« ForrigeFortsett »
order to protect their interests in the land, and should be charged pro rata to plaintiff in error's share of the real estate; that the sheriff's deed was valid ; that the plaintiff in error was not entitled to an accounting of the rents and profits from Elizabeth Wagenbach and the estate of Elizabeth Lowman; that the agent of the heirs had in his hands a portion of the rents received by him, the exact amount not appearing from the evidence, which was left for future adjustment between the parties. The decree found the rights of the parties and ordered a partition.
Plaintiff in error first contends that in equity she is not bound to pay her pro rata share except in $1176.65 of. the $2675 mortgage. The circumstances connected with the execution of this mortgage, as shown by the evidence, are substantially as follows: During the lifetime of the ancestor, John Lowinan,. a mortgage given by him on a part of the premises in question was foreclosed, the land sold and a master's deed given to one Henry S. Weers. In order to re-invest the heirs with title, after the death of the father Edward and Henry Lowman, on October 15, 1891, borrowed certain money, and gave a note for $1500 and another note for $500, secured by mortgage on the premises in question, to Matthew Kingman. In order to settle with Weers, Edward and Henry Lowman paid out $1176.65. The testiinony tends to show that the heirs also had to pay out certain other moneys at this time to settle claims against their father's estate. A third note for $500 was given to said Kingman on the same day, October 15, 1891, secured by a mortgage signed by Elizabeth, Hannah, Henry and Edward Lowman, Jennie Johnson, Elizabeth Wagenbach and plaintiff in error. As a result of these transactions the title to the land was re-conveyed by Weers to the heirs of said John Lowman. Afterward Kingman died, and the notes and mortgage were purchased of the Kinginan estate by George C. Glassford. These notes were drawing seven
per cent interest. Some of the heirs thought this was too high a rate and entered into negotiations with Glassford for the purpose of reducing the interest. In December, 1892, he agreed to reduce it to six per cent provided they would give another mortgage to secure the three notes in question, (and also to secure three interest coupon notes, amounting to $175,) said mortgage to be signed by the mother and also by James, Henry and Edward Lowman, Elizabeth Wagenbach, Jennie Johnson and her husband, and plaintiff in error and her husband, and to include their interests in the land. The names of all these parties appear as signing this mortgage, but plaintiff in error claims that she did not sign it. The original instrument is found among the exhibits in this record, as are also two instruments containing her signature which plaintiff in error concedes to be genuine. An examination of these signatures furnishes ground for argument that they might not have been written by the same person. The notary public who took the acknowledgment testified that Mrs. Kepcha signed and acknowledged the mortgage in question in his presence and that of the defendant in error James C. Lowman, the latter also testifying that he was present and saw her sign. The plaintiff in error denies all knowledge of this $2675 mortgage. Her brother Edward Lowman testified that he talked to her about it before it was prepared, and she agreed to sign. When she testified she was an elderly lady, and her evidence on this, as on other points in dispute, is somewhat confused. It may be argued from certain parts of her testimony that she admits acknowledging the paper. No misrepresentations by Glassford, or any other person, were shown, and we are of the opinion that this mortgage was given to secure bona fide debts which were contracted by a portion of the heirs and for the benefit of all of them, and that it was signed by plaintiff in error, or some one for her, with her consent, and acknowledged by her. This be
ing so, plaintiff in error's share of the real estate should be held for its pro rata share of the indebtedness in question.
