Coryell v. Klehm

• Citation: 157 Ill. 462,41 N.E. 864
• Parties: CORYELL v. KLEHM et al.
• Decision Date: 11 October 1895
• Court: Illinois Supreme Court

157 Ill. 462

41 N.E. 864

CORYELL

v.KLEHM et al.¹

Supreme Court of Illinois.

Oct. 11, 1895.

Appeal from superior court, Cook county; W. G. Ewing, Judge.

Bill by Mary E. Coryell against George C. Klenm, Esther Klehm, Charles Harms, Matilda Harms, Antonia Harms, and George Chambers. The bill was dismissed on demurrer. Complainant appeals. Reversed.Harbert & Daley, for appellant.

H. S. Mecartney, for appellees.

This is a suit in equity to declare and establish a trust and for other relief, prosecuted in the superior court of Cook county by Mary E. Coryell, complainant below and appellant here, against George C. Klehm, Esther Klehm, Charles Harms, Matilda Harms, Antonia Harms, and George Chambers, defendants below and appellees here. The original bill was filed on March 24, 1886. On May 29, 1893, the amended bill was filed; and on October 18, 1893, by leave of court, the complainant filed a supplemental bill, joining as a defendant one Antonia Harms, who, it is alleged, acquired an interest in the premises in question from the defendant Klehm since the filing of the original bill. To this amended bill and the supplemental bill the defendants filed general demurrers, which, on January 3, 1895, were sustained by the superior court, and, complainant electing to stand by her amended and supplemental bills, the same were dismissed for want of equity. From that decree the complainant prosecutes this appeal, the only question in the record being as to the sufficiency of the amended and supplemental bills, the sufficiency of the latter depending entirely on that of the former.

The substantial facts alleged in the bill, briefly stated, are as follows: On November 27, 1872, Silas B. Gassett conveyed to one Thaddeus B. Beecher the premises known as ‘Lot Three (3) in La Frambois Reserve’; said lot 3 consisting of 310 acres of land, of which the premises in question composed 20 acres. On December 21, 1872, a burnt-record proceeding was begun in the superior court of Cook county, Ill., to confirm title in and to said premises, and such proceedings were had therein that on November 12, 1873, the title to the premises in question was confirmed in said Beecher. One month prior to such confirmation, namely, on October 12, 1873, Beecher was adjudged a bankrupt, and Bradford Hancock was appointed his assignee. The premises in question were not scheduled in the bankruptcy proceedings, nor was any action in reference thereto taken by the assignee until on or about the 1st day of July, 1875. In the meantime, on January 12, 1875, Beecher (the bankrupt) executed a deed of the premises in controversy to John E. Sayles and Albert H. Walker; said deed being one of special warranty, and recorded January 18, 1875. On January 23, 1875, by deed recorded same day, Walker and wife conveyed to said Sayles; and Sayles, by trust deed, recorded March 24, 1875, conveyed the premises in trust to defendant Chambers by the usual form of trust deed, to secure $3,000 loaned said Sayles by the complainant. At the time said loan was made it appeared by the abstract of title presented to complainant's solicitors that Sayles was the owner of said premises in fee simple. That complainant has learned, since making her said loan, and since October 25, 1880, that the defendant Harms, with other persons, has contrived to cloud complainant's title by having executed by Bradford Hancock, as assignee in bankruptcy of Thaddeus B. Beecher and Wilbur F. Chatfield, a certain deed dated April 24, 1876, to one William C. Grant, purporting to state that on July 1, 1875 (nearly four months after said trust deed was recorded), said Bradford Hancock, assignee of Beecher, filed a petition in the United States district court for the sale of said premises as such assignee. Said petition stated that Beecher appeared to have some interest in said lot 3, embracing the 310 acres, by virtue of said deed from Gassett, but that no mention whatever was made of said premises in the said Beecher's schedule; that he (said assignee) was informed and believed that the said deed was a cloud upon the title of a large number of individual owners of different portions of said 310 acres; that said owners were farmers in possession of portions of the premises, and had applied to said Hancock to advertise and sell the interest of said Beecher in said premises, and offered to pay therefor such a sum as would pay all the expenses attending the sale. Pursuant to said petition, the said assignee procured an order for the sale of his interest in said premises, caused publication of notice to be made, and on February 29, 1876, sold said premises to William C. Grant for $160, being a little more than 50 cents per acre. In the deed from said assignee to Grant said assignee purports to convey to said Grant all the right, title, interest, claim, and demand of said Beecher, which said Beecher had on October 18, 1873, and also all right of said assignee, subject to all unpaid taxes and to all liens and incumbrances. Grant, it is alleged in the bill, represented defendants Klehm and Harms, and conveyed to Klehm on January 26, 1883, which title, it is alleged in the bill, was so taken by Klehm and held by him in trust for Harms. On August 20, 1878, Sayles, the grantor in the trust deed to Chambers (which trust deed was given to secure the complainant's loan) was adjudged a bankrupt, and on May 26, 1879, Robert E. Jenkins was appointed his assignee. On October 20, 1880, Jenkins sold and conveyed the premises in question to Henry K. Brown, and on February 11, 1885, Brown and wife executed a deed to the complainant. It is alleged in the bill that the consideration for the conveyance from Gassett to Beecher was furnished by Sayles and Walker, and that Beecher merely held the title in trust for them; that Beecher's assignee took only the apparent title to the premises; that in equity the premises then belonged to Sayles and Walker, under whom complainant claims; and that Grant and the defendants claiming under him had notice that the said assignee was not vested with the real ownership of said premises, and were instrumental in procuring said sale by said Hancock, which was made upon information furnished by Grant, and which it is alleged was untrue. The bill further states that the defendants Esther Klehm and Matilda Harms claim an inchoate dower right in said premises as the wives of said defendants George C. Klehm and Henry Harms. The prayer of the bill is that the defendant George C. Klehm be required to release and convey to the complainant all right, title, and interest in the premises acquired through the deed from Beecher's assignee, and answer for the rents and profits; that Chambers, the trustee in the trust deed securing complainant's loan, be required to quitclaim to complainant any title or interest which he may still hold under said trust deed; that all the parties be restrained from asserting any claim of title or interest in said premises; that complainant be put in possession thereof; and for other and further relief.

