121 Ill. 33 | Ill. | 1887
delivered the opinion of the Court:
The questions arising upon the original bill are: First, did the suit for partition abate by reason of the deaths of George and Robert C. Dunn; second, was the decree of sale inoperative as against the interest of James Dunn because he was insane at the time it was rendered; third, did the sale by Bennett, of the note, and trust deed securing it, prejudice the rights of the complainants. It is clear each must receive a negative answer.
First—Our statute provides, (Rev. Stat. 1874, chap. 1, title, “Abatement, ” sec. 22): “No suit for the partition of land shall abate on account of the death of any party thereto, but it may be continued in the name of the survivors, if the interest of such deceased person survives to them. ” It is not proved that the deceased parties, or either of them, conveyed ■or contracted to convey their interest to other parties, and there is no legal presumption that they did so, in the absence of evidence. Both died intestate. Neither had ever been married, and their father and mother died before either of them, and so their only heirs-at-law were their co-complainants surviving, to whom their interest in the property, which is the subject of the suit for partition, “survived,” adopting the phraseology of the statute. Apart, even, from the language of the statute, it would be difficult to assign a reason why the suit should abate, since all the parties in interest, and to be affected by the decree, were already before the court, and the deaths, instead of destroying the interests of the surviving complainants in the subject of litigation, only operated to change the title of those interests which had before belonged to the deceased, and vest it in the surviving complainants.
Second—James Dunn is described, in the bill filed herein on his behalf, as a lunatic, who sues by Simeon Straus, his next friend; and the deposition of Robert J. Speck was read in evidence, on the hearing, in which, among other things, he deposed that “James Dunn is now an inmate of the county insane asylum, at Beverley, ” (i. e., in the county of York, ■England.) “He is insane. He was insane on January 1, 1880, and has been ever since that time. I believe that he was committed to such asylum by the guardians of the poor, who had found him insane. ” The only other evidence on the question is found in a letter from W. J. & P. Reed, solicitors, Hull, England, to Rosenthal & Pence, complainants’ attorneys, dated February 16, 1880, in which they say: “We find that the persons now entitled to the property are J ames Dunn, (who is at present residing at the asylum at Beverley, in the county of York, but who, we understand, is at liberty to be discharged at any time,) and our client, Mr. Robert J. Speck. When this lunacy began, or what its character is, we are not informed. It may. have been that the lunacy was only partial,—that is, as respected particular matters,—and that it did not affect his capacity to transact business, and, if so, it is impertinent to any question in the present case. (Searle v. Galbraith, 73 iLL. 269; Titcomb v. Vantyle, Sr. 84 id. 371.) We are not required to assume, from the evidence, that this lunacy existed when the suit was commenced; but if it did, no conservator having been appointed under our statute, the suit might be prosecuted in the name of the lunatic. (Chicago and Pacific Railroad Co. v. Munger, 78 Ill. 301.) But the .partition suit here, is, under our statute, an action at law. (Hopkins et al. v. Medley, 97 Ill. 402.) And it is well settled! that a judgment at law is neither void nor voidable merely because the plaintiff is a lunatic. Freeman on Judgments, sec. 152; Lamprey v. Nudd, 9 Foster, 299; Wood v. Bayard, 63 Pa. St. 324; Foster v. Jones, 23 Ga. 168; Sacramento Savings Bank v. Spender, 53 Cal. 737; Stigers v. Brant, 50 Md. 214; Johnson v. Pomeroy, 31 Ohio St. 247; Robertson v. Lain, 19 Wend, 650; Clarke v. Dunham, 4 Denio, 262; Sternbergh v. Schoolcraft, 2 Barb. 153; Walker v. Clay, 21 Ala. 797.
Third—In Bennett v. Connelly, 103 Ill. 50, we were misled by the evidence then before us, and induced to believe that the purchaser at this partition sale paid Beach $7000 to procure a release of the deed of trust, and that, but for that payment, that amount would have been paid by the purchaser to the commissioner, in addition to the other sum paid by him, as the purchase price of the property; and hence that it was, in fact, so much purchase money, and, as such, entitled to be distributed to all the parties in interest. The evidence in this record shows, beyond all doubt, that that view was erroneous. Beach did not receive any money from anybody. In truth, he only held the note and deed of trust for Pullman, and Pullman did not receive any money from any source because of his ownership of the note and deed of trust, nor was the amount bid for him, at the sale, reduced or abated by reason of his ownership of the note and deed of trust.
