delivered the opinion of the court:
The court correctly refused to decree specific performance of the agreement between Dr. E. A. D’Arcy, deceased, and the appellant, Prentiss D. Cheney. This agreement was executed on the 13th day of May, 1862, and at the same time a similar agreement, relating to other tracts of said land, was entered into between said D’Arcy and F. H. Teese, husband of another daughter of said D’Arcy. The wife of the appellant, Cheney, and Mrs. Teese were the only children of D’Arcy, and while these agreements are in form contracts for the sale and conveyance of the lands mentioned in them, respectively, we think it very clearly appeared from the circumstances in proof, considered in the light of the relationship of the parties, that the primary purpose of the execution of the agreements was to arrange a disposition of so much of the property of D’Arcy for the benefit of his children. Nothing was done under either of these contracts prior to the death of said Dr. D’Arcy, which occurred April 25,1863. He left a will, the fifth clause of which provided for a different disposition of the lands mentioned in these contracts. Under the provisions of this will the title to the lands vested in the children of Mrs. Cheney and Mrs. Teese, subject to the life estate created by the will in Mrs. Cheney and Mrs. Teese.
In November, 1863, a few months after the death of Dr. D’Arcy, the appellant, Cheney, Catherine, his wife, P. H. Teese, and Caroline, his wife, in view of the provisions of the will of said D’Arcy, entered into an agreement in writing partitioning and allotting to Mrs. Teese and Mrs. Cheney said lands in severalty during the duration of the lives of the said life tenants under the will. This agreement also recited that one of the purposes of its execution was that of indemnifying the “said P. D. Cheney and F. H. Teese for any outlay they may make or be put to in taking care of, cultivating or improving said lands during the lifetime of their respective wives.” As a means of compensating said husbands for any such outlays, the agreement provided that in the event of the death of Mrs. Cheney during the lifetime of Mrs. Teese, said appellant, P. D. Cheney, or his assigns, should have and hold the premises allotted to Mrs. Cheney for a period of five years after the death of said Mrs. Cheney, and the same provision was made in the agreement for the protection of Teese in the event of the death of his wife.
The appellant, Cheney, acting for and on behalf of himself and his wife, under the provisions of this contract of partition and pursuant to the will of the father of his wife, entered into possession of the lands allotted to his wife, which included the 1920 acres in controversy in this proceeding. He remained in possession in the same capacity during the lifetime of his wife. Mrs. Cheney died April 23,1877, and, as was his right to do under the contract with Mr. and Mrs. Teese, appellant, Cheney, retained possession of the premises allotted to his wife, for a period of five years thereafter. Soon after the expiration of that period, appellant, Cheney, as complainant, in his own behalf and also in the capacity of next friend for Alexander M. Cheney, his son, filed a bill in chancery to the November term, 1882, of the Christian circuit court, in which he alleged that said E. A. D’Arcy died seized of the various tracts of land mentioned in complainant’s bill in this cause, and including the 1920 acres described in the agreement or contract executed to him for the sale of the land. The bill further alleged that said D’Arcy died testate, and set forth in Uceo verba the fifth clause of the will, which fifth clause is set forth in full in the statement of facts preceding this opinion. The bill alleged the partition of the said lands between Mrs. Cheney and Mrs. Teese, and the fact that possession passed to said parties according to said allotment. The bill then set forth the facts relative to the births and deaths of the children of the said Mrs. Cheney and Mrs. Teese, and that the appellant had inherited the interest in fee of two deceased children of himself and his said wife, and averred that “doubts have arisen as to the true construction of the will of the said E. A. D’Arcy as to the rights of the said Ann C. Teese and her children and as to the rights of complainant, P. D. Cheney, and his son, in the lands aforesaid, and the said Ann C. Teese claims, and by her husband, as her agent, acting for her and controlling said lands so allotted to her, gives out in speech, that the life estate created by the said will survives to her in the whole of said lands, as well those which have been so allotted and set apart to said Catherine as those set off to her, the said Ann C. Teese, who now claims under the will to hold and enjoy the whole of said land during her natural life, to the exclusion of your complainants.” The bill further alleged that doubts existed whether the life estate created under the will did or did not terminate as to both Mrs. Teese and Mrs. Cheney upon the death of the latter, and asked a construction of the will upon that point, and charged that if the life estate did so terminate, the complainants were entitled, under the will, to an absolute estate in fee in said lands, and prayed that if the court should decree that saiddife estate did so terminate, the court would decree partition of all the said lands of which the said D’Arcy died seized, between the said complainants, the appellant and his son, and the said Mary M. and Catherine M. Teese, according to their respective rights and interests in fee therein, accruing to them by force of the provisions of the said will, and that the court would appoint commissioners to make said partition. Amendments were afterwards made to the bill, which need not be otherwise noticed except to say they were designed to make more clear and explicit the claim of complainants to an interest in fee in the land in virtue of the will of his deceased wife’s father.
