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
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
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
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
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.
"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
"46. Parties defendant.
"Every person having any interest, whether in possession or otherwise, who is not a plaintiff shall be made a defendant to such complaint.
"The court shall ascertain and declare the rights, titles and interest of all the parties to such suit, the plaintiffs as well as the defendants, and shall give judgment according to the rights of the parties.
"71. Procedural provisions.
"The provisions of the "Civil Practice Act", approved June 23, 1933 as amended, and the rules now or hereafter adopted pursuant to said Act, shall apply to all proceedings hereunder except as otherwise provided in this Act."
Under the applicable cases, it seems to be well settled that in a partition suit all the parties plaintiff or defendant, so far as owner parties are concerned, must be cotenants of all the real estate sought to be partitioned, with one exception to be noted later — that a plaintiff who is a cotenant with one group of cotenants of one tract of real estate under one chain of title and who is also a cotenant with another and different group of cotenants of another tract of real estate under a different chain of title cannot seek partition of the two
The exception to the general rule is that partition of two or more separate tracts of real estate may nevertheless be had on one complaint in one suit even though some of the cotenants, who are parties, of one tract are not cotenants of and not interested in the other tract, if, and provided, the title to all the separate tracts is originally derived from an original cotenancy as a common source of title. The reason for the exception is that one original cotenant cannot, by a conveyance of his interest in one of the tracts, prejudice the rights of his cotenants to have a partition in one suit of all the tracts. The successor or grantee of such cotenant simply steps into the shoes of his grantor, subject to the rights to partition of the other cotenants. For the purposes of partition, the whole property — all the tracts — originally held in common, continues, under those circumstances, to be a unit, the subject matter of a single action, just as if no change of ownership of any interest had occurred, and in a single action the rights of all interested parties, original cotenants and successors, may be determined.
In Shoup et al. v. Cummins et al. (1929) 334 Ill. 539, the two plaintiffs, William H. Shoup and Lucy D. Shoup, and one of the defendants, Ettie M. Cummins, were the sole tenants in common of one tract of real estate called the Cotton Hill farm; those plaintiffs and that defendant together with two other defendants, Maryland V. Southwick and Georgetta Gatton, were the sole tenants in common of another separate tract
"... The fact that a man owns a dozen tracts of land, each held in common with a different person, does not authorize him to include them all in one suit for partition, making all his twelve co-tenants in the separate tracts parties defendant. It is only lands, tenements or hereditaments held in joint tenancy, tenancy in common or co-parcenary which may be the subject of a suit in partition. It is only one or more of the persons interested who may compel partition, and every person having any interest, whether in possession or otherwise, who is not a petitioner, is required to be made a defendant. A partition suit concerns only the persons interested in the land and no other persons are proper parties, and all the parties must be co-tenants of all the land sought to be partitioned, except in the case to be hereafter mentioned.
"There is no case in Illinois within our knowledge where a proprietor of two or more tracts of land acquired through different chains of title and held in co-tenancy, each tract with a different co-tenant, has been permitted by one bill to bring all the co-tenants of all the different tracts into court for the partition of all the tracts by one decree; neither do we know of any case which has decided expressly that this could not be done, perhaps for the reason that nobody has ever
"... No case has been cited where a joinder of different parcels has been sustained where one or more
"The present case comes under the general rule and the appellant's demurrer should have been sustained. The case is not one of mere misjoinder of defendants who have no interest in the cause of action or in the subject matter. It is a case of misjoinder of causes of action having no connection with one another. Such causes of action cannot be joined, and though the objection may be waived and a decree by default perhaps might not be void, yet a defendant, if the objection is promptly made, cannot be called upon to answer a bill stating two distinct, independent and disconnected causes of action.
"... The causes of action stated in the bill are not of such a nature as to give rise to the independent equity jurisdiction to prevent a multiplicity of suits, which arises where unconnected parties having a common interest centering in the point in issue in the cause may unite in the same bill, but the bill seeks relief as to two distinct subjects having no connection with or dependence on each other and presents two distinct collocations of distinct and different facts, each presenting different rights and calling for different relief."
The general rule and the exception are stated in Grigsby, Illinois Real Property, Vol. 4, p. 47.
