Clay v. Hammond

• Decision Date: 25 October 1902
• Citation: 65 N.E. 352,199 Ill. 370
• Parties: CLAY et al. v. HAMMOND.
• Court: Illinois Supreme Court

199 Ill. 370

65 N.E. 352

CLAY et al.

v.HAMMOND. ^*

Supreme Court of Illinois.

Oct. 25, 1902.

Appeal from superior court, Cook county; Jesse Holdom, Judge.

Suit by Herbert Hammond against John Clay, Jr., and others. From a decree for plaintiff, certain defendants appeal. Modified.Swift, Campbell & Jones, for appellants.

Hiram T. Gilbert, for appellee.

This is a bill filed in the superior court of Cook county on December 14, 1901, by the appellee, Herbert Hammond, against John Clay, Jr. (one of the appellants), and his wife, Euphemia F. Clay, William H. Forrest, Frank H. Connor and his wife, Evelyn B. Connor, Thomas Donohue, and the appellant John Parry; Parry and Donohue being tenants occupying the premises under John Clay, Jr. The bill alleged that appellee was the owner in fee simple of a certain lot, known as 3946 Lake avenue, in Chicago, and acquired title thereto under a warranty deed dated June 18, 1901, and recorded in the recorder's office of Cook county on June 19, 1901, executed to him by said William H. Forrest; that Forrest acquired title to the lot in 1892, and continued to be the owner thereof until he sold the same to appellee. The bill charges that the power of attorney and deeds hereinafter mentioned, under which the appellant Clay claims to hold the premises in question, were null and void, as having been obtained from Forrest while the latter was insane. The bill prayed that the power of attorney and deeds hereinafter mentioned might be decreed to be fraudulent and null and void, and delivered up and canceled, and that appellee might be decreed to be the owner of the premises in question, free from any claim of the defendants below, and entitled to the rents thereof from June 18, 1901, and to be let into possession thereof, and for other relief. A joint and several answer was filed by the defendants below, admitting the ownership of the premises by Forrest prior to 1898, but denying that appellee was the owner thereof. The answer set up that on September 13, 1897, Forrest executed to the appellant John Clay, Jr., a power of attorney; that, acting under this power of attorney, appellant Clay executed on March 18, 1898, a deed of that date of the premises to said Frank H. Connor, which deed was recorded on March 30, 1898; that Connor and wife conveyed said real estate to Clay on April 11, 1898, by deed of that date, which was recorded on June 28, 1898; that Clay was authorized to execute the deed from Forrest to Connor under said power of attorney. The answer denies that Forrest was insane at the time of making said power of attorney, or at the time when said deeds were executed. The answer further alleges that Clay held the premises as security for money due to him from Forrest. The court entered a final decree granting the relief prayed for in appellee's bill, and finding that the power of attorney claimed to have been executed by Forrest to Clay on September 13, 1897, and the deed claimed to have been executed thereunder by Clay to Connor on March 30, 1898, and the deed claimed to have been executed on April 11, 1898, by Connor and wife to Clay, were all null and void because of the insanity of Forrest when the same were executed; that the premises were in the possession of tenants of Clay; that Forrest was from July, 1897, until after April, 1898, insane and wholly incompetent to transact business; that the deeds from Forrest to Connor and from Connor to Clay were executed without any good or valuable consideration, and were merely colorable, and were made solely to enable Clay, as attorney in fact of Forrest, to convey the title to himself, said Clay well knowing that Forrest was insane at the time; that action of Clay in obtaining, if he did obtain, said power of attorney, and in procuring the execution of said conveyance, was inequitable and unconscionable; that the deed from Forrest to appellee was for a valuable consideration, being for the sum of $8,000, paid partly in cash and partly by promissory note of appellee to Forrest; that Clay on June 20, 1901, when notified of appellee's purchase, set up as his sole claim of title that he held the same as security for an indebtedness to him of Forrest of an amount largely in excess of the value of the premises. The decree finds that Clay had no claim whatever to the premises, legally or equitably, and that appellee was the owner thereof in fee simple, free of all claims on the part of defendants below; that Clay had received rents from the premises from June 18, 1901, amounting to $520.47, for which he should account to appellee. The decree thereupon ordered that the deeds from Forrest by Clay, as attorney in fact, to Connor, and from Connor to Clay, were null and void, and should be delivered up to be canceled, and that appellee holds the premises free and clear from any claims of appellants; that Clay should pay to appellee said sum of $520.47 for rents and all costs, and that appellee should have execution therefor; that appellee be forthwith let into possession of the premises; that the possession thereof be forthwith delivered up to appellee by defendants below, and all other persons claiming under them since the commencement of the suit; and that, upon such possession being refused, appellee be awarded a writ of assistance. The present appeal is prosecuted from the decree so entered by the superior court of Cook county.

