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Johnson v. Johnson

APRIL 6, 1955.

BENJAMIN H. JOHNSON, APPELLANT,

v.

FRANK JOHNSON ET AL., AS TRUSTEES OF ESTATE OF WILLIAM H. JOHNSON, DECEASED, AND HOMER JOHNSON ET AL., AS EXECUTORS OF WILL OF WILLIAM H. JOHNSON, DECEASED, APPELLEES.



Appeal from the Circuit Court of Bureau county; the Hon. A.J. SCHEINEMAN, Judge, presiding. Affirmed.

PER CURIAM:

This is a complaint for partition by Benjamin H. Johnson, plaintiff, against Frank Johnson, Homer Johnson, Alice Johnson Foushee, Gray Johnson, Clay Johnson, Ruth Johnson Dremann, Elvira Johnson, Effie Johnson, Mary Johnson Bartlett, Dorothy Pearl Sarver, and Homer Johnson, Frank Johnson and Alice Johnson Foushee, as trustees of the estate of William H. Johnson, deceased, and Homer Johnson, Frank Johnson and Alice Johnson Foushee, as executors of the will of William H. Johnson, deceased, defendants.

The complaint, which is not divided into separate counts, seeks to partition three separate tracts of real estate, all situated in Bureau county, Illinois, designated therein, respectively, as Tracts I, II, and III. Tract I consists of approximately 235 acres, Tract II consists of approximately 12 1/2 acres, and Tract III consists of approximately 80 acres. Although all the tracts are in the same township and range — Township Seventeen (17) North, Range Eight (8) East of the Fourth Principal Meridian — they are each in different Sections, Tract I being in Section Twenty-one (21), Tract II being in Section Thirty-three (33), and Tract III being partly in Section Twenty-nine (29) and partly in Section Thirty (30).

The complaint alleges that the plaintiff and all of the defendants, including the defendants Effie Johnson, Mary Johnson Bartlett, and Dorothy Pearl Sarver, are the owners, in fee simple, as tenants in common, of Tracts I and II, in various respective fractional undivided interests. But, the complaint alleges that the plaintiff and all of the defendants excepting and not including the defendants Effie Johnson, Mary Johnson Bartlett, and Dorothy Pearl Sarver, are the owners, in fee simple, as tenants in common, of Tract III, in various respective fractional undivided interests.

It appears that Mary Jane Johnson owned Tracts I and II and died intestate, seized thereof, on July 26, 1936, leaving her husband William H. Johnson, and her nine children as her heirs, one of whom is the plaintiff herein, and the others of whom (except Harry H. Johnson, who subsequently died) are among the defendants; one of her children and heirs, the said Harry H. Johnson, died intestate, seized of an undivided interest in Tracts I and II, on December 3, 1941, leaving his widow, Effie Johnson, and his two children, Mary Johnson Bartlett and Dorothy Pearl Sarver, as his only heirs, those latter three parties, Effie Johnson, Mary Johnson Bartlett, and Dorothy Pearl Sarver, being the same three parties as are referred to above as being among the defendants and who have certain undivided fractional interests in those Tracts I and II, but not, as will be pointed out, in Tract III; William H. Johnson, the surviving husband of Mary Jane Johnson, died, testate, November 20, 1944 and devised his interest in Tracts I and II (and in Tract III, also, as hereinafter referred to) to certain trustees who are among the defendants herein.

It further appears that Thomas Bowen originally owned Tract III, and on June 20, 1879, he deeded it to the above Mary Jane Johnson, his daughter, for life, remainder to her children. She had nine children, one of whom, as stated above, is the plaintiff, and the others of whom (except Harry H. Johnson) are among the defendants; Harry H. Johnson on December 27, 1933 deeded his interest in Tract III to his father, William H. Johnson; Mary Jane Johnson, the life tenant in Tract III, died, as stated above, July 26, 1936; her husband, William H. Johnson, grantee of Harry H. Johnson, died, as stated above, testate, on November 20, 1944, and devised his interest in Tract III (as also his interest in Tracts I and II) to the same certain trustees, referred to above, who are among the defendants herein.

