138 Ill. App. 248 | Ill. App. Ct. | 1908
delivered the opinion of the court.
We shall confine our review and discussion in this opinion to the facts and the law only, as they affect the interests of the defendants Hinsey, Sipperly and Brooks, plaintiffs in error here, and the defendant, Elmer L. Parker, appellant in case Ben. No. 13,193, consolidated for hearing with this writ of error.
Counsel for defendant Hinsey prefaces his statement of facts with this observation: “There is but little conflict in the evidence of this case. The facts which we submit are controlling and not controverted. ’ ’
We are convinced from an examination of the record that the pertinent facts controlling the rights of the parties are not, when divested of the refinements of distinction indulged in argument, open to serious controversy.
This evidence fully sustains the findings of the decree, which is the foundation upon which the right to maintain it must be predicated, that all the transactions were entered into by Sipperly, Stolte and Hinsey for their own benefit, and that they were jointly interested in the real estate, and that the money was drawn from the funds of the Board of Control and advanced for the purchase of all the real estate in question, for the joint benefit of Hinsey, Sipperly and Stolte, and that such payments were a fraudulent conversion of the funds of the Board of Control.
In the light of the overwhelming proof of the glaring fraud of these persons, the argument of counsel for Hinsey that ‘ ‘ Mr. Hinsey * * * objects to a decree which finds that he has been guilty even of a constructive fraud, even though such decree might result in his financial advantage,” is hypocritical and disingenuous. On the contrary, so far from Hinsey and his co-conspirators being' guilty of a constructive fraud, they are condemned by the record as guilty of intentional and deliberate fraud upon complainant in their dealings with the real estate in question and with the funds of complainant which paid for it.
To support the charges of fraud we find in this record that the moneys of complainant were, in violation of its constitution and by-laws, used in the purchase of the real estate under the delusive representation that they were loans made upon ample real estate security. We have searched this record in vain in an attempt to find where any of the parties to this conspiracy furnished one dollar of money, obtained from any source independent of complainant, for the initial purchase of any parcel of real estate. The transactions here challenged were initiated by Erastus Sipperly negotiating for the purchase from the Illinois Trust & Savings Bank of the master’s certificate for the sum of $7,352.25. Hinsey and Stolte, President and Secretary of the Board of Control, April 4, 1895, drew a check for $8,000 in their official capacity, which money was used in the purchase of the certificate and in payment of taxes accruing during the period of redemption. The master’s certificate was assigned by the bank'and delivered to the Board of Control. At this time William Garnett, Jr., was the record owner of the equity of redemption, and on October 31, 1895, for the consideration of $900, conveyed such interest to Wallace D. Millard. This purchase was financed by Hinsey and Stolte, in their official capacity, drawing a warrant against the funds of complainant in the First National Bank of Chicago for $1,000, $900 of which was used to pay Garnett. The Board of Control, thereupon, through Hinsey and Stolte, assigned the master’s certificate to Millard, who surrendered the certificate to the master on March 28, 1896, and received in return a master’s deed conveying the property set forth in the certificate. At this time Hinsey was general claim agent for the Chicago, Milwaukee & St. Paul Railroad Company, and Millard was employed in a subordinate capacity, under Hinsey, at a small salary. He was a friend of Hinsey’s, without property or means save only his salary. He was simply used as a conduit through which to pass the title to the land.
On April 1, 1896, Millard quit-claimed to the defendant Elmer L. Parker all of the property described in the master’s deed. Parker was a claim agent of the Chicago, Milwaukee & St. Paul Railroad, who worked under the direction and authority of Hinsey, the head of the department. Parker paid no money or other valuable consideration, or any consideration, for the conveyance to him, and Millard made the conveyance at the direction of Hinsey. On April 6, 1896, Parker made a trust deed to secure $9,000 to Charles T. Allyn as trustee and to the defendant Stolte as successor in trust. This trust deed, being ostensibly made to secure payment of the advances made from the funds of complainant for the whole of the property conveyed by Millard to Parker, conveyed only a portion of such property, leaving the title to a material and valuable portion of it vested in Parker, free of all encumbrance.