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

1. It is claimed on the part of the appellants that the bill filed in this case is a bill to remove a cloud upon title, and that inasmuch as appellee, the complainantbelow, was not in possession of the premises when the bill was filed, and the same were not vacant or unoccupied at that time, a court of chancery had no jurisdiction to entertain the bill, and grant relief in accordance with the prayer of the same. The facts show that the appellant Clay and his tenants were in possession of the premises when the bill was filed. This court has held in many cases that a party can only file a bill to quiet title or remove a cloud from the title to real property where he is in possession of the land, or where he claims to be the owner, and the lands in controversy are unimproved and unoccupied. Gage v. Abbott, 99 Ill. 366;Johnson v. Huling, 127 Ill. 14, 18 N. E. 786;Glos v. Randolph, 133 Ill. 197, 24 N. E. 426;Glos v. O'Toole, 173 Ill. 366, 50 N. E. 1063;Glos v. Goodrich, 175 Ill. 20, 51 N. E. 643;Glos v. Kemp, 192 Ill. 72, 61 N. E. 473;Glos v. Beckman, 183 Ill. 158, 55 N. E. 636. The rule, however, that in such case the complainant must be in possession of the premises, or the premises must be vacant or unoccupied, has no application where the deed or other instrument alleged to be a cloud upon the title is sought to be set aside upon the ground of fraud. Courts of law and courts of equity have concurrent jurisdiction in cases of fraud. In Kennedy v. Northup, 15 Ill. 148, where the bill was filed for the purpose of setting aside certain deeds held by the defendants, which, as it was alleged, were fraudulently obtained, and which remained as a cloud upon the title of the complainant, the objection was made that the defendants were in possession, and that thereby the plaintiffs were enabled to bring ejectment, and thus contest the fraudulent deeds in a court of law, and that for that reason a court of equity would not assume jurisdiction to try the validity of those deeds and set them aside; but it was there held that, where the complaint is that the title under which the defendants claim was obtained by fraud, a court of equity will take jurisdiction. Where the question is simply as to which of the two titles is the better legal title, the party should bring his action in a court of law, but courts of equity will assume jurisdiction to set aside conveyances fraudulently obtained. In the case of Kennedy v. Northup, supra, it was said (page 153, 15 Ill.): ‘While a court of equity will not take jurisdiction of every case of fraud which may be presented, yet there are few questions over which its jurisdiction is more universal, and especially so when it relates to the transfer of real estate. * * * Although it may be true that the fraud, if proved, might defeat that title in a court of law, yet the courts of equity have ever claimed to possess superior facilities for investigating such questions, to the courts of law, and certainly the relief which they can give is in many cases more satisfactory. When the fraud is once established, they can cut up the fraudulent conveyance or contract by the very roots, and leave the party in as secure a position as if it had never existed.’ In Booth v. Wiley, 102 Ill. 84, the same objection was made as is here insisted upon, and the case of Kennedy v. Northup, supra, was approved and quoted from; and in reference to the contention that there are only two cases, under our law, in which a party may file a bill to quiet title, or to remove a cloud from the title to real property,-First, where he is in possession of the lands; and, second, where he claims to be the owner and the lands in controversy are unimproved and unoccupied,-it was said (page 114, 102 Ill.): ‘But this is the law where the object is purely to remove a cloud from a title, and does not affect cases where the primary relief is sought upon other and well-established equitable grounds, and the removal of the cloud is prayed only as an incident to that relief.’ It was there held that the rule in question has no application where a deed is sought to be set aside upon the ground of fraud.

In the case at bar the proof is clear, and uncontradicted by the appellants, that William H. Forrest was insane from August, 1897, to the summer of 1898. A physicianwho attended him testifies to his insanity during the period in question. The appellant, John Clay, Jr., was the brother-in-law of William H. Forrest, and the physician testifies that he consulted with the appellant Clay in...