The defendants to the bill made answer thereto, and the cause was submitted to the court and a decree entered, from which the appellant, P. D. Cheney, prosecuted an appeal to this court, resulting in a reversal of the said decree and a construction of the will by this court. (Cheney v. Teese, 108 Ill. 473.) The cause was remanded and such subsequent proceedings had therein in the circuit court as resulted in a decree of that court construing the said will according to the directions of the Supreme Court, and adjudging and decreeing said appellant, P. D. Cheney, and his co-complainant, were entitled to and were vested of title in fee simple to an undivided three-fifths interest in said land under said will.
The participation of the said appellant, Cheney, in the amicable allotment of the life estate of his wife, his entering into possession of the lands under her right thereto asra devisee of the will of her father, E. A. D’Arcy, and the allegations contained in the bill filed by him against the other devisees of the same will, unmistakably indicate that appellant, Cheney, upon the death of his father-in-law abandoned all thought or intent of complying with or insisting upon the performance of the conditions of the contract for the purchase of the land. We also find in the record a number of letters written by the appellant, Cheney, framed upon the theory the will disposed of the title to the land, and asserting claims and rights in his own behalf wholly based upon that theory. As before remarked, it seems to us indisputable that these contracts entered into between the deceased, D’Arcy, and his sons-in-law, Cheney and Teese, were regarded by all the parties thereto as but a mode adopted by D’Arcy of appropriating these lands to the use and benefit of his daughters and their husbands. After the death of D’Arcy it is clear his daughters and their husbands accepted the provisions of the will as the better and more satisfactory manner of accomplishing that purpose, and they proceeded to carry into effect the conditions and terms of the will. We find nothing in the record to indicate that the appellant, Cheney, at any time before the purchase by the complainants of the interest of the Teese children in the land, intended to fulfill his contract with D’Arcy, or that he based any claim of interest or title upon that contract. His acts, during all the time after the death of the father of his wife until advised of the purchase of the interest of the Teese children by the complainants, are wholly irreconcilable with the view he was claiming any rights under said contract, and consistent only with the theory that the contract had been abandoned and the disposition made of the land by the will accepted and fully acquiesced in. Moreover, we think the appellant, Cheney, should be deemed estopped from asserting any rights under the contract by the decree of the court, rendered upon his own application, awarding and decreeing to him, as heir of his deceased children, an interest in the fee in the lands created in said children by the will. The decree was a public record, and it appeared in the proof that the complainants in the original bill, Ricks, Maxon and Provine, before they purchased from the Teese heirs, acquainted themselves with its contents, and relied upon it as setting forth truly the claim of interest of said Cheney. He cannot be allowed to shift his position to their injury and damage.
Whether time was of the essence of the contract,—a subject much discussed in the briefs,—need not, of course, have our attention if we are right in the view we have taken that the contract was abandoned. The decree dismissing the cross-bill of the appellant, and declaring the interests of complainants in the original bill and appellant as tenants in common, and appointing commissioners to make partition, meets our approval and is affirmed.
