Dickison v. Garland , 49 Ill. App. 578 ( 1893 )

Opinion op the Coukt,

Lacey, J„

This suit was brought by the appellee, in an action of covenant against the appellants, the 'only heirs of Griffith Dickison, deceased, who are devisees of lands, by his last will and testament duly' proven. The foundation of the action is a warranty deed, executed by the deceased to the appellee, for certain real estate therein described. The appellee avers in his declaration that the deceased,. Griffith Dickison, was not seized of the real estate mentioned, in that it was incumbered, and that he could not enjoy the possession of the same by virtue of the deed; that Margaret C. Dickison had a right of dower in the land and still had it, and by decree of the Circuit Court of Peoria County, August 19, 1889, appellee was evicted from a portion of the premises, to wit, twenty-five rods off of the west side of the forty, by eighty rods long; claims 'for costs paid to Margaret C. Dickison, spent in endeavoring to defend the suit, and damages paid to Margaret C. Dickison. By an amendment of the declaration it was averred that ¥m. B. Dickison was appointed executor of the last will and testament of Griffith Dickison, deceased.

It appears that John A. Dickison and Win. B. Dickison, two of the defendants, filed pleas of non est faet'iim.&a.á. eleven other pleas, and Wm. B. Dickison, executor, filed a plea of plene adminisi/ravit.

The court sustained a demurrer to the second, third, fourth, fifth, sixth, eighth and eleventh, and overruled it'as to the tenth plea, and John A. Dickison abided by his pleas. The court sustained a demurrer also, to the second, third, fourth, fifth, eighth and tenth, and overruled it as to the seventh of the pleas, filed by Wm. B. Dickison. He also abided by his pleas. Fred Dickison, a minor, filed a plea of non est factum, by his guardian. There was a trial by a jury and verdict and judgment for $952.70, in favor of the appellee.

The third plea by John Á. Dickison is attempted to be a plea of sufficient assets remaining in hands of executor to pay all the debts, but it fails to amount to that, and does not contain the necessary averments. It simply shows that after paying all debts and legacies and expenses of administration for which the estate of the deceased, Griffith Dickison, was liable, there remained in the hands of the exeeutor $0,000, which might have, been applied to the payment of the claims sued on. But that was not a sufficient plea. The claim in suit did not accrue until after the appellee was evicted from the land, thereby causing the damages complained of, and long after the estate was completely settled and all the assets distributed, amounting to $1,000 each to all deceased’s heirs, except two who were not entitled under the will to any share of the personal estate.

Therefore, the personal assets of the deceased, shown in the plea, were not available in the hands of the executor for the payment of appellee’s claim at the time of the commencement of the suit, and these facts so appeared from the allegations of the declaration.

The statute provides that all demands against an estate not exhibited to the County Court within two years of the granting of letters of administration, shall be forever barred, except as to subsequently discovered estate not inventoried or accounted for by the executor or administrator.

The plea then failed to show a defense; failed to negative the existence of facts upon which such a plea, to make it good, should be based. This has been fully held in the case of Dugger et al. v. Oglesby, 99 Ill. 405.

The pleas of tiensper descent were not good, as they failed to negative the charge in the declaration that there were lands devised by Griffith Dickison, deceased, to the defendants. These pleas may have ■ been good at common law, where this kind of an action could not be maintained by the creditor of an ancestor against his heirs, except against those who received their lands by descent.

The pleas attempt to answer the whole declaration, but as they were drawn they were wholly immaterial. This objection applies to the fifth plea, as well as to all similar ones. The complaint that the court found facts that the jury ought to have found is not well taken.

The special pleas of the defendant having been demurred to, and the demurrer sustained, there were no issues on any of the pleas of rims per descent, plena aclminisbramt or sufficient assets in hands of executor or other special pleas, and the court would have been justified in giving judgment on the verdict against the defendants, without any writ to inquire of the lands, tenements or hereditaments or rents and profits out of the same, descended or devised under section 13, chapter 59, B. S., entitled Frauds and Perjuries, for all facts not denied by plea are admitted the same as though default were taken.

The court, however, did, in substance, without a writ of inquiry, limit the recovery against each defendant to the value or less, of the land descended to them or either of them.

The judgment appears to be in the form of the one in á similar case approved by the Supreme Court in Dugger et al. v. Oglesby, supra. The claim in this case seems to be a just one, and the right of recovery sanctioned by our statute. Only the merest technicalities are interposed to sustain a reversal.

Ve find none of the objections made of sufficient importance to justify it. The judgment of the court below is affirmed.