172 Ill. App. 218 | Ill. App. Ct. | 1912
delivered the opinion of the court.
It appears from the documentary evidence offered that the conveyances set up in the answers of William B. Wilson and Frederick A. Weil were made in the order set forth in their answers. It further appears that the purchase of the Dearborn street and Armour avenue property from Louise Bobertson was in fact made by L. F. Minzesheimer and Mason B. Starring, and that the title was taken by them for convenience in the name of Frederick A. Weil; that Minzesheimer and Starring purchased the property in good faith and gave for the conveyance from Louise Bobertson certain Chicago real estate, valued at $1,200 to $1,500, certain Iowa real estate, valued from $1,500 to $2,500, $1,260 in cash, and assumed $9,500 of incumbrances resting upon the Dearborn street and Armour avenue property. The evidence further shows that at the time Minzesheimer and Starring purchased the Dearborn street and Armour avenue property and took title thereto in Weil’s name, neither Minzesheimer, Starring nor Weil had any knowledge or notice, either actual or constructive, that Henry Harmeyer either had or claimed to have any interest in the property, or any knowledge or notice, either actual or constructive, of any of the claims now made by the complainant in her bill. The answer to the bill filed by Weil on May 25,1906, disclosed the interest of Starring and Minzesheimer in the Dearborn street and Armour avenue properties, but neither Starring nor Minzesheimer were ever made parties defendant to the bill. In our opinion the evidence shows that the defendants, Wilson and Weil, are bona fide purchasers for value of their respective properties, without knowledge or notice, either actual or constructive; that at the time of their respective purchases, Henry Harmeyer either had or claimed to have any interest in the real estate, and without knowledge or notice, either actual or constructive, of any of the claims now made by the plaintiff in error.
The main object of the bill is to set aside the settlement decree of September 22, 1902, and to restore the provisions for alimony contained in the decree of July 30, 1901, and plaintiff in error contends that she is entitled to this relief because her consent to the entry of the decree of September 22, 1902, was obtained by means of certain false promises made to her by Harmeyer. It is not claimed, however, that either Wilson, Weil, Minzesheimer or Starring had anything to do with the entry of the decree of September 22, 1902, or that they or either of them took any part in the alleged fraud that was perpetrated upon the plaintiff in error by Harmeyer. Evidently, when the original bill in this case was filed, plaintiff in error supposed that Wilson and Weil were mere dummies for Harmeyer, and held the titles to their respective properties in secret trust for him; but, upon the final hearing no evidence was adduced which showed or tended to show that either Wilson or Weil held title in trust for Harmeyer, or that Harmeyer at the time of the filing of the bill had any interest of any kind or nature in either of the parcels of real estate named; but, on the other hand, the evidence clearly showed that Harmeyer had no interest in the purchases made by either Wilson or Weil, and that both Wilson and Weil acquired title to their respective properties in good faith and for full value without notice that Harmeyer, at the time of their respective purchases, either had or claimed to have any interest in the respective properties which they were purchasing.
The decree of September 22, 1902, was a complete satisfaction and settlement of the alimony decree of July 30,1901, and that decree so far as it provided for alimony stood released and discharged of record. It is well settled that an entry of satisfaction of a judgment will not be vacated to the prejudice of a bona fide purchaser of property who became such while the judgment appeared by record to be satisfied and discharged. Freeman on Judgments, Sec. 478a; Persons v. Shaeffer, 65 Cal. 79; Taylor v. Ranny, 4 Hill (N. Y.) 619; Page v. Benson, 22 Ill. 484.
Even if it be true that Harmeyer promised plaintiff in error that he, Harmeyer, would pay the interest on a loan on the Kimbark avenue property, and aid her in securing a new loan thereon, or an extension of the old one, such promises could not affect the right of the mortgagee, Isaac Levinson, to foreclose or affect the title which he obtained by means of the foreclosure. All such matters were absolutely determined and settled by the decree of foreclosure. Topping v. Brown, 63 Ill. 348; Springer v. Darlington, 198 Ill. 121; Sielbeck v. Grothman, 248 Ill. 435.
When Wilson purchased the property from Emma Harmeyer the records showed that she was the absolute owner of the property, and there was nothing of record showing that Henry Harmeyer either had ór claimed to have any interest therein. The testimony of Wilson as to the purchase of the property in good faith and what he paid for the same, and that he had no notice, either actual or constructive, that Henry Harmeyer had or claimed to have any interest in the property, and that he purchased the property for his own personal use, and has since been residing thereon as his home, is not controverted in the evidence. It follows, therefore, that Wilson is a purchaser in good faith, for full value, and without notice, and is entitled to be fully protected in his title, even though Harmeyer may have been guilty of fraud in his dealings with plaintiff in error. Dickerson v. Evans, 84 Ill. 451; Grundies v. Reid, 107 Ill. 304.
In our opinion the pendency of the motion in the original divorce proceedings to set aside the settlement decree in that proceeding, did not operate as a lis pendens or a constructive notice, for the reason that the court had no jurisdiction in that case to hear and determine the motion. Bennett on Lis Pendens, Sec. 98; Jones v. Lusk, 2 Metc. (Ky.) 356; Irwin v. Jeffers, 3 Ohio St. 389.
At the time of the purchase of the respective parcels of property by defendants Wilson and Weil, plaintiff in error had been foreclosed from all of her interest in each parcel of property and was a stranger to the title. She was a party to both foreclosure proceedings and was, therefore, bound in every respect by the decrees and sales and deeds' issued thereunder.
It may further be stated that neither Wilson, Weil, Minzesheimer nor Starring were parties to any conspiracy to defraud plaintiff in error. This is clearly shown without contradiction in the evidence. While Minzesheimer was an attorney at law, and appeared as an attorney for Harmeyer, and resisted the motion made by plaintiff in error in the original divorce proceedings to set aside tbe decree of September 22, 1902, that does not in any wise connect him with the alleged conspiracy. This one appearance was the only connection that Minzesheimer had with the controversy between plaintiff in error and Harmeyer. The attempt, therefore, of plaintiff in error to establish a conspiracy with which Wilson, Weil, Minzesheimer, or Starring, or either of them, were connected, failed completely, and apparently the alleged conspiracy was without the slightest foundation, as shown by the evidence.
The consideration expressed in the deed of Weil was $1 and other good and valuable consideration, and in the deed to Wilson the expressed consideration was $1. This, of itself, casts no suspicion on the transaction. Hazle v. Bondy, 173 Ill. 302. The true consideration may always be shown by parol, even though it is different from that expressed in the deed. Union Mut. Life Ins. Co. v. Kirchoff, 133 Ill. 368; Worrell v. Forsyth, 141 Ill. 22; Howell v. Moores, 127 Ill. 67.
The evidence offered on the hearing showed that fnll consideration was paid for the conveyance by both Wilson and Weil, and this evidence was uncontradieted.
The equitable titles of Minzesheimer and Starring to the Dearborn street and Armour avenue properties was disclosed in the answer of Weil, filed May 25, 1906, and also on the hearing, but the plaintiff in error did not amend her bill to make Minzesheimer and Starring parties defendant thereto. It is a well-established rule that in suits affecting property held in trust, both the trustee and the equitable owners are necessary parties. McGraw v. Bayard, 96 Ill. 146; Dubs v. Egli, 167 Ill. 514; Gordon v. Johnson, 186 Ill. 18. Plaintiff in error, therefore, is entitled to no relief against Minzesheimer or Starring, or in respect to the Dearborn street or Armour avenue properties.
Defendants in error contend that the plaintiff in error is barred by her gross laches from any relief against them. It appears that the bill to foreclose the Kimbark avenue property was filed February 18, 1902; plaintiff in error filed her answer therein on May 7,1902, and the decree of foreclosure was entered September 27, 1902, and no redemption having been made from the sale thereunder, a master’s deed issued to Levinson, dated February 1,1904, and was recorded the same day.
The bill to foreclose the Dearborn street and Armour avenue properties was filed April 8, 1902', and plaintiff in error filed her answer therein on May 22, 1902. A decree of foreclosure was entered in the suit on November 20,1902, and, no redemption having been made from the sale thereunder, a master’s deed issued to Ida K. Farber, dated July 12, 1904, and recorded July 16, 1904.
The bill of complaint in the present case was filed April 5, 1906. It thus appears that plaintiff in error was a party defendant to both foreclosure suits and for over three years knew that Harmeyer was not fulfilling his alleged promises and agreements, which, she alleges, constituted such fraud upon her as to entitle her to set aside the settlement decree of September 22, 1902. It is a well-established rule that if a party discovers fraud it is his duty to act with great promptness and disaffirm the transaction. Greenwood v. Fenn, 136 Ill. 146; Naugle v. Yerkes, 187 Ill. 358; Brady v. Cole, 164 Ill. 116.
Wilson did not acquire his title until February 1, 1905, and Weil did not acquire his title until October 17, 1904. The plaintiff in error, with knowledge of all the facts, allowed the settlement decree of September 22, 1902, to remain undisturbed for nearly four years. In our opinion, therefore, she is barred, by her laches, from any relief affecting the rights of the defendants in error, Wilson and Weil. The bill was, therefore, in our opinion, properly dismissed for want of equity as against the defendants in error, Wilson and Weil.