It appeared from the proof the complainants in the original bill had executed a mortgage to the Misses Teese upon the 1920 acres of land in controversy to secure the payment of the sum of $25,000, unpaid balance of the purchase money, and it is complained the court erred in directing the course to be taken by the commissioners with reference to the lien of the mortgage in making the partition. The appellant also insists it appeared from the evidence that he'expended large sums of money in making lasting and valuable improvements on the land, and that the decree of the court deprives -him of all benefit of such outlays and expenditures. We treat these objections together, for the reason the chief ground of complaint urged is, that appellant had made lasting and valuable improvements on this land, and that to assign a portion of it to the complainants in the original bill would be to unjustly deprive him of the value of such improvements.
The decree directed the allotment of the 1920 acres described in the mortgage and herein in controversy, only on condition that such allotment did not interfere with a fair and equitable division and partition of the whole premises, and specifically directed the commissioners as follows: “It is further ordered and decreed by the court, that for the purpose of preserving the lien of said mortgage made by complainants to Mary M. and Catherine M. Teese on the lands in the mortgage described, the commission ers shall, if a fair and equitable partition of all of the lands first above described can be so made, first set off and allot to said Prentiss D. Cheney the three-fifths (g), and to said N. D. Ricks, George E. Maxon and W. M. Provine together the two-fifths (§), of sections numbered two (2), three (3), the north half of section ten (10) and the north half of section eleven (11), all in township eleven (11), north, range four (4), west of third principal meridian, quality and quantity relatively considered, and then set off and allot to the said Prentiss D. Cheney the three-fifths (t), and to the said Ricks, Maxon and Provine the two-fifths (§), of all the residue of the lands above described, quality and quantity relatively considered; and so far as practicable, consistent with a fair and equitable partition, the commissioners shall set off to Prentiss D. Cheney the lands heretofore described as having been set off to Catherine M. Cheney, and set off to Ricks, Maxon and Provine the lands heretofore described as having been set off to Ann C. Teese by the deed of partition of the life estate in said lands, so that the lands upon which improvements have been made by Catherine M. Cheney and Prentiss D. Cheney may be set off to him, and the lands upon which improvements have been made by Ann C. Teese and said Ricks, Maxon and Provine may be set off to them, said Ricks, Maxon and Provine; and the improvements on the land, if so assigned, should not be considered as enhancing the value of the lands, but if lands shall be assigned to Ricks, Maxon and Provine upon which Catherine M. or P. D. Cheney have made improvements, or if land shall be assigned to P. D. Cheney upon which Ann C. Teese or Ricks, Maxon and Provine have made improvements, then such lands and such improvements thereon should together be considered and valued by the commissioners in making the partition. If, however, a fair and equitable division of all the lands first above described cannot be made by first dividing said sections 2, 3, the north half of sections 10 and 11, as aforesaid, then in that case the commissioners shall make division and partition of all the lands first above described, assigning to said Prentiss D. Cheney the three-fifths and to N. D. Ricks, George E. Maxon and W. M. Provine together the two-fifths (•§) thereof, quality and quantity relatively considered, and so far as practicable, consistent with an equitable division, assign the said shares so that the parties can, respectively, have the lands upon which they, or those under whom they claim, have made improvements; and the value of the land so assigned should not be regarded as enhanced by the improvements thereon, but if lauds with improvements thereon shall be set off to the party who clid not, and those under whom he or they claim did not make improvements, then such lands, together with the improvements thereon, should be considered and valued together by the commissioners in making the partition. If the commissioners shall find that said premises are not susceptible of division without manifest prejudice to the parties in interest, they shall value each piece or parcel separately; and they shall make report, under their hands and seals, to the court during the present or the next succeeding term thereof.”
Complainants had, in truth, executed two mortgages, both of which were subsisting liens on different portions of the lands: One to Henry Davis mortgaged the undivided two-fifths of all the lands mentioned in the original bill, except the 1.920 acres here in controversy, to secure the sum of §40,000 and interest; the other mortgaged to the Misses Teese the undivided two-fifths of the 1920 acres, to secure §25,000 and interest. The mortgagees in each mortgage were parties defendant. The appellant, Cheney, had made improvements on the land mortgaged to the Misses Teese, and the grantors of the complainants had made improvements on the other tracts. It is not suggested to us in what manner the decree is prejudicial to the rights of either of the parties with respect to such improvements. Their interests in this regard, so far as possible to do so, will be fully protected if the commissioners observe the directions of the court, and if they fail to do so, objections to their report will offer either party a remedy to right any wrong.