BAKER, J. (after stating the facts).

In Webber v. Clark, 136 Ill. 256,26 N. E. 360, and 32 N. E. 748, the controversy was in regard to another portion of the tract of land known as ‘Lot 3,’ containing 310 acres, in La Frambois reserve. The conclusion there was that Beecher held the property in trust for Sayles and Walker; that Hancock, the assignee in bankruptcy of Beecher, took subject to their equitable interests; and that Grant, the purchaser at the assignee's sale, took with notice of and subject to their equities. In this case the equities in favor of Mary E. Coryell, the appellant, are, or at all events at one time were, in one respect stronger than were the equities of the complainant and appellant in that case. There some of the defendants claimed an interest of title existing prior to the sale made by the assignee, and sought to impeach the validity of the burntrecord proceeding for fraud; while here the titles and claims of the defendants are based on the conveyance made by the assignee, and on that alone. But, on the other hand, the right of the now appellant to enforce her equities at this time and in this suit is beset by complications that were not found in the other litigation, and that afford ground for grave consideration. Some of the defendants to the bill are in possession of the 20 acres of land in controversy, but, since the principal objects of the bill are to establish a trust in Harms and Klehm, and secure conveyances from them, and to obtain a deed from Chambers, the trustee in the trust deed, on the theory that appellant cestui que trust under said trust deed is now the owner of the equity of redemption, there can be no doubt of the jurisdiction of a court of chancery to entertain the bill. Indeed, the legal title to the premises being vested in certain of the defendants, it is manifest that appellant has no remedy at law by action of ejectment or otherwise.

It is claimed that the laches of appellant has barred her from seeking relief in equity. Whatever may be the rule in other jurisdictions, it has long been the general rule in this state that a defendant, in order to avail himself of the defense of laches, must set up such defense by plea or answer, so as to afford the complainant opportunity to amend the bill by inserting allegations accounting for the delay. Trustees v. Wright, 12 Ill. 432;Zeigler v. Hughes, 55 Ill. 288;O'Halloran v. Fitzgerald, 71 Ill. 53;Darst v. Murphy, 119 Ill. 343, 9 N. E. 887;Dawson v. Vickery, 150 Ill. 398, 37 N. E. 910. In Hall v. Fullerton, 69 Ill. 448, it is held that this rule will not be extended to a case where the bill undertakes to account for the delay in bringing suit, and the proofs do not support the grounds of excuse that are alleged. It is there said that the reason of the rule does not apply to such a case. And Williams v. Rhodes, 81 Ill. 571, and Simpson v. McPhail, 17 Ill. App. 499, are of like...