Boone v. Clark

• Decision Date: 17 June 1889
• Citation: Boone v. Clark, 129 Ill. 466, 21 N.E. 850 (Ill. 1889)
• Parties: BOONE et al. v. CLARK et al.
• Court: Illinois Supreme Court

129 Ill. 466

21 N.E. 850

BOONE et al.

v.CLARK et al.

Supreme Court of Illinois.

June 17, 1889.

Appeal from and error to appellate court, First district.

Edward Roby, David M. Hillis, and William C. Goudy, for appellants.

Wm. A. Montgomery, for Clark et al., appellees.

C. C. Clarke, for Baltimore, Ohio & Chicago Railroad Company.

Pliny B. Smith, for Lake Shore & Michigan Southern Railway Company.

SHOPE, C. J.

Appellees exhibited their bill in equity in the circuit court of Cook county against appellants and others, for the foreclosure of a trust-deed given to secure the payment of $90,000 and interest, major part of the purchase price of the 406 acres of land lying in sections 8 and 17, town 37 N., of range 15 E., of the third principal meridian, in Cook county. Appellees and Henry F. Clark, being the owners of these lands, sold and conveyed them to William H. Colehour, and the trust-deed referred to was executed by the purchaser to Voluntine C. Turner, trustee, and duly recorded August 1, 1871. Subsequently William H. Colehour platted a portion of the lands in section 8, as the Iron-Worker's addition to South Chicago, and recorded the same December 9, 1873. The 46 blocks shown by the plat were subdivided into nearly 2,000 lots; and, prior to the filing of the bill of appellees, Colehour had sold and conveyed a large number of these lots, and as to certain of the lots so sold the trustee, Turner, and Henry F. Clark, under a power given them in the trust-deed, had executed releases. Colehour, also, conveyed to Levi D. Boone other portions of the lands lying in section 17, in trust, with power of sale, to secure the payment of a note for $15,066.47, given by William H. Colehour to William Hansbrough, and the taxes and assessments upon the premises conveyed, and the same was recorded October 20, 1873. Hansbrough assigned this note to Boone, who died intestate before the filing of the original bill. Appellant Julia N. Brewster purchased block 37 in the addition platted by Colehour, took a deed therefor from Colehour, which was recorded December 24, 1873. Dayton S. Morgan and his co-appellants are, some of them, purchasers of lots in the platted addition, holding deeds of conveyance from Colehour therefor; others are holders of lot purchaser's notes, assigned to them by Colehour, secured by mortgages upon the lots sold, while others are judgment creditors of Colehour; and appellant Edward Roby claims as owner of an undivided one-fourth interest, as tenant in common in equity with William H. and Charles W. Colehour, in all the unreleased portion of the lands purchased by William H. Colehour of appellees. Appellants, along with a large number of lot purchasers, answered the original bill, and Louisa M. Boone and her co-appellants and Julia N. Brewster filed cross-bills. To the Brewster cross-bill appellees demurred, which the court sustained, and the bill was dismissed. The cause was heard on the original bill, the Boone cross-bill, answers, replications, exhibits, report of the master, and proofs. The equities were found with complainants, (appellees,) exceptions to the master's report overruled in the main, the Boone cross-bill dismissed, and the amount due complainants fixed at $145,076.82, and decree therefore, with order of sale of the unreleased portion of the premises in a fixed order. The parties by their several pleadings, appeals, and assignments of error are grouped as follows: William H. and Charles W. Colehour, whose principal contention is that the decree is for too great a sum; Louisa M. Boone and Samuel S. Boone, administrators of Levi D. Boone, deceased, and Daniel L. Boone, Samuel S. Boone, Clara B. Hansbrough, Louisa M. Adams, Lucy A. Carpenter, and Mary J. Cross, heirs at law of Levi D. Boone, who insist that there was error in dismissing their cross-bill, and also in requiring the sale of the lands on which they had a junior mortgage lien before other lands of the mortgagor or which he had sold, and that the original bill ought to have been dismissed as to their lands; Julia N. Brewster, insisting there was error in sustaining the demurrer to her cross-bill and dismissing the same, and that the original bill should have been dismissed as to block 37; Dayton S. Morgan, Violet Gray, Frank W. Harding, Joseph Pollak, Lelia P. Roby, and Elizabeth G. Stannard, who insist the decree is for too much, that the assets were not marshaled according to priorities, and particularly that the boundaries of the Lake Shore & Michigan Southern Railway lands were not fixed, and so much as lay outside of its 100 feet, as also the lands occupied by the Baltimore, Ohio & Chicago Railroad, were not required to be sold before those in which they were interested; and Edward Roby, insisting there was error in not decreeing one-fourth of the unreleased premises to him free of incumbrance, and the residue of the lands, only, sold to satisfy complainants. The decree of the circuit court was affirmed by the appellate court for the First district.