Sections 5 and 6 of chapter 106, of the Revised Statutes, entitled “Partition,” clearly contemplate and make it necessary that a mortgagee shall be party to a partition proceeding. A mortgagee is a necessary party to a suit in partition. Loomis v. Riley, 24 Ill. 307.
It is required by the statute that the court, in partition proceedings, shall ascertain and declare the rights, titles and interest of all the parties,—the petitioners as well as the defendants,—and shall give judgment according to the rights of the parties. (Rev. Stat. sec. 15, chap. 106.) It was incumbent, therefore, upon the court to declare and set forth in its decree the rights, titles and interest of the complainants, the appellant, Cheney, and the mortgagees, and it was equally important the decree should so direct the partition to be made as to conserve the interests and rights of all of them. The statute would operate to transfer the lien of the mortgages, respectively, and limit it to such tract or portions of tracts as should be assigned by the commissioners to the mortgagors, respectively. (Rev. Stat. sec. 24, chap. 106.) But if allotment in severalty should not be made of the premises described in either mortgage, the mortgage would attach to the whole undivided interest of the mortgagor in such tracts. Vogle v. Brown, 120 Ill. 338.
If the entire premises described in the mortgage given by the complainants to the Misses Teese (the 1920 acres in controversy) should be allotted to the appellant, Cheney, he would necessarily take such premises subject to the lien of the mortgage, which would be unjust to him. The court directed that the premises in that mortgage should be partitioned and assigned in severalty to appellant, Cheney, and the complainants, if such partition could be made without prejudice to the parties interested. If carried into execution the decree in this respect would not work injustice. But we conceive the court fell into error in directing the course to be pursued if such partition could not be made. The decree directs the commissioners, that “if, however, fair and equitable division of all the lands cannot be made by first dividing” the 1920 acres aforesaid, “then in that case the commissioners shall make division and partition of all the lands first above described, assigning to said Prentiss D. Cheney the three-fifths and to N. D. Ricks, George E. Maxon and W. M. Provine together the two-fifths (-=) thereof, quality and quantity relatively considered, and so far as practicable, consistent with an equitable division, assign the said shares so that the parties can, respectively, have the lands upon which they, or those under whom they claim, have made improvements; and the value of the lands so assigned should not be regarded as enhanced by the improvements thereon, but if lands with improvements thereon shall be set off to the party who did not, and those under whom he or they claim did not make improvements, then such lands, together with the improvements thereon, should be considered and valued together by the commissioners in making the partition.”
It will be observed the mandate of the decree is, that if the 1920 acres are not susceptible of partition the commissioners shall allot and partition the whole premises, with reference only to quality, quantity and improvements made by the respective parties, the lien of the mortgages being wholly ignored. If unable to partition the 1920 acres, (considered as a distinct parcel,) the commissioners, following the orders of the court, would make partition of all the land without regard to the incumbrances upon the different parcels thereof. This might result in an award to appellant, Cheney, of all the lands included in the mortgage to the Misses Teese, in which event the statute would have no operation to transfer the lien of that mortgage from any of the tracts, and appellant would take them charged with the incumbrance of that mortgage. The statute in the respect under consideration only operates when the share of the mortgagor in the mortgaged premises is assigned to him in severalty. Then the lien of the mortgage attaches to such separate allotment, and by force of the statute is discharged as to the shares allotted to the co-tenant of the mortgagor. But this is only true when partition is made of the premises covered by the mortgage and the undivided interest of the mortgagor therein allotted to him in severalty. The decree should have treated the lands in the respective mortgages as distinct parcels, and ordered partition of each parcel to be made among the owners thereof.