Plaintiff in error contends that Elizabeth Wagenbach and the estate of Elizabeth Lowman, deceased, should be compelled to account for the rents and profits received from the real estate for certain years. It appears that after the death of John Lowman a written agreenient was entered into by certain of the heirs, to the effect that the widow, Elizabeth Lowman, and her daughter Elizabeth Wagenbach, should occupy a residence on the farm and have the use of certain buildings, the orchard and a small part of the land, and that as further compensation for her services in attending to her mother, Elizabeth Wagenbach should receive $75 a year. While the record does not show positively that the plaintiff in error signed this agreement, it is conceded that she understood and assented to its terms. Elizabeth Wagenbach acted under the contract and took care of her mother in accordance therewith, living in the house on the farm for the most of the time, with the exception of a year or so spent with her mother in the city of Washington, in Tazewell county. The mother was feeble and needed much attention during the last years of her life. No fault is found with the care that was given her, but it is contended that Elizabeth Wagenbach kept more cows and hogs on the farm than the contract called for. The evidence, however, tends to show that these were kept on land that could not be rented to other parties, evidently mostly timber land. The part of the farm not used by Elizabeth Wagenbach and her mother was under the control of Joseph Thompson, an agent for the heirs, who collected the rent, paid the taxes, the interest on the mortgage, and made repairs. He rendered yearly statements to the heirs of the amounts received and paid out, but these were apparently mislaid and do not appear in evidence. It is impossible to tell accurately how much of the rents remained after paying the interest on the Glassford mort
gage, taxes and repairs and the agent's commissions, but it is manifest that the amount was not much, if any, greater than the one-third to which the widow would be entitled had she been assigned her dower. Apparently some modifications were made in the agreement concerning the disposition of the rents and profits from time to time as circumstances required, and the amount to be used in supporting the widow was left somewhat to Thompson's discretion. It is evident, moreover, that all the heirs, including plaintiff in error, understood and assented to what was being done; that Mrs. Wagenbach cared for her mother for a period of about fourteen years and until her death, and that whatever balance was derived from the farm was used for the widow's support.
Counsel for plaintiff in error contends that the widow could have no estate in her husband's land until she had demanded and had assigned to her her dower rights, and that she was not entitled to any share of the rents and profits, as against the heirs, until she made 'such a legal demand or her share had been set off or assigned to her. The owner of the dower estate may, by an arrangement with the heirs, receive certain portions of the rent for her dower. (Sill v. Sill, 185 I11. 594.) Such an agreement was clearly entered into in this case by plaintiff in error.
Counsel for plaintiff in error further contends that the sheriff's deed which conveyed her interest in a part of the premises to her brother James C. Lowman was void because based on a void judgment. July 30, 1896, one Hugh M. Reynolds recovered a judgment before a justice of the peace in Tazewell county against plaintiff in error and her husband for $84.80 and costs, upon a claim for lumber. September 5, 1896, a transcript of the judgment was certified to by the justice, and on February II, 1897, was filed in the office of the clerk of the circuit court of Tazewell county. About two years later an execution was issued uipon said transcript and the sheriff levied upon the interest
of plaintiff in error in about 170 acres of the land left by her father. A sheriff's sale was had, and M. N. Gish, the attorney for plaintiff in the justice case, became the purchaser. The certificate of sale thereafter became, by purchase and assignment, the property of James C. Lowman, one of the defendants in error, and a sheriff's deed was issued to him. The transcript upon which the execution and sale were based gives as the return of service the following: “Personally served the within writ by reading the same to the within named defendant, George Kepcha, leaving a copy for Rebbeka Kepcha with her husband, the 25th day of July, 1896.” Section 4 of article 2 of chapter 79, on justices and constables, requires that summons shall be served “hy reading the same to the defendant.” (Hurd's Stat. 1909, p. 1384; see, also, Law v. Grommes, 158 I11. 492.) Section 6 of the same article provides that if the defendant shall evade service or not listen to the same, or secrete himself, the officer may serve the same by leaving a copy at his place of residence with some person of the age of ten years or upwards, and “in all such cases the constable shall make a special return when and how served, and the circumstances attending the same; and if the justice shall be satisfied that the defendant evaded the service by reading, and that the party is sufficiently notified and summoned, he shall proceed to hear and determine the case.” Manifestly, the return found in the transcript did not set out any circumstances which justified a service by copy. A judgnient founded on such a service would be void. Pardon v. Dwire, 23 -III. 523; Morris v. Hogle, 37 id. 150; Johnson v. Baker, 38 id. 98; Botsford v. O'Connor, 57
Counsel for defendants in error concede that the service as shown in the transcript would not be sufficient upon which to base a judgment, but contend that the evidence in the record shows that the plaintiff in error was personally served by the officer reading the summons to her. Without