The errors assigned have necessitated the examination of this very voluminous record, and the careful consideration of the elaborate briefs and arguments of counsel, and no discussion is required to determine that the relation of William H. Colehour and appellees is that of principal debtor and creditors; and it is equally apparent that appellees are entitled to have decreed to them such sum as remains unpaid upon the $90,000 indebtedness created and assumed by William H. Colehour at the time his trust-deed to Turner took effect, together with the proper advances made to preserve the mortgaged estate, and to subject the lands embraced therein to sale for its payment, unless, through the action of the mortgagor and mortgagees, (appellees,) the whole or some part of those lands have been taken out of the operation of that instrument. In order to determine the amount of such original mortgage indebtedness remaining unpaid, and of the advances for the preservation of the estate, the parties, mortgagor and mortgagees, with subsequent purchasers and incumbrancers, were called upon, and the transactions in which they severally participated thoroughly inquired into and probed, until apparently the chancellor was in possession of all the material facts accessible. But it is to be observed that death and casualty were not without their influence in placing beyond reach evidence of facts of great materiality; and there is here present a condition, by no means unusual, of grave doubt and uncertainty, and of sharp conflict, if not of flat contradiction; and when this condition is met, as it only can be met, by a resort to common observation, experience, and knowledge of human nature, and a conclusion has been reached by the judicial mind, all has been accomplished that can be accomplished under the law. Here were many transactions, covering a period of nearly 10 years,-transactions between a great number of persons, and under circumstances most variant,-and while many of the persons were present, and could and did speak, and many book-entries, written memoranda, and papers were brought forward, some of the most prominent actors were no longer living, and some of the books and written evidence known to have once existed could not be produced. But, more than this, the effects produced by the infirmity of age, and the liability of the human memory to play false in respect to events long past and details requiring exactness, are considerations not to be wholly disregarded. So that, looking at the whole case in all its parts, as we have and must, and having regard to the strength and bias as well as the weakness of human nature, accepting here and rejecting there as seems most probable and true, we are not prepared to say that the chancellor erred in his finding as to the amount of the original indebtedness, and the advances and disbursements to preserve the mortgaged estate due appellees and remaining unpaid.

It must be observed, however, that it is insisted on the part of appellants that some arrangement was made in the fall of [129 Ill. 478]1873 between the Colehours and Henry F. Clark, acting for himself and his brother and sisters, appellees, by which certain of the proceeds derived from the sale of the land and lots was to be applied upon this indebtedness to the Clarks, and other portions of such proceeds were to be used by the Colehours in improving the property and putting it upon the market. It is impossible, in any reasonable limit, to review the evidence and arguments based upon this contention, or of the subsequent transactions alleged to have grown out of such agreement; and we are compelled to content ourselves with saying that, upon consideration of the whole case, we are not prepared to say that the chancellor has erred in respect of the items entering into the account, and going to make up the claim under the original Turner trust-deed. It is, however, claimed that there were certain charges against, or sums that should have been credited upon, the amount secured by said trust-deed, and which were rejected by the master and the chancellor, that would seem to demand further consideration.

It is evident from the record that the Clarks executed, or thought they were executing, releases to property sold by Colehour in excess of amounts paid thereon; and it also appears that sundry notes, evidences of indebtedness, and stocks were placed or came into the hands of Gen. Clark which, upon one hand, it is contended should have been credited upon such indebtedness, while upon the other hand it is urged that they were placed there simply as collateral to the principal debt, and were subsequently returned to Colehour. One of these items was $50,000, at face value of the capital stock of the Nes Cilicon Steel Company, received by Gen. Clark from the Colehours, and which by the receipt given therefor at the time, November, 1873, was ‘deposited with me [H. F. Clark] as further...