text:
    Hartman Markoe v. Mary Wakeman et al.

      Filed at Ottawa March 28, 1883

      Rehearing denied September Term, 1883.

    1. Partition—when presumed, from acts of the parties. A and B acquired title to a quarter section of land, in 1835, by an assignment of a certificate of purchase from the United States, and the patent was issued to them in 1839. On July 7,1836, B signed a contract for the sale of the undivided half of the quarter to 0, and on September 8, 1836, conveyed to 0, in New York City, the east half of the quarter. Before the date of this deed A gave to B a power of attorney to sell the west half of the tract, which power of attorney B took with him to New York. On November 29, 1839, A went to New York, where he made a warranty deed to D for the west half of the tract, which he left with B until proper securities should be given. These deeds were all recorded in the proper county. A afterward learning that the securities were worthless, in 1838 filed his bill in the New York court seeking a rescission of his contract of sale, asserting his ownership of the west half of the quarter, and asking to be reinvested with the title. C, and those claiming the east half of the quarter under him, paid all the taxes thereon, A paying no part thereof, though residing in the same county, making no claim to such east half: Held, that from these and other facts, in view of the acquiescence of A for so many years, a partition of the land between A and B in 1836, by deed, would be presumed, if necessary, and that A was not entitled to a partition of the east half of the quarter.
    2. In such case, the purohase from B of the east half of the tract after partition could not be affected by any fraud, actual or supposed, by B, in delivering A’s deed for the west half upon worthless security.

      3. Tenants in common—of their rights as to a specific part of an entire tract. A patent to two persons as tenants in common of a quarter section of land, clothes each with title to the undivided half of the entire quarter. It does not give to either an undivided half of any specific part of the entire quarter, nor the right to have partition of any specific part, except in case of a sale of the residue by both tenants, or by some act of the parties, or by proceedings at law.
    4. Same—purchaser from one of the co-tenants—of his rights as against the other. A conveyance by one co-tenant gives the grantee no greater rights than those held by the grantor. An undivided interest in a specific part of a single tract of land held by co-tenants as an integer, acquired by them through one deed, can not be granted by the mere deed of one co-tenant, so as to entitle the grantee, as against the other co-tenant, to have that'specific part of the entire tract partitioned between them.
    5. Becording oe deeds—constructive notice—as to conveyances by tenants in common. Where each of two tenants in common has made a warranty deed, one for the east half of the tract owned by them, and the other for the west half, which deeds are recorded,“the record will afford constructive notice to a person subsequently purchasing of either an interest in the part conveyed by the other, sufficient to put him on inquiry as to the fact that a partition had been made by the tenants in common before their several conveyances.
    Appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Mr. Van H. Higgins, and Mr. John Woodbridge, for the appellant:
    To pass the title under a parol partition there must be possession under it sufficiently long to justify the presumption of a deed, when a court of equity will compel from the co-tenant a deed, and protect'the possession until a conveyance is decreed. Tomlin v. Hilliard, 43 Ill. 302; Nichols v. Padfield, 77 id. 257; Larrabee v. Strobel, 89 id. 381; Vasey v. Board of Trustees, 59 id. 190.
    In Massachusetts, Pennsylvania and Maine it is held that no partition by the parties can be effected unless accompanied by deeds from one co-tenant to the other. It is not sufficient that each co-tenant convey to a stranger, as is the case in Wisconsin. Gardner Manf. Co. v. Heald, 5 Maine, 232; Wood v. Leet, 36 N. Y. 504; Porter v. Hill, 9 Mass. 34; Porter v. Perkins, 5 id. 232; Snively v. Luce, 1 Watts, 69; Gratz v. Gratz, 4 Rawle, 411.
    If Markoe had united with Shepard in the deed to Wake-man, and the latter had sold to a third person, then Markoe would be estopped from showing that his subsequent deed to Reid was obtained by fraud. But such is not the ease. The deed to Reid did' not exist when Wakeman bought from Shepard, and being out of the chain of Wakeman’s title, can neither benefit nor injure him.
    Actual possession was not taken until after the filing of the petition for partition. This was a proceeding in rem. Louvalle v. Menard, 1 Gilm. 43; Hopkins v. Medley, 97 Ill. 402.
    In a proceeding in rem the filing of the petition is a caveat to all the world. Sherman v. Bank, 101 U. S. 105.
    Messrs. Dext & Black, for the appellees:
    The facts show that there was at least a parol partition of the land between Markoe and Shepard, the former taking the west half and the latter the east half. It is the well settled doctrine, at least in some courts, that a parol partition of land between tenants in common, carried into effect by possession taken by each party of his part, will be binding on the parties, as their titles are distinct, there being but a unity of possession, and the object of the division being to ascertain the separate possession of each. Jackson v. Harder, 4 Johns. 202; Wood v. Fleet, 36 N. Y. 499; Eaton v. Tallmadge, 24 Wis. 217; Tomlin v. Hilliard, 43 Ill. 300; Vasey v. Board of Trustees, 59 id. 188.
    The cases cited do not hold that a partition suit is a proceeding in rem, in a technical sense. There is nothing in the nature of a proceeding in rem in a suit for partition. Until the parties in interest are brought into court the petition is not lis pendens as to them.
   Mr. Justice Dickey

delivered the opinion of the Court:

This is a petition for partition, filed by Hartman Markoe, in the Superior Court of Cook county, December 6, 1870, claiming to be the owner in fee of the undivided half of eighty acres of land, known as the east half of. the south-east quarter of section 27, township 38, range 14, and lying a few miles south of the present city of Chicago. The entire quarter section, containing one hundred and sixty acres, was originally entered at the land office of Chicago by Herman Bond, on June 27, 1835. On December 4, 1835, Bond, by an instrument in writing filed in the land office, sold and assigned his certificate of purchase and his interest in the land to Edward Shepard and Hartman Markoe, the petitioner, and requested that the patent issue to them. The patent was issued to Shepard and Markoe, as tenants in common, on October 1, 1839. Before that time, Shepard (September 8, 1836,) had sold and conveyed, by deed and warranty of title, to Maurice Wakeman the whole of the east half of that quarter section. Wakeman was dead before the petition was filed, and by amendment the heirs and grantees of Maurice Wake-man were made defendants. Those claiming under Maurice Wakeman claim title in fee to the ichole of the tract of land known as the east half of the quarter, by their answer to the petition, and also by a cross-bill, asking that the title thereto be confirmed in them. Markoe, and those claiming under him through conveyances made after the partition suit was brought, but before answer and cross-bill filed, claim to own the undivided half of the tract, known as the east half of this quarter.

A careful examination and consideration of all the documents and other proofs in the case lead clearly ,to the conclusion that at some time between the 7th of July, 1836, and the 8th of September of the same year, Shepard and Markoe, being the owners in common of the entire quarter section, containing one hundred and sixty acres, each owning.an undivided half thereof, did make partition thereof between themselves, whereby Markoe became the owner in fee of the west half of the quarter, and Shepard became the owner in fee of the east half of the quarter, and shows that Markoe was thereby divested of all interest in or title to the east half,—the undivided half of which he and his grantees now claim. The proof of this seems very satisfactory, although the same is chiefly circumstantial.

When the certificate of purchase was assigned by Bond to Shepard and Markoe, December 4, 1835, Shepard was a partner in business of one Breese. Their store was in Chicago, which at that time was a small town. Markoe was a book-keeper and principal clerk in the service of the firm of Breese & Shepard. Markoe and Shepard were both residents of Chicago,, and roomed together in a room over the store, and were very intimate friends. They thus dwelt together until Shepard moved to New York City, in the summer or fall of 1836. Shepard had money with which to buy lands, but Markoe had none. Shepard, under an arrangement between him and Markoe, (made upon the suggestion of Shepard, as a professed act of friendship to Markoe,) paid the whole of the price of the land to Bond, and Markoe was charged on the books of Breese & Shepard, in account against his salary, with one-half of the purchase money. Shepard kept all the papers relating to the purchase, and was relied upon by Markoe to make sale of Markoe’s interest for him. In July, 1836, Maurice Wakeman, of New York City, being in Chicago, on the 7th day of that month signed a contract in writing with Shepard, for the purchase from Shepard of Shepard’s interest in some thirteen different tracts of land, and, among others, Shepard by that writing contracted to sell to Wakeman the undivided Half of the whole of the quarter in question. At that time evidently no partition of the land had been made between Markoe and Shepard. By that contract of July 7, 1836, the deeds from Shepard to Wakeman were to he made “on the arrival of Shepard” in the city of New York. Shepard did go from Chicago to New York in the summer of 1836. Markoe gave to Shepard, when he was about starting to New York City, a power of attorney authorizing him to sell for Markoe, not the undivided half of this quarter, but the west half of the same. This is shown by the statements in Markoe’s bill in chancery, hereafter spoken of.

This indicates pretty clearly that after Shepard’s contract of July 7, 1836, with Wakeman, and before Shepard went on to New York, a partition of this quarter had been made between them, by which Markoe had come to claim the exclusive right to the west half instead of the undivided half of the whole quarter. Not only só, but-we find Shepard, in fulfillment of his contract with Wakeman, (made July 7, 1836, and by which he agreed to convey the undivided half of this quarter,) makes, on September 8, 1836, a warranty deed, conveying to Wakeman, not the undivided half of the quarter, but the east half of the quarter. He then had in his possession the power of attorney from Markoe authorizing him, as his agent, to sell the west half as Markoe’s separate property, and probably had also with him the deed of partition..

