240 Ill. 433 | Ill. | 1909
delivered the opinion of the court:
The evidence in this case presents a remarkable state of affairs. On June 17, 1899, complainant was the owner in fee simple of two hundred acres of land, worth at that time not less than $90 per acre, or $18,000, which was encumbered by a certificate of purchase issued under a sale in a foreclosure proceeding", and $4763.63 was all that was required to redeem the land from said sale. Entertaining the erroneous impression that he had fifteen months from the day of the foreclosure sale to redeem therefrom, complainant was about to let the twelve months allowed him by law for that purpose expire without redeeming the premises. On the last day of the twelve months allowed him for redemption complainant was informed by defendant Johnson that he had only twelve months from day of sale in which to redeem and that the twelve months expired on that day. Thereupon complainant went to the office of Johnson and Avery, in Dixon, where he executed a deed to Johnson and Avery for the entire two hundred acrfes of land and they advanced the money ($4763.63) with which the redemption was made. It is absolutely clear that the conveyance to Johnson and Avery of the $18,000 worth of real estate was not an absolute conveyance of title. The money advanced to complainant to make the redemption was only about one-fourth the value of the land, and although Johnson and Avery claimed the conveyance was an absolute one and was not given as security for the money they advanced to make the redemption, the proof shows conclusively that the deed was made as security for the money advanced by them, and was not intended by the parties, at the time, to vest in the grantees the absolute title. While there was nothing whatever in the circumstances attending the making of the deed by complainant to Johnson and Avery to justify their claim that they had purchased the land outright, they appear to have at once set up such claim. In July, 1899, the complainant filed a bill against Johnson and Avery, in which he alleged, substantially as in the bill in this case, that they held the title as security for redemption money advanced him, and praying that the deed be decreed to be a mortgage and that he be permitted to redeem therefrom. He was taken to the office of the attorney who filed the bill by H. L. Fordham, who is not a party to this suit. Complainant testified he did not employ the-attorney, but the proof shows that he must have known of the filing of the bill and the pendency of the suit, for while it was still pending- negotiations were entered into by said defendants with him for a settlement of the litigation. Finally, in December, 1899, said defendants and their counsel met complainant and his counsel at the latter’s office in Dixon and delivered to complainant’s counsel, who has no connection with the present litigation, a warranty deed for the north half of the north-west quarter of section it. Complainant was present at the time, and although the deed was not delivered to him personally, said defendants, and the attorney who represented them, testified that the matter of the settlement, and its nature, was talked of at the time, and that the deed was delivered to complainant’s attorney for him and was a consummation of the compromise that had been previously agreed to between the parties. Complainant admits he was present; that he saw the deed delivered to his attorney, but says he never read it and never accepted it. He testified there was talk at the time about making the deed; that his attorney might have agreed to it but that he did not. He further testified that the deed was delivered to his attorney in his presence and that he made no objections; that defendants wanted him to take another eighty, but he wanted the eighty in question. He testified he would have executed a deed then, but that “when they wanted to play roots on me I wouldn’t do it.” There is no proof that he ever had the deed in his possession, and when he left his attorney’s office the deed remained there. Some time afterward the attorney gave the deed to H. L. Fordham and asked him to take it and deliver it to complainant. When Fordham offered to deliver the deed complainant refused to accept it. Fordham lost the deed and it was never placed on record. At the September term, 1900, of the Lee county circuit court the record shows the solicitor who brought the suit for complainant in 1899 withdrew his appearance, and on motion of defendants’ solicitors the suit was dismissed at complainant’s costs. In July previous to the dismissal of that suit Fordham acquired a tax deed to the north half of the north-west quarter of section 11. He at once took possession by requiring the tenant on the land to attorn to him, and remained i'n possession until he sold it, in 1904, to Johnson and Aveiy. Johnson and Avery had possession of the other one hundred and twenty acres until they sold it, and were in possession of the eighty acres mentioned from the time they received the deed from Fordham till the commencement of this suit. Complainant had knowledge of these facts, but through stubbornness or stupidity took no steps to protect his rights until this bill was filed on the 28th of June, 1907. Complainant’s counsel assert that he is a man of peculiar characteristics and disposition. He is a bachelor', now about sixty-five years of age, but it is not claimed that he is non compos mentis or incapable of understanding and transacting ordinary business. He was certainly obstinate and stubborn and slow to move in the assertion of his rights.
The defendants Johnson and Avery do not now rely upon the claim that they purchased the land outright, but rely upon- the settlement. and compromise made while the suit was pending, in 1899. 'The master found and reported that the deed to the north half of the north-west quarter of section 11 was duly executed and acknowledged by said defendants and their respective wives; that it was delivered by them to complainant and accepted by him in full satisfaction and discharge of all matters in controversy between him and said defendants regarding the transaction of the conveyance of the two hundred acres to Johnson and Avery. The court found and recited the same thing in the decree, and also that by virtue of said settlement and conveyance of said eighty-acre tract defendants Johnson and Avery became the absolute owners of the other one hundred and twenty acres, and that the complainant became the owner of and vested with the legal title in and to the north half of the north-west quarter of section 11. The weight of the proof tends to support these findings, and although it was an absurd settlement for complainant, yet if he agrJed to it, courts are powerless to set it aside. We would not be warranted in disturbing the decree in that respect. No complaint is made of that portion of the decree setting aside the tax deed to Fordham and the conveyance from him to Johnson and Avery and fixing the amount they should pay complainant for the use and occupation of said eighty acres.
It is urged that the court erred in decreeing that complainant pay one-third of the costs; but we are of opinion, in view of the relief sought by the bill and that granted by the decree, the court did not err in this respect.
The decree of the circuit court is affirmed.
Decree affirmed.
