Abernathie v. Rich

Mr. Justice Scott delivered the opinion of the court: In this case there was a fatal lack of parties. James M. Abernathie left, among other heirs, Mary Nickens, a daughter. After his death and prior to the beginning of this suit she departed this life, whether testate or intestate does not appear, but it is shown by the proof that she left two children, who still survive and who reside in Union county. These children of Mary Nickens were not made parties and no person was made a party who had succeeded to her interest, if any, in the subject matter of this suit. The bill prayed for an accounting as to rents and profits. If the bill were proven, those who succeed to the rights of Mary Nickens would be entitled to a portion of such rents and profits. It has been frequently held in partition suits that all persons having an interest in the land must be made parties. (Kester v. Stark, 19 Ill. 328; Daniel v. Green, 42 id. 471.) It is apparent that the reason of that holding requires that those who succeed to the rights of Mary Nickens, and who on the theory of the bill own an interest in the lands and are entitled to share in such rents and profits, should in some way have been made parties to this proceeding. The record title to the real estate appeared, by the instruments offered, to have passed by various mesne conveyanees from Janies M. Abernathie to William C. Rich, Sr., and Robert Rendleman. Certain of these mesne conveyances were warranty deeds, which the bill prays may be canceled and by decree declared null and void, and the bill also asks that the title which such deeds seemed to convey should be decreed to be in the complainants. The grantors in certain of the warranty deeds which complainants sought to have canceled and held null and void were' not made parties to the suit. If a decree should be entered in accordance with the prayer of the bill these grantors would be exposed to litigation by reason of the breach of their covenants of warranty. Those warranty deeds should not be set aside in this suit as to the grantees therein except by a decree binding upon the grantors therein. We are of the opinion that the rights of these grantors and the rights of those who succeed Mary Nickens are so intimately connected with the subject matter of the controversy that a final decree could not be made in this cause without materially affecting their interests. Where this appears, neither the court of original jurisdiction nor a court of review should proceed further in the matter until the omission be corrected, even though, as here, no objection is made by any party litigant. Herrington v. Hubbard, 1 Scam. 569; Spear v. Campbell, 4 id. 424; Prentiss v. Kimball, 19 Ill. 320; Knopf v. Chicago Real Estate Board, 173 id. 196. In this case the defect of parties resulted, in the first instance, from the fact that complainants below, plaintiffs in error here, did not make the necessary parties to the bill. If the plaintiffs in error were all free from legal disability we would not reverse the decree against them for the reason, alone, that there was a lack of necessary parties, but one of the complainants below, Sarah A. Abernathie, a daughter of James M. Abernathie, deceased, has been of unsound mind since the time of her father’s decease and had been adjudged insane prior to the filing of the bill. Laches could not be imputed to her, nor can it be said that she is chargeable with fault on account of the omission of necessary parties. It is our province to protect her in this regard, and we will not proceed further in the matter until the defect in parties is cured. The decree of the circuit court will be reversed and the cause will be remanded, with directions to that court to grant leave to the complainants to amend their bill in such manner as to make the necessary parties thereto, if such leave shall be sought. Each party will pay one-half the costs of this court. Reversed and remanded, with directions.