D'wolf v. Pratt

• Decision Date: 30 April 1866
• Citation: 1866 WL 4666,42 Ill. 198
• Parties: CLEMENT H. D'WOLFv.AMOS PRATT et al.
• Court: Illinois Supreme Court

42 Ill. 198

1866 WL 4666 (Ill.)

CLEMENT H. D'WOLF

v.AMOS PRATT et al.

Supreme Court of Illinois.

April Term, 1866.

WRIT OF ERROR to the Circuit Court of Cook county; the Hon. E. S. WILLIAMS, Judge, presiding.

This was a suit in chancery instituted in the court below by Clement H. D'Wolf, against Amos Pratt, Jeremiah Pratt, S. W. Randall, Horatio O. Stone, Henry Snapp, K. G. Hammond and John E. Cole, to set aside certain fraudulent conveyances, compel the specific performance of a contract and confirm the title of complainant to certain real estate, situate in Cook county, in this State, known and described as the west half of original lot No. seven (7), in block No. fifty-seven (57), in the original town of Chicago, being lot No. three (3), and the west half of lot No. two (2) in the Canal trustees' subdivision of said lot; also, the west half of the north-east quarter of section No. three (3) of township No. thirty-six (36), north of range No. fourteen (14), east of third principal meridian; also, the north fifteen (15) acres of the west half of the south-west quarter of section No. thirty-four (34), township No. thirty-nine (39), range No. fourteen (14), east of third principal meridian.

The court below, upon the hearing, refused to grant the relief sought by the complainant, and dismissed his bill. He thereupon sued out this writ of error. All the material facts of the case are set forth in the opinion of the court. Mr. JOHN J. MCKINNON and Messrs. GARRISON & BLANCHARD, *201 for the plaintiff in error.

Mr. S. W. RANDALL and Mr. MELVILLE W. FULLER, for the defendants in error.

Mr. JUSTICE BREESE delivered the opinion of the Court:

The facts presented in this record are substantially these; Calvin D'Wolf was in December, 1849, seized in fee by purchase and deed from Stephen Bronson, Jr., of the fifteen acres of land described in the bill of complaint of plaintiff in error: that, to secure the purchase money, on the 15th of June, 1850, he executed a deed of trust to James H. Collins, conveying all his interest therein to Collins, with authority to sell the land, in default of payment of the purchase money. Default having been made in the payment, on the 17th of March, 1852, Collins, as trustee, sold this land to one Denniston, and executed a deed which was duly recorded.

On the 18th of May, 1852, Denniston, by quitclaim deed of that date, sold and conveyed the land, together with other lands, to Amos Pratt, which deed was duly recorded. On the 26th of September, 1852, Calvin D'Wolf, by deed of that date, quitclaimed and released to Pratt, all his interest in this tract, and Pratt became on that day seized in fee of the same. Two days thereafter, to wit, on the 28th of September, 1852, Pratt negotiated a sale of this tract, together with other lands, to plaintiff in error, Clement H. D'Wolf, which is evidenced by the articles of agreement made an exhibit in the bill of complaint, and recorded October 28, 1852. The sale was on credit, except a payment in hand of one hundred dollars by plaintiff in error, and the other payments were distributed over six years, the last falling due on the 28th of September, 1858. Complainant was put in possession of the lands, and claims to have so remained ever since, and to have paid the taxes on them.

On the 15th of January, 1853, the plaintiff in error entered into an agreement with Horatio O. Stone, by which he covenanted to convey to Stone this fifteen acres of land in fee simple, free and clear of all incumbrances, on the payment by Stone of four thousand two hundred and twenty-five dollars; the fractionable portion ($225) being paid in hand, and the remaining payments, the same in amount as those due from plaintiff in error to Pratt, were distributed over the same years, and the last payment from Stone fell due on the same day the last payment was due from plaintiff in error to Pratt, viz., September 28, 1858, with authority to Stone to make the payments to Pratt upon plaintiff's contract with Pratt. Stone paid for plaintiff on this contract to Pratt, the $600 due September 28, 1853. This agreement, in referring to the contract with Pratt, recites that this contract, dated September 28, 1852, was recorded in the recorder's office of Cook county, in book No. 54 of deeds, page 115. The agreement between Stone and plaintiff was duly recorded in the recorder's office.

