17 Ill. 487 (Ill. 1856), Foltz v. Prouse

• Date: Invalid date
• Docket Number: .
• Citation: 17 Ill. 487
• Parties: HIRAM W. FOLTZ, Administrator of Almon Leach, deceased, Appellant, v. THOMAS PROUSE, Appellee
• Court: Illinois Supreme Court

Page 487

17 Ill. 487 (Ill. 1856)

HIRAM W. FOLTZ, Administrator of Almon Leach, deceased, Appellant,

v.

THOMAS PROUSE, Appellee

Supreme Court of Illinois, Ottawa

June, 1856

Page 488

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Page 489

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Page 490

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Page 491

Appeal from Jo Daviess.

THIS cause was tried before SHELDON, Judge, at May term, 1854, of the Jo Daviess Circuit Court.

On the 9th day of January, A. D. 1854, Thomas Prouse filed a petition in the Probate Court of Jo Daviess county, representing that he was a judgment creditor of the estate of Almon Leach, and that said Leach died about the 8th day of September, A. D. 1852, in the State of California, leaving real and personal estate in Jo Daviess county; and that Hiram W. Foltz, representing himself as a creditor of said estate, procured himself to be appointed administrator of said estate, while in truth said Foltz was not a creditor of said estate, but was largely indebted to said estate, and procured himself to be appointed administrator to enable himself to commit various frauds and peculations on said estate, and to cover up and sequester the property of said estate.

That said Foltz made a report, as such administrator, at the November term, A. D. 1853, that there were no assets except certain rents due from himself, and that he had paid out, in attorney's fees, the whole amount due from himself, which petitioner charges "is untrue in principle and particular," and that the reasonable use of the real estate occupied by Foltz each year amounted to more than the whole amount reported, and that the pretended payments, if any were made, was in fraud of the rights of creditors, and that defending said estate was done to defraud bona fide creditors.

That Leach left Galena for California about four years since, and left said Foltz in the possession of two certain shops and grounds on Franklin street, of the value of $ 1,800, the rent of which, each year, above the taxes, would be about one hundred and fifty dollars; that said property was encumbered by mortgage, to petitioner, for about $ 250, and said Leach was also indebted to one John Garner, in about the sum of one hundred and sixty dollars, and to John Carthew in the sum of sixteen dollars, which were all of the debts remaining unpaid when said Leach left for California.

That while Leach was in California, he became indebted to petitioner in the sum of $ 2,200, for which petitioner obtained judgment in California, and brought the record to Galena to enforce the payment of the same out of the property of Leach in Galena, and attach the premises in possession of Foltz, and on the death and administration aforesaid, DISMISSED said suit, and filed the same as a claim in this court against said estate, and had the same allowed on the 12th day of November, 1853, at $ 2,453, from which said Foltz, as administrator, appealed to the Circuit Court, and that on appeal petitioner recovered $ 2,360, all of which appear of record, and refers to records where the same remains unsatisfied and wholly unpaid.

Petition further states that John Garner obtained a judgment against said Leach by attachment against said lot on the 27th day of August, A. D. 1852, for $ 212.12, and that said Foltz purchased said judgment from Garner to carry out and perfect his fraud on the estate of which he was the administrator, did not place the assignment of his judgment on record, but caused an execution to issue, and came in as a judgment creditor and claimed to redeem from a former sale to petitioner on the foreclosure of his mortgage, and that the brother-in-law of said Foltz purchased said property for $ 600, all of which is fraudulent and corrupt, and to the injury of creditors.

The petition sets forth that said Foltz, at the time of the purchase of the Garner judgment, was indebted to said estate greatly beyond the amount of the judgment, and that in purchasing said judgment Foltz used money that rightfully belonged to said estate, and that the redemption so made ought to have been made for all of the creditors, and that a sale should have been made by order of court, etc., and that the sale as made is fraudulent and void.

Petitioner says his claim was a bona fide debt, and was not, and could not be, successfully defended, and that this fact was well known to Foltz who employed counsel, and appealed for delay only, that the property might be purchased in for the use of Foltz; that the design was to overreach and defeat Prouse's claim.

Petitioner further states that Foltz neglected the interests of said estate by not paying taxes, and that he purchased the lot at a tax sale, and attempted to acquire a tax title.

Prays that Foltz may be cited to appear and make a report of his doings, and that...