In further proof that such partition had been made, we may note that James Grant, an attorney at law in Chicago, and familiar with the nature and evidence of title to real estate in Chicago, surpervised for Wakeman, as his attorney, the exchange of properties between Shepard and Wakeman, and Wakeman, with full knowledge that on July 7, 1836, Shepard claimed the undivided half of that quarter, did, on the 8tii of September, 1836, under the advice of Grant, accept from Shepard, in lieu thereof, a deed for the east half of the quarter. There must, at that time, have been extant some evidence of such a partition. It may have been, and probably was, made, with Wakeman’s consent, after the contract of July 7, 1836, and before Wakeman left Chicago for New York City. Further in support of the view that such a partition was in fact made about that time,, we find Markoe in New York City on November 29, 1836', when and where he signed, sealed and acknowledged a deed of that date conveying the west half of the quarter section to> Eeid, and covenanting that he owned the same in fee simple.

From the fall of 1836 until the commencement of this suit in 1870, a period of more than thirty-four years, Markoe, so far as the proof show's, never, by word or act, claimed to have.any interest in or title to the east half of this quarter section. Not only so, but while Markoe still lived in Chicago, having discovered that the securities which he accepted as the consideration for his deed to Eeid for the west half of this quarter were, as he says, absolutely worthless, he went to New York City, and instituted there a suit in chancery, on the 10th day of July, 1838, to set aside the sale to Eeid and re-invest himself with the title to the entire west half of this quarter. In that hill he charges that on and before the 29th 'of November, 1836, he was seized in fee of the west half of this quarter section, containing eighty acres; that he had given to Shepard, who was then in Chicago and about to go to New York, a power of attorney to sell this tract (the west half of this quarter) and another tract lying in Illinois. He states the time of giving this power of attorney as “about the month of June,” 1836, hut as it is evident Shepard did not go on to New York until after this contract with Wake-man of July 7, 1S36, it seems plain this power of attorney was not given until after the 7th of July, 1836. His hill further states, that the deed from him to Eeid was executed by him and left in New York, in Shepard’s hands, to consummate a sale for him (Markoe) of this ivest half of the quarter in question, at the price of $3000, and the other tract at the price of $4000,—in all, $7000,—and Shepard was to accept a mortgage bond on property near Utica for $7000 for the two tracts, and then sell the bond and forward the proceeds in money to Markoe, at Chicago. His bill further states that Shepard, instead of sending the money sent him a mortgage bond on property near Utica for the sum of $9000, instead of-$7000; that this bond was assigned to Shepard and Markoe; and in explanation, Shepard advised him that he (Shepard) had sold not only these two tracts of Markoe, but also some land of his own (that is, Shepard’s own land,) for $2000, so that Shepard owned $2000 of the $9000 bond, and the residue belonged to Markoe. With this statement Markoe seems to have been content, until, in 1838, he learned that the $9000 bond was absolutely worthless, and that Shepard had absconded, and gone to Europe. Not only does this bill assert, expressly, that at the time of the making of the deed, in November, 1836, Markoe owned the west half of this quarter in fee, but its whole tenor and drift absolutely repels the idea that Shepard still held an interest of an undivided half in that property, —which would have been the truth if no partition had been made between them,—and the prayer of the bill is, that the Reid deed be set aside, and that property therein mentioned be reconveyed to Markoe. That bill is said to be still pendr ing, and by it Markoe, for over forty years, has been asserting the exclusive right to the west half of the quarter, and by it is still asserting that right, and, as said above, at no time after July, 1836, until this suit was begun, in 1870, has Markoe, by word or act, claimed any interest in the east half of this quarter. On the other hand, Maurice Wakeman, and those claiming under him, have been constantly, throughout all these years, claiming to own in fee the entire east half of this quarter, and this under the deed of Shepard to Maurice Wakeman, September 8, 1836, which was duly recorded on the 14th of November, 1836, in Cook county. The tax books show this land listed from its first taxation in the name of Wakeman, and that the taxes wrere all paid, and the proof shows that through Ogden and his associates the Wakemans paid taxes upon the east half of this quarter from 1817 to 1867, inclusive,—for twenty-one years,—and that in 1868 the agency was passed from the Ogdens to Andrews, and he claimed, for the Wakemans, control ever since. The proofs show that for some years after 1860, the Ogdens, as agents for appellees, gave leases, or written permits, to persons to cut hay from the ground, and that since Andrews took charge of the land he has put tenants upon the same. It further appears, that as early as 1868 persons claiming under Markoe, through Reid, had actual and exclusive possession of the west half of this quarter section, although it does not appear that this was with the consent of Markoe. Markoe, during all these years, made no attempt to pay taxes, either upon a specific half of this quarter, or upon an undivided half of the whole quarter, or upon the undivided half of either half.

In view of all these facts,—these proofs, affirmative and negative,—the mind is irresistibly borne to the conclusion that a partition of this land was, in fact, made between July 7, 1836, and September 8, 1836, by which Markoe was divested of all his interest in the east half of this quarter section. It is true Markoe swears no such partition was ever made, but he does not deny that he did make the deed to Reid; nor does he pretend that he ever bought any interest from Shepard, or that in any way other than by such partition he acquired the right to convey the west half The relations of him and Shepard were such, in 1836, that he, no doubt, would have executed any paper which Shepard should have asked him to sign. The probability is, that when Shepard went to New York to fulfill his contract with Wakeman, and took with him Markoe’s power of attorney authorizing him to sell for Markoe the west half he, at the same time, took with him the deed of partition, and soon after, when he absconded and went to Europe, as Markoe says, he carried off with him both the power of attorney and the deed of partition, and this accounts for the fact that neither the power of attorney nor the deed of partition was ever recorded; and in all these matters Markoe relied so fully upon and so trusted Shepard, that little impression was made upon his mind by these events, and so the making of the partition has escaped his memory.

Counsel for appellants reason learnedly, and refer to many authorities, upon the extent of the effect to be given to an oral agreement for partition. Without passing upon the questions of the law on that subject discussed, it seems clear that in a case like the present, after such acquiescence for so many years, from the facts stated a partition by deed should be presumed, if such a partition be necessary to that end.

But it is said that Markoe was induced to make his deed of November 29, 1836, to'Reid, by fraud, to which Shepard was a party, and that as against Shepard, in equity, he is entitled to disregard that deed, and claim the undivided half of the east half, and inasmuch as the Wakemans can only prevail through the rights of Shepard, they must be treated as occupying the same position as Shepard would occupy were he the party in their stead. If we are right in ourconclusion that a partition was-actually made between Markoe and Shepard before September, 1836, by which Shepard became the owner in severalty of the east half of this quarter section, then, by the deed of Shepard to Wakeman, made September 8, 1836, and recorded November 14, 1836, Wake-man had the complete title to the east half of the quarter, and this title could not possibly be affected by any fraud or other act of Shepard done on November 29, 1836. Markoe, in his bill of 1838, does not claim that he was cheated in the partition, but only that he was afterwards cheated in the sale of what he acquired by the partition. The rights of Wake-man, and those holding under him, can not, possibly be affected by the supposed fraud of Shepard.

It is said the National Life Insurance Company owns the undivided half of the east half oí this quarter section “through a connected chain of title, with four links in the chain: First, the patent to Markoe and Shepard; second, Markoe’s deed to Bogue; third, Bogue’s deed to Cornell; and fourth, Cornell’s deed to the National Life Insurance Company,”—and it is said this title is not impeached. The fallacy in supposing that this shows a complete title, consists in assuming that by a patent granting the whole quarter section to Shepard and Markoe, Markoe thereby acquired such a title to the undivided half of the east half of the quarter as -would enable him, in partition proceedings, to demand, as against Shepard, the right to have half of his (Markoe’s) interest set off to him out of this east half. The patent clothed Shepard and Markoe, each, with title to the undivided half of the entire quarter section of one hundred and sixty acres. Markoe did not thereby acquire such title to the undivided half of the east half of the quarter, nor such title to the undivided half of any specific part of the entire quarter. The patent gave Markoe the right to have a portion of the whole quarter set off to him in severalty, equal in value to one-half the value of the whole quarter; but it did not give him right to have one-half of that portion taken from the east half, nor, indeed, the right to have any portion of his allotment taken from the east half. If, after the whole quarter was vested in Shepard and Markoe, so that Markoe had an undivided half of the whole, and Shepard had the other undivided half of the whole, Markoe ever acquired such full and exclusive title to the undivided half of the east half of the whole, and a lawful capacity to convey such a title to the same to Bogue, he must, of necessity, have acquired that right and title in some form from Shepard. He might have acquired such right by deed from Shepard conveying to him such right of title. He might have acquired that right by deed of partition between himself and Shepard, or by partition through proceedings in court, or by contract with Shepard creating out of the one co-tenancy in the whole, two co-tenancies,—one a co-tenancy of the west half, and one a co-tenancy of the east half,—or he might have acquired right and capacity to grant to Bogue such title in the undivided half of the east half by and through a sale and conveyance by both Shepard and Markoe of the west half to a stranger, or by a sale and conveyance by Shepard to Markoe of the undivided half of the west half of the tract, and perhaps by other acts or modes; but in no event could he acquire such title as he attempted to convey to Bogue, except by and from Shepard. It follows that Bogue can not have acquired the title he professed to buy from Markoe, except by and from Shepard and Markoe, both, hence he had constructive notice, by the record, of the deeds of Shepard to Wakeman, and of Markoe to Beid, each of said deeds being in the line of title he was buying, and these deeds were sufficient to put him on inquiry, which would have given him evidence that a partition had, in fact, been made, by which Markoe was divested of all title to the east half of the quarter. The rights of those holding under Markoe are, therefore, no higher than the rights of Markoe, and must yield to the prior rights of appellees.

