Borders v. Murphy

• Decision Date: 16 June 1888
• Citation: 18 N.E. 739,125 Ill. 577
• Parties: BORDERS v. MURPHY et al.
• Court: Illinois Supreme Court

125 Ill. 577

18 N.E. 739

BORDERS

v.MURPHY et al.¹

Supreme Court of Illinois.

June 16, 1888.

Error to circuit court, Randolph county; GEORGE W. WALL.Judge.

Bill by Ann E. Murphy, Jr., Margaret Murphy, and Catherine Murphy, minorheirs of William Murphy, deceased, by Ann E. Murphy, Sr., their guardian, against William R. Borders and James J. Borders, to set aside a sale of a tract of land formerly owned by the decedent to William R. Borders.Decree for plaintiffs, and defendantWilliam R. Borders brings error.

Koerner & Horner, for plaintiff in error.

H. Clay Horner, for defendants in error.

SCOTT, J.

The bill in this case was brought by the minor heirs of William Murphy, deceased, and was to set aside an executor's sale of real estate, which had belonged to the decedent at the time of his death.The sale was made under an order of court, to pay debts of the estate.The purchaser at the sale was William R. Borders, who is a son of the executor, James C. Borders, who made the sale.The amended bill also asks for an account of rents received by such purchaser, in favor of complainants.On the final hearing, the court found, from the evidence, that all of the allegations of the amended bill were true, and also found the amount of rents that had been received by defendantWilliam R. Borders since his alleged purchase, and rendered a decree setting aside the executor's sale, and directing defendantWilliam R. Borders to pay the rents by him received to complainants.Although James L. Borders, the executor, and William R. Borders, the purchaser, were made defendants, and a decree passed against both of them, only the latter has assigned error on the record.The sale made by the executor is assailed on the ground the relations between the executor and purchaser-being father and son-were such the latter could not rightfully become a purchaser, and on the further ground the purchase was in fact made in the interest of the executor making the sale.Conceding the facts to be as the court below, by its decree, found them to be, the executor's sale was very properly set aside.The lands described in the bill consisted of two tracts, containing, in all, about 160 acres; and at the sale the same were struck off to the purchaser for the sum of one dollar, subject to a mortgage thereon that had been made by decedent in his life-time to the executor and his former partner, John C. Boyle; but, at the time of the sale, the mortgage was held and controlled by the executor.Prior to the sale, the lands had been occupied by a tenant, from whom rents had become, of were about to become, due.Those rents the purchaser claimed the right to, and did collect.There is evidence that shows that, at the time he bid in the lands, the purchaser was a partner with his father, the executor, in the banking business.The purchaser was not present at the sale, but the executor was.A proposition, in writing, from William R. Borders was submitted, which the crier of the sale understood was a bid of one dollar for the whole lands, subject to the Borders & Boyle mortgage; and, after some considerable discussion in respect to the manner of making the sale, the lands were struck off to defendant Borders, on the terms...