Allison v. Drake

Mr. Chief Justice Bailey delivered the opinion of the Court: The appellees have moved to dismiss the appeal, on the ground that the decree appealed from is not final. This contention is based upon the fact that the decree, after definitely and finally determining the rights of the parties by vacating and setting aside the decree in the former partition suit and all proceedings thereunder and ordering a reconveyance to the complainants by the representatives of Allison of lots 1 and 2, and also fixing the respective interests of the several joint tenants in the land in controversy and ordering partition thereof between them and appointing commissioners for that purpose, also awards the complainants an accounting in respect to the use and occupation of the lands, and refers the cause to the master to take and state such account. We are of the opinion that the decree is final so as to authorize an appeal to this court, notwithstanding the order for an accounting. A final decree is not necessarily the last order in the case, as orders sometimes follow merely for the purpose of carrying out or executing the matters which the decree has determined, but when it finally fixes the rights of the parties, it is final and may be reviewed on appeal or writ of error. Myers v. Manny, 63 Ill. 211; Bostwick v. Brinkerhoff, 106 U. S. 3; St. L., I. M. & S. R. R. Co. v. Southern Express Co., 108 id. 24. That is done by the present decree, and the proceedings under the order of reference are only in the nature of an execution of the decree. The point is made that the bill, being a bill'of review, or a bill in the nature of a bill of review, is insufficient because it fails to set out, in extenso, the pleadings and decree in the matter sought to be reviewed, and in support of this contention we are referred to Aholtz v. Durfee, 122 Ill. 286, and other decisions in which the same rule is laid down. In this case, however, the question as to the insufficiency of the bill in this respect is raised for the first time in this court. No exception was taken to the frame-work of the bill in the court below by demurrer or otherwise, but the defendants answered, and went to the hearing on pleadings and proofs, treating the bill throughout as though it contained a sufficient statement of the proceedings sought to be reviewed. We think this may be regarded as a waiver by the defendants of the defect in the bill, and an admission on their part that the proceedings referred to were sufficiently set out to present the errors of law which were claimed to be apparent upon the face of the record, and to entitle the complainants to the relief prayed for. An objection to a bill of this character raised for the first time in this court can not be sustained. But we are of the opinion, in the first place, that the decree rendered in this case, so far as it relates to Elizabeth Marsh, can not be sustained. The final decree sought to be reviewed was entered November 30, 1881, and she became a party to the present suit, by intervening and joining as co-complainant to the supplemental bill, March 4, 1889. She thus delayed the bringing of her bill of review seven years and a little over three months after the rendition of the decree which she now seeks to set aside. She was laboring under no disability which stood in the way of her bringing her suit to have the former decree reviewed or to impeach it for fraud, nor are any adequate reasons given for the delay. Under these circumstances, her bill is brought too late. A bill of review for matters apparent upon the face of the record can be brought only within the time allowed for the bringing of a writ of error, viz., five years, the complainant being under no disability. Dolton v. Erb, 53 Ill. 289; Pestel v. Primm, 109 id. 353. And the rule is the same in case of a cross-bill in the nature of a bill of review to impeach a decree. Bell v. Johnson, 111 Ill. 374. And, in general, a bill of review to impeach a decree for fraud is barred in the same time, unless some very clear reason is shown for the delay. Sloan v. Sloan, 102 Ill. 581; Chicago Building Society v. Haas, 111 id. 176. Mrs. Marsh’s bill is not a bill of review for errors apparent upon the face of the record, as she sets up no errors of that character which are prejudicial to or affect her interests, but she seeks to impeach the former decree on the ground of fraud in her own solicitor, who, after agreeing with her to obtain the partition and defray the costs and expenses of the proceeding for $150, one-thirteenth of that sum only to be charged against her, fraudulently procured the entry of a decree against her and the other parties to the suit for a solicitor’s fee of $300, in addition to the other costs, and afterward, although Mrs. Marsh had paid him in full her portion of the stipulated fee, charged one-fourth of the decree for the solicitor’s fee and costs upon the land set off to her and had the same sold under execution therefor. She alleges in her bill and testifies that she did not become aware of the fraud of her solicitor until after the expiration of the statutory redemption from the sale, nor until Allison, the grantee of the purchaser, demanded of her possession of the land sold. Her testimony as to the time she learned of the alleged fraud perpetrated upon her by her solicitor is strongly con-, tradicted, if not conclusively disproved, by the fact appearing in evidence, that on the first day of June, 1882, which was before the sale of her land on execution, she and Alonzo Drake, the guardian of George A. Drake, filed their bill in chancery in the Circuit Court of Grundy county against the sheriff of said county and her solicitor in the partition proceedings, setting up the same contract with her solicitor as to solicitor’s fees upon which she now relies, and its violation by the procuring of the decree for $300 solicitor’s fees and costs, and alleging that an execution for one-half of