In no ease can the conveyance of one co-tenant give the grantee any greater rights than those held by the grantor. (Freeman on Partition and Co-tenancy, sec. 205.) As no such co-tenant can, of right, demand that a particular part of the estate held in common shall be set off to him on partition, so no grantee of such co-tenant can be held to have acquired that right. These principles do not necessarily apply where several separate tracts of land are held by two or more as tenants in common. Such holding, under certain circumstances, constitutes several co-tenancies. But where the co-tenancy relates to but one tract of land, lying.in a single body, acquired at the same time, and by one purchase and one grant, wherein the whole tract is treated as an integer, these views apply until segregation has been brought about by acts of the parties to be affected thereby, or by proceedings binding on them. Undoubtedly undivided interests in distinct freeholds may be sold separately by a co-tenant, so as to invest the grantee with the absolute title to an undivided interest in one freehold, and not in another held by his grantor and others; but an undivided interest in a specific part of a single tract of land held by co-tenants as an integer, acquired by them through one deed, can not be granted by the mere deed of one co-tenant, so as to entitle the grantee, as against the other co-tenant, to have that specific part of the entire tract partitioned between such grantee and the co-tenant from whom he did not purchase. (Sutton v. San Francisco, 36 Cal. 112; Bigelow v. Littlefield, 52 Maine, 24; Freeman on Partition and Co-tenancy, sec. 508, et seq.) We are not to be understood as holding that such a conve3’ance is entirely inoperative or void, as seems to be the indication of some of the authorities. That question is not involved in this controversy. If it were, the writer of this opinion would say such a conveyance is not void, and might attempt to explain its legal effect; but here the discussion of that question is not required. What we hold in this regard is, that the conveyance of Markoe to Bogue, and the conveyances thereunder to the other appellants, give to none of them any standing, as against the appellees, better than the standing of Markoe himself.

The decree in this case is therefore affirmed.

Decree Affirmed.


source: Caselaw Access Project

author: Mr. Justice Mulkey

license: Public Domain

text:
    George F. Harding v. Henry M. Shepard et al.

      Filed at Ottawa June 16, 1883

      Rehearing denied September Term, 1883.

    1. Administration of estates—set-off—as against a claim due to an estate. In an action to recover a demand accruing to an executor or administrator after the death of the testator or intestate, the defendant can not set off a debt due from the testator or intestate in his lifetime.
    2. Same—set-off, as against purchase price of land bought at administrator’s sale. A purchaser of land at an administrator’s sale bought up a claim allowed against the estate, which he offered to set off against the demand for the purchase money. Prom the numerous suits and protracted litigation growing out of the settlement of the estate and the adjustment of claims, the costs and expenses of administration were greatly enhanced, and it was unknown, by reason of pending litigation, what portion of the proceeds of the sale of the land would go to the payment of other claims, so that it was impossible for the administrator or the court to know what amount of the purchase money could, consistently with the rights of other claimants .then not determined, be allowed in favor of the claim so held by the purchaser. In this state of the case the administrator applied to the court which had ordered the sale, for an order to compel the purchaser to complete his purchase, and the purchaser entered a motion to require the administrator to convej’ to him in payment of his claim, which last motion was denied, and the purchaser ordered to pay the purchase money within thirty days, and in default thereof that the administrator sell the property again. Without appealing from these orders the purchaser filed his bill against the administrator and others to enjoin a re-sale, and seeking to compel a conveyance to him in payment of his claim, which bill the court, on a hearing, dismissed:. Held, that the bill was properly dismissed, there being no such special circumstances as to justify a set-off.
    3. Same— administration of estates—in chancery. It is well settled that a court of chancery will not, except in extraordinary cases, supersede the probate court in the administration of an estate.
    4. A purchaser of land at an administrator’s sale, after his purchase bought a claim which had been allowed against the estate, which was due from the testator in .his lifetime, and refused to pay his bid, offering to set off this claim against it. The administrator refused to allow the set-off, in view' of the complicated and unsettled condition of the estate, and the purchaser applied to the circuit court which ordered the sale to compel the administrator to do so, which court decided against him. He then applied to the probate court, and that court decided the same way. Without appealing from either of these orders he filed his bill-in chancery, by which he sought to take the administration of this estate from the probate court and relitigate the matters so passed upon by those courts: Held, that the case was not one of equitable cognizance, as all the purchaser’s rights might have been fully protected in the probate court, and if that court failed to apply the proper principles of law, his remedy was by appeal.
    Appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    Mr. Edwabd Roby, for the appellant.
    Mr. M. W. Fullee, and Mr. J. R. Wilson, for the appellees.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Some time in the fall of 1866 Charles W. Ricketson died testate, at Pittsburg, Pennsylvania, where he then resided, and letters of administration, with the will annexed, were shortly after his death issued there on his estate to William Phillips, who qualified as such, and assumed the office and trust of administrator. Ricketson having left property in this State subject to the payment of his debts here, Benjamin F. Quimby, on or about the 5th day of August, 1867, applied to the county court of Cook county for letters of administration on his estate, which were issued to him on the seventh day of the same month, and Quimby thereupon entered upon the duties of his appointment. In May of the following year, it appearing that Ricketson had died testate, Quimby’s letters were revoked, and letters de bonis non, with the will annexed, were issued to Henry M. Shepard, appellee, who, about the time of his appointment, filed an inventory, showing that there were no personal assets belonging to the estate, but that the estate had an undivided interest in the south half and the north-west quarter of section 3, township 38 north, range 13 east. At the time it was supposed, and so the inventory showed, that a two-thirds interest in these lands belonged to the estate, but it was subsequently ascertained tliat the deceased owned biit a half interest at tlie time of his death. The estate also owned an undivided half of so much of the north-east quarter of the same section as lay south of the canal, but the interest of the deceased in this latter tract was not discovered or inventoried until the 4th of February, 1870,—more than two years after the issuing of letters of administration.

It further appears from these inventories, and otherwise, that the estate’s half interest in all these lands was subject to a written agreement between Rieketson and Michael Tier-nan, recorded in October, 1866, wherein, among other things, it was stipulated, that in consideration of the services of Tier-nan in the purchase of the land, if it sold for $150 an acre, or more, he was to receive one-lialf of the proceeds, after deducting the original purchase price, taxes, costs, expenses, and interest at ten per cent on said purchase price, and if sold for less than $150 an acre, then he- was to receive one-fourth of said proceeds after making said deductions, Ricketson reserving the right to sell when he thought proper. The half interest in these lands not owned by Rieketson belonged, respectively, to H. Brady "Wilkins and Silas Merrick, the interest of the former being one-third, and of the latter one-sixth. The lands in question were originally purchased from the canal trustees, partly on time, the trustees issuing to the purchasers certificates of purchase, which were ultimately transferred and assigned to Rieketson, and as part of the consideration of his purchase he assumed to the canal trustees the balance due on the original purchase. While this transaction was in Ricketson’s name alone, it ivas really made for the benefit of Wilkins and Merrick, in the proportions stated, as well as for himself, and Rieketson made a declaration of trust to that effect, subject to the condition that they were respectively to pay their proportionate shares of the unpaid purchase money which Bieketson had assumed on his purchase.

On the 29th day of November, 1869, a claim of §32,800.86 was allowed by the county court of Cook county against the estate, in favor of the said Benjamin P. Quimby, which was the only claim allowed against the estate within two years from the date of the first letters, though both inventories above mentioned, which were filed within the two years, showed the existence and terms of the Tiernan contract; and subsequently, in 1881, the probate court of Cook county allowed a claim in favor of John Y. Le Moyne, as assignee of one-half of the Tiernan contract, and one in favor of George P. Harding, as assignee of the'other half of said contract, to be paid in due course of administration, and from these allowances appeals were taken, and are still pending. Bieketson left at his death his widow, Polly H. Bieketson, and an only child and heir, Lizzie W. Bieketson, who were sole devisees under his will, the former having never renounced its provisions. Prior to June 17, 1870, there had been filed in the county court against the estate, in addition to the Quimby claim, the following claims: Tradesmen’s National Bank of Pittsburg, $5326.54; National Bank of Lawrence County, Pa., $15,932.82; W. W. Irwin, $4375; John Earl, $1250; E. D. Jones, $1679.33; Bhodes, Bhodes & Co., $38,845.04. As to this latter claim there has been much litigation,- and it seems to be still undetermined. See Shephard v. Rhodes, 60 Ill. 301.