But the plaintiff-appellant here urges that such is no longer the general rule under the provisions of the Civil Practice Act, in particular, under Ch. 110, Ill. Rev. Stats. 1953, pars. 167 (1) and 168 (1) [Jones Ill. Stats. Ann. 104.043, subd. (1), 104.044, subd. (1)].
As set out above, the Partition Act of 1949, Ch. 106, Ill. Rev. Stats. 1953, par. 71, provides, in substance, that the Civil Practice Act, as amended, and the Rules thereunder shall apply to partition proceedings under the Partition Act except as otherwise provided in the
The particular provisions of the Civil Practice Act, Ch. 110, Ill. Rev. Stats. 1953, pars. 167 (1) and 168 (1), to which the plaintiff-appellant calls attention, are as follows:
"167. (Civil Practice Act, Sec. 43.) Separate counts and defenses.
"(1) Parties may plead as many causes of action, counterclaims, defenses, and matters in reply or rejoinder as they may have, and each shall be separately designated and numbered.
"168. (Civil Practice Act, Sec. 44.) Joinder of causes of action and use of counterclaims — Transfer from one docket to another.
"(1) Subject to rules any plaintiff or plaintiffs may join any causes of action, whether legal or equitable or both, against any defendant or defendants; and subject to rules the defendant may set up in his answer any and all cross-demands, whatever, whether in the nature of recoupment, set-off, cross bill in equity or otherwise, which shall be designated counterclaims. But the court may, in its discretion, order separate trials of any such causes of action or counterclaims if they cannot be conveniently disposed of with the other issues in the case. Legal and equitable issues may be tried together where no jury is employed."
We think the plaintiff's argument is disposed of by Barnes v. Swedish American Nat. Bank, etc., et al. (1939) 371 Ill. 20, in which the plaintiff brought two separate suits for partition, respectively, of two separate
"The general rule, in partition, is that separate tracts of land held in co-tenancy may only be included in one partition suit where all the co-tenants are interested in all the tracts. (Shoup v. Cummins, 334 Ill. 539.) There is, however, an exception to this rule, and that
"The record in this case shows that P.A. Peterson, Levin Faust, E. Ekstrom, Carl Anderson and C.E. Swenson, became tenants in common of the first tract, by deed of July 30, 1924, and the same persons became tenants in common of the second tract by deed dated March 20, 1920. Since such persons are the predecessors in title of the plaintiff in the two causes here involved, this case comes clearly within the exception noted in Shoup v. Cummins, supra. There was no error in consolidating the suits."
Although Barnes v. Swedish American Nat. Bank, etc., et al., supra, does not specifically discuss the above
Other cases generally and inferentially supporting our views are Harris v. Ingleside Bldg. Corp. et al. (1939) 370 Ill. 617, and Nicklaus v. Daubs et al. (1944) 385 Ill. 407, both decided after the above 1937 amendment to the Partition Act of 1874, as amended.
Textwriters in the field of civil practice, Nichols, Illinois Civil Practice, Vol. 7, p. 478, and Edmunds, Illinois Civil Practice Act Forms, Vol. 2, p. 1518, note, do not indicate that the Civil Practice Act has made any change in the above rules.
Of the cases cited by the plaintiff-appellant, only one, Ashton et al. v. Macqueen et al. (1935) 361 Ill. 132, is a case involving partition. There the bill was for a partition and an accounting. Among other things, the court discussed the law as to multifariousness and its application in that case and held that the joinder in the bill of allegations relating to partition and accounting
As to the plaintiff's oral motion for severance, to the effect that if the court should find the complaint to be multifarious then the action be severed and separate proceedings be had as to Tracts I and II, and III, Ch. 110, Ill. Rev. Stats. 1953, par. 175 [Jones Ill. Stats. Ann. 104.051], provides:
"An action may be severed, and actions pending in the same court may be consolidated, as an aid to convenience, whenever it can be done without prejudice to a substantial right."
The only cases cited by the plaintiff on this point are Blachek etc. v. City Ice & Fuel Co. et al., to which we've already referred, and Myers v. Myers (1950) 341 Ill.App. 406, and Flynn v. Troesch (1940) 373 Ill. 275. Myers v. Myers, supra, appears to have nothing whatever to do with severance of issues for trial. Flynn v. Troesch, supra, though involving severance, was not a partition case and has no bearing on the case at bar.
The order granting the motions to dismiss, and dismissing the cause for want of equity, is, accordingly, correct and is affirmed.