{
  "id": 5239835,
  "name": "Thomas Attridge et al. v. Daniel Billings et al.",
  "name_abbreviation": "Attridge v. Billings",
  "decision_date": "1870-09",
  "docket_number": "",
  "first_page": "489",
  "last_page": "497",
  "citations": [
    {
      "type": "official",
      "cite": "57 Ill. 489"
    }
  ],
  "court": {
    "name_abbreviation": "Ill.",
    "id": 8772,
    "name": "Illinois Supreme Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [],
  "analysis": {
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    "simhash": "1:45b9677cb5185f1e",
    "word_count": 2927
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  "last_updated": "2023-07-14T16:32:32.202804+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Thomas Attridge et al. v. Daniel Billings et al."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Sheldon\ndelivered the opinion of the Court:\nThis was a bill in chancery, filed in the Lake county circuit court on the 30th day of December, 1858, by Daniel Billings, and Ann Billings, his wife, and William J. Robinson, and Sarah, his wife, (the said Ann and Sarah being two of the children and heirs at law of Robert Swanton, deceased,) against Thomas Attridge, and Mary, his wife, James Swanton, John Swanton, Martha Swanton, (the said Mary, James, John and Martha, being the four other children and heirs at law of said Robert) and James Cole and Thomas Cole, for the purpose of having a trust decreed in favor of the said Ann and Sarah, in 124 64-100 acres of land, a portion of two certain quarter sections of land, which had been respectively entered and purchased from the United States by the said James and Thomas Cole, to-wit: the southeast quarter o'f section 29, and the northeast quarter of section 32, township 44 north, range 12 east, of the 3d principal meridian, in Lake county, Illinois.\nThe state of facts out of which the supposed trust is claimed to arise, is substantially as follows: In the fall of 1837, Robert Swanton came into the country with his father-in-law, James Cole, and his brother-in-law Thomas Cole, and all of them united in buying from one King, in Lake county, \u201c a claim\u201d on the public lands. King then had, on his claim, five or six acres of land fenced and under cultivation, and a log cabin and stable. They paid him $100 for his claim, of which Thomas Cole contributed one-fourth, ($25,) and Swan-ton and James Cole each three-eighths, ($37.50.)\nThe government surveys had not yet been made, and were not made until after the death of Swanton.\nThey all lived together with their families in the log cabin the first winter. The next season, Swanton built another \u201c shanty \u201d on another part of the claim, into which he moved with his family, where he continued to reside until his death, June 16, 1839. After his death, his widow and children continued to occupy the \u201cshanty\u201d in which he lived at the time of his death, until his widow married Thomas Attridge, May 29, 1841; and after awhile they built another house, not more than three or four rods from the former one, which they have ever since continued to reside in. In August, 1838, Thomas Cole also built a house for himself on another part of the \u201cclaim\u201d into which he moved and resided with his family.\nThe first year after the purchase from King, they all worked the land together. When the land was broken up the second year, they divided it, Thomas Cole taking a fourth part, and James Cole and Robert Swanton three-eighths each, of the land so broken up and cultivated. When the government surveys came to be made, it was found the three houses Avere on separate quarter sections of land; the one AAdiich Avas on the claim at the time of the purchase from King, and in which James Cole continued to reside, being on the northeast quarter of section 32; the one built by SAA'anton, and in which he resided, being on-the soutliAvest quarter of section 28, and the one built by'Thomas Cole, and in which he resided, being on the southeast quarter of section 29; a part of the land so broken up and worked by SAvanton, Avas found to be upon both the northeast quarter of 32, and the southeast quarter of 29.\nOn the 30th of January, 1841, letters of administration upon the estate of SAvanton Avere granted to his AA\u00dadow. A bill of appraisement on file in the probate court, finds the A\u2019alue of the estate to be $1,169 ; the first item mentioned therein being \u201c the claim ,\u201d appraised at $200, and another item being \u201c cash $660.\u201d Ko sale of any of the property appears to have been at any time reported, or made.\nOn the 7th of May, 1841, James Cole was appointed guardian of SAvanton\u2019s six minor children. On the 14th day of July, 1841, James Cole and Thomas Cole proved up their rights of pre-emption to the \u00edavo quarter sections of land,AAdiich Avere granted to them, and they purchased the lands for $200 each, and patents were subsequently issued to them, to Thomas Cole for the southeast quarter of section 29, and to James Cole for the northeast quarter of section 32, being the same lands covered by \u201cthe claim.\u201d\nOn the 20th of March, 1846, about five years after the entries of the land, the patentees, James and Thomas Cole, conveyed to the appellant Thomas Attridge, 85 acres of the land, described by metes and bounds, a portion being in each of the two quarter sections so entered by James and Thomas Cole. In the meantime, the appellants had continued, as before, to cultivate the land so deeded; all of the remaining portions of the two quarter sections not deeded to Attridge, were subsequently conveyed away by the patentees to third parties, 36 64-100 acres of which, however, were purchased by .Thomas Attridge before the filing of the bill in this case, so that at the commencement of this suit, Thomas Attridge was in possession of 121 64-100 acres of the lands so pre-empted and entered by James and Thomas Cole.