The defendant Erastus Sipperly then negotiated with Charles F. Swigart for the purchase of block 13 in Swigart’s Subdivision, etc., for the sum of $8,500, Swigart and his wife conveying the property to the defendant Parker by deed dated April 11, 1896. This purchase was paid for with the funds of the complainant, by Hinsey and Stolte officially drawing a warrant for the sum of $10,000 in favor of one F. E. Baldwin, who was a clerk in the employ of Sipperly, of no financial responsibility. Eight thousand, five hundred dollars of this warrant was paid to Swigart for the land and the remainder used in payment of taxes and other charges on the real estate.
In May, 1896, Parker subdivided the land purchased from Swigart, together with the land conveyed to Parker by Millard, and omitted from the trust deed securing the $9,000 to Allyn, trustee, naming it “Erastus Sipperly’s Subdivision.” This subdivision was divided into four blocks, the lots in the blocks aggregating eighty. Parker, on May 25, 1896, executed a trust deed to Charles T. Allyn, as trustee, and defendant Stolte, successor in trust, to secure the $10,000 'of complainant’s money used in the purchase of the Swigart property conveying the property in Erastus Sipperly’s Subdivision with the exception of thirty lots. The title to these thirty lots remained in Parker unencumbered, not having been included in either of the trust deeds.
These manipulations with the funds of the complainant in these several real estate transactions were confined to Hinsey and Stolte, and were by them concealed from the other members of the Board of Control, and the fact that Hinsey, Stolte and Sipperly were interested in these transactions was studiously and designedly kept from the other members of the Board of Control. In all these transactions Hinsey and Stolte, only, represented the Board of Control.
The Endowment Bank was authorized to loan money only when there were surplus funds on hand, from which loans could be made; yet the record shows that when the $8,000 was withdrawn, the bank account was overdrawn in excess of $42,000; when the $1,000 was withdrawn, the deficit was more than $11,000, and more than $19,000 when the $10,000 was withdrawn from its bank account. All of this money was extracted upon the pretenses of loaning upon the security of the real estate for which the several sums of money were in fact used to pay the whole purchase price.
The finding of the court, in which we unreservedly concur, was that these moneys were drawn from the funds of the Board of Control and advanced for the purchase of the premises in question for the joint account of Sipperly, Hinsey and Stolte, and constituted a fraudulent conversion of the funds of the Board of Control, a diversion which could be neither sanctioned nor ratified by the Endowment Bank; that the property known as the Bhodes avenue lot was acquired by Stolte with the proceeds of real estate acquired with the funds of complainant, and that the same was held by Stolte for the use of himself and Hinsey.
Stolte, since the filing of the bill, seems to have admitted his part in these fraudulent transactions, and on March 2, 1902, conveyed the Bhodes avenue lot to Neal, Hinsey’s successor, as president-of the Board of Control, for the use and benefit of complainant, which lot Neal subsequently conveyed to complainant.
On October 30, 1895, Millard executed a declaration of trust in which he recited that the conveyance of Garnett to himself was made to and was then held by him in trust only for the use and benefit of Stolte, Hinsey and Sipperly, and that he had no financial interest therein. Parker on April 25,1896, also executed a declaration of trust, in which he recited: “I do for myself, my heirs, executors and administrators, acknowledge that I hold title thereto in trust only for the use and benefit of John A. Hinsey, Henry B. Stolte, and Erastus Sipperly. * * * I have no beneficial interest therein.”
Parker, after the execution of the trust deed, conveyed the omitted thirty lots to Stolte, and Stolte conveyed ten of said lots at the direction of Sipperly and held the remaining twenty for himself and Hinsey. Stolte by deed dated March 22, 1902, conveyed all the property standing’, in his name to Carlos S. Hardy, the attorney of complainant, for its use and benefit. Hardy and his wife in their answer admitted holding the title to the lots so conveyed by Stolte for the use of complainant, disclaimed any interest therein, and consented to the entry of any order in relation thereto which the court might deem for the best interest of complainant. Stolte afterwards conveyed and delivered to Hardy all notes, contracts and securities in his possession relating to the property unlawfully obtained with the funds of complainant.
