Charles H. Boyden v. Reed

• Decision Date: 30 September 1870
• Parties: CHARLES H. BOYDEN, Executor, et al.v.JOHN G. REED.
• Court: Illinois Supreme Court

55 Ill. 458

1870 WL 6453 (Ill.)

CHARLES H. BOYDEN, Executor, et al.

v.JOHN G. REED.

Supreme Court of Illinois.

September Term, 1870.

APPEAL from the Circuit Court of Putnam county; the Hon. S. L. RICHMOND, Judge, presiding.

This was a proceeding in chancery, commenced in the circuit court of Bureau county, to set aside a decree rendered in that court, in 1855, on the ground that the decree was obtained by fraud, and taken by change of venue to Putnam county. The opinion contains a sufficient statement of the case. Mr. MILTON T. PETERS and Messrs. ECKLES & KYLE, for the appellants.

Messrs. GRANT & SMITH and Messrs. GIBBON & STIFF, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

The bill in this case may properly be said to possess a two-fold nature. The appellee insists, that it is purely an original bill to impeach a former decree on the ground of fraud, and the appellants insist, that it is a bill in the nature of a bill of review, on the ground of newly discovered evidence. Some of the elements common to both classes of bills may be found combined in the present one.

A bill of review may be brought upon the discovery of new matter, but it must be relevant and material, and such as, if known, would probably have produced a different determination from that reached in the former decree sought to be impeached. It must generally be new matter, to prove what was before in issue, and not to prove a title not before in issue--that is, not to make a new case, but to establish the old one. Story's Eq. Pl. sec. 413, and notes.

Another qualification of the rule is, that the matter must not only be new, but it must be such that the party, by the use of reasonable diligence, could not have known of it before the former hearing, so as to have produced it at that time, for if there be any laches or negligence, it will bar any relief.

If a decree has been obtained by fraud, it may be impeached by original bill, and where a decree has been so obtained, the court will restore the parties to their former rights, whatever they may be. Mitford Pl. 93.

A bill to set aside a decree for fraud, must state the decree, and the proceedings which led to it, with the circumstances of fraud, in detail, on which it is sought to be impeached. Adams' Eq. 420. From these definitions it will be seen, that a bill of review, on the ground of new matter discovered after the former decree was enrolled, and a bill of review in the nature of an original bill, to impeach a decree on the ground of fraud, are very nearly allied in their nature, and it does not seem to be an objection to the bill, that it partakes of the nature of both classes of bills. In the present discussion it may be necessary to apply some of the principles applicable to each class, to the case now under consideration.

On the third day of July, 1868, the appellee filed in the Bureau circuit court, his bill in chancery, to impeach for fraud a decree rendered in favor of Edward D. Kemp, the ancestor of the appellants, and against the appellee, on the seventh day of April, 1855, by the Bureau circuit court, which decree was afterwards, on appeal, affirmed by this court.

The bill alleges, that the appellee was the owner of the land in question; that he was indebted to the said Kemp, in his lifetime, in the sum of sixty-five dollars for borrowed money, and that, to secure the payment thereof, he executed and delivered to Kemp the agreement, claimed by the complainant in the original suit, to be an agreement for the sale of the land, and that said agreement was executed simply as security for the said sum of money, and for no other purpose. The bill then recites the proceedings had in the former suit, by which the then complainant obtained a decree for the specific performance of the contract in his favor, on the ground, that it was an agreement for the sale of the land, and not a security for any sum of money due him from Reed, and then charges that said decree of said court was obtained by Kemp, and the court was procured and caused to make said decree by and through and by reason of the deceit, fraud, covin and misrepresentations of Kemp, the then complainant, by the perjury and false swearing of witnesses suborned, bribed and procured to bear false witness against the appellee, the then defendant, by the said Kemp, in this, to-wit: The said Kemp wilfully, knowingly and falsely alleged, in his said bill to said court, that said writing was an absolute agreement on the part of appellee to convey said land to him in fee simple, well knowing that, in truth and in fact, said writing was, and was intended to be by appellee at the time he signed it, and professed to be by said Kemp, merely and only a security for the payment by appellee to said Kemp of the said money lent as aforesaid by said Kemp to appellee; and in this, to-wit: that said Kemp suborned and procured John Shank to swear as a witness in said cause, and to depose and testify wilfully, knowingly and falsely, and sets out at length the testimony of the said Shank, alleged to be false.

The bill further charges, that although appellee well knew at the time of the commencement of said suit, and the taking of said testimony, of the fraud and perjury, and although he has ever since been anxious in endeavoring to prove the same, yet not until the last term of the court has he had, or been able to get, any information or knowledge of any means of proving the frauds and perjuries, and that he now believes and charges that he can, by competent and satisfactory evidence, clearly prove the alleged frauds and perjuries.

The appellee afterwards filed an amended bill, in which he set forth more specifically the efforts which he had made to discover testimony by which to impeach the said decree, and charges that he can prove, that the said Edward D. Kemp, deceased, admitted that the said contract in writing was merely a security for the payment of the sum of sixty-five dollars, and that he had procured the said John and Parmelia Shank to testify falsely, as hereinbefore alleged; and that he can prove that the said John Shank admitted, that he and his said wife, Parmelia, had testified falsely at the request of said Edward D. Kemp. and upon the promise of said Edward D. Kemp that he would give the said Shank a yoke of oxen therefor, and that the said Kemp had afterwards refused to give him the oxen, and that he would have prosecuted Kemp, if he had not been also liable to punishment. The prayer of the bill is, that the former decree, vesting the title of the land in the said Kemp, be set aside; that an account of the rents and profits be taken, and for general relief in the premises.

This bill was not filed, as the record shows, for some thirteen years after the original decree, which it seeks to impeach, was rendered, and not until some five years after the death of Edward D. Kemp, the original complainant, and not until after the death of John Shank, whose testimony is alleged to be false, and whose testimony is alleged to have been procured by subornation of perjury.

The evidence on which the original decree was rendered, is embodied in the present record. The sufficiency of that evidence to support the decree then rendered, has been passed upon by this...