\nThe original bill charged, that there was an agreement between Swanton, and James and Thomas Cole, that each of them should have the fee in the equal undivided one-third part of the above described lands when they should he entered, and that each should pay the one-third of the purchase money thereof; and further, that said James and Thomas Cole took the money, to pay for the entry of the lands, from the estate of Robert Swanton, and that the money jiaid for said lands, by said Coles, belonged to the estate of Swanton at the time of the entry and payment therefor.\nThe amended bill varied the statement of the agreement between Swanton and the Coles, charging it to be, that after the purchase, Swanton should have the fee in one half of said lands, and make payment for the same,. and that the Coles should have the interest in the other half, and make payment therefor.\nThere is no evidence whatever of any such agreement, further than what might be inferred from the facts above stated, and they are insufficient to afford ground for such inference. Instead of there being the clear proof necessary, to show that any money belonging to the estate of Swanton went into the purchase of the lands, there is no proof to that effect; but on the contrary, there is the positive testimony of Thomas Attridge, that $100, to pay for the 85 acres of land, was furnished to the Coles by his wife, from money which came to her from her interest in her husband\u2019s estate.\nIt is true, that James Cole, as guardian of the children of Swanton, had, at the time, some of their money in his hands. The appraised value of the estate, according to the bill of appraisement, was $1,169, one item being the claim, at $200. From a paper writing found among the files in the probate court, in the Swanton estate,, in the hand writing of the probate justice, it satisfactorily appears, that $602.66 was found by the court to be the amount of the distributive share of the heirs in the estate, but in that figuring, $200 was allowed for the claim; and as that ivas never disposed of, it should be excluded; and doing that, would make the amount $469.34, which came into the hands of James Cole as guardian; $400 of this he put at interest on mortgage security, as required by the statute, and paid it over to the children on their attaining their majority.\nIt can not justly be said, that it was the duty of the guardian to appropriate any portion of this money towards the purchase of any of this land for his wards. Guardians will not, ordinarily, be permitted to change the personal property of the infant into real property, or the real property into personalty. 2 Story Eq. Ju. sec. 1357.\nThe guardian would have had good reason to believe, that all this money would have been needed for the support, maintenance and education of these six minor children during their minority. Their mother possessed no means for their support; all her property that she appears to have possessed, became that of her husband, Thomas Attridge, on her intermarriage \"with him \u25a0 and he, the stepfather of the children, was under no legal obligation to support them. And this money might well have been held by the guardian for the support of his wards, instead of investing it in real estate for them.\nBut it is said, that under our statute, and decisions of this court, improvements on the public lands, before entry, were property; and the question is asked, in what manner the estate of Swanton has been divested of its interest in these two quarter sections ? The answer is, by a sale by the United States.\nThe statute, making valid, contracts for the sale and purchase .of improvements on the lands owmed by the government of the United States, and recognizing \u201cclaims\u201d upon them, and giving an action for their protection, expressly provides, that such claim shall not be pleaded or set up in bar of any action by a bona fide purchaser of such lands from the United States.\nWhatever interest the estate of Swanton had in these two quarter sections, expired on the sale of them by the United States to James Cole and Thomas Cole. The government ivas the absolute owner of the lands up to the date of the entry and purchase, and the Coles took a title to the lands and all the improvements upon them, entirely free and unincumbered.\nWe fail to see any such misconduct as is claimed in their fiduciary relation to this property, of either Mary Attridge as administratrix, or James Cole as guardian, as should affect it with any trust in favor of the heirs of Swanton.\nAlthough the claim was appraised at $200, we can not hold it to have been the duty of the administratrix, as there were no claims of creditors concerned, to have sold the claim for the benefit of the estate, and thus dispose of the home of herself and her family of dependent children.\nWithin the spirit of the statute, which provides that the widow may, in all cases, retain the full possession of the dwelling house in which her husband most usually dwelt next before his death, together with the outhouses and plantation thereto belonging, free from molestation and rent, until her dower be assigned, the administratrix was guilty of no breach of duty in occupying this claim as a home, instead of selling it.\nJames Cole did not make a purchase of property which his wards had any interest in; they had no interest in the land, as against the United States or its grantees. Robert Swanton had acquired no pre-emption right to any of the land; but the pre-emption right was adjudged to James Cole and Thomas Cole, and in their purchase they but availed themselves of a right awarded to them under the law.\nThe fact that Mary Attridge, the widow of Swanton, and daughter of James Cole, furnished the purchase money for 85 acres of the land, and that the latter consented to its being bought for her, or her husband, in his name, we do not regard as a recognition, by Cole, of a subsisting legal or equitable interest of the heirs of Swanton in the land. Allowing this to be done, was but an act of favor on the part of Cole, and not a matter of legal obligation. We can assign to it no greater weight than as being in discharge of a moral obligation.