On the-day last above mentioned the administrator filed in the circuit court of Cook county a petition to sell the lands in question for the payment of debts, making the said Polly H. and Lizzie Bieketson, and one Scully, then in the occupancy of the premises, parties, who answered the petition, and upon a hearing thereof, on the 21st of the same month, an order of sale was entered. In the following month, to-wit, July, 1870, Quimby filed a hill in the same court against Le Moyne, Shepard, and others, enjoining the sale by the administrator, which was not finally determined till in 1874, when the cause was decided in this court'adversely to Quimby, a judgment being entered here dismissing complainant’s-bill. (See Le Moyne v. Quimby et al. 70 Ill. 399, where will be found a recital of many of the facts appearing of record in this case;) By the great fire of October 9, 1871, the records and proceedings in the ease of Quimby against Le Moyne, Shepard, and others, as well as in the proceeding by Shepard to sell the real estate, were destroyed by fire. No steps were taken to restore the records and proceedings in the latter case until in 1874, when Shepard filed a petition for that purpose. Polly H. and Lizzie W. Ricketson having sold and conveyed their interest jn the lands to Le Moyne before the entry of the final order to sell in the proceeding by Shepard, and the said Lizzie having, in the meantime, intermarried with John Allen, the latter and Le Moyne, together with Lizzie W. Allen and Scully, were made parties to the petition by Shepard to restore proceedings to sell, Polly H. Ricketson having previously died intestate, in 1871, leaving the said Lizzie her only heir at law. After much resistance on the part of the Allens a final order was entered in May, 1875, restoring the record as prayed for in the petition. In November, 1874, John and Lizzie Allen filed a bill in the Superior Court of Cook county against Le Moyne, Shepard, and others, in which suit, on the bill being amended, in May, 1875, a motion was made for an injunction restraining Shepard, as administrator, from proceeding to sell, as he was about to do. Upon the hearing of the motion, on the 9th of July following, it was denied, the motion withdrawn, and bill dismissed. In August following, another bill of like character was again filed by and against the same parties, upon which the motion for an injunction restraining Shepard from'selling under the decree, upon his petition, was renewed, George P. Harding appearing for complainants. The application for an injunction being resisted, tbe hearing of it was postponed until after the coming in of the report of sale, and its confirmation asked by the administrator, when both applications were heard together. The circuit court refused the injunction and confirmed the sale, and the Allens appealed to this court.

The order of the court required twenty-five per cent of the purchase money to be paid at the time of the sale, and the balance upon its confirmation and the delivery of the deeds. The sale was made August 10, 1875. The property was sold in eight distinct parcels, four of which were bid off by George F. Harding, the appellant, two by Quimby, and two by Cyrus Clark. Appellant’s purchases amounted in the aggregate to $35,000, Quimby’s to $15,337.75, and Clark’s to $16,-777.87. The lands purchased by appellant and Quimby were embraced in the inventory filed within the two years, but those purchased by Clark were included in the other inventory, filed after that time. After the sale of the administrator, to-wit, on the 24th of August, 1S75, appellant purchased of Quimby his entire claim against the estate, and took from him an assignment of his interest in his purchase. Harding having thus added Quimby’s purchases to his own, they amounted altogether to $50,336.50, so that while Harding was indebted to the estate in this sum, less the amount already paid by himself and Quimby on their purchases, the estate was indebted to him to the full amount of the Quimby claim, less a set-off allowed against it in the purchase of the land equal to twenty-five per cent on the amount of Quimby’s purchases, in the manner hereinafter stated. The balance of this Quimby claim, amounting to between $40,000 and $50,000, after the payment of the costs and expenses of administration, is the only claim, except those founded on the Tiernan contract, and they are still subject to litigation,— that is, entitled to share in the proceeds of the sale of the lands first inventoried, which, as just seen, amounts to the sum of $50,336.50.

At the time of. the sale Harding and Clark paid, in cash, twenty-five per cent on their respective purchases, and the administrator, in view of the largeness and priority of Quimby’s claim, gave him a receipt for an amount equal to twenty-five per cent on his purchase, and credited the estate with a like amount on Quimby’s claim, though no money actually passed between them. After the appeal was taken from the order confirming the sale, as heretofore stated, in view of the fact the money received by the administrator as advance' payment on the land would, in consequence of the appeal, be probably tied up in his hands for a considerable time, as it subsequently was, he, upon consultation with the parties, and at their request, refunded to Harding and Clark fifteen per cent of the mpney advanced by them, respectively, upon the express understanding that they would return it to him' whenever requested to do so. The appeal from the order of the circuit court was heard at the June term, 1878, of this court, resulting in an affirmance of that order.

In May, 1877, the second bill filed by the Allens against Le Moyne, Shepard, and others, coming on to be heard, the complainants, as they had in the former case, dismissed the same, and in July following filed a third bill against the same parties, substantially the same as the other two bills. In this case Le Moyne filed a cross-bill, and the cause was heard upon the original and cross-bills in October, 1878, resulting in a decree dismissing the original bill, and in granting relief to Le Moyne under his cross-bill. The decree found that Le Moyne, as grantee of Wilkins and Merrick, was the owner of one undivided half of the lands in controversy, and as grantee of Lizzie and Polly H. Ricketson he was the owner of the other undivided half, subject to the right of Ricketson’s creditors to have the same sold for the payment of his debts, and this decree, on appeal to the Supreme Court, was affirmed at its September term, 1881, and a rehearing denied at its March term, 1882. See 102 Ill. 25.

When the order confirming the sale was finally affirmed by this court, the administrator called on appellant, and requested him to comply with the terms of the sale by paying to him the amount of his bid, to be administered under the direction of the probate court, or at least so much thereof as would fully warrant the administrator in reporting to the court that the bids for the land had all been paid in, and the administrator particularly insisted that Harding should return to him the fifteen per cent of the purchase money which Shepard had refunded to him on the express condition that it should be so returned when called for, but Harding utterly refused to do any thing in the matter, insisting the money due from him on his purchases in reality belonged to him, and hence he was under no obligations to pay it over. Considerable figuring and negotiations passed between him and the administrator with the view of compromising the matter by ascertaining some fixed amount which the administrator would be safe in receiving, and treating the balance as paid in, which are unimportant to detail here, as we are of opinion he can not avail himself of them in this suit'to exonerate himself from such duties as the law cast upon him as a purchaser at the sale.

Under these circumstances the administrator applied to the circuit court for an order directing the bidders at the sale to pay up their bids, and upon their failure to do so, to order a re-sale of the property. At the same term Harding applied for an order directing the administrator to deliver to him the deeds, upon his executing a receipt for the amount of the Quimby claim. The matter was heard before the circuit court on the 30th of June and 1st of July, 1881, and an opinion delivered announcing the views of the court, but the final order was not made till the 10th of October following, so as to afford an opportunity of presenting the matter to the probate court, which was -done, but that court, after a full hearing, refused to interpose, and the circuit court, on the clay last named, entered an order overruling Harding’s motion, and sustaining the application of the administrator. By the order of the court then made, Harding and Clark were required to pay the amounts of their respective bids within thirty days, and in case of their failure to do so the administrator was directed to re-sell the property. At the instance of Harding a bill of exceptions, embodying the evidence heard on these motions, was taken, and signed by the judge. Clark paid up his bids, and the amount of $16,849.86 was duly reported by the administrator to the probate court. Harding, however, refused to comply with the order of .the circuit court, but made other propositions to the administrator, not necessary to detail here, which the latter declined, but made a formal tender of a deed to Harding for the property purchased by him, upon the payment of the balance due on his bids, which the latter declined to do. Instead of complying with the order of the circuit court, or appealing from its order, or from the order of the probate court in relation to the same matter, the appellant filed the present bill, which necessarily involves a reconsideration of many of the same matters already passed upon in these other proceedings. On a final hearing of the cause in the Superior Court, to which it had previously been transferred from the circuit court, a decree was entered dismissing the bill, to reverse which this appeal is brought.

It moreover appears, that in consequence of the numerous suits and protracted litigation growing out of the settlement of the estate and the adjustment of the claims presented against it, the costs and expenses of administration were greatly enhanced, and at the time of filing the present bill were, to a large extent, unsettled and undetermined. Moreover, it was equally unsettled and unknown, by reason of pending litigation, what amount, if any, of the proceeds of the land purchased by Harding and Quimby would be required in payment of the claims founded upon the Tiernan contract. It was therefore impossible, even if there was no question as to the right to do so, for the administrator to know what amount of the purchase money due from Harding could, consistently with the rights of other claimants, be set off against the Quimby claim. It is clear the court could not properly, if at all, have administered this fund, and made a proper adjustment of the unsettled claims and expenses, until the money itself had been brought into court, and any attempt to do so would necessarily have been attended with great emb arr a s sm ent.

It is a well recognized rule of law that in an action to recover a demand accruing to an executor or an administrator after the death of the testator or intestate, the defendant can not set off a debt due from the testator or intestate in his lifetime. (Newhall v. Turney, 14 Ill. 341; Lombard v. Older, 17 Beav. 542.) Numerous authorities might be cited to the same effect, but it is unnecessary to do so. Notwithstanding this well settled rule, there doubtless might be special circumstances which would authorize such a set-off, but under the circumstances of this case, for reasons already stated, we see nothing to relieve it from the operation of the general rule.

