Cassem v. Heustis

• Decision Date: 18 February 1903
• Parties: CASSEM v. HEUSTIS.
• Court: Illinois Supreme Court

201 Ill. 208

66 N.E. 283

CASSEM

v.HEUSTIS.

Supreme Court of Illinois.

Feb. 18, 1903.

Appeal from circuit court, Kendall county; Geo. W. Brown, Judge.

Suit by Caroline Heustis against R. Cassem. From a decree for complainant defendant appeals. Affirmed.Albert J. Hopkins, Fred A. Dolph, Robert Bruce, Scott, and David J. Peffers, for appellant.

Geo. M. Hollenback and Chas. Wheaton, for appellee.

This is a bill filed by appellee in the circuit court of Kendall county on September 17, 1894, against the appellant, for an accounting in regard to certain besiness transactions between them, and to compel appellant to execute to appellee a quitclaim deed of her one-fifth interest in a tract of 138.10 acres of land in that county, subject to the life estate therein of appellee's mother, Sarah Ann Boyd, and also to compel appellant to execute to her a quitclaim deed of a certain other tract of land, containing 4.64 acres. The bill alleges that appellee on February 5, 1885, being then the owner of said interest in said tract of 138.10 acres of land subject to said life estate, executed a quitclaim deed conveying the same to appellant, for the purpose of securing the payment of a note executed by appellee to appellant, and that upon the same day appellant and appellee executed a bond in writing, by the terms of which appellant agreed to convey back to appellee her interest in said tract of land upon the payment by her of said note when the same should be due by the terms thereof. The appellee alleged in her bill, in substance, that she had performed the conditions named in the bond, and was therefore entitled to a quitclaim deed of her share in the premises mentioned.

Appellant on October 24, 1894, filed an answer denying the allegations of the bill and that appellee was entitled to the relief prayed for. In his said answer, appellant claimed to be the absolute owner of the premises in question. Replication was filed to the answer, and appellant then filed a cross-bill setting up substantially that, by an arrangement between himself and appellee, the quitclaim deed executed to him by her on February 5, 1885, was to be held by him, and that he was thereafter to remain the owner of said premises, in satisfaction of the indebtedness existing from appellee to him. The cross-bill thereupon prays that the written contract or bond for a deed executed by him on the same day should be taken up and canceled and destroyed. The prayer of the cross-bill was that, on a final hearing, appellee might be decreed to deliver up and have canceled said bond for a deed. An answer was filed on December 19, 1894, by appellee, to the cross-bill, denying its allegations. On March 14, 1895, appellee filed an amendment to her answer to the cross-bill, setting up the statute of frauds as a defense to that portion of the cross-bill, which alleged that, by an oral agreement, appellant was to keep the land deeded to him as a payment and satisfaction of the indebtedness due to him.