\nSo far as appears, no pre-emption right, in respect to the two quarter sections in question, could have been established in Robert Swanton. The pre-emption law of the 22d of June, 1838, the one which must apply, required the personal residence of the' settler on the land at the time of the passage of the act, and for four months next preceding, in order to entitle him to the benefit of its provisions.\nAccording to the testimony of*Samuel Cole, they all three, Robert Swanton, James and Thomas Cole, lived in the log house on the northeast quarter of 32, the first winter, and the next season (1838,) Swanton built another \u201c shanty \u201d on another quarter section, the southwest quarter of 28, into which he moved with his family.\nThe complainants below introduced in evidence the affidavits of James Cole and Thomas Cole, made on proving up their rights of pre-emption, in both of which it is stated, that no other person than James Cole resided on the northeast quarter of section 32, between February 22d, 1837, and June 22d, 1838; so that, according to those affidavits, Swanton must have gone off from the northeast quarter of 32, and on to the southwest quarter of 28, as early as February 22d, 1838.\nThe other four children and heirs of Swanton, filed their answers and disclaimers, disclaiming all interest whatever in the lands described in the bill, or in any part thereof, and in the estate of Swanton. The appellants have a title to the lands from government down, and they had been in continuous possession for nearly twenty years before the bill was filed, paying all the taxes. The complainants, Ann and Sarah, upon arriving at their majority, received, the one, $112, and the other, $96.20, from James Cole, being, as he informed them, their full share of the estate of S wanton. They suffer the matter to slumber, Ann, for nine years, and Sarah for five years, after attaining their majority, before bringing this bill.\nAt the death of their father, Ann was but eight, and Sarah but four years old; and although they did not live at home during the entire term of their minority, they must have done so for some four or five years each.\nUpon the death of Robert Swan ton, a helpless family of six children was left to be supported. The mother supported them herself until she married Attridge, and after that time her husband and herself supported and clothed them for at least quite a portion of their minority; and out of the small estate left, $400 was kept at interest by their guardian, from May 20th, 1845, and out of which Ann and Sarah have each received their share, when the whole amount of it might properly have been expended in their support.\nWe regard the case as destitute of equity, and think the court erred in decreeing the relief sought as to 85 acres of the land.\nThe decree is reversed and cause remanded for further proceedings in conformity herewith.\nDecree reversed.",
        "type": "majority",
        "author": "Mr. Justice Sheldon"
      }
    ],
    "attorneys": [
      "Mr. W. S. Searls, for the appellants.",
      "Mr. H. T. Steele, for the appellees."
    ],
    "corrections": "",
    "head_matter": "Thomas Attridge et al. v. Daniel Billings et al.\n1. Guardian and-ward\u2014purchasing land with the ward's money. Three persons owned an \u201cimprovement\u201d on land belonging to the United States. One of them died, leaving children, of whom one of the surviving owners became guardian, receiving money in that capacity, which he loaned upon mortgage security, as required by law. Afterwards the two surviving owners of the improvement purchased the land from the government in their own right. Upon bill filed by the wards to have a trust declared in their favor in respect to such portion of the land as would be embraced in their father\u2019s interest in the \u201c improvement,\u201d it was held to be no part of the guardian\u2019s duty to appropriate any portion of the wards\u2019 money towards the purchase of any of this land for them.\n2. Guardians will not, ordinarily, be permitted to change the personal property of the infant into real property, or the real property into personalty.\n3. Stepchildren\u2014of their support. A step father is under no legal obligation to support his wife\u2019s children by a former marriage.\n4 \u201cImprovements\u201d on public land\u2014subsequent sale by the government. The owner of an \u2018\u2018improvement\u201d on the public lands can not set the same up in bar of any action by a bona fide purchaser of such lands from the United States. While such \u201cimprovements\u201d are regarded as property in this State, the right expires on a sale of the land by the government to a third person.\n5. Widow\u2014of her right to occupy the home place. Where a party died while the owner of a \u201c claim \u201d or \u201c improvement \u201d upon the public lands, and upon which he resided with his family at the time of his death, and his widow became his administratrix, it was held, that within the spirit of the statute which provides that the widow may, in all cases, retain the full possession of the dwelling house in which her husband most usually dwelt next before his death, together with the outhouses and plantation thereto belonging, free from molestation and rent, until her dower be assigned, the administratrix was guilty of no breach of duty in occupying this claim as a home, instead of selling it.\nAppeal from the Circuit Court of Lake county; the Hon. E. S. Williams, Judge, presiding.\nMr. W. S. Searls, for the appellants.\nMr. H. T. Steele, for the appellees."
  },
  "file_name": "0489-01",
  "first_page_order": 497,
  "last_page_order": 505
}