22 Ill. App. 602 | Ill. App. Ct. | 1887
All the right, title and interest of Celia W. Wallace in and to the land in controversy having been seized on attachment and sold on execution, the question is raised whether she had any interest or estate in said land liable to attachment or execution. The statute in relation to the service of writs of attachment is as follows:
“ Such officer shall without delay execute such writ of attachment upon the lands, tenements, goods, chattels, rights, credits, moneys and effects of the debtor, or upon any lands or tenements in and to which such debtor has or may claim any equitable interest or title, of sufficient value to satisfy the claim sworn to, with costs of suit, as commanded in such writ.” R. S., Chap. 11,. Sec. 8.
The statute in relation to judgments and executions is equally broad. After declaring that judgments and executions issued thereon shall be liens upon the real estate of the judgment debtor, it defines the term “real estate” as follows:
“ The term ‘real estate,’ when used in this act, shall inchide lands, tenements, hereditaments, and all legal and equitable rights and interests therein and thereto, including estates for the life of the debtor or of another person, and estates for years, and leasehold estates, when the unexpired term exceeds five years.” R. S., Chap. 77, Sec. 3.
Prior to March 31, 1889, an attachment could not be levied upon an equitable interest in lands. West v. Schnebley, 54 Ill. 523; Farrar v. Payne, 73 Ill. 82. The section of the Attachment Act above cited, which was passed March 31, 1869, and re-enacted December 23, 1871, renders equitable interests in land subject to attachment to the same extent as legal titles. Laclede Bank v. Keeler, 103 Ill. 425. It can not be doubted, we think, that at the time of the service of the writ of attachment, Mrs. Wallace had an equitable estate for life in the land in question. Said land was conveyed to the trustee to be held by him in trust “ for the sole and separate use of the said Celia Whipple (now Mrs. Wallace) during her natural life.” Language could scarcely have been chosen manifesting more clearly an intention to vest Mrs. Wallace with the entire equitable estate for life. While the legal estate was conveyed to the trustee, the entire beneficial interest was given to her. The subsequent portions of .the deed contain various provisions directing and regulating the manner in which the trust was to be executed, but they in no way change the character of. the interest vested in Mrs. Wallace as an equitable estate in the land. There can be no doubt then that her interest in said land was an equitalfie interest or title within the meaning of the .Attachment Act, and that it was subject to attachment.
We are also of the opinion that Mrs. Wallace is precluded by the decree in her chancery suit against Hervey and others fro in alleging, as against the purchaser at the execution sale, or his assignee, that her interest in said land was not subject to attachment. In her bill in that case she alleges that she had an equitable life estate in said premises, but alleged that the sale was invalid and prayed to have it so declared. The decree dismissing her bill for want of equity was a final adjudication upon the question of the validity of said sale, and is conclusive of that question whenever it arises between her and the defendants to said bill or those standing in the relation of privity with them.
But that portion of the decree to wliiph our attention is chiefly directed by counsel, is that which denies the prayer of Mrs. Wallace’s cross-bill to be permitted to redeem. In support of her prayer to be allowed now to redeem from the execution sale, she urges the following equitable considerations : 1, That at the time of the sale, and during the period allowed by the statute for redemption, she was in such health physically and mentally, as to be incapable of attending to business; 2, That during the same period she was in straitened pecuniary circumstances, and without the means to make the redemption: and 3, That she was deprived of money to which she was entitled, and which would have been sufficient to enable her to redeem from the sale, by the fraudulent or oppressive acts of the administrators of the estate of John S. Wallace, deceased, of Mr. Kappleye, and of the trustee, until the period of redemption had expired.
With regard to the first two of the foregoing grounds for relief, it is sufficient to say, that however much the misfortune of physical or mental debility or of want of means may appeal to our sympathies, they never have been, so far as we are advised, and can not be, recognized as sufficient grounds for allowing a party to redeem after the statutory period has expired. The statute makes no exception in favor of those thus unfortunately situated, and we are not aware that the courts have attempted to do so.
As to the other ground for relief, even if it should be held . to be good in law, we do not think that it is made out by the evidence. Bo fraudulent practice or oppressive conduct is shown as against Mrs. Kappleye, the holder of the title under the execution sale. There is no proof that she has done anything of which Mrs. Wallace has a legal right to complain. It is claimed, however, that the course pursued by the administrators and the trustee in relation to Mrs. Wallace was under the direction and advice of Mr. Kappleye, her husband, and that in all those matters Mr. Kappleye was acting in the interest and as the agent of his wife. The evidence tends to show that, in the purchase of the certificate of sale, Mr. Rappleye carried on the negotiation and made the purchase as his wife’s agent, but there is no evidence that his agency extended beyond that single transaction. The relation of principal and agent does not spring from that of husband and wife, nor can it be presumed from that relation alone. Before Mrs. Rappleye can be charged with responsibility for the acts of her husband, she must he shown by some affirmative and satisfactory evidence to have given him authority to act in her behalf, and in the absence of such evidence she, in all her property rights, is as much a stranger to him as though no relation whatever existed between them. Whatever, then, may have been done by Mr. Rappleye, or the administrators, or the trustee, can have no effect upon the legal or equitable rights of Mrs. Rappleye.
But we are of the opinion that Mrs. Wallace has no ground of complaint in relation to the action of the administrators in refusing to pay her money. At the time of the death of Mr. Wallace, Mrs. Wallace held his promissory note for §10,000, secured by a deed of trust on real estate, and bearing interest at the rate of 8 per cent, per annum, payable semi-anuually. Of this interest an installment of §400 became due in April, 1879, and a like installment in October of the same year. So far as we can see from the evidence, these two sums were all the money due and payable to her from the estate of Mr. Wallace up to the time the redemption from said sale expired. 'The evidence tends to show that she applied to the administrators for payment of those sums, and that they, acting under Mr. Rappleye’s advice, refused to pay them. It further appears, however, that she neglected to exhibit her claim for said interest to the Probate Court for allowance, and the evidence tends to show that she was requested by the administrators to make such presentation of her claim, they telling her that they would paj it when allowed. The posi tion thus taken by the administrators was clc-arly correct and legal. They had no right to pay out the moneys of the estate except upon the order of the Probate Court in satisfaction of claims duly presented and proved, and allowed by that court, and it certainly was not their duty to pay a claim not proved or allowed. Under the circumstances, then, their refusal to pay Mrs. Wallace’s claim for interest partook of no element of either fraud or oppression.
It is further claimed by Mrs. Wallace that, as a means of raising money, she proposed to the administrators to exchange her §10,000 note and deed of trust for certain other property belonging to the estate, but that the administrators, acting under the advice of Eapplejm, refused to make the exchange. Apart from the fact that Mrs. Uappleye is in no way connected with the matter of such proposition, we are unable to see how Mrs. Wallace can complain of the action of the administrators in this respect. Whether they had the power to make the exchange or not, they clearly had. the right to decline to make it, and their doing so was an act of neither fraud nor oppression, so far as concerns Mrs. Wallace.
It is said that the trustee was at fault in not complying with Mrs. Wallace’s request to mortgage the land in question for the purpose of raising money to redeem said land from the execution sale. The evidence shows that Mrs. Wallace applied to the trustee to mortgage said land for §2,500 to raise money, not only for the purpose of such redemption, but to defray the expenses of the maintenance of her infant child. The trustee seems to have discussed the matter with her, and to have expressed the opinion that the execution of a mortgage for that amount would be unwise, and, he appears to have suggested to her the expediency of trying to borrow the money on the security of her §10,000 note and deed of trust. She does not seem to have pressed her request for the execution "of a mortgage, and the matter does not appear to have been finally decided between them, as she admits in her testimony that the trustee did not refuse her request to execute it. We see in these facts no ground of relief to Mrs. Wallace, especially in view of the decision of the Supreme Court giving construction to the identical deed by which said trust was created, that while by the terms of said deed Mrs. Wallace could authorize the trustee to sell the land, she could not compel him to do so, and that no sale could be made without the concurrence of both the cestui que trust and the trustee. Wallace v. Wallace, 82 Ill. 530. It is manifest that by the terms of said deed, the rule applicable to a sale applies as well to a mortgage.
We are of the opinion that the decree of the court below was the only one justified by the law and the evidence, and it will be affirmed.
Decree affirmed.
Moran, J., took no part in the decision of this case.