On the 23d of September, 1853, Amos Pratt entered into an agreement with one Warren Parker, wherein Parker agreed to sell to Pratt certain lands for the sum of eight thousand dollars, in three equal annual payments, and, on Pratt's making the payments, he was to receive a deed from Parker; Pratt, also, in order to secure the first payment due to Parker, on the same day indorsed upon his agreement with plaintiff in error, a transfer and assignment thereof, to Parker, which was duly acknowledged and recorded. This agreement was in duplicate.

These two agreements, the one between Pratt and Parker, and the other between plaintiff and Pratt, with Pratt's assignment thereon to Parker, were, on the same day, deposited with Messrs. Brown and Hurd, in pursuance of an agreement between Pratt and Parker, substantially as follows: That Brown and Hurd should hold these papers until the tenth of October next ensuing, and, in case Pratt paid Parker on that day the sum of two thousand six hundred and sixty-six dollars and sixty-six cents, being the first payment due from him to Parker, and the interest thereon, then Brown and Hurd should deliver a duplicate of these agreements, and the contract between him, Pratt, and plaintiff in error, with the assignment thereon, back to Pratt, but that, in default of such payment, Brown and Hurd should deliver all the papers up to Parker, and he should have the right to sell, at public sale, the agreement between Pratt and plaintiff in error, and to pay himself one thousand dollars as liquidated damages for the non-performance of the covenants by Pratt with Parker. Default was made by Pratt, and thereupon, Brown and Hurd, though notified by Pratt not to do so, delivered up the papers to Parker, who proceeded to sell, at public sale, this agreement between Pratt and plaintiff in error, and the assignment thereon, and on the 28th of January, 1854, after due notice of the sale, sold the same to Stone, as the highest bidder, for the sum of one thousand dollars, which was then and there paid by Stone to Parker, who thereupon executed and delivered to Stone a deed thereof, and of the lands described in the agreement, reciting all the above facts, which deed was duly acknowledged and recorded, upon which, Stone claimed to be the absolute owner in fee of all the right, title and interest of Pratt to these articles of agreement, and to the lands described therein.

After Stone's purchase from plaintiff in error of the 15 acre tract, he entered into possession of it, and claims that he has ever since retained the possession. Soon after the purchase of this agreement of complainant and Pratt, by Stone, at the public sale, on the 4th of February, 1854, Stone owing plaintiff in error as much money for the 15 acre tract as plaintiff owed Pratt under their agreement, plaintiff, recognizing Stone as the owner of the agreement with Pratt, made a deed in fee to Stone, which was duly recorded, of the 15 acres, and Stone, in consideration thereof, released and discharged plaintiff in error from all his covenants in that agreement, thus setting off and cancelling their respective liabilities.

On the 7th of October, 1853, Amos Pratt, for the expressed consideration of three thousand dollars, conveyed by quitclaim deed this fifteen acre tract to his brother, Jeremiah Pratt, who, on the eleventh day of that month, caused this deed to be recorded, and claims the title, disclaiming all knowledge of these agreements, and insisting as his deed was on record before the assignment by Pratt to Parker, and by Parker to Stone of these agreements, that his right is the better right.

It appears, that Stone, on concluding this arrangement with plaintiff, took immediate possession of these fifteen acres, had it surveyed, platted and mapped, and the plat recorded, and streets graded, drained, and part fenced, and sold some of the lots, and paid all the taxes assessed against the land, except those on the lots he sold to the purchasers named in the bill of complaint. These purchasers took immediate possession, and several of them have built upon the lots so bought. As early as 1858, four or five dwelling houses were built on them, and occupied; up to that time Stone had sold two-thirds of the lots, and since, all have been sold, except about twenty or thirty lots. Warren Parker died in the fall of 1854. Stone, in the fall of 1853, was a man of means, and wealthy, and has continued responsible. The lot on Madison street, mentioned in the bill of complaint, has, since September 28, 1852, been in the possession of plaintiff in error, and of those claiming under him. For many years before filing this bill, Amos Pratt was a resident of the State of California. On the 1st day of December, 1858, plaintiff conveyed, by warranty deed, the west half of original lