside the report of the commissioners. In Gooch v. Green, 102 Ill. 507, this court said: “It was the duty of the commissioners to make a fair and impartial division of the lands, according to the rights and interest of the party, as declared by the judgment of the court. If the commissioners, in the discharge of their duty, were influenced and governed by one of the parties in interest, as alleged in the bill, such action will be fraudulent, and could not be held binding on the complainants.”
Commissioners in partition proceedings are required to be impartial and disinterested persons. They should stand indifferent between the parties, and act upon their own unbiased judgment, free from any influence by any one. If the property, as alleged, was worth over $10,000, and Mrs. Stunz procured the commissioners to appraise it at substantially half its value, so that she might purchase the -same for much less than if the valuation had been truly made, she is undoubtedly chargeable with fraud, and the report, and all subsequent proceedings based thereon, should be set aside.
As to the errors of law assigned upon the record, we refer to the opinion filed in the case of Stunz et al. v. Stunz, supra, and which is a writ of error to the Superior Court of Cook county in the original partition proceeding. We there hold many of the errors assigned by these same appellants, in that case plaintiffs in error, to be well taken, and it will not be necessary to repeat the ground of our judgment in that ease. We are of opinion that the charges of fraud in the bill are sufficiently specific to require the defendants to answer the same, ■and that the court therefore erred in sustaining the démurrer.
A motion has been made to dismiss the appeal in this case, on the ground, as it is alleged, that no freehold is involved, and therefore this court is without jurisdiction on appeal directly from the Superior Court. In our judgment, a freehold is involved. Under the sale in the partition suit, appellants’ title to the real estate in controversy is gone, and Mrs. Stunz, appellee, is the owner thereof. By the bill, appellants seek to have the partition sale set aside, the effect of which, if done, will be to divest the title of Mrs. Stunz, and to restore to appellants their former legal title in and to the premises. The ■dismissal of their bill was a denial of the relief sought, and appellants, by this appeal, seek the same relief they did in the court below.
For the reasons'given, the decree of the Superior Court of Cook county sustaining the demurrer to and dismissing the bill, is reversed, and the cause remanded to that court, with directions to overrule the demurrer and give appellees leave to answer the bill, if they so desire.
Decree reversed.