The facts are, briefly, after the suit for partition was commenced, on the 11th of September, 1873, the Connellys executed their promissory note to Kretzinger & Johnson for $6000, payable one year after date, with interest at the rate-of ten per cent per annum, and to secure the payment of this note they executed a deed of trust upon the premises in controversy, to Paul Cornell, trustee. The deed of trust was, therefore, necessarily limited to and binding only upon the interest of the Connellys in the premises, and after the ■decree for sale, it followed their interest in the proceeds, and affected it only. It was no incumbrance upon the interest nf the complainants in the original bill, and could in nowise adversely affect that interest. (Loomis v. Riley, 24 Ill. 307.) That note, and, with it, the trust deed, passed by assignment to John I. Bennett; and on the 20th of January, 1880, Bowen, as agent of Pullman, either paid off the note or purchased it, and the deed of trust, paying Bennett, at the time, as the consideration, $7000. It is impossible that this could have injured the complainants, since it had no reference to their interest in the premises. Assume that the trust deed was a nullity, this payment took nothing from them to which they were entitled, and it added no burthen to their property. Assume it was valid, it bound only the interest of the Connellys in the proceeds of the sale, and the question of whether Bennett should hold or transfer it, could, by no possibility, affect any one but himself and the purchaser. Bowen, as the agent of Pullman, simply placed the note and deed of trust in the hands of Beach, another agent of Pullman, who held them at the time of the sale of the property.
The evidence is ample that the sale of the property, after the re-appraisement, was not against the wishes of the complainants in the original bill, but that, on the contrary, it was, if not entirely brought about, certainly encouraged by the attorneys of these complainants, and they afterwards insisted, in court, upon the confirmation of the sale. The evidence, moreover, fails to show that the amount for which the property was sold was less than it would have been had not the deed of trust been executed, or apparently subsisting as a lien at the time of the sale.
Coming now to the questions arising upon the cross-bill, and waiving all question of the right to file a cross-bill in the state of facts set up, we are of the opinion that the ruling below was right, for several reasons.
First—The evidence is insufficient to sustain the allegation that Bowen bribed Bennett to procure a re-appraisement of the premises, and decree therein directing their sale. As has been stated, the note and deed of trust were obtained from Bennett by Bowen, and Bowen is dead. The only person living who knows W'hat the contract between them was, is Bennett, and he denies the charge. He positively asserts that negotiations between Bowen and himself, in regard to the note and mortgage, did not occur until after the decree was entered appointing commissioners to re-appraise the premises, and he denies that the decree was entered pursuant to any previous understanding between himself and Bowen. Pullman denies that he ever authorized Bowen to employ Bennett to procure the entry of a decree for the re-appraisement of the premises, and a sale pursuant thereto. But complainants claim that the charge is proved by the circumstances detailed by Bennett in his evidence. He says that Bowen did not buy the note and deed of trust of him, but simply paid §7000 for the satisfaction of the note and the release of the deed of trust, subject to the right of Bennett to have him hold them as unsatisfied until Bennett could effect an arrangement with the Connellys for the payment of reasonable attorneys’ fees, Bennett meanwhile holding a release of the deed of trust, which he would place on record if Bowen attempted to collect the note. And it is argued, that since the deed of trust (being executed pendente lite) was only a lien on the interest of the Connellys in the proceeds of the sale, and was no incumbrance to the title which would pass to the purchaser at the sale, and could, hence, be no impediment to the sale, Pullman got nothing for the §7000; that the sum was not intended as a gift to Bennett, and must, therefore, have been paid to bribe him to procure the reappraisement and sale thereunder of the premises. Pullman testified that Bowen’s authority was limited simply to purchasing the note and deed of trust; that he "was, himself, informed of the existence of the deed of trust, and that there was a controversy between the Connellys and the holder of it, and he was advised by his legal counsel to buy it; and the claim that Bowen did buy the note and deed of trust has strong support in the facts, clearly established; that the note and deed of trust passed into Bowen’s hands uncanceled, and • without any indorsement or accompanying writing evidencing an agreement that they were, conditionally or otherwise, to be canceled. Of course, it is not claimed that if Bowen, in fact, did purchase the note and deed of trust, there is, under the circumstances, anything unreasonable or unusual in the transaction.
But assuming, as perhaps, under the evidence, we must, that Bennett’s -memory is not at fault, still,-inasmuch as his evidence clearly shows that Bowen thought that the trust deed incumbered the land (not the mere interest of the Connellys in the proceeds of the sale) so that the purchaser must purchase subject to the lien, and other evidence also shows that Pullman was making purchases of land in that vicinity for the purpose of building up large manufacturing establishments, and that the ownership and possession of this land was desired as being necessary to that end, and Bowen was informed that the Connellys would contest the validity of the deed of trust, and, he supposed, thereby delay, materially, the sale of the land, there is nothing so improbable as to excite disbelief that he might have thought it pro-motive of Pullman’s interests to pay $7000 to, in the language of Bennett, “remove the deed of trust as a bone of contention, ” and an impediment to the sale. The delay of the sale, for any length of time, might have put it out of his power to carry out his scheme, and have worked loss many times greater than $7000. It is true, this desire of and necessity for a speedy sale might have impelled to the employment of Bennett to forward the sale, if that had been possible; but where two motives,—one lawful and the other unlawful,—are presented, we are to assume, in the absence of satisfactory evidence to the contrary, that the lawful motive controlled.
