Bacheller v. Bacheller

• Decision Date: 19 January 1893
• Citation: 33 N.E. 24,144 Ill. 471
• Parties: BACHELLER et al. v. BACHELLER.
• Court: Illinois Supreme Court

144 Ill. 471

33 N.E. 24

BACHELLER et al.

v.BACHELLER.¹

Supreme Court of Illinois.

Jan. 19, 1893.

Appeal from circuit court, La Salle county; Dorrence Dibell, Judge.

Bill by Noah S. Bacheller against Charles W. and Annie Bacheller for specific performance of a contract. Complainant obtained a decree. Defendants appeal. Affirmed.Reeves & Boys, for appellants.

Snyder & Stead, for appellee.

The other facts fully appear in the following statement by SCHOLFIELD, J.:

This was a bill by Noah S. Bacheller against Charles W. and Annie Bacheller for the specific performance of the following contract: ‘We, Charles W. Bacheller and Annie Bacheller, his wife, of the county of Yankton, in the territory of Dakota, in consideration of the sum of one thousand dollars, to us in hand paid by Noah S. Bacheller, of the county of La Salle and state of Illinois, do hereby agree and bind ourselves to execute, acknowledge, and deliver unto the said Noah S. Bacheller, within reasonable time after the death of Wesley Bacheller, father of the said Charles W. Bacheller and Noah S. Bacheller, our quitclaim deed of all the right, title, and interest which I, the said Charles W. Bacheller, may or shall have in the real estate of the said Wesley Bacheller at the time of his decease; having received from the said Noah S. Bacheller full payment for all of the real estate which we apprehend we shall become entitied to out of the estate of the said Wesley Bacheller upon his decease. We do hereby agree to execute such deeds or writings, after his decease, as will perfect in the said Noah S. Bacheller our title in said real estate. Witness our hands and seals this fifth day of July, A. D. 1879. [Signed] Charles W. Bacheller. [Seal.] Annie Bacheller. [Seal.]’ In the presence of C. J. B. Harris, T. P. Redaelli.' Appended was a certificate of acknowledgment, in due form of law. The bill shows that Wesley Bacheller, father of Noah and Charles, made his last will and testament, in and by which he devised to Charles and another brother a certain tract of land, which is described, and afterwards died, whereby Charles became seised in fee of the undivided half of that tract; and it charges that Noah had paid Charles therefor $1,000. Answer was filed, denying that Noah had paid Charles $1,000 for the land, and setting up these facts: That in the year 1872 Charles W. Bacheller became indebted to Noah S. Bacheller in the sum of $2,047, or thereabouts, which was evidenced by two promissory notes,-the first dated February 21, 1872, for $1,687, which was executed by Charles W. and Annie Bacheller, and payable to complainant on or about the 15th day of March, 1873; the second note bearing date October 12, A. D. 1872, for $360, payable twelve months after date, and executed by Charles W. Bacheller. That on or about the 11th day of April, A. D. 1879, these defendants made settlement with said Noah S. Bacheller of all indebtedness, in the manner following: That complainant and defendant computed the interest, and agreed that the total indebtedness, principal and interest, was a little less than $3,200; that the defendant Charles W. Bacheller and wife deeded to complainant 320 acres of land situated in the county of Yankton, in what was then the territory of Dakota, but now state of South Dakota, at the agreed value of $10 per acre, or $3,200, in full settlement and payment of said indebtedness, and complainant surrendered to defendant the said two promissory notes. (Copy of deed annexed, marked ‘Exhibit A.’) Answer further says defendants believed said lands would rapidly increase in value, and soon become worth much more than said indebtedness, and so made known their belief in that regard to complainant, whereupon it was further agreed between complainant and defendant that all complainant wanted was full payment of said indebtedness, and that in the event of said lands becoming more valuable, so that they were of more value and worth than the said debt so owing by defendant to complainant, including interest at the rate of 7 per cent., that then, and in that case, whatever balance there might be made from the sale of said lands, after paying said indebtedness, should, by the said Noah S. Bacheller, be returned to defendant Charles W. Bacheller, and that at said time said complainant professed to believe that said lands might not increase in value, and that said Noah S. Bacheller might not receive from the same the full payment of said indebtedness, with interest at 7 per cent. per annum, and in that connection represented to defendant that the interest of defendant Charles W. Bacheller in the estate of his father, Wesley Bacheller, on account of certain reasons then and there alleged by said complainant, would be very small, if anything; and the said complainant asked and requested of these defendants that they would give him, the said Noah S. Bacheller, as further security for said indebtedness, and for any loss that might be sustained by him because of the failure of said land, so conveyed to him, to increase in value from year to year, such interest as this defendant, Charles W. Bacheller, might have in the estate of his father, the said Wesley Bacheller,-this, in further security for any loss that complainant might so sustain. And accordingly it was agreed between complainant and these defendants that some instrument, which, in effect, would be a mortgage lien upon such interest as the defendant Charles W. Bacheller might have in the estate of his father, should be executed, as such security, for any possible loss which might accrue to the said Noah S. Bacheller in the way above recited; and accordingly, in order to secure said Noah S. Bacheller against any possible loss that might arise in the manner above stated, the agreement, as before recited, was executed. The answer further states that said agreement was intended and designed by these defendants and by the complainant to be held only as having the force and effect of a mortgage lien upon such interest as the defendant Charles W. Bacheller might have in the estate of his father, to secure any possible loss that might accrue to complainant on account of a failure of said land conveyed to complainant to rise in value as fast as the interest on said indebtedness might accumulate, as above stated. Denies any other consideration, of any kind or character, for said contract. Charges that said lands so conveyed to complainant have largely increased in value, and that they are worth to-day $25 per acre, and will sell for that amount on the market; that their real value to-day is about $8,000, which far exceeds said indebtedness, and interest thereon to date; that said complainant has, therefore, suffered no loss, but has received much more than his just and fair due for and on account of said loan; that no contingent loss has occurred; and that, therefore, said contract is without any consideration whatever. The defendants, Charles W. and Annie Bacheller, also filed a cross bill setting up the same facts alleged in their answer, and praying for an account, and that the contract be canceled as a cloud upon their title.