It is also well settled that a court of chancery will not, except in extraordinary cases, supersede the probate court in the administration of an estate. (Crain v. Kennedy, 85 Ill. 340; Heustis v. Johnson, 84 id. 61; Hales v. Holland, 92 id. 498.) To maintain the present bill would be to deprive the probate court of all further power and jurisdiction over the estate. What extraordinary circumstances are there in this case that demand such heroic treatment ? We fail to perceive them. In a word or two, the case seems to be this: The appellant buys land at an administrator’s sale, and pays but a small portion of the purchase money. After his purchase he buys a claim allowed against the estate, which wras due from the testator in his lifetime, and then refuses to pay the balance on his purchase, but offers to set off this claim against it. The administrator refuses to allow the set-off, and appellant applies to the circuit court, by motion, to compel him to do so, and the court, upon due consideration, decides the case against him. He then applies to the probate court, and that court decides against him. He then, without appealing from the order of either of these courts, files the present bill, by which he seeks to take the administration of the estate from the probate court, and relitigate the matters already passed upon by those courts. We do not think these facts present a case of equitable cognizance. All his rights might have been fully protected in the probate court, and if that court failed to apply the principles of law applicable to the circumstances in the case, there remained to him the same right of appeal which he would have had if it had been determined in a court of equity. We desire to be distinctly understood that the conclusion reached upon the main question in this case is based, principally, upon the fact that the appellant has already had his day in court in the other proceedings referred to, and if he was dissatisfied with the conclusion reached in them he should have appealed to a higher tribunal.

To the suggestion that the costs and expenses have since been ascertained, w'e are of opinion it can make no difference, for the rights of the parties before us must be passed upon as they existed at the time of filing the bill.

In view of the almost unprecedented litigation over this estate, we think we may appropriately say, in conclusion, clebet esse finís litium.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    John C. Rue v. Charles A. Dole et al.

      Filed at Ottawa May 10, 1883

      Rehearing denied September Term, 1883.

    1. Sale—mortgage—whether a transaction was am, absolute sale or only a mortgage—conveyance in satisfaction of a mortgage indebtedness, with a contract for a repurchase. Where the owner of property had given deeds of trust for a large sum of borrowed money, and had failed to pay the interest or taxes for four years, on being notified by the executors of the creditor that they would proceed to foreclose the trust deeds and sell the premises unless the interest was paid, he replied that he preferred to make a deed for the property rather than to have a sale made under the trust deeds or on foreclosure, and after some negotiations the amount of the indebtedness was agreed on, and he conveyed the property by a deed absolute in form, taking back a contract to convey the land to him upon the payment of the sum found to be due, within one year, and his notes and deeds of trust were surrendered and the record of the trust deeds satisfied, he executing no new obligation binding him to pay: Held, that the transaction was not in the nature of a mortgage, but was an absolute sale of the equity of redemption, and that the contract given back to the grantor was a re-sale.
    2. A mortgagee has the right, if he can agree with the mortgagor on the terms, to purchase the mortgaged premises, and if he does, the mere fact that the deed to him is made in satisfaction of the mortgage does not make such deed a mortgage, and the surrender of the evidences of the mortgage debt, taking back no new obligation to pay, is a circumstance affording evidence that the new conveyance was not intended as a mortgage.
    3. A mortgage being a conditional conveyance of property as a security for the payment of money or the performance of some act or duty, it is essential to its creation and existence that there be a subsisting indebtedness or obligation to pay money or perform some duty or act. When the debt or obligation is released or wiped out, the convej'ance becomes null and void. Therefore land can not be conveyed as security for a debt where no debt exists.
    4. Where mortgaged premises are conveyed by the mortgagor to the mortgagee in satisfaction of the mortgage debt, so that no recovery can be had upon such original debt in an action at law, the transaction must be regarded as an absolute sale, and this though .the grantee may execute a contract for re-sale upon payment of the same price within a given time.
    5. Whatever presumption may arise that the transaction is a mortgage when a deed has been given, and at the same time a contract for a reconveyanee executed, may be repelled by any facts showing that the debt was surrendered and cancelled at the time of the conveyance. The mere fact that a deed is executed and a bond given for a reconveyance, does not stamp the transaction as a mortgage.
    6. Same—rights of the holder of the contract of re-sale, as to tender of deed to him, and an accounting. Where the holder of a mortgage debt accepts from the mortgagor an absolute deed for the mortgaged premises in full satisfaction of the indebtedness, and at the same time gives the grantor a contract, by which he obligates himself to reconvey the premises upon the payment of a certain sum within one year, with a provision that if the payment should not be made within the time limited the contract should be null and void, if the holder of the contract fails to make such payment in proper time, he will have no right-, on bill-filed by the maker of the contract to have the same cancelled as a cloud on his title, to insist that a deed should have been first tendered to him, and an account rendered by the owner.
    7. Same—as to the adequacy of price—effect of that question on the transaction. Where the owner of property, not being able to pay his indebtedness secured by deed of trust, after time to consider, and on mature deliberation, conveys the same to the holder of such indebtedness in full discharge thereof, without any deception, fraud or oppression practiced upon him, and has given him the privilege of repurchasing within a year at the same price, of which he fails to avail himself, the conveyance will be sustained, although he may have parted with the property' at less than its full value.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moban, Judge, presiding.
    Messrs. Dent & Black, for the appellant:
    To determine the conveyance and the contract made with it constitute an absolute sale or a mere mortgage, the court will look not only to the writings, but beyond and outside of them, and the case is open to the whole range of parol evidence, so far as it conduces to show the relation between the parties and the end they had in yiew. 3 Leading Cases in Equity, (3d Am. ed.) 630.
    Where an absolute conveyance has been proved to have been made as security for an antecedent debt, and not as an absolute satisfaction, so that the debt survives, it will take effect as a mortgage. 3 Leading Cases in Equity, (3d Am. ed.) 638; Preschbaker v. Feaman, 32 Ill. 472; 1 Hilliard on Mortgages, (4th ed.) 115, 119; Ewart v. Walling, 42 Ill. 453 ; Rice v. Rice, 4 Pick. 349.
    Inadequacy of price is a circumstance of weight in cases of this sort. 1 Jones on Mortgages, see. 275; 3 Leading Cases in Equity, 630.
    When it is doubtful whether a transaction is a mortgage or a conditional sale, it will generally be treated as a mortgage. 1 Jones on Mortgages, sec. 279.
    For cases in which deeds absolute on their face have been held mortgages, see Ennor v. Thompson, 46 Ill. 222; Harbison y. Houghton, 41 id. 522; Miller v. Thomas, 14 id. 428; Delahay v. McConnell, 4 Scam. 158; Tillson v. Moulton, 23 Ill. 656; Russell v. Southard, 12 How. 154; Peugh v. Davis, 96 U. S. 332; Morris v. Nixon, 1 How. 118.
    Messrs. Grant, Swift & Brady, for the appellees:
    An existing indebtedness is essential to the existence of a mortgage. 4 Kent’s Com. 136; 1 Washburn on Beal Prop, chap. 16, sec. 19; 2 Bouvier’s Law Die. (15th ed.) title, “Mortgage;” Mitchell v . Burnham, 44 Maine, 299; 2 Abbott’s Law Dic. title, “Mortgage;” Almy v. Wilbur, 2 Wood. & M. 371; 1 Jones on Mortgages, sec. 16. The giving back of the contract of re-sale did not convert the transaction into a mortgage. (1 Jones on Mortgages, sec. 267, and eases there cited.) If the transaction is to be considered as a mortgage, the relation of debtor and creditor should continue to exist, and their rights should be reciprocal. But here the debt was extinguished, and, by the very nature of the transaction, the debt must be regarded as purchase money of the premises described in the deed, and the transaction as a sale upon condition, which the grantor could defeat only by performance of the conditions on his part within the time limited for the purchase, and so entitle himself to a reconveyance of the property. Robinson v. Cropsey, 2 Edw. Ch. 138; Same ease affirmed, 6 Paige, 480; Holmes v. Grant, 8 Paige, 243; 1 Jones on Mortgages, sec. 264; Wright v. Cooper, 35 Vt. 179; Glover v. Payne, 19 Wend. 518.
    It follows, then, that when a conveyance is made, absolute in form, in satisfaction of a precedent debt, it can not take effect as a mortgage, although a contract of repurchase is given back as a part of the transaction, because the previous debt being extinguished, and no new one created, one of the essential attributes of a mortgage is lacking. Conway v. Alexander, 7 Cranch, 237; McKinstrue v. Conly, 12 Ala. 678; Slowey v. McMurray, 27 Mo. 113; Hoopes v. Bailey, 28 Miss. 328.
    When a contract of repurchase, together with a deed, considered as one transaction, is inconsistent on its face with the theory of a mortgage, it must be treated as a deed and an agreement to sell. Hanford v. Blessing, 80 Ill. 188; 1 Jones on Mortgages, sec. 261; Ford v. Irwin, 18 Cal. 117; Pitts v. Cable, 44 Ill. 103; Carr v. Rising, 62 id. 14; Hoopes v. Bailey, 28 Miss. 328; 3 Leading Cases in Equity, (3d ed.) 644.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought on March 19, 1880, by Charles A. Dole and Lyman D. Stevens, executors and trustees under the last will and testament of James McQuestion, deceased, against John C. Rue, in which the complainants claimed title in fee to certain premises on Clark street, in Chicago, under a deed-from the defendant, Rue, bearing date March 17, 1878. The bill sought the cancellation of an agreement between the parties, of the same date of the deed, w'hich provided that in case Rue should, on or before March 1, 1879, pay to them or their successors the sum of $69,046, and such other sums as they might, after the date of the contract, have expended on the property in insurance, taxes and repairs, then said executors would execute a quitclaim deed for the premises to Eue. The defendant put in an answer to the bill, in which, in substance, he denied that the executors were seized of the premises, and set up that the deed and the agreement constituted but a mortgage on the premises. On or about the 1st day of May, 18S0, the defendant filed a cross-bill, in which he, in substance, set up that the execution of the deed to complainants, the surrender and cancellation of the previous trust deeds and notes, and the giving of the written agreement for a deed, constituted a mortgage on the property, and he prayed to be allowed to redeem.