On February 24, 1896, the appellee filed an amendment to the original bill, setting up the recovery against her of a judgment by one Franklin M. Hobbs, and the issuance of execution thereon, and the levy of said execution upon her interest in said 138.10 acres, and a sale of the same under said execution by the sheriff to one William H. Hopkins, and the issuance of a certificate of purchase to Hopkins. The amendment also sets up the connection of the appellant with the recovery of said judgment, and the sale thereunder, and charges that therein she was defrauded by the appellant, and had no knowledge of his fraudulent connection with said Hobbs' judgment until after she had executed said deed of February 5, 1885. By said amendment, appellee also set up the facts in regard to an alleged accounting which took place between herself and appellant on December 26 and 27, 1887, and, in connection therewith, alleged that she had paid in full all her indebtedness to the appellant. On November 6, 1895, and again on February 24, 1896, appellant filed answers to the amendment, denying the allegations thereof. On April 10, 1899, appellant filed a further amendment to his answer, charging that appellee had been guilty of laches in not sooner beginning her suit. On April 3, 1899, appellant filed an amendment to his original answer, setting up, among other things, that one Lester Kennedy in June, 1885, had recovered a judgment before a justice of the peace against appellee, and that, upon an appeal from said judgment to the circuit court, appellant had signed an appeal bond for appellee, and that on January 26, 1885, appellee agreed that she would not require appellant to convey back to her the property mentioned in said bond for a deed, dated February 5, 1885, until he had been fully indemnified on account of his liability upon said bond, and that he should hold the property as security until he was relieved of said liability. In the amendment to his original answer so filed on April 3, 1899, the appellant avers that he has never been released from his obligation on said appeal bond, and that the conveyance so made to him of said property is the only security he holds for the purpose of such indemnity; and thereupon appellant asserts in said amendment that the appellee had no right to file or maintain her bill, because of said existing liability upon said appeal bond. In other words, the claim is made by appellant in his said amendment that the suit of appellee had been prematurely brought, by reason of the continued existence of such liability upon the appeal bond. Testimony was taken, and on April 7, 1902, the circuit court of Kendall county rendered a final decree granting the prayer of the bill, so far as the tract of 138.10 acres was concerned, but refused relief to appellee so far as the tract of 4.64 acres was concerned. The decree found that on February 5, 1885, the appellee, Caroline Heustis, was the owner of a one-fifth share, in expectancyor remainder, in said tract of 138.10 acres; that on February 5, 1885, she executed to appellant a quitclaim deed of said premises to secure $130, and appellant executed and delivered to her a writing obligatory for the reconveyance of said premises to her upon the payment by her to him of said sum of $130 within one year from the date thereof, with interest at 8 per cent. per annum, as evidenced by a promissory note of that date signed by appellee and her husband, James C. Heustis, for the sum of $130; that on or about February 25, 1885, the note of $130 was given up by appellant to appellee, and a new note for $253 was executed by appellee and her husband to the appellant, dated February 5, 1885, and at the same time the bond for a deed was changed, with the consent of appellee, from $130 to $253, so as to read that appellant would reconvey the premises to appellee upon the payment by her to him of $253 within one year from February 5, 1885, with interest at 8 per cent. per annum; that said deed, though absolute on its face, was in fact a mortgage to secure the note for $253, and that appellee had an equity of redemption; that on January 26, 1886, there was executed between appellee and appellant a writing providing that appellee should save and keep harmless appellant from signing an appeal bond for $200 in the case of Lester Kennedy against Caroline A. Heustis, and therein appellee agreed that she would not require appellant to convey the property described in the bond for a deed of February 5, 1885, until he had been fully indemnified from said bond, and that he should hold said property as his security; that, before the filing of the original bill in this case, appellee had fully paid to appellant the amount of the note for $253, for which the quitclaim deed was given as security, and that said note was then by appellant delivered up to appellee as fully paid and satisfied; that, at the time of the filing of the bill herein, appellee had not paid the Lester Kennedy judgment, and at that time had not saved the appellant harmless for signing said appeal bond, but that since the filing of the bill herein, and on October 12, 1898, appellee fully paid and satisfied the Lester Kennedy judgment, and thus saved appellant harmless for the signing of said bond; that appellee has fully paid and satisfied appellant for all that said quitclaim deed was given to him by her to secure, and that appellee is entitled to redeem said tract of 138.10 acres from the mortgage and the lien thereof; and that appellee is entitled to a reconveyance from appellant of the 138.10 acres in question; and it was thereupon ordered and decreed that appellant, within 10 days from the entry of the decree, should execute and deliver a deed conveying to appellee all his right, title, and interest in said 138.10 acres, and, on his failure to do so, that the master should execute such deed. The decree further found that appellee was not entitled to a conveyance of the tract containing 4.64 acres, and the legal title of said last-described tract was declared to be in the appellant, in fee simple; and it was ordered and decreed that the appellee pay the legal costs of the suit. From the decree so entered by the circuit court, the present appeal is prosecuted.

MAGRUDER, C. J. (after stating the facts).

The appellant is an attorney at law, and, during the transactions here involved, the relation of attorney and client, as well as the relation of creditor and debtor, existed between him and appellee. Appellee began to consult him as a lawyer in her business affairs as early as 1882, and the relations thus indicated existed between them from that time until the last of December, 1887. While the relation of attorney and client existed between appellant and appellee, and while the relation of creditor and debtor existed between them, they met, on February 5, 1885; and, as we understand the evidence, the meeting took place at appellant's office, in Yorkville, Kendall...