The question remains as to the propriety of the decree as to defendant in error, Henry Harmeyer. It is contended on behalf of plaintiff in error that while the marriage relation had ceased at the time of the alleged fraudulent transaction averred in the bill, still such influence had been attained over the plaintiff in error and such confidential relations existed between plaintiff in error and defendant in error Harmeyer, that the plaintiff in error was induced to rely upon the promises and representations made by Harmeyer at and prior to the entry of the decree of September 22, 1902, and that the promises and agreements of Harmeyer at that time amounted to fraud upon the plaintiff in error. The question whether there was a fiduciary relation between the parties so that confidence was reposed by the one in the other will depend upon all the facts and circumstances of the particular case. Albrecht v. Hunecke, 196 Ill. 127. In our opinion, there was no such confidential relation between Henry Harmeyer and plaintiff in error during the time of the negotiations for the consent decree, or at the time of the entry thereof. She had been divorced for a year and during that year she had instituted proceeding after proceeding to collect alimony. In our opinion such state of facts tends to show bitterness between the parties and want of confidence rather than any confidential relation, or the repose of any confidence by the one in the other. During the time between the entry of the divorce decree and the entry of the consent decree of September 22, 1902, plaintiff in error had in her employ constantly a solicitor looking after her interests, not only in summary proceedings antagonistic to the defendant Harmeyer, but her interest in the properties involved in the foreclosure suit to which she was defendant, and in a suit against the trustee who held property to secure her alimony. All the facts and circumstances indicate that there was no confidential relation between Harmeyer and the plaintiff in error.
Plaintiff in error accepted the benefits of the decree of September 22, 1902, and retained them, and does not offer, by her bill, to restore them. A party cannot accept the benefits of a decree without being bound thereby. Holt v. Rees, 46 Ill. 181; King v. King, 215 Ill. 100.
After the plaintiff in error discovered what she claims to have been fraud practiced upon her by defendant in error, Harmeyer, and that he would not and did not keep the alleged promises which she claims to have relied upon at the time that the consent decree was entered, it was her duty at once to take affirmative action. She, however, remained silent and treated the property as her own, and that, in our opinion, constituted a waiver of any objection which she could make to the decree and she became conclusively bound thereby. Greenwood v. Fenn, supra; Grymes v. Sanders, 93 U. S. 55; Naugle v. Yerkes, supra.
A satisfaction of a judgment entered in pursuance of a compromise, or settlement between parties, will not be vacated at the instance of one of the parties where he has enjoyed the avails of the settlement with full knowledge of the facts, except upon the condition that the party shall return all he has received pursuant to the agreement. Lee v. Vacuum Oil Co., 126 N. Y. 579; Reid v. Hibbard, 6 Wis. 175.
In our opinion, the promises and agreements of defendant in error alleged to have been made at the time that the consent decree of September 22, 1902, was entered, were not false representations. The plaintiff in error stated in her testimony that she relied on the promises and agreements of the defendant in error. She testified as follows:
“Q. What did he say die would do for you? A. He would renew the loans, and see that I redeemed the property, and see that I was supported properly and had a good income if I would do as he agreed to do with me.
Q. I will ask you whether those conversations and the various promises between yourself, that Henry Harmeyer made to you, had any influence on you? A. Certainly they did, and I made the settlement on those promises, believing he would keep them.
Q. Did you rely on his promises or not? A. Yes, sir, I certainly did. ’ ’
The making of promises which are not kept will not sustain a bill to set aside a contract or decree. Krieger v. Krieger, 120 Ill. App. 634, and cases there cited.
We think the evidence adduced on the hearing does not show that plaintiff in error was defrauded by the defendant in error, Harmeyer, in the entry of the decree of September 22, 1902. Giving to the evidence the most favorable construction possible to the plaintiff in error, it only tends to show that in order to induce plaintiff in error to consent to the entry of the settlement decree, Harmeyer made to plaintiff in error certain promises and agreements which he has not performed, and which, at the time the promises and agreements were made, he did not intend to perform. This is not fraud in law, nor does it afford a ground for relief in equity. Murphy v. Murphy, 189 Ill. 360; Haenni v. Bleisch, 146 Ill. 262; People v. Healy, 128 Ill. 9; Commercial Accident Co. v. Bates, 176 Ill. 194.
In our opinion the evidence fails to show that plaintiff in error is entitled to have the settlement decree of September 22, 1902, set aside, and the bill was properly dismissed for want of equity as to defendant in error, Harmeyer. The decree is, therefore, affirmed.
Affirmed.