There is no substantial dispute between the parties in regard to the facts, except in regard to the value of the premises. It appears from the evidence that in 1869-MeQuestion, the testator of complainants, made a loan of $30,000 to the defendant, Eue, and in 1872 he made an additional loan of $15,000, both of which were secured by deeds of trust on the premises. McQuestion died in 1875. No interest was paid on the loans after 1874. In the fall of 1877, interest and taxes having accumulated on the property to quite a large sum, the executors wrote the defendant that unless the interest on the trust deeds was paid they would be compelled to foreclose. The defendant replied that he preferred to make a deed rather than have a sale under the trust deeds, or a suit in court. After some correspondence and negotiation it was finally agreed that Eue and his wife should deed the premises to the executors, who would cancel the claims against Eue and give him a contract, under which he could repurchase on or before March 1, 1879. Under this arrangement the warranty deed of March 19, 1878, and the contract of same date, were executed. Before the execution of the deed and contract, the amount due the executors on the tw'o loans was computed, and found to be, at the date of deed, $64,340, to which was added interest at the rate of seven and three-tenths per cent, making $69,046, which is the consideration named in the deed and amount named in the contract. Upon the execution of the deed and contract the notes and deeds of trust were cancelled, and surrendered to the defendant, and the possession of the property was delivered to the executors. About the 25th day of January,-1879, Morey, at the request of the defendant, wrote the executors, asking an extension of time for three months for the payment of the amount named in the contract. On the 3d of February the executors replied, refusing an extension, of which the defendant was at once notified. After the executors had refused to extend the date of payment, on February 19 the contract was placed upon record.

These are in substance the facts, so far as it is necessary to state them in order to arrive at a' proper understanding of the questions involved, and, under the facts, the question arises whether the deed upon which complainants rely is absolute, or whether the transaction of March 19, 1878, which resulted in the deed and contract, is to be regarded as a mortgage.

The deed purports upon its face to convey the premises absolutely, and the contract is a mere re-sale of the premises upon the payment of a certain sum at a specified time. So far, then, as appears from the terms of the deed and contract, there is nothing to indicate that the transaction was a mortgage; It is true that the deed was made in satisfaction of a debt which was secured by mortgage on the same premises, but a mortgagee has a right, if he thinks proper, and can agree with the mortgagor on the terms of purchase, to purchase the mortgaged premises. The mere fact, therefore, that this deed was made in satisfaction of a prior mortgage, does not make such deed a mortgage. Nor was there anything in regard to - the surrounding circumstances to indicate that the deed was taken as a mortgage. Here was a large debt, long past due, with unpaid accumulated interest amounting to some $20,000. No taxes had been paid by the mortgagor for four or five years. Under such circumstances it is but reasonable to suppose that the mortgagee would insist that the relation of mortgagor and mortgagee should terminate, and that the debt should be paid or the land sold in satisfaction of the'debt. This is what the executors did, and rather than have the land sold on the deeds of trust or under decree of foreclosure, the mortgagor agreed to convey the land absolutely to the mortgagees, and take back a contract, as he no doubt thought there was a margin in the property, for a reconveyance, upon condition that he paid a specified amount within a day named.

There is nothing in the circumstances that surround the arrangement that tends to show that the parties intended that the relation of mortgagor and mortgagee should still continue. At the time this arrangement was made, the notes, wilich were the evidence of appellee’s debt, were surrendered to the defendant, and the deeds of trust-were cancelled of record, and surrendered; and as the past indebtedness w'as wiped out, there was nothing remaining for the supposed mortgage to secure, as it is an essential element of a mortgage that some obligation should exist to be secured. In 4 Kent’s Commentaries, 136, we find this clear definition of a mortgage : “The conveyance of an estate by way of pledge for the security of debt, and to become void on payment of it. ” In 2 Bouvier’s Law Die. title “Mortgages, ” it is said: “A mortgage is a conditional conveyance of land, designed as security for the payment of money, or fulfillment of some contract, or the performance of some act, and to be void upon such payment, fulfillment or performance.” Jones on Mortgages, sec. 16, says : “A definition broad enough to cover any view of the transaction, and any form of it, can only be that it is a conveyance of land as security.” This embraces the two things essential to constitute a mortgage.

Here, when the deed was made the debt was cancelled and the notes were Surrendered. No new note was given, nor was there any agreement by Bue to pay the executor a single dollar. The contract given to him does not bind him to make any payment whatever, but it merely provides that the executor shall convey the premises to him, provided he pays a certain amount at a certain time. If, then, there was no debt due from Bue to the executors, how could the deed and contract be held to be a mortgage ? The land could not be conveyed as security for a debt, because there was no debt to secure. Suppose the complainants had, after the deed and contract were executed, and after the time for a conveyance had expired, sued the defendant in an action at law to recover the amount of the original indebtedness, could the action have been maintained ? We think not, for the reason the land was conveyed in satisfaction of the indebtedness. And where a plea of payment would operate as a bar’to an action of that character, for the reason the conveyance had extinguished the debt, the transaction may be regarded as an absolute sale. Upon this point Jones on Mortgages says : “An absolute deed delivered in payment of a debt is not converted into a mortgage merely because the grantee therein gives a contemporaneous stipulation binding him to reconvey on being reimbursed, within an agreed period, an amount equal to the debt and the interest thereon. If the conveyance extinguishes the debt, and the parties so intended, so that a plea of payment Avould bar an action thereon, the transaction would be an absolute sale notwithstanding.. And so if there was, in fact, a sale, an agreement by the purchaser to re-sell the property within a limited time, at the same price, does not convert it into a mortgage. ” (1 Jones on Mortgages, sec. 267, and cases cited.) The same author, in section 326, announces the rule, that whatever presumption may arise that the transaction is a mortgage, where a deed has been given, and at the same time a contract for a reconveyance executed, may be repelled by any facts showing that the debt was surrendered and cancelled at the time of the conveyance. Here the debt was extinguished, and the relation of debtor and creditor no longer existed, and in our judgment there was no debt for a mortgage to operate upon. If there was no debt, it would be so inconsistent with the intention of the parties, judging from what they did, that it could not be held that the transaction was a mortgage. The mere fact that a deed was executed, and a bond given for a reconveyance, does not stamp the transaction as a mortgage. Pitts v. Cable, 44 Ill. 103; Hanford v. Blessing, 80 id. 188.

But it is said complainants should have been required to render an account, and tender a deed, before they were entitled to a decree rescinding the agreement to convey. If the transaction was not a mortgage, as we have seen it was not, no account could be required. All moneys received from the property, as rents, by complainants, they were entitled to hold as owners, and all moneys disbursed for taxes, repairs, etc., were paid out in the same capacity, and hence they were under no obligation to account to the defendant. Had the defendant been ready to perform the contract within the time prescribed, then, perhaps, under the terms of the contract, an account of the rents might have been required by him; but as he was not ready, and did not offer to perform the contract, no account could be required. As to the tender of a deed, the contract did not require this to be done. By the terms of the contract, unless the defendant paid a certain amount by a specified time. all rights he had by virtue of the contract terminated, and the conti’act, by virtue of' its own provisions, became null and void.

It is also urged that complainants did not pay a fair or adequate price for the property, and that it is not equitable that they should use their position as mortgagees for the oppression of the defendant, in depriving him of the equity of redemption. There is a conflict in the evidence as to the value of the property, but whether it was worth more or less than complainants paid we do not regard as a controlling fact in the case. The arrangement under’ which complainants obtained a deed from the defendant, was made after mature deliberation by the defendant. No deception, fraud or oppression was used, but complainants acted honestly and fairly in the whole transaction, and when property is obtained under such circumstances, although its full value may not be paid, the contract must be sustained.

Counsel for defendant has referred to Miller v. Thomas, 14 Ill. 428, and Harbison v. Houghton, 41 id. 522, as having an important bearing on the ease. It is true that in each of these cases the transaction was held to be a mortgage, but upon an examination the cases will be found entirely different from the case before us,—so much so that they can not be relied upon as a precedent to govern here. In the Harbison case notes were given for the debt, and in the Miller case there was an express covenant to pay, while here there is no obligation whatever resting on the defendant to pay any sum whatever. In other important respects the cases differed from this record, and while the rule there announced is correct under the facts of those cases, it can have no controlling influence here.