said solicitor’s fee and costs was then in the hands of the sheriff and had been levied upon lots 1 and 2 which had been set off in said partition proceedings to Mrs. Marsh and George A. Drake, and were about to be sold on such execution, and praying for an injunction restraining the sale of said lots thereunder. That bill seems to have been verified by the affidavit of Mrs. Marsh, to the effect that she had read the bill and knew the contents thereof, and that it was true of her own knowledge except as to the matters therein stated on her information and belief, and that as to those matters she believed it to be true. It does not appear that any steps were taken by way of prosecuting that bill, and the evidence shows that it was dismissed January 23, 1884, on motion of the complainants therein, at their costs. It does not seem possible, in view of that bill and Mrs. Marsh’s affidavit of verification appended thereto, that her present claim, that the fraud which she alleges had been perpetrated upon her by her solicitor first came to her knowledge at a much later date, can be true, as the evidence to the contrary furnished by her bill and affidavit seems nearly, if not quite, conclusive. It thus appears that the fraud, on account of which she is now seeking to impeach the decree in the partition suit, must have come to her knowledge almost seven years before she became a party to the present suit. No reason is shown for this long delay, and her bill therefore comes too late. The foregoing obstacle in the way of Mrs. Marsh’s impeaching the partition decree does not obtain in case of her co-complainant, George A. Drake, as he was an infant at the time the decree was rendered, and did not attain his majority until April 27, 1887, and his bill was filed January 26, 1889, which was less than five years after his disability of infancy terminated. He seeks to impeach the decree, in the first place, on the same ground set up by Mrs. Marsh, viz., the fraud of Mrs. Marsh’s solicitor in obtaining a decree for solicitor’s fees and costs in contravention of his agreement with her, and this was the only ground, as his bill was originally framed, upon which his claim for relief was based. In that bill he asked to have the former decree reversed and reformed, as was expressly stated in the prayer, not as to the quantity or quality of the share allotted to him, but as to the taxation of costs and the allowance of solicitor’s fees, in violation of the contract with Mrs. Marsh. It seems very clear to us that his prayer for relief can not be sustained on this ground, for two reasons. In the first place, nothing is shown which gives to George A. Drake any right to avail himself of the contract between Mrs. Marsh and her solicitor, or to enforce that contract in his own behalf. Mrs. Marsh and he were merely tenants in common of the land to be partitioned, each owning an undivided one-thirteenth. Mrs. Marsh was not his guardian, nor is she shown to have in any way stood in such relation to him as to be able to make any contract which would be binding on him or to which he would be in any sense a party. She was about to bring a suit for partition, and so far as the record before us tends to show, it could not then be foreseen whether the proceeding would be amicable or contested. She was to be the complainant and George A. Drake and others were to be the defendants, and for the purpose of instituting and prosecuting the suit, she employed a' solicitor. The solicitor employed represented her alone- and not the defendants. She was at liberty to enter into any lawful contract with him, and having done so, she had the right to avail herself of its benefits, and -its violation by the solicitor was doubtless a wrong, and probably, under the circumstances, a fraud upon her. But upon what principle the defendants to the suit, who, so far as shown, were in no sense privy to the contract, and had conferred no power on Mrs. Marsh to contract in their behalf, can cóme in and avail themselves of its benefits, and charge that its violation was a fraud upon them, we are unable to comprehend. In the next place, there is no evidence tending to charge Allison, the grantee of the purchaser at the execution sale, with either actual or constructive notice of the fraud. The purchaser at the execution sale was the solicitor himself, and he of course was chargeable with notice. But not so as to Allison, his grantee. The bill charges that Allison was the real purchaser at the execution sale, and that the solicitor bid off the property merely as his agent, and immediately, on obtaining title, conveyed the land to him in pursuance of such previous arrangement, but there is no evidence tending to sustain that allegation. So far as we can see, there is nothing in the record tending to charge Allison with actual or implied notice of the alleged fraud of the solicitor at the time the land was conveyed to him, but it is claimed that he was chargeable with constructive notice. As has already been stated, Mrs. Marsh and the guardian of George A. Drake, shortly prior to the execution sale, filed their bill setting up the alleged fraud of the solicitor, and praying for an injunction restraining the sale. That bill was pending at the time of the conveyance to Allison, and was afterwards dismissed without a hearing or decree, on motion of the complainants therein. The claim is set up that as that bill was pending at the time Allison obtained title, he was chargeable with constructive notice of its allegations, upon the principle of Us pendens. There is no pretense that Allison had any actual notice of the bill or its allegations, and we are of the opinion that the rule of constructive notice by Us pendens has no application. “The doctrine of Us pendens is one by which a suit in chancery prosecuted in good faith, and followed by a decree, is constructive notice to every person who acquires from a defendant pendente lite an interest in the