SCHOLFIELD, J., (after stating the facts.)

The burden was upon appellants to prove that this agreement was in fact a security for a subsisting indebtedness. It is not enough that the proof shall merely show a parol agreement to reconvey. There must be a continuing, valid, indebtedness secured by it, which may be enforced forced by appellee in an action at law, or it is not a mortgage, whatever else it may be. Fisher v. Green, 31 N. E. Rep. 172, (not yet officially reported;) Freer v. Lake, 115 Ill. 662, 4 N. E. Rep. 512; Sutphen v. Cushman, 35 Ill. 186; 3 Pom. Eq. Jur. (2d Ed.) § 1195, note 1.

The agreement here recites that Charles W. and Annie Bacheller have been paid by Noah S. Bacheller $1,000, in consideration whereof they undertake to make the conveyance; and it again recites that ‘having received from Noah S. Bacheller full payment for all of the real estate which Charles W. and Annie apprehend they shall become entitled to out of the estate of the said Wesley W. Bacheller upon his decease,’ they do thereby agree to execute deed, etc. Noah S. Bacheller's testimony is in conformity with this recital. He shows a previous indebtedness, which, as will hereafter be seen, is admitted by Charles W., who made conveyance of certain lands in Dakota, and executed this agreement in payment and satisfaction of that indebtedness. Charles W., in his testimony, disagrees with this testimony only in saying that the agreement was not made in satisfaction of any part of the indebtedness. He says the indebtedness was paid, and its evidence surrendered to him, and a mortgage, securing the major part of it, canceled of record, before this agreement was made, and that this agreement was subsequently made to protect Noah S. against loss on account of what he had accepted in payment of the indebtedness, namely, certain lands in Dakota. He testified:...