If Bennett’s evidence shall be accepted as conclusively establishing that Bowen did not buy the note and deed of trust for Pullman, why shall it not also be accepted as conclusively showing that the money was paid by Bowen for the purpose of removing the deed of trust as an impediment to the sale, under the erroneous opinion that it was, in truth, an impediment? It is not apparent why he should have desired to speak falsely in one respect more than in the -other, and his opportunity of knowing is the same in both respects. Undoubtedly it .was expected, when the $7000 was paid, that the property would be advertised for sale at an -early day. But there were reasons why those controlling the matter should have desired that, and it would not, therefore, have seemed necessary to have incurred great expense to that end. An offer had been made, by another agent of Pullman, to bid for the land, if it should be offered for sale, at least $125 per acre. This was then thought to be a price justifying its sale. The taxes on the land had not been paid pending the litigation, and there had been sales for the delinquent taxes, and it was feared that titles might be acquired in this way, with the aid of the limitation laws, that would defeat the title of the parties concerned in the partition suit. In any event, it was realized the unpaid taxes, accumulating by delay, with attendant interests, penalties and costs, were becoming a serious burden to the premises. Bennett had advanced considerable sums of money in payment of costs and expenses of litigation, and he was needing his money. Payment, also, of the petitioner’s attorney’s fees had been deferred until money should be realized from the sale of the promises, so that the attorneys on all sides were anxious for an early sale, and professedly acted to that end.
The evidence, moreover, fails to establish that Pullman, or his agent, Bowen, knew that Bennett was acting contrary to instructions of his clients, or that he agreed that he would act disregarding their wishes, and it expressly shows that, in truth, Bennett did not control the sale. Bennett, after the order of sale was made, requested the commissioners to advertise the property. This was on or about the 3d of February. After that, Bennett did nothing. The Connellys, some time in January, employed Yóung & Hannay to prevent the sale and to get the trust deed canceled. They notified Bennett of their employment, in January, and although they did not have a formal order entered of record substituting themselves as attorneys for the Connellys, in the partition suit, until the 8th of March, they, in fact, acted as such attorneys after the 3d of February, and Bennett ceased to-act after that date. On the 11th of February they applied to the attorneys representing the Dunns and Speck, in the partition suit, and requested them to consent to postpone the sale, but those attorneys declined to accede to the request. No one representing Pullman prevented compliance with that request, and no act of Bennett stood in the way. Young & Hannay, as the attorneys of the Connellys, thereafter prepared a bill of review of the partition case, praying therein that the sale be enjoined, and on the 17th of February the attorneys of the Dunns and Speck appeared in court, and resisted the filing of that bill and the enjoining of the sale, and the court, although allowing the bill for review to be filed, refused to enjoin the sale. Bennett was not present, and he did nothing to then prevent the sale being enjoined.
Again, if the Connellys were injured by the sale being made when it was made, they should have interposed that objection to a confirmation of the commissioner’s report. It will be seen, by reference to the statement" preceding this opinion, that they filed seven objections to the confirmation of the commissioner’s report of sale, neither of which is that the re-appraisement and sale thereon were procured by the bribery of their attorney, nor that the sale was made at an improper time. The hearing of the exceptions was continued until the 13th of April. At no time did the Connellys ask leave to add an exception that the re-appraisement and the sale thereon were procured by the bribery of their attorney, or that the sale was made at an improper time, and yet, at that time, the evidence is clear that the Connellys and their attorneys had been informed of all that they now know in regard to the sale of the note and deed of trust by Bennett to Bowen. This is a judicial sale. (Freeman on Co-tenancy and Partition, sec. 548.) And the rule is, that the order of confirmation is conclusive as to all matters upon which the court-might have been called upon to pass, had the parties chosen to have brought them forward as objections to the confirmation. Freeman on Void Judicial Sales, sec. 44. See, also, authorities cited in note three.
