Strong v. Strong

• Decision Date: 15 November 1888
• Citation: 126 Ill. 301,18 N.E. 665
• Parties: STRONG v. STRONG et al.
• Court: Illinois Supreme Court

126 Ill. 301

18 N.E. 665

STRONG

v.STRONG et al.

Supreme Court of Illinois.

November 15, 1888.

Appeal from appellate court, First district.

Millard & Smith, for appellant.

Comstock & Hess and Frank J. Crawford, for appellees.

This was a bill in chancery, brought by Emma A. Strong against William W. Strong, Philo Carpenter, and Amos J. Snell, for an accounting in relation to the moneys in the hands of Carpenter arising from the sale of certain lots of land by him to Snell, and for the payment out of said moneys of a certain claim in favor of the complainant. The bill was afterwards, on the complainant's motion, dismissed as to Snell. Defendant Strong was defaulted, and defendant Carpenter having answered, and a replication having been filed, a hearing was had on pleadings and proofs, resulting in a decree dismissing the bill, at the complainant's costs, for want of equity. Said decree was affirmed by the appellate court on appeal, and the record comes here on appeal from that court. The bill alleges, in substance, that on the 15th day of February, 1878, the complainant was the owner of the west 80 feet of lot 29, in McNeill's resubdivision, etc., in Chicago; defendant Strong, who is the complainant's brother, being at the same time the owner of the residue of lot 29 and all of lot 28, in said resubdivision; that said Strong represented to her that said Snell had offered to purchase the two lots, and pay $5,000 therefor, which purchase would be consummated within 60 or 90 days from that date; that he, said Strong, was then laboring under financial distress, which compelled him to sell his interest in said lots, and that he could not sell said lots unless he could purchase the complainant's part of lot 29; and that, if she would convey to him her part of that lot at that time, and before the sale to Snell was consummated, he could borrow money on said lots of Carpenter; that complainant had all her life been on intimate and confidential terms with her said brother, and had depended on him to transact all her business, and that she dealt with him, fully believing in his ability to perform whatever he should agree to do; that Strong was a son-in-law of Carpenter, and that they were on friendly terms, and acting together in business matters; that the complainant, being desirous of selling her part of lot 29, and knowing the friendly relations between Strong and Carpenter, and relying solely upon the representations and agreement of Strong to obtain for her the consideration for her lot, made and delivered to Strong a deed of said lot, such conveyancebeing solely in trust, and in consideration that, when sold, he would pay her $2,000, as follows, viz., $1,000 as soon as the sale to Snell should be made, and the remaining $1,000 to be secured on some good and sufficient security to be provided her by Strong. The bill further alleges that, February 28, 1878, and before the time fixed for the completion of the sale to Snell, Strong entered into an arrangement with Carpenter by which the latter agreed to loan him $4,000 upon his conveying said lots to Carpenter, said loan to be repaid as soon as the proposed sale to Snell should be effected; that in pursuance of said agreement Strong and wife conveyed said lots to Carpenter by warranty deed expressing a consideration of $5,000, but that said deed was intended and delivered as a mortgage; tnat Carpenter at the time knew that the complainant was the real owner of the west 80 feet of lot 29, and was informed of the purpose for which she had made said conveyance to Strong; that the consideration of $5,000, named in the deed, was never paid, but that Carpenter afterwards, in pursuance of his arrangement with Strong, advanced to Strong various sums of money amounting to $4,000; that by agreement between Strong and Carpenter the payment of said loan was subsequently extended until Carpenter should be required to pay his taxes for the year 1879; and that Strong thereupon, in consideration that the complainant would consent that the title of her lot should remain in Carpenter, agreed with her that, on sale of the lots by Carpenter, she should have in payment of her $2,000 and interest all the surplus remaining after the payment of the Carpenter loan; that about September 1, 1881, Carpenter and Strong consummated a sale of said lots to Snell for $7,500, of which $1,500 was paid in cash, and the residue was secured by Snell's notes and a deed of trust on the lots; and that Carpenter had received said sum of $7,500 in cash and securities for the lots. The bill prays for an accounting, and for a decree requiring Carpenter, out of the surplus in his hands, to pay the complainant the amount due her for said lots and interest. Carpenter's answer, among other things, denies all knowledge of any agreement between Strong and the complainant in relation to the west 80 feet of lot 29, or any arrangement between them in relation to the payment to the complainant of the consideration therefor. It also denies that the deed from Strong and wife to Carpenter was a mortgage, or the transaction getween Strong and Carpenter a loan, but alleges that said deed was, and was intended to be, an absolute and indefeasible conveyance of said lots, and that the transaction was an...