Appeal from Circuit Court of Marshall county; the Hon. HENRY
J. INGRAM, Judge, presiding. Order affirmed.
PRESIDING JUSTICE DOVE DELIVERED THE OPINION OF THE COURT.
On January 21, 1957, Clarabelle Peterson filed in the Circuit Court of Marshall County her verified complaint consisting of two counts making her brother, Glenn L. Kamp and her mother, Katie, parties defendant. The first count was the usual petition for partition and alleged that the father of the plaintiff and defendants, Louis C. Kamp, died intestate on February 11, 1934, leaving his widow Katie Kamp and his children Clarabelle Kamp now Clarabelle Peterson then eight years of age and Glenn L. Kamp then twenty years of age, his children and his sole and only heirs at law him surviving.
This count of the complaint then alleged that the estate of the said Louis C. Kamp was duly administered in the county court of Marshall County; that the real estate of which he died seized was inventoried; that the estate was solvent and all claims, debts and costs of administration had been fully paid. This count then alleged that at the time of his death the said Louis C. Kamp was the owner of certain described real estate in Marshall County upon which at the time of his death he resided with his said wife and children; that after his death his wife and children continued to reside upon said premises and his wife, Katie Kamp, therefore, has a homestead estate therein. It was then alleged that the premises were free and clear of liens and encumbrances; except the homestead estate of Katie Kamp and except for the taxes of 1956 payable in 1957. It was then alleged that at the time the complaint was filed the premises were in the possession of the defendants or one of them.
The prayer of this count of the complaint was that the homestead estate of Katie Kamp be set off to her; that a proper division and partition of the premises be made assigning to each one-third thereof; that proper commissioners be appointed to make partition and if that could not be done that the premises be appraised and sold and the proceeds divided among the owners of the premises according to their respective rights and interests as determined by the court.
The second count realleged many of the allegations contained in count one and prayed for an accounting from the time of the death of Louis C. Kamp. This count averred that all of the parties to this proceeding resided upon said premises at the time of the death of Louis C. Kamp and until May 1943 when the plaintiff, Clarabelle Peterson moved to Peoria where she lived until March 1944 at which time she moved back to her mother's homestead where she continued to live until the month of May 1954 at which time she married and since then has resided elsewhere.
The second count then alleged that the defendant Glenn L. Kamp, since the death of his father, has farmed all of the described premises, collected all rent, income, issues and profits therefrom and has deposited the proceeds thereof in his own separate bank account and has paid therefrom all of the taxes, insurance and expense of farming operations. It is then alleged in this count that plaintiff during the time she resided on said farm worked in the house and in the fields and since May 1954 she and her husband have worked on the farm and in the fields at planting and harvesting time and at other times when help was necessary; that the only income plaintiff has received from the farm has been arbitrary amounts given to her by her brother Glenn L. Kamp which amounted to $200 or $300 per year during the past few years; that Glenn L. Kamp has never accounted to the plaintiff for said rents and income and has never paid to her an equitable share thereof. It was further alleged that Glenn L. Kamp had no other income except from said land and charged that in 1935, 1944 and 1954 he purchased certain described land with funds partially owned by or owing to the plaintiff from the defendant, Glenn L. Kamp.
The first count of the complaint consisted of eight paragraphs and by their answer the defendants admitted each and every allegation of each and every paragraph. By their answers to count two of the complaint the defendants admitted the death, heirship and seizin of Louis C. Kamp as alleged and also many of the other allegations of count two but denied that plaintiff was entitled to an accounting. The issues thus made by the pleadings were referred to the master-in-chancery and at the hearing before the master the parties entered into this stipulation: "It is stipulated and agreed by and between counsel that proof shall be made before the Master as to the matters contained in Count I and he shall make a report thereon, and that all other matters raised by the pleadings shall be deferred for further consideration of the Master after completion of the partition."
