Brown v. Cunningham

• Decision Date: 15 January 1940
• Docket Number: Gen. No. 9201.
• Citation: 303 Ill.App. 307,25 N.E.2d 113
• Parties: BROWN v. CUNNINGHAM ET AL.
• Court: United States Appellate Court of Illinois

303 Ill.App. 307

25 N.E.2d 113

BROWN

v.CUNNINGHAM ET AL.

Gen. No. 9201.

Appellate Court of Illinois, Third District.

Jan. 15, 1940.

Appeal from Circuit Court, Vermilion County; Casper Platt, Judge.

Suit in equity by Artie A. Brown against Harry R. Cunningham and another to enforce an assignment of an expectancy. From a decree for defendants, plaintiff appeals.

Affirmed.

Couchman & Couchman, of Hoopeston, for appellant.

Dyer & Dyer, of Hoopeston, and Acton, Acton & Baldwin, of Danville (W. M. Acton and H. H. Acton, both of Danville, of counsel), for appellees.

HAYES, Justice.

This is a suit in equity to enforce an assignment of an expectancy, seeking to establish a lien against the inheritance of the assignor or to divest him of title in a certain tract of real estate inherited by him and to vest it in the plaintiff. The case was tried without a jury and only one witness, as most of the facts were stipulated and agreed upon.

Defendant Cunningham, who was the assignor, pleads the Statute of Limitations, a discharge in bankruptcy, and payment. Plaintiff denies that any payment was made and questions the legality of the two legal defenses.

After a trial, the Court rendered a decree against the plaintiff holding that the defense of a discharge in bankruptcy was a sufficient defense.

It appears from the record, that on December 15, 1913, the defendant Harry R. Cunningham was indebted to Samuel J. Brown for nine hundred sixty-three ($963) dollars, and executed a written assignment, under seal, to secure said debt, assigning all right, title and interest to the extent of $963, that he might have or be entitled to as heir, legatee, or devisee, in and to the estate of his Mother, Mary R. Cunningham, at her death, and acknowledged the same before a Notary Public. On November 22, 1915, the defendant was adjudged a bankrupt in the United States District Court for the Eastern District of Illinois and duly received his discharge, and said debt was scheduled in said bankruptcy proceedings among the liabilities.

It further appears that Samuel J. Brown died testate on October 27, 1917, and that under his will, all the personal property went to his wife Artie A. Brown, the plaintiff herein. The inventory in his estate, as filed in the Probate Court, did not list the assignment of Harry R. Cunningham, nor did it list any indebtedness due from Harry R. Cunningham to said estate of Samuel J. Brown, deceased, and said estate of Samuel J. Brown was closed on April 15, 1918.

Mary R. Cunningham, mother of Harry R. Cunningham, died testate on the 11th day of February, 1937, and in her will devised a certain tract of land to her son Harry R. Cunningham, the defendant.

On April 16, 1938, Artie A. Brown obtained an order from the Probate Court of Vermilion County, Illinois, to open the estate of Samuel J. Brown, deceased, and permit the filing of a supplementary inventory, listing for the first time the assignment of Harry R. Cunningham to Samuel J. Brown, being the assignment set up in the complaint in this case.

The rule in Illinois is that an expectancy of an inheritance may be assigned for a good consideration and that equity will enforce the assignment on the theory of specifically performing the contract to convey the inheritance when it vests upon the death of the ancestor. Donough et al. v. Garland, 269 Ill. 565, 109 N.E. 1015, Ann.Cas.1916E, 1238,Hudnall v. Ham, 183 Ill. 486, 56 N.E. 172,48 L.R.A. 557,75 Am.St.Rep. 124.

Plaintiff contends that a discharge in bankruptcy of one who has assigned his expectancy in an estate to secure a loan does not destroy the lien which equity imposes upon the property, although the legal obligation to pay the debt is terminated, and cites Mallin v. Wenham, 209 Ill. 252, 70 N.E. 564,65 L.R.A. 602,101 Am.St.Rep. 233;Dumont, Roberts & Co. v. McDougal, 200 Ill.App. 583; and Bridge v. Kedon, 163 Cal. 493, 126 P. 149, 43 L.R.A.,N.S., 404.

Mallin v. Wenham, supra, was expressly overruled by the Supreme Court of the United States in the case of Local Loan Company v. Hunt, 292 U.S. 234, 54 S.Ct. 695, 78 L.Ed. 1230, 93 A.L.R. 195. The Supreme Court of Illinois in the Mallin case held that the assignment of wages earned in the present employment was not barred by a discharge in bankruptcy. Following the reasoning of that case, the Appellate Court of this State in Dumont, Roberts & Co. v. McDougal, supra, applied the same rule to an assignment of an expectancy of an heir. Section Eight of Article One of the Constitution of the United States, U.S.C.A., delegates to Congress the power to establish uniform laws on the subject of bankruptcy throughout the United States.

Our Supreme Court said in the case of Rothschild & Co. v. Steger & Sons Piano Mfg. Co., 256 Ill. 196, 205, 99 N.E. 920, 923, 42 L.R.A.,N.S., 793, Ann.Cas.1913E, 276: “The Constitution of the United States, the laws of Congress made in pursuance thereof, and treaties made under the authority of the United States, are, by paragraph 2 of article 6 of the Constitution of the United States, made the ‘supreme law of the land,’ and are binding upon all the courts of all the states, anything to the contrary in the Constitution or laws of a state notwithstanding. It follows necessarily from this constitutional provision that, where a suit in the state court involves a question arising under the Constitution, laws, or treaties of the United States, or, in other words, what is commonly called a ‘federal question,’ a decision of the United States Supreme Court upon the point at issue is to be regarded as absolutely binding and authoritative, and in such case, if the Supreme Court of a state should entertain a different view, it will follow the federal Supreme Court, reversing and overruling, if necessary, its own previous decisions to the contrary.”

Section 67, sub. d, of the Bankruptcy Act provides: “Liens given or accepted in good faith and not in contemplation of or in fraud upon this Act [the provisions of this title], and for a present consideration, which have been recorded according to law, if record thereof was necessary in order to impart notice, shall, to the extent of such present consideration only, not be affected by this Act [anything herein].” U.S.C. title 11, section 107 (d), 11 U.S.C.A. § 107, sub. d.

In the Hunt case [292 U.S. 234, 54 S.Ct. 698, 78 L.Ed. 1230, 93 A.L.R. 195], the United States Supreme Court cites with approval In re West, D.C., 128 F. 205, 11 Am.Bankr.Rep. 782: “The discharge in bankruptcy operated to discharge these obligations as of the date of the adjudication, so that the obligations were discharged before the wages intended as...