There appears to be no controversy as to the facts or the allegations thereof in the complaint. The defendants Effie Johnson, Mary Johnson Bartlett, and Dorothy Pearl Sarver, are among the owners as cotenants in common of certain undivided interests in Tracts I and II, along with the plaintiff and the other defendants, but those three defendants have no interest at all in Tract III and are not cotenants in common of any interests in that tract, the cotenants in common of Tract III being the plaintiff and the other defendants exclusive of Effie Johnson, Mary Johnson Bartlett, and Dorothy Pearl Sarver. The cotenants in common of Tracts I and II, on the one hand, are not the same as the cotenants in common of Tract III, on the other hand. The chains of title as to Tracts I and II, on the one hand, and Tract III, on the other hand, are different. And the titles to Tracts I and II, on the one hand, and Tract III, on the other hand, are not derived from an original cotenancy as an original common source of title.

Some of the defendants entered their appearances. Others are in default. As to the remaining defendants — the above referred to Effie Johnson, Mary Johnson Bartlett, and Dorothy Pearl Sarver, together with Elvira Johnson, Clay Johnson, and Ruth Johnson Dremann — they filed motions to dismiss the complaint on the grounds, in substance, that different tracts of real estate are sought to be partitioned in one proceeding, some of the cotenants in certain tracts have no interest in the other tract, a common cotenancy does not exist in all the tracts, the titles to all are not derived from a cotenancy as a common source of title, the chains of title are different, and the complaint is multifarious.

The complaint and motions to dismiss were argued in the trial court February 15, 1954. Evidently before the court made any formal determination thereof the plaintiff orally moved "that this action for partition, if you should find it to be multifarious, be severed, and separate proceedings had, the first proceedings to involve Tracts 1 and 2, and the second proceeding to involve Tract 3, all as appears in the complaint." That motion was denied. Then the court on that date entered an order granting the motions to dismiss, and dismissing the cause for want of equity, the plaintiff apparently standing on the complaint and not requesting any leave to amend. The plaintiff's notice of appeal indicates he appeals from the order dismissing the cause and prays that it be reversed and remanded and the motions to strike the complaint be ordered overruled. The plaintiff's errors relied upon for reversal in this court are "1. That the Court erred in dismissing plaintiff's action for partition upon the grounds that the complaint was multifarious; 2. That if said action for partition was multifarious, the Court erred in denying plaintiff's motion to sever said action."

The Partition Act of 1949, Ch. 106, Ill. Rev. Stats. 1953, pars. 44, 45, 46, 48, and 71 [Jones Ill. Stats. Ann. 109.490(4), 109.490(5), 109.490(6), 109.490(8), 109.490 (31)], being a revision of the Partition Act of 1874, provides, so far as material:

"44. Compelling partition — Venue.

"When lands, tenements, or hereditaments are held in joint tenancy or tenancy in common, whether such right or title is derived by purchase, devise or descent, or whether any or all of the claimants are minors or of full age, any one or more of the persons interested therein may compel a partition thereof by complaint in chancery in the Circuit or Superior Court of the county where the premises or part of the premises are situated, provided if lands, tenements or hereditaments held in joint tenancy or tenancy in common are situated in two or more counties, the venue may be in any one of such counties, and the Circuit or Superior Court of any such county first acquiring jurisdiction shall retain sole and exclusive jurisdiction.

"45. Complaint.

"The complaint shall particularly describe the premises sought to be divided, and shall set forth the interests of all parties interested therein, so far as the same are known to the plaintiffs, including tenants for years, for life, or in dower, and of all persons entitled to the reversion, remainder or inheritance, and of every person who, upon any contingency, may be or become entitled to any beneficial interest in the premises, so far as the same are known to the plaintiffs, and shall pray for the division and partition of the premises according to the respective rights of the parties interested therein, or, if a division and partition of the same cannot be made without manifest ...


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