subject matter of the litigation of the legal and equitable rights of the plaintiff, as charged in the bill and established by the decree.” Bispham’s Eq., sec. 274. It is therefore held that a purchaser of real estate pendente lite, in circumstances such that he is affected with notice as by lis pendens, is bound by the result of the litigation, and takes subject to the rights so determined. Cable v. Ellis, 120 Ill. 136; Alwood v. Mansfield, 59 id; 496; Dickson v. Todd, 43 id. 504; Jackson v. Warren, 32 id. 331; Asher v. Mitchell, 9 Ill. App. 335. The doctrine of lis pendens rests upon the legal necessity of subjecting to the final decree all rights acquired pendente lite without pausing to bring parties acquiring such rights into court and to make them parties to the litigation, and it consequently has no place where there is no adjudication and no decree, and the bill is voluntarily abandoned or dismissed by the complainants. But there is another reason why the bill in this case can not have the effect of a Us pendens. There is no evidence in the record that any summons was ever issued thereon or served, or that the defendants to the bill ever appeared in court in the suit. A Us pendens begins, where a bill is filed, from the service of summons and not before, and where there is no service and the defendant does not appear, there is no lis pendens. Grant v. Bennett, 96 Ill. 513; Hallorn v. Trum, 125 id. 247; Bank v. Taylor, 131 id. 376. In both the original and in the amended and supplemental bill, George A. Drake alleges errors apparent on the face of the partition proceedings and decree, and in the latter bill he prays to have the partition proceedings absolutely set aside and vacated, and that a new partition be made. The principal error alleged is, that the partition decree appears to have been entered by the agreement of the adult parties to the suit, and without any hearing upon pleadings and proofs. The facts, as shown by the record, seem to be, that a guardian ad litem for Drake was appointed, who answered for his ward instanter; that the cause was referred to a master to take proofs, but that the order of reference was subsequently vacated, and that the complainant and the adult defendants having filed an agreement in writing consenting to a partition of the premises described in the bill for partition, the cause came on to be heard on the bill, the answer of the guardian ad litem, and said agreement, and that on such hearing the court found the rights of the parties to be as alleged in the bill, and ordered the land to be partitioned accordingly, and appointed commissioners to make the partition. There can be no doubt that a decree rendered against an infant under these circumstances is erroneous. We so held in Gooch v. Green, 102 Ill. 507. In that case a decree for partition, where one of the parties was an infant, was rendered by agreement of the adult parties, the guardian of the infant joining in the agreement. We there held that the agreement could have no bearing, as the infant could not be bound or concluded by it; that, in a proceeding in chancery, a decree can not be properly rendered against an infant, unless it be founded upon or sustained by evidence. So in Quigley v. Roberts, 44 Ill. 503, the rule was laid down, that ¡a decree can not be rendered against an infant, unless it be on proof of the allegations of the bill. This error in the decree in the partition proceedings would doubtless have "been sufficient to entitle Drake to have the decree set aside as against the original parties to it. But whether he is entitled to such relief as against Allison or his heirs is quite another question. Allison was a purchaser for value from the grantee in the sheriff’s deed, and, so far as appears, his purchase was bona fide. In Lloyd v. Kirkwood, 112 Ill. 329, we said: “A decree against an infant, like that against an adult, is absolute in the first instance subject to the right to attack by original bill, for either fraud or error merely, but until so attacked, and set aside or reversed on error or appeal, it is binding to the same extent as any other decree or judgment. This right to attack a decree by original bill may be exercised at any time before the infant attains his majority, or at any time afterwards within the period in which he may, under the statute, prosecute a writ of error for the reversal of such decree. * * * The rule thus established is, of course, subject to the qualification that the decree of a court having jurisdiction of the subject matter of the suit and the person of the infant, against whom it is rendered, will not be thus set aside as against third parties who have, in good faith, acquired rights under it; but as against original parties to the suit and their legal representatives, the rule as above stated will be enforced.” In Freeman on Judgments, sec. 513, it is said: “An absolute decree against an infant is, at least, so far binding on him, that he can neither by bill of review, nor by an original bill, nor by any other proceeding, impeach it so as to prejudice the interests of bona fide purchasers without notice. This is equally true, whether the judgment or decree is sought to be set aside on the ground that there was error in the judgment of the court in not giving a day to show cause, or error in other respects in the judgment rendered, or whether the judgment or decree was obtained by the guardian or other representative of the infant, for the purpose of defrauding him of his estate.” The rule thus laid down seems to be well sustained by the authorities, and applying it, we are unable to see how, as against Allison and his heirs, any ground is shown for setting aside the partition decree. The decree of the Circuit Court will be reversed and the cause will be remanded to that court, with directions to dismiss the bill so far as it relates to lots 1 and 2, conveyed by the purchaser at the sheriff’s sale to Allison. Decree reversed.