Second—It is urged that by reason of the Connelly’s ignorance of the facts that Bennett had received §7000 in satisfaction of the note, and that he held a release of the trust deed, they were induced to make a compromise, and consent to abandon the right to sue out a writ of error and prosecute an appeal, which, but for such ignorance, they would not have done. This, in our opinion, admits of two answers: First, they then knew, or ought to have known, of everything in this respect that .they now know; second, if the note and ' trust deed were illegal, or were subject to any defences, the Connellys always knew it. When Bowen obtained them, the note was several years past due, and Beach obtained them still later, and so they were, in the hands of Bowen o,r Beach, subject to any and every defence that they were in the hands of Bennett. The transfers of the note and trust deed, therefore, in nowise changed or affected the question of the liability of the Connellys, or its exten' In no possible way could they be injured by that transí eb. Young & Hannay, as their attorneys, about the 17th of February, 1880, filed a bill in their behalf, against Kretzinger & Johnson and Bennett, praying that the deed of trust be canceled. Subse-; quently, after the sale and before its confirmation, Beach served a notice upon the Connellys that he held the note and deed of trust, and that he would move the court for an order directing the commissioner to pay the amount of the note out of the proceeds of the sale coming to them, and they, thereupon, made Beach a defendant to the bill to cancel the deed of trust. Now, if they were entitled to have the deed of trust canceled when it was in the hands of Bennett, no reason has been suggested, and none has occurred to us, why they were not entitled to have it canceled on this bill. So, too, if, as against Bennett, the Connellys were entitled to set up a partial defence to the note, it would seem clear that they were entitled to set it up as against Beach, for he simply stood in the shoes of Bennett.
No reason is disclosed by the evidence for claiming that anything that belonged to the Connellys passed in the transaction between Bowen and Bennett. The money was that of Pullman, and its payment imposed no liability on the Connellys to reimburse him because of the payment; and the note and trust deed, whether valid or invalid, worthless or valuable, were, in no sense, their property. If, however, the note and trust deed were valid and binding upon the Connellys for the payment of all or a part of the sum expressed in the note, and Bennett intended, by the transaction with Bowen, to make a gift to them, he might impose his own restrictions, and require, as he claims he did in his contract with Bowen, that the release of the deed of trust should not be placed upon record until his reasonable attorney’s fees were arranged.
In neither view, therefore, is there any ground for saying the Connellys were deprived of any legal rights because knowledge of the transaction between Bowen and Bennett was withheld from them. It may be that Pullman, through the ignorance of his agents, paid Bennett $7000 which he would not have paid but for that ignorance; but this does not injure the Connellys. The evidence clearly shows that the sale was open to the competition of all, that an unusual number of persons were present and participated in the bidding, and that the bid of Pullman’s agent, upon which the property was knocked off, was the highest, and that it was fairly made. Some persons had heard rumors that Pullman was intending to establish a large manufacturing establishment in the vicinity of this property, and that he therefore desired it, and were thereby induced to make, bids they otherwise v'ould not have made. The proof is made that the price paid for the property is much beyond what it would have brought, but for the contemplated improvements by Pullman. It is conceded that Pullman was authorized to act through agents, if he chose to do so, and that he was under no obligation to disclose to the public the character and extent of the improvements he was designing to make, before he made his purchases of property; and it must be conceded, upon like principle, to be likewise true that the fact that he would pay a much larger sum for the property, if it were necessary to secure it, than the amount he bid, is unimportant, if the sale was, in other respects, fairly conducted, and he was the highest bidder.
There is no ground for holding that the deed of trust affected the bidding. One witness, it is true, (J. H. Scott,) testified that “if the trust deed had been cleared off and released and settled, ” he would have bid more than he did ; but he does not say that he would have bid more than the premises were sold for. No other witness testifies that he has knowledge of any other bidder being affected by the trust deed in his bidding. There is no reason, as we have seen, why the failure to revive the partition suit, after the deaths of George and Bobert G. Dunn, or the insanity of James Dunn, should have affected the bidding, and there is no proof that, in fact, they did.
Third—The decree of confirmation was renderd on the 13th of April, 1880, and the Connellys, soon after, accepted the money due them on the basis of that decree. They lived where they witnessed, daily, or could witness, the uses to which the property was put after the purchase, and improvements placed upon it, and they have continued to live there. The present bill was not filed until the 15th of August, 1883, and the cross-bill was filed,later. Between July 1, 1880, and the filing of the bill, expenditures had been made for improvements upon this property, amounting to $677,491. These included foundry, (commenced to be built June, 1881,) roundhouse, (commenced to be built in April, 1881,) and railroad tracks and other improvements, commenced in 1880. In September, 1880, to a suit brought by Bennett, against Mrs. Connelly, for attorney’s fees, she pleaded as a set-off, the $7000 paid by Bowen to Bennett, as so much money received by him as purchase money for the property, and she was allowed the amount, after deducting therefrom attorney’s fees, by the judgment of the court. The ease was appealed, first, to the Appellate Court, and finally to this court, where the judgment was reversed; but the litigation was pending until after the filing of the present cross-bill. We are inclined to think, under the circumstances, that, even if it' had been competent for the Connellys to have had the sale set aside, if application had been promptly made for that purpose, they were guilty of such laches as should alone now prevent it. Hoyt et al. v. Pawtucket Inst. for Savings, 110 Ill. 390; Clapp et al. Exrs. v. Peterson, 104 id. 26.
The decree, is affirmed.
Decree affirmed.
