Chew v. Hyman

• Decision Date: 21 April 1881
• Parties: CHEW and others v. HYMAN and others.
• Court: U.S. District Court — Northern District of Illinois

7 F. 7

CHEW and others v. HYMAN and others.

United States Circuit Court, N.D. Illinois.

April 21, 1881

BLODGETT D.J.

By this bill the complainants seek to redeem the lands in question from a trust deed given as security for the payment of money. The material facts, as they appear in the record, are that on and before the sixteenth of February, 1859, one William F Johnston was seized in fee of the undivided half of section 21, town 39 north, range 13 east, situate in Cook county, in this state, and on that day made a deed of the premises in fee to John V. Lemoyne, in trust, to secure the payment of the bond of Johnston to Susan C. Williams, for $4,500, with power to the trustee, in case of default in the payment of the indebtness, to sell said premises at public vendue, after giving thirty days' notice of the time and place of such sale in the manner specifically provided in said deed, and out of the proceeds to pay said indebtedness and the cost of sale. On the twentieth of June, 1859, after the making and recording of said trust deed, Johnston sold and conveyed the premises to John A. Washington, subject to the trust deed, and by the terms of the conveyance Washington assumed and agreed to pay the indebtedness secured by said trust deed.

On the thirteenth day of September, 1861, John A. Washington died intestate, leaving, as surviving heirs, his children, Louisa F., Jane E., Eliza S., Anna M., Lawrence, Eleanor, and George, who, with the husbands of the married daughters, are the complainants in this case. By his last will and testament, bearing date on the fifteenth of August, 1861, John A. Washington, after bequeathing to his son Lawrence certain family heir-looms, mementos, books, and manuscripts, disposed of the residue of his property in the following terms: '(3) I give all of the property of which I may die possessed, other than that just mentioned, to be equally divided among my children as they respectively become 21 years old, and until then to be maintained and educated out of the proceeds arising from it. (4) I constitute and appoint my brother Richard B. Washington, and my friends William Fontaine Alexander and Edward C. Turner, executors of this my last will and testament, and I hereby empower them, or the survivors or survivor of them, to sell any property of which I may die possessed, and which is beyond the limits of Virginia, in such manner and on such terms and for such price as to them or him shall seem best for the interest of my children, and to re-invest the proceeds arising from such sale in such other property as they may think best for my children. ' The will was duly probated in Farquier county, Virginia, in November, 1861, and letters testamentary issued to Richard B. Washington as sole executor; Alexander having died and Turner having renounced all rights as executor under the will.

In December, 1861, Richard B. Washington, as executor of John A. Washington, gave to George H. Hughes two contracts in writing, by the terms of one of which Hughes was to conduct a suit then pending in the supreme court of the United States, in which said John A. Washington was appellant, and Mahlon D. Ogden was appellee, to a determination thereof, and to pay all costs and charges necessary to conduct said suit; and said executor agreed to pay Hughes, as compensation for his services rendered and to be rendered by him in the said suit, one-third of the proceeds of the sale of the real estate of John A. Washington lying in Cook county, Illinois, after payment of the encumbrance then on said land, or to give Hughes, in lieu of said proportion of proceeds, one-third part of said real estate which might remain after payment of the encumbrances,-- Hughes to pay all the expenses of employing counsel and conducting said suit; and in case of a determination thereof in favor of Ogden, he was to receive no compensation for his services rendered or to be rendered. By the terms of the other of these contracts, Hughes was to take charge of the half section now in controversy, and one other tract, and to sell so much thereof as was necessary to pay the encumbrances thereon, and advance the money required to pay the encumbrances and taxes, and was to receive for his services one-fourth of the proceeds after paying the encumbrances and expenses. The proof also shows that in the spring of 1862 the executor gave to Hughes a power of attorney to bring and defend any suits concerning the estate of John A. Washington in Cook county; also to negotiate and make sales of said property, or any part thereof, and apply the proceeds to the payment of any encumbrances or any other debts in Illinois, and to such other objects and ends as Hughes might deem best.

On the twelfth day of March, 1864, Susan C. Williams, the payee and holder of the bond secured by the deed of trust from Johnson to Lemoyne, filed upon the chancery side of this court her bill, setting out in substance that said bond had, by its terms, become due and payable on the sixteenth of February, 1864, and that the same remained wholly unpaid; that said John A. Washington had assumed the payment of said indebtedness, and had died, and that Richard B. Washington was his executor; that Mr. Lemoyne, as trustee, was unwilling to execute the trust without an order of court, and prayed that an accounting might be had of the amount due on the bond; and that Lemoyne, as trustee, be directed by the court to sell said premises in pursuance of the powers contained in the trust deed, and, out of the proceeds of the premises, to pay the complainant Mrs. Williams the amount found due her, and to bring the residue into court for the benefit of the parties entitled thereto. The only defendants to said bill were Richard B. Washington, the executor, and Mr. Lemoyne, the trustee. On the same day that the bill was filed, Mr. Lemoyne, the trustee, entered his appearance and filed his answer; and on the same day the appearance of Richard B. Washington was entered in said cause by Hughes as his attorney in fact, service of process waived, and his answer filed admitting the substantial allegations of the bill; and a decree was entered on the same day finding that there was due Mrs. Williams the sum of $4,500 principal and $262 for interest on the bond secured by the trust deed, declaring the same a lien on said premises, and directing said premises to be sold to pay said indebtedness, and that Lemoyne should proceed to execute the power vested in him as such trustee, and make sale of said premises without benefit of redemption.

The decree also found that it was necessary to sell the whole of said premises, the interest being an undivided one; that he should sell the same at public vendue, after first giving 30 days' notice in the Chicago Post, a newspaper then published in the city of Chicago, and make and deliver to the purchaser or purchasers a good and sufficient deed or deeds of conveyance in fee simple, and that he should pay to Mrs Williams the sum of $4,762, with interest at 6 per cent. from the date of the decree, and pay the balance of the proceeds into court, to be drawn out by Richard B. Washington, as executor of John A. Washington, and to make report to the court of his doings in that behalf for the approval of the court. In pursuance of this decree, Mr. Lemoyne, on the twenty-sixth day of April, 1864, offered the premises at public vendue, and the same was struck off and sold to the defendant Robert W. Hyman for the sum of $9,700, and the trustee made and delivered to the defendant Hyman a deed of all the right title, and interest, both at law and in equity, which said trustee had acquired in the said premises by said trust...