We think there is no force in the contention the court erred in not requiring the repayment to Cheney of certain amounts which he claims to have paid upon the contract between himself and E. A. D’Arcy. The contract was entered into in 1862. Cheney concedes none of the payments required by it to be made were made by him during a period of over twenty years. During this period of time, as we have seen from the proof and from his own testimony, he and his wife were holding possession of the land under right and claim as devisees under the will, and he, during all of that time, took no steps toward the fulfillment of his contract. At the November term, 1882, of .the Christian circuit court,.—more than twenty years after the execution of his contract and before any of the alleged payments were made,—he exhibited his bill in chancery in said court, and therein asserted in his own behalf interest and title wholly antagonistic to any claim under the contract, and consistent only with the theory that the contract was not in force. After-wards, as he testified, he made some payments on the contract to Mrs. D’Arcy, as executrix of E. A. D’Arcy, and it is- these sums which it is contended should have been ordered repaid. Mrs. D’Arcy removed from Illinois and became a resident of New Jersey in 1877,—about six years prior to the first of the alleged payments and near fourteen years after the death of her husband. ' She had, many years before her removal from Illinois, paid all claims against the estate of E. A. D’Arcy, distributed to the legatees the personal assets of the estate as directed by the will, and performed all the duties required of her by law as executrix, except that of making a final report. All of these facts were within the personal knowledge of appellant, Cheney, as appears from his testimony. Under such a state of circumstances we think any payments made to Mrs. D’Arcy were wholly unauthorized, and without binding force as against the title of the devisees of the deceased testator. No reason is apparent to us why such devisees, or their assigns, should be required to contribute to a fund to be appropriated to the purpose of repaying to said appellant, Cheney, sums paid out by him under such circumstances.
It is, we think, well assigned as for error that the decree provided a reasonable solicitor’s fee, to be paid to appellee W. M. Provine, should be taxed as costs, and paid by the parties in proportion as they were interested in the lands to be partitioned. The statute (sec. 4, chap. 106, entitled “Partition,”) directs that in such proceedings “the court shall apportion the costs, including the reasonable solicitor’s fee, among the parties in interest in the suit, so that each party shall pay his or her equitable portion thereof.” The purpose of this enactment is to require each party in interest in the lands to be partitioned to contribute to the payment of all expenses legally attendant upon its prosecution. Here no expense was incurred to secure the services of a solicitor. One of the complainants was possessed of the requisite legal knowledge to enable him to present the case in court, and he did so present it. It was not intended by the statute to authorize one of the litigants in a partition proceeding to become his own client or to make the other parties to the proceeding his clients and charge them for professional services, but only to provide that the expenses of a solicitor, when it became necessary for the complainants to employ such assistance, should be ratably borne by all the parties in interest. In Willard v. Bassett, 27 Ill. 37, this court held that it was against the policy of the law to allow one to become his own client and charge for professional services in his own cause. In harmony with that doctrine it has been held that an attorney who is a mortgagee cannot recover professional fees for services rendered in a proceeding to foreclose a mortgage, though a stipulation in the mortgage provided for the allowance of solicitor’s fees. (Slater v. Cattorn, 3 Jur. (N. S.) 630; Patterson v. Donner, 48 Cal. 369.) The same principle is also recognized and upheld in Martin v. Campbell, 11 Rich. Eq. 205, In re Sherwood, 3 Beav. 338, and Cochran v. Dennis, 5 Denio, 482.
Error was committed in the allowance of solicitor’s fees to the complainant Provine and in the directions given to the commissioners relative to their duties in making partition, and the decree in these respects is reversed but in all other respects it is affirmed. The cause will be remanded, with directions to the court to enter a decree directing the commissioners to proceed to partition the tracts covered by the mortgage to the Misses Teese, if the same remains undischarged, and the tracts covered by the mortgage to Davis, if the same remains undischarged, as distinct parcels, allotting to the appellant, Cheney, in severalty, three-fifths of each parcel and the complainants (jointly as between themselves), in severalty, two-fifths of each parcel, quantity and quality relatively considered, and shall direct said commissioners, as before, with reference to the allotment of tracts on which the respective parties have made improvements, provided a fair and just partition can be so made without manifest prejudice to the parties interested in the premises; but if the mortgages, or either of them, have been discharged, then partition should be ordered with reference to improvements, as in the decree appealed from, and otherwise according to the interests of the parties as required by the statute and as indicated in this opinion. Each party will pay one-half the costs in this court.
Decree affirmed in part.