The master reported that all the parties were of legal age and under no disability; that the rights and interests of the parties were properly set forth in count one of the complaint; that no one other than the parties thereto have any right, title or interest in the premises and recommended that a decree for partition be entered as prayed. No objections were filed to the master's report or any exceptions to the master's findings and the usual decree of partition was rendered.
By this decree commissioners were appointed who reported that a division could not be made without manifest prejudice to the parties interested and upon the approval of this report a decree of sale was rendered and the premises were duly sold for $44,055. This report was approved and the cause was re-referred to the master to take testimony and to determine the amount to be allowed as fees for plaintiff's attorneys, if any, and also take testimony and report his conclusions upon the reserved questions. This was done in part and the master reported that $1,936 was a fair and reasonable attorney fee for the services rendered by plaintiff's attorneys and that this amount should be assessed as costs and apportioned between the parties interested as it was not necessary for defendants to employ counsel to protect their interests under count one of the complaint. Objections to the master's report were filed and overruled and were ordered to stand as exceptions and upon a hearing before the chancellor all exceptions were overruled and a decree entered, in accordance with the master's report. To reverse this decree the defendants appeal.
Counsel for appellants state that their answer admitted the facts alleged with reference to the partition proceeding; that the rights and interest of the parties in interest were correctly set forth in count one of the complaint; that the premises sold for $1,355 more than the appraised value and that "counsel for defendants are highly in favor of attorneys being well paid" for their services and that no objection is made to the amount allowed the attorneys for the plaintiff. Counsel insist, however, that this is an adversary proceeding; that there is a good and substantial defense interposed to count two of this complaint and that it would be inequitable to require defendants to pay any part of the fees to plaintiff's attorneys in addition to paying fees to their own counsel.
The record discloses that this cause proceeded in the usual manner. The issues made by the pleadings were referred to the master and at the hearing before the master the parties stipulated that proof should only be made as to count one and that all other matters raised by the pleadings be deferred until after the completion of the partition under count one of the complaint. Following this stipulation the abstract states that formal proof of the allegations of count one was made and the master reported these facts and recommended that a decree for partition be rendered in accordance with the prayer of count one of the complaint. No objections or exceptions were filed to this report and it was approved by the chancellor and the usual decree for partition was rendered. Appraisers were appointed, the report approved and a decree of sale was awarded.
Counsel agree that the decree of sale, when first presented by counsel for plaintiff to counsel for defendants, provided that the crops growing on the premises should go to the purchaser at the sale. The attention of counsel for plaintiff was called, by counsel for defendants, to the fact that defendant, Glenn L. Kamp was farming the premises and that he would be entitled to the tenant's share of the crops. The decree of sale was changed to so provide and was then submitted to and approved by the court. A sale thereunder was had and Glenn L. Kamp, one of the defendants purchased the premises at the sale. The report of sale was approved and a decree of distribution awarded and under that decree the costs have been paid (other than the attorney fees) and distribution has been carried out according to the decree of partition.
Another matter to which counsel for appellant called to our attention and which they insist made it necessary for their clients to employ counsel are that when counsel for appellee submitted to them the decree for partition there was the usual finding therein to the effect that "the equities in this proceeding were with the plaintiff." Counsel state that this finding would have prejudiced their clients upon the question of accounting sought under the second count of the complaint. There is no merit in this contention as the decree granted only the relief sought in count one and expressly provided that it was a final decree so far as the partition of the premises involved were concerned and concluded "that all other questions raised by the pleadings should be, and the same hereby are, reserved for further consideration by the master under the order of reference."
Counsel for appellants also argue that if defendant, Katie Kamp, had not had independent counsel she would have consented to the sale of her homestead interest. Whether she would have so consented does not appear from the record. What the record does show is that count one of the complaint correctly set up her homestead interest. The decree of partition so found. The commissioners set off to her as her homestead the residence and land upon which the residence was located. The decree of sale approved the report of the commissioners and ...