51 F. 117 | U.S. Circuit Court for the Northern District of Illnois | 1892
The original bill in this case was filed by Edler to establish title to a farm of 265 acres of land in Do Kalb county, in this state, as against the heirs at law and executors of James Greenhow, deceased. The cross bill was filed by Richard Greenhow to set aside certain liens held by the executor and heirs of Janies Greenhow on said land, and also to have Edler declared to hold whatever title he holds in trust for Richard Greenhow, subject only to the small amount of indebtedness from Richard to Edler. The case is now before the court for final hearing on exceptions by Clark, the executor, to the master’s report. The essential facts necessary to be considered in passing upon these exceptions, and as they appear from the testimony, are these: In November, 1871, Richard Greenhow, being then the owner of the farm in question, gave to his father, James Greenhow, his note for $1,000, for money the father had advanced to him, and secured the payment thereof by a mortgage on 160 acres of the farm in question. There is no controversy between the parties as to the validity of this mortgage, the note drawing interest at the rate of 10 per cent, per annum. In November, 1874, Richard Greenhow, having become deeply involved in debt, conveyed his farm and his personal property to his father, with the ua
' The master finds by his report that, as between Richard and Edler, there is §1,690.70 due Edler, on payment of which, without interest, Edler shall reconvey to Richard whatever title he (Edler) holds in the farm. That there is due from Richard to his father’s estate §2,578.49, for which the mortgage of March 9, 1877, should stand as security, .subject to the amount found due to Edler; and that on payment by Richard of the amount found due Edler, and the amount found due the executor, he should have a reconveyance of the farm, and a release of the mortgage. The exceptions by Clark, executor, and the heirs of Richard Greenhow go to the credits which the master has allowed to Richard on the balances struck in the settlements of March 9 and September 5, 1876. The master has found errors and omissions of items in the settlements between Richard and his father on March 9, 1876, which should be credited to Richard, and applied in reduction of the mortgage as follows:
Proeeeds'oi sale of personal property not accounted for by James
Greenhow in the settlement of March 9tli, - - - - $1,195 00
Borrowed from the bank, and charged to Richard by James, - 300 00
Proceeds of threshing machine, - 350 00
Rent of Richard’s farm received by James Greenhow for 1875-76 580 50
$2,425 50
So that at the time of the settlement in March, 1876, according to the finding of the master, there was actually due Richard, without considering the thousand-dollar note of November, 1871, the sum of §231. He further finds that in the settlement of September, 1876, between Richard and his mother and sisters, the sum of §430, received for rent of the farm by his father, was overlooked, which should have been credited to Richard, and it was therefore improperly included in the
As I have already said, the testimony in this case is voluminous, and very much of it, as it seems to me, wholly immaterial and inconclusive upon the issues in the case. James Greenhow, the father, seems from the proof to have been a careful, methodical, and right-intentioned man. There is no evidence that he ever intended to impose upon Richard, or in any way take an unfair advantage of him; on the contrary, all the evidence is the other way. He was not a trained accountant, and seems to have been a man with very little book education, but he was evidently a man who had very correct business notions and methods. In attacking the mortgage thus solemnly made by him, which was the result of yarious settlements and conferences, Richard Greenhow, the complainant in the cross bill, has the burden of proof. He is bound to establish the mistakes and overcharges which he complains of by clear and convincing evidence. Settlements made between parties where each has opportunity to examine and consider the claims or accounts of the others should not be disturbed by courts, except for grave reasons, and where, in the light of the proof, the court can feel assured that it is better advised as to the state of the accounts adjusted than the parties themselves were at the time they made the adjustment. It is said by Mr. Justice Walker, in Peddicord v. Connard, 85 Ill. 102:
“The business affairs of tlie country must be protected, against reopening accounts for a new adjustment after such delays and long acquiescence in settlements and payments.”
And Chief Justice Marshall, in Chappedelaine v. Dechenaux, 4 Cranch, 309, said:
“2sTo practice could be more dangerous than that of opening accounts which the parties themselves have adjusted, on suggestion supported by doubtful or by only probable testimony. But if palpable errors be shown,—errors ' which cannot be misunderstood,—the settlement must so far be considered as ’ made upon absolute mistake or imposition, and ought not to be obligatory on 'the injured party or his representatives, because such items cannot be supposed to have received his assent. The whole labor of proof lies upon the party objecting to the account, and errors which he does not plainly establish cannot be supposed to exist.”
The proof show's that James Greenhow kept a book in which he set down the items ofhis account with Richard. At the settlements made with Richard, he made his statement of the account upon the basis of the entries in his book. Richard does not seem to have kept any book account with his father, but depended mainly upon his memory and the entries in his father’s book. It is true this book is somewhat crudely kept, and that it requires considerable study to understand the methods of the deceased in keeping it, but the fact remains that, with this book before them, with all the transactions fresh in their minds, within a little more than a year after they had all occurred, Richard Greenhow and his father sat down, and, after more than a day spent in the examination of the various
The eighth exception to the master’s report goes to the finding that the amount clue Edler should have priority over the mortgage to Clark, executor. In this I think the master erred. The title to the farm was in James Greeuhow long before either the mechanic’s lien suit was brought or the judgments rendered under which Edler claims title. While the title in James Greeuhow was in form an absolute deed in fee, it is at the same time admitted that it was in the nature of a mortgage for whatever indebtedness should accrue to .lames from Richard. At the time tlio sales were made on this mechanic’s lien decree and the judgments, Richard’s only interest in the property was this equity after the payment of whatever was due his father, and this equity is all that Edler took by his sheriff’s deeds, aud.hence these deeds held by Edler cannot cut or ho given preference over the mortgage. All the exceptions to the master’s report are sustained. 1 think a re-reference hardly necessary to recompute the amount due on the mortgage on the basis I have? indicated, but, if the parties cannot agree as to the computation, I will send the ease again to the master.