105 Ill. 272 | Ill. | 1882
delivered the opinion of the Court:
In a suit in chancery, where the bill calls for answers under oath, and where sworn answers have been filed denying the equities of the complainant, and where no replication has been filed, and where, after answers are so filed, it is, on motion of complainant, ordered by the court that the bill be dismissed at the costs of the complainant, and no other words of the order indicate that the bill is to be dismissed without prejudice, it is a very grave question whether such an order can be set up successfully as a complete bar to a subsequent suit by the same complainant, against the same defendants, seeking the same relief, and upon the same alleged equities. The writer of this opinion is inclined to think that such an order, under such circumstances, renders the matters alleged and denied res judicata as between the parties, and that defendants can not afterwards be required to litigate the same de novo. It is, however, unnecessary, in the view we take of the case, to decide this precise question, and we forbear to do so.
If it be assumed that such an order is to be treated as a non-suit at law, still it is very clear that a complainant, thus met with sworn answers denying the equity of the bill, can not properly be allowed to get rid of the obstruction thus presented by merely dismissing his bill, even without prejudice, and then filing a new bill waiving the oath of the defendants. In this case, when the sworn answer of defendant Mey was filed, in August, 1875, it became evidence against the complainant in his favor, of such force that complainant could have no decree against him until the same was proven false by evidence equal to that of one witness, and in addition thereto a preponderance of proofs sufficient to sustain the bill if the oath to the answer had been waived. If it be conceded that complainant may file another bill, and litigate the matters upon their merits, this sworn answer remains proof on record against her, and she can have no decree until this is overcome by a preponderance of other proofs.
The parties agree in saying that the Paisley title bond was at first taken by Mey as the property of Henry Leuders, assigned to Mey as security to him for the repayment of moneys before that advanced by him to and for Leuders, in the making of the first payment under the bond. Mey claims that when the second payment fell due, in 1869, Henry Leuders, being unable to pay the same, abandoned the purchase, and made an agreement with Mey, in substance, that Mey should accept the equitable interest of Henry Leuders in satisfaction of past advances, and would make the second and third payments to Paisley, and take a deed for the land as absolute owner, and that Henry Leuders should retain the possession for two years as tenant to Mey, and that certain improvements made and to be made on the place by Henry Leuders should pay for the use of the place by Leuders for the two years, 1868 and 1869. Complainant denies that this agreement was made. This is the hinge of the case, and on this the merits of the case depend.
On that question Mey has proofs, as follows: His own sworn answer, and in corroboration thereof the fact that on August 21, 1871, Henry Leuders gave his note to Mey for $500, and secured the same by a chattel mortgage; and the fact that in 1872 a written contract was made between Henry Leuders and Mey, in which the land is mentioned as “the farm of August H. Mey, ” and by which Leuders agrees, for a fixed compensation, to cultivate it for Mey; and the fact that in August, 1874, Henry Leuders gave to Mey his note for $1180, to be paid in six months, and secured the same by a chattel mortgage; and the fact that in February, 1875, this last note not being paid, the property was sold, under the mortgage, to Charles Leuders for its full value, and the father having failed to pay the rent, and having no instrumentalities to farm with, the land was leased to Charles, who was living with his father on the farm; and the fact that when this lease expired the possession was given to Mrs. Hienman, to whom Mey had sold the land.
The only evidence tending to contradict this statement of Mey as to his having taken the property as his own, in 1869, is the testimony of Henry Leuders, Charles Leuders, and Johanna Leuders, directly contradicting the statements of their sworn answers, and the testimony of Henry Leuders, Jr., a son of Henry Leuders, saying that in July or August, 1875, (which was very shortly before the sworn answers of Mey and his wife, and his son Charles, were filed,) Mey told Charles Leuders and the witness that he had the title for security, and if they worked well they could pay the loan debt. The testimony of Henry Leuders, the father, and that of Charles and Johanna Leuders, being directly contradictory of their sworn answers, is utterly unworthy of belief. The testimony of Henry Leuders, Jr., is directly contradicted by the testimony of Mey, who swears positively that he made no such statement.
The weight of the evidence shows satisfactorily that, in 1869, the agreement set up by Mey was actually made by Mey and Henry Leuders, and from that day forward Henry Lenders had no real right, equitable or otherwise, to the land, save while he occupied as a tenant of Mey, and his rights then were merely those of a tenant.
We think, from the evidence in the case, that it is probable Mey was a friend of Leuders, and was willing and endeavored to befriend him and his family, and that he may have said, to the sons that he was willing to turn over the property to them on payment to him of what he had paid out for the same, and of what their father owed him. There is no charge in the bill of any intention to defraud, or hinder, or delay any creditor of Henry Leuders, except the complainant. There is no proof or allegation in the bill that the debt on which complainant’s judgment was rendered had any existence until in February, 1875. Before that time, in 1871, Henry Leuders was in debt to Mey, and gave his note and chattel mortgage to him for $500, and in 1872 he entered into a written contract to cultivate the farm for Mey, in which he speaks of the farm as “the farm of Mey.” In 1874, before complainant’s debt is shown to have been in existence, Henry Leuders took up his $500 note, given in 1871, and having become further indebted to Mey, gave him his note and a chattel mortgage for $1180, to be paid in six months. In March, 1875, when, according -to the testimony of Mey, which is uncontradicted, Mey had no knowledge of complainant’s judgment, having found that his forbearance with Henry Leuders, the father, failed to produce good results, and having sold out the stock and farming utensils under the last mortgage, to Charles, leased the land to Charles for a year. Fraud is never to be presumed when transactions may be fairly reconciled with honesty, and if the weight of the evidence is in favor of that conclusion, it should always be adopted.
In view of the whole record, the judgment of this court is that the decree be reversed and the bill dismissed.
Decree reversed.