In conclusion, we find no ground for disturbing the decree of the circuit court, and it will be affirmed.

Decree affirmed.


author: Mr. Justice Scholfield Per Curiam :

text:
    William M. Brophy v. Catharine Lawler.

      Filed at Ottawa May 10, 1883

      Rehearing denied September Term, 1883.

    1. Trust—attempt to defeat it by fraud—as to the manner of granting relief. Land was conveyed to a person, in trust, to receive tbe rents, issues and profits, and apply them to the use of another during his natural life, and upon the death of the latter to convey the premises to a son of the grantor, in fee. The remainder-man, by fraudulent devices, induced the holder of the life interest to join the trustee in a conveyance of the property to himself, to enable him, as he represented, to sell a portion of the same in order to pay certain taxes and assessments which had accumulated against it, promising that he would then make a declaration of trust for a life interest in the residue, as it originally existed, but which he refused to do. It was held, on bill filed by the cestui que trust, that he was entitled to be restored to his rights in respect to the life interest in the portion of the land which had not been sold.
    2. In such case there is no error in decreeing that the fraudulent grantee conve3’ directly to the cestui que trust the life estate in the premises, instead of vesting the title again in a trustee. He could not complain of such disposition of the life estate, as his estate in remainder could in nowise be affected thereby. The original trust was practically a dry trust.
    3. Fraud—effect of subsequent action as a waiver of party’s rights. A person who is induced by fraudulent and false statements to convey his interest in property, will not be precluded from rescinding by afterward dealing with the subject matter of the contract, if at the time of such dealing he was ignorant of the fraud practiced.
    4. So where a person having a life estate in real property is induced to conver- it to the remainder-man for a certain purpose, under the promise of the grantee to make a declaration of trust of a life estate in favor of the grantor, and afterward makes a conditional agreement that if a certain other thing is done it will be accepted in lieu of tbo former obligation, the latter agreement, without performance, amounts to nothing, and can not be set up to defeat the grantor’s rights under the original promise.
    Appeal from tlie Superior Court of Cook county; the Hon. Geoege Gaedneb, Judge, presiding.
    Mr. Robebt Heevey, and Mr. C. Stüabt Beattie, for the appellant.
    Messrs. Snowhook, Johnston & Gray, for the appellee.
   Mr. Justice Scholfield

delivered the opinion of the Court s

One Michael Brophy, in 1852, assuming to be a single man, had a ceremony of marriage performed between himself and a lady, with whom he thereafter lived as his wife until in 1851, when she died. She had one child by Brophy during this period,—the appellant; William Martin Brophy. In 1855, Michael Brophy, still assuming to be a single man, had a marriage ceremony performed between himself and. the appellee, Catharine Lawler, and thereafter he lived with her as his wife, the appellant-being a member of the family, until in 1863, when a woman, claiming to be Ann Brophy, the wife of Michael Brophy by a marriage prior to either of the marriage ceremonies above alluded to, came from Ireland; and thereupon Michael Brophy and the appellee separated, and he thereafter treated the said Ann as his wife. In order to atone, somewhat, for the wrong done appellee, as it is reasonable to presume, Michael Brophy, and Ann, his wife, thereupon, on the 9th day of June, 1862, conveyed, by deed of that date, lot No. 12, in block No. 10, in H. 0. Stine’s subdivision of part of John Jacob Astor’s addition to the city of Chicago, being forty feet by one hundred and fifty feet, to John Hyland, in trust, “to receive the issues, rents and profits of the said premises, and apply them to the use of the said Catharine Lawler during the term of her natural life, ” and after her death “to convey the same, by deed, to William Martin Brophy, * * * in fee simple.” Appellee immediately went upon the property thus conveyed, taking the appellant, then a lad of some thirteen years, with her, calling him and treating him as her son. They lived together upon the property until his marriage, in 1876, shortly after which, in consequence of disagreement between her and his wife, they lived separately, though on this property. In 1865 the city widened Division street, and in doing so took thirteen feet off the south side of the lot, leaving it but twenty-seven instead of forty feet wide. The memorable fire in the city, of October, 1871, destroyed the improvements on the lot. Prior to that time appellee paid the taxes and took care of the property, but subsequently she placed the chief, if not the entire, management of it in the hands of appellant. On the 20th of October, 1880, Hyland, the trustee, and the appellee, united in a quitclaim deed of the lot to appellant. On the 16th of November, 1880, a deed of the east forty-eight feet of the lot, to Townsend and others, bearing date and purporting to have been acknowledged by appellant and wife, and also by appellee, on the "loth of October, 1880, was delivered. Appellee filed her bill in chancery, against William Martin Brophy, and Hannah Brophy, his wife, asking that they be enjoined from selling or incumbering the lot, and that they be decreed to convey it subject to the same trusts upon which it was originally conveyed by. Michael Brophy. The court decreed that they convey to her a life estate. William Martin Brophy, alone, appealed.

The first point urged against the decree below is, that the evidence fails to support the material allegations of the bill. Counsel say, “the theory of her bill, which is verified by her oath, is, that in order to pay the taxes and assessments which had accumulated on the property it became necessary to sell forty-eight feet of the land, and that to do this appellant represented that Hyland must surrender his trust, and that when the title was- complete in him appellant would convey the forty-eight feet, within a few days, to the purchaser, and then, immediately after, make a declaration of trust of an estate for life in the balance of the property, in appellee’s favor,”—and this, they insist, has not been proved. We can not concur in this view. The vital part of the allegation is, that appellant agreed that he would make a declaration of trust, in favor of appellee, of an estate for life in the lot after the conveyance of the forty-eight feet, and this, we think, is, in substance, abundantly proved. The proof clearly shows that until the marriage of appellant the relation between him and appellee was as intimate as that of mother and son. That relation, indeed, practically existed between them from a period when he was too young to know any other mother, and they were, moreover, sufferers from the same desertion and the same cause of disgrace. She had no child of her own, so far as the proof shows, and no other companion. Not unnaturally, therefore, she implicitly believed in him, and relied upon his fidelity,—and this affords a sufficient explanation why no formal contract was made and reduced to writing. She had no idea that such a thing was necessary. But it is not required that the proof shall show a formal contract, and the accurate use of technical terms. It is sufficient if it clearly appears that appellee was induced by appellant to believe, and did believe, when she joined Hyland in the quitclaim deed to appellant, that in consideration thereof, after the conveyance of the forty-eight feet to Townsend, she was to be placed in the same situation with respect to the balance of the lot that she then occupied. That, in effect, was simply to declare a trust; in her favor, of a life estate. She testifies and repeats that this was the fact, and she is fully corroborated by Snowhook, an apparently disinterested witness, and we deem it unnecessary to recapitulate at length all the evidence to that effect. It would have been most unnatural that she should have parted with all interest in this property, which, so far as appears from the evidence, wTas her sole reliance for a present and future support; and to have given it to appellant with an assurance, only, as he claims was the fact, that he would make a will in her favor, would have been to have parted with all interest in it. True, she was at liberty to do this, but the evidence does not show this was her intention. The same evidence which shows a blind confidence in appellant to the degree of disregarding all formalities of a^ contract, also authorizes the inference that she did not even suppose appellant would be willing to deprive her of all present interest in the property. Had this property been something about which she could have afforded to have been liberal, the case might have been different. As it is, her dependence upon it is, in itself, a corroborative circumstance in favor of the truth of her story;

But counsel argue, if there ever was an agreement, appellee has waived her right to have it performed, and under this they cite authorities to the point that a party defrauded can not he allowed to deal with the subject matter of the contract, and afterwards rescind it. The evidence upon which this is predicated is to the effect that some time after the quitclaim deed was delivered, appellant agreed with appellee to furnish her a room in a house on the lot, and pay her $15 per month. It is not, however, pretended that when any such agreement was made appellee knew that she had been defrauded by appellant, which is indispensable to the doctrine relied upon. There is absolutely no evidence showing that appellee then knew that appellant had made false statements to her, and thereby induced her to acknowledge the quitclaim deed. The substance of the preponderance of the evidence is clearly to the effect that appellee was simply willing to reside in the house indicated, and take the $15, and that appellant failed to carry out even that offer. She denies that she ever abandoned her right to have a life estate in the property. But, at most, under any reasonable view of the evidence, what is claimed as a contract was but a conditional agreement,—that is to say, if what was agreed to be done should be done, it would be accepted in lieu of the former obligation, and so without performance it could amount to nothing. (Chitty on Contracts, (11th Am. ed.) 1124, and notes.) There is no element of estoppel in the ease. It is not shown appellant did, by virtue of any subsequent agreement with appellee, what he would not otherwise have done. She was entitled, equitably, to the possession of all, and his assumed liberality seems to have been chiefly with that which already belonged to her.

We are unable to perceive how it concerns appellant whether appellee’s life estate be vested in her absolutely, or in a trustee for her use. His estate can in nowise be affected thereby. The same remedy he would have to protection against waste and improvident management of the property in the one case, he has in the other. The trust was, praetieally, a dry trust, and we think no harm is done by the decree vesting the life estate in appellee without the intervention of a trustee.

