Woodburn v. Gifford , 66 Ill. 285 ( 1872 )

Mr. Justice McAllister

delivered the opinion of the Court:

This was a bill, in the Whiteside circuit court, by defendant in error against plaintiffs in error, to enforce a mechanic’s lien. The bill alleges that George W. Woodburn and Susan Woodburn, two of the defendants below, were seized in fee of the west half of the southeast quarter of section 20, and the west half of the northeast fractional quarter, north of Rock river, of section 29, all in township 21 north, range -7 east of the 4th principal meridian, in said county; alleges that these tracts are fenced together, and used jointly as one tract; that separation of them would be a great detriment to each, and asks to have a lien declared upon the entire tract. It then sets out a contract between plaintiff below and James H. Woodburn, the husband of Susan, for the erection of a building on the premises, alleging that James H. acted in his own behalf and as agent for his wife. There is no allegation showing any connection of George W. Woodburn with the making of the contract.

The defendants answered, denying that these tracts were used as one tract, averring a practical division, and that the tract upon which the building was placed was 22-|- acres in the exclusive possession of James H. and Susan Woodburn.

There was an issue formed by replication, and the case tried before the court, and a jury, who returned a special verdict, finding, among other things, that the complainant made the contract with J. H. Woodburn and Susan -Woodburn as parties acting for and with the consent of and in conformity " to the will of all the defendants, and found due plaintiff on said contract $666.84. The defendants moved for a new trial, which was overruled by the court, and a decree entered finding that the house was built by the plaintiff on a certain tract of land, describing it as in the bill; that the defendants, James H. and Susan Woodburn, are indebted to him .in the sum as found by the jury; that plaintiff was entitled to a mechanic’s lien on the undivided one-half of said tract; requiring James H. and wife to pay said amount to plaintiff, with interest and costs, within thirty days from the last day of the term, and in default thereof it was ordered that said premises, or so much thereof as might be necessary to satisfy the decree, be sold by a special master, who was authorized to issue a certificate to the purchaser, and, if not redeemed, to make a deed to the purchaser. Out of the proceeds the master should pay the costs and the amount due to complainant, and the surplus to James H. Woodburn.

The evidence is preserved in the record, and the case brought to this court by writ of error. George W. Wood-burn and Phebe, his wife, were made parties defendant, and unite in bringing error.

There is no allegation in the bill that George W. Woodburn, who was seized in fee of an undivided one-half interest in the premises ordered to be sold, was in any manner affected or bound by the contract alleged to have been made by James H. Woodburn and wife, nor is there any evidence in the record to sustain the finding of the jury, that the contract was made by James H. as acting for or with the assent of George W.

The case shows that all the lands ordered to be sold comprise 100 acres, worth some $200 per acre. The decree directs the sale of the whole, and that the surplus arising shall be paid to James H. Woodburn, when the fee of the land was in his wife, and George W. Woodburn. This was error. The decree should have provided for the sale of the interest of James H. and Susan Woodburn only, and in the tract on which the building was erected, comprising the 22§ acres.

For these errors, the decree must be reversed and the cause remanded.

Decree reversed.