Stolte, as far as he was able, before his death, made restoration of all the interest he acquired through the unlawful use of complainant’s money, to the diversion of which he was a party.
The property known as the Chicago Herald property was by like means conveyed to one George F. Baker, who by a declaration of trust dated the seventh of June, 1895, which was held by Stolte, declared that his title and possession was held in trust for Hinsey, Stolte and Erastus Sipperly.
From the foregoing it is evident that complainant’s money paid for thirty lots which, by manipulation, Hinsey, Stolte and Sipperly appropriated to their own use, without a dollar’s requitement therefor to complainant. Sipperly acquired ten of the thirty lots, his share agreed upon; and wliile Hinsey contends that he had no knowledge of these dealings, yet, on October 4, 1900, in a letter recited in the statement preceding this opinion he said: “In addition to the money that you appropriated to your own use, you disposed of ten lots that only belonged to you on condition that you acted your part in the real estate transaction between us. The moment you obtained title you disposed of them.”
In the light of the evidence, it is clear that notwithstanding Stolte may have had possession of the several declarations of trust, yet Hinsey was not only party to, but cognizant of, their contents. He told Sipperly that he wanted two of the thirty lots which were situated on the corner of Harrison street; and from the active part he took in these transaction as the President of the Board of Control, he must be held to be cognizant of these dealings. Hinsey is again contradicted by his co-conspirator, Sipperly, who testified that “The terms of the declaration of trust were discussed between Mr. Hinsey and myself and it was in pursuance of such conversation that the declaration of trust was made. Mr. Hinsey said the declaration of trust should show what each one owned and who owned it. It was stated that each one owned one-third.”
Parker was substituted in place of Millard, on consultation with Hinsey. Hinsey’s- contention that the declaration of trust in favor of himself was really for the benefit of the Endowment Bank falls of its own weight, in view of the fact that he failed to have any notation or entry thereof made on any of the books of complainant. As said by the master in his report: “If Hinsey’s testimony that he had no personal interest in the matter is true, then it would appear that for the purpose of assisting Sipperly, in whom he had no interest whatever, in a real estate transaction, Hinsey advanced from the funds of the Board of Control in his charge more than the aggregate purchase price of the two tracts of land, that he allowed Sipperly to retain out of the lands thirty lots clear, and assumed no personal responsibility for the repayment of the moneys advanced, and representing a fund held in trust, only took as security notes signed by a dummy, who did not expect to pay the same and was not understood by Hinsey to assume any personal responsibility in the matter, the sole security' being that portion of the property covered by the incumbrances; and, further, that at the time he did this the Board had no idle funds to invest, hut obtained the money by overdrawing its account at the bank, on which overdraft it may be assumed the Board was obliged to pay interest.
“No rational explanation is offered to explain why, if Hinsey was not interested, that his friends Millard and Parker executed, as part of the transaction by which they received title, the two declarations of trust * * * setting up Hinsey’s interest in the property.
“The only rational explanation of Hinsey’s course of conduct in the whole transaction is offered by the testimony of Sipperly that the speculation was entered into for joint account of Sipperly, Hinsey and Stolte.”
The conduct of Hinsey cannot he excused. He was an officer of complainant and inhibited by every legal and moral consideration from making a profit out of the trust confided to him—a trust of the most sacred character, involving the interests of widows and orphans, which he jeopardized by these unlawful transactions.
Sipperly’s testimony fastens beyond removal the interest and relation of Hinsey to these transactions, which the law stamps with its disapproval and stigmatizes as dishonest. Hinsey, as a trust officer having no right to assume interests in conflict with that of complainant, must, by well-settled principles, surrender all such interests so acquired and be held responsible to make good every dollar which complainant may have lost. Complainant had a right to proceed for alternate relief and to select that method which in its opinion will ultimately result in making it whole.
