Dustin v. Brown

Mr. Chief Justice Thompson

delivered the opinion of the court:

This appeal is from a decree entered by the circuit court of Logan county pursuant to a judgment of this court on a former appeal. In the opinion filed at a former term (Dustin v. Brown, 297 Ill. 499,) we held that Mary E. Dustin, under the second clause of the will of her father and pursuant to a decree in partition, took a life interest in a 105-acre farm' and that the remainder in fee vested in her children; that on the death of her only child, Julian, in 1898, Mary E. Dustin and her husband, William L. Dustin, each inherited an undivided one-half of the remainder in fee; that in 1901, on the birth of a second child to Mary E. Dustin, the interests of the parents were cut down so that they were then each vested with an undivided one-fourth interest in the remainder in fee; that two judgments for comparatively small amounts were entered against Dustin and executions issued thereon and levies made and sales had thereunder; that the sheriff’s deed issued October 26, 1899, conveyed to appellant Brown’s predecessor in title an undivided seventy-second part of the interest of Dustin in the farm and to appellant Corwine an undivided twenty-eighth part of said interest; that appellants’ contention that there was a mutual mistake in the deed and that the deed should have conveyed to Brown’s predecessor an undivided 72/iooths of the interest of Dustin and to Corwine an undivided 28/iooths of said interest could not be sustained, and that the chancellor erred in decreeing a reformation of the deed and declaring appellants invested as tenants in common with all of the right, title and interest of William L,. Dustin in said farm. The decree was reversed and the cause remanded, with directions to enter a decree finding the rights of the parties in accordance with the views expressed in the opinion.

When the case Avas before this court at the former hearing appellants apparently relied upon the sheriff’s deed as the basis of their title, but they now take an entirely different position and contend that, regardless of Avhat was said in the sheriff’s deed, the legal effect of it was to convey to appellants all the right, title and interest of William L. Dustin in the lands involved. The decision of this court on the former hearing was not questioned by petition for rehearing or othenvise and the decision has become the law of this case. If appellants were not satisfied with what was said in the former opinion and with the decision of the court, they could, by a method provided by the rules of the court, have pointed out to the court wherein it had erred, and, having failed to avail themselves of this opportunity to file a petition for rehearing, they cannot be heard now to question the former decision. When the cause was re-instated in the circuit court the chancellor could do nothing but enter a decree in accordance Avith the remanding order, and this he did. In finding the rights of the parties he decreed that appellant Brown is seized of an undivided seventy-second part of an undivided one-fourth interest in the remainder in fee and that appellant Corwine is seized of an undivided twenty-eighth part of an undivided one-fourth interest in the remainder in fee, both interests being subject to being further diminished in the event of other children being born to Mary E. Dustin. This decree is in accordance with the remanding order and is affirmed.

Decree affirmed.