The decree is affirmed.

^ T Decree affirmed.

Subsequently, on an- application for a rehearing, the following additional opinion was filed:

Per Curiam :

We have considered the petition for rehearing in this cause, and perceive no reason for changing from or modifying what is said in the opinion heretofore filed. We think the evidence amply sustains the decree, and further remark in that regard is unnecessary.

Counsel, by anticipation, complain that appellant will not receive what he is entitled to have for expenditures, etc. This is premature. The decree directs an account to be taken, and until that shall be done it can not be assumed that appellant will not be therein allowed everything to which he is lawfully entitled. If, when the account shall be taken, appellant shall not receive all that he claims, he may except thereto, and will be entitled to an appeal from any decree, of the Superior Court thereon.

Complaint is likewise made that appellant has no security that appellee will pay taxes and assessments. This, also, is premature. W'e can not assume now that appellee will neglect or refuse, in the future, to pay taxes or assessments. The presumption is, that she will pay them, because it will be essential to the preservation of her estate.' But if she shall neglect or refuse to perform this duty, ample remedy will then be found whereby appellant can cause her estate to be charged therewith.

The judgment is affirmed, but the cause will be remanded, to the end that the account decreed may be taken.


author: Mr. Justice Walker Per Curiam :

text:
    The International Bank of Chicago et al. v. Robert E. Jenkins et al.

      Filed at Ottawa May 10, 1883

      Rehearing denied September Term, 1883.

    1. "Writ oe error—is a new suit. The suing out of a writ of error is the commencement of a new suit for all purposes.
    2. Limitation—for and against assignee of bankrupt. The two years’ limitation in respect to suits at law or in equity between an assignee in bankruptcy and a person claiming an adverse interest touching any property or rights of property transferable to or vested in such assignee, applies to writs of error as well as to other suits. Congress had the right to adopt such a provision', and it is binding on the State courts.
    Writ op Error to the Appellate Court for the First District;—heard in that court on writ of error to the Circuit Court of Coot county; the Hon. E. S. Williams, Judge, presiding.
    Messrs. Bosenthal & Pence, for the plaintiffs in error:
    The United States statutes are to be administered by the State courts as well as the United States Court, when they are applicable. Claflin v. Houseman, 93 U. S. 130; Eyster v. Gaff, 91 id. 521.
    A writ of error is a suit at law or in equity. Powell’s App. Court Prae. 46, 346; 1 Tidd’s Prac. "*1, 196; Ripley v. Morris, 2 Gilm. 381; Hickman v. Haines, 5 id. 20 ; Smith v. Robinson, 11 Ill. 119; Roberts v. Trustees, 32 id. 474; Wadhams v. Gay, 73 id. 421; Freeman on Judgments, sec. 205.
    A suit is the “lawful demand of a right,” at law or in equity, without regard to the form given it. Union Canal Co. v. Woodside, 11 Pa. St. 176; Weston v. City Council of Charleston, 2 Pet. 449; Bailey v. Glover, 21 Wall. 346.
    The appellate court, by virtue of a writ of error, has the power to restore to a plaintiff something real or personal, or to render a judgment in his favor for something due him. Practice act, sec. 80; Schultze v. Houfes, 96 Ill. 335; 3 Bacon’s Abridgment, title, “Error;” Freeman on Judgments, sec. 482.
    A writ of error by an assignee to reverse a decree relating to property assigned to him, is a suit, within the meaning of section 5057 of the Revised Statutes of the United States, and must be brought within two years. Bailey v. Glover, 21 Wall. 342; Marshall v. Knox, 16 id. 551; Cleveland v. Boerum, 24 N. Y. 613; Wilson v. Childs, 8 B. R. 527.
    A plea of the Statute of Limitations is not required as a defence to a writ of error when the record discloses that the time has elapsed for bringing the suit. A motion to dismiss is the proper practice in such a ease. Brooks v. Morris, 11 How. 204; Bertrand v. Taylor, 87 Ill. 235 ; Parkhurst v. Race, 100 id. 558; Henry County v. Winnebago Drainage Co. 52 id. 454; Humbert v. Trinity Church, 7 Paige, 195.
    Mr. W. T. Burgess, for the defendants in error:
    The judgment of the Appellate Court must be final before it can be reviewed on appeal or writ of error. The judgment or decree must be such that, in case of an affirmance, the court below would have nothing to do but execute the judgment or decree. Whiting v. Bank of the United States, 13 Pet. 15; Forgay v. Conrad, 6 How. 204; Craighead v. Wilson, 18 id. 201; Beebe v. Russell, 19 id. 285; Bronson v. Railroad Co. 2 Bl. 531; Thompson v. Dean, 7 Wall. 345; St. Clair County v. Livingston, 18 id. 628; Parcel v. Johnson, 20 id. 654; Railroad Co. v. Sasey, 23 id. 409; Commissioners v. Lucas, 93 U. S. 113.
    It has been uniformly held that a .judgment of reversal, with leave for further proceedings in the court below, can not be brought up on writ of error. Brown v. Union Bank, 4 How. 466; Pepper v. Dunlap, 5 id. 51; Tracy v. Holcombe, 24 id. 426; Moore v. Robbins, 18 Wall. 588; McComb v.
      Knox County, 91 U. S. 1; Baker v. White, 92 id. 179; Davis v. Crouch, 94 id. 514; Buck v. County of Hamilton, 99 Ill. 507.
   Mr. Justice Walker

delivered the opinion of the Court:

This record presents the question whether the suing out of a writ of error is the commencement of a suit, and if so, whether it is within the limitation of the bar of the 5057th section of the Revised Statutes of the United States. Other questions are also presented, but this is the main question.

It has been repeatedly held by this court that the suing out of a writ of error is the commencement of a suit. (Ripley v. Morris, 2 Gilm. 381; Hickman v. Haines, 5 id. 20; Smith v. Robinson, 11 Ill. 119; Roberts v. Fahs et al. 32 id. 474; Burnap v. Wight, 14 id. 303.) And the doctrine that it is a suit was fully recognized in Schrœder v. Merchants and Mechanic’s Ins. Co. 104 Ill. 71. In the first four of these cases the question arose on motions to dismiss the writ of error because it was sued out by non-resident plaintiffs without filing a bond for costs, as required by the statute of such plaintiffs before bringing suits in the circuit or Supreme courts. It is true that those cases did not involve the bar of the Statute of Limitations, but they did whether a proceeding in this court by error was a new suit, and it was held to be the commencement of a new suit,—and such has been the settled law for nearly forty years; and it must be that if it is a suit for one purpose, it is for all purposes. But if it w7ere not, in the case of Burnap v. Wight, supra, it was held to be where the Statute of Limitations is interposed to defeat the writ of error. So we may regard the question as at rest.

It, then, being established that a proceeding on a writ of error is, for all purposes, a suit, it follows, as was held in Burnap v. Wight, supra, that the Statute of Limitations may be interposed as a bar. Our statute has limited the suit to five years; and the 5057th section of the Revised Statutes of the Unitéd States provides, that “no suit, either at law or in -equity, shall be maintainable in any court between an assignee in bankruptcy and a person claiming an adverse interest touching any property or rights of property transferable to or vested in such assignee, unless brought within two years from the time when the cause of action accrued for or against such assignee; and this provision shall not, in any ease, revive a right of action barred at the time when an assignee is appointed. ” Congress had the unquestioned power to adopt this provision governing the action of the States and their courts, because the power had been conferred on it by the Federal constitution. This is, then, a rule by which the State courts are governed, and to which the State statutes must yield. The case of International Bank of Chicago v. Jenkins, 104 Ill. 143, is in point, and governs this ease.

The Appellate Court ruled otherwise, and for this error its decree must be reversed and the cause remanded.

Decree reversed.

Subsequently, on an application for a rehearing, the following additional opinion was filed:

Per Curiam :

This case was -brought to this court by the International bank. The decree of the Appellate Court held that the limitation section of the Bankrupt act was not applicable, and did not control in this case. At the March term, 1883, of this court, a motion was entered to dismiss the writ of error, on the ground that the decree of the Appellate Court was not so far final as to authorize the bank to bring error to reverse the decree; but it was held that the writ was properly brought, and the motion was, at that term, overruled. When the writ of error went to the Appellate Court, it brought the entire record, and all the parties in the case, from that to this court. The -case could not be split up, and one portion be pending in this court and another pending in the Appellate or the circuit court. When the bank sued out the writ the clerk of the Appellate Court was required to return the entire record, and the service brought the defendant in error before this court, and the 'reversal of the decree of the Appellate Court leaves that court to proceed with and hear the ease,, and render the proper decree. There is nothing in the record from which it appears a reversal of the decree of that court in anywise affects the rights of Mrs. Eankin. The merits of her case were not discussed in this court, and are therefore not passed upon. The decree of the Appellate Court is reversed only because of the error in holding that the plea of the bar of the statute of the Bankrupt act was not good as a defence. The rights of other parties to the record are not passed upon here, and the Appellate Court will dispose of their rights as equity may require, and not affected by the reversal on the sufficiency of the plea.