The doctrine of impressive trusts is sufficiently broad in its scope to permit the following of money, wrongfully appropriated by one standing in a fiduciary relationship to another, into whatever property it may have been invested. Robison v. Roos, 37 Ill. App. 646, affirmed in 138 Ill. 550; Verble v. Dillow, 218 Ill. 537.
We do not think the doctrine of estoppel is pertinent as applied to the amendments to the bill as originally filed. There is nothing in its averments which warrants the conclusion that any of the unlawful acts of the conspirators were ratified, or any of the offenses committed by any of the parties in interest against complainant condoned.
The theory of the original action has not been departed from in either of the amendments subsequently made, and at the most the amendments inject into the cause a new method to be adopted in obtaining the ultimate relief sought by the original bill. If the alternative method was open to complainant, it had a right to pursue it, and this we think it might have done under its prayer for general relief.
And furthermore, the transactions attacked were in themselves illegal, which complainant had no power to ratify. Best Brewing Co. v. Klassen, 185 Ill. 37; Chicago Hansom Cab Co. v. Yerkes, 141 Ill. 37; Crichfield v. Bermudez Asphalt Paving Co., 174 Ill. 466; National Mahaiwe Bank v. Barry, 125 Mass. 20.
By the original bill complainant sought to follow the funds wrongfully invested in real estate. By the bill as amended it seeks to recover the money misappropriated and to have the property purchased with that money, or its proceeds, subjected to payment of the amount due. This method does no violence to the rights of any of the parties.
The rights of all the parties who were innocent purchasers of any of the real estate involved were properly conserved by the terms of the decree, and none of them are here complaining, with the exception of Brooks; and as to all parties other than the innocent purchasers, the decree ordering a sale without redemption was right, for in law the wrongdoers had no title, legal or equitable, entitling them to redeem. The title which these wrongdoers had acquired was in fraud of the rights of complainant, and obtained by wrongful appropriation of its funds, and as held in Beach v. Shaw, 57 Ill. 17, a person having a merely naked legal title, with no equitable rights, cannot redeem, and the liability of the conspiring defendants remains to make complainant whole from any loss following the misappropriation of its funds, and therefore, if the property remaining subject to sale under the decree is insufficient to reimburse it, with interest and costs, then the conspiring defendants remain liable to make that deficiency good, and a judgment for such deficiency rendered against them.
We think the method of accounting adopted by the decree fulfills all legal requirements. Credit has been given to the defendants held personally liable for every dollar paid, from whatever source it may have been collected.
The defendant Sipperly, the evidence demonstrates, was a co-conspirator with Hinsey and Stolte, and as such he must be held to the same degree of responsibility to complainant as they. Sipperly had full knowledge of the official position of Hinsey and Stolte in the Board of Control, and is chargeable with knowledge of the diversion of complainant’s funds, and that the property, in equity and good conscience, was that of complainant. He has no title recognizable in a court of equity. Lamson v. Beard, 94 Fed. Bep. 30.
As to the defendant Brooks, she made a contract in good faith with Millard for the purchase of lots 9, 10 and 11 in block 2, in Dray’s Third Addition to Oak Park. There was due from her, of principal and interest, and for taxes advanced by complainant, at the time of entering decree, $979.92. This the decree ordered her to pay within ninety days, with interest at five per cent., and in default directed that the three lots be sold subject to her right to redeem under the statute, and that the money received from such sale be applied by the master upon her indebtedness. Complainant, in legal intendment owning the land, is entitled to all that is due upon it from any innocent purchaser. This is all the decree exacts from Mrs. Brooks. It is patent no violence is done to her interests, as she is only required to perform according to- her contract with Millard.
By inadvertence certain property was omitted from the order of sale in the decree. This was corrected by an order entered of record in the Circuit Court on the twenty-second of March, 1907, and on suggestion of a diminution of the record a certificate of those proceedings has been added and made a part of the record.
The decree of the Circuit Court is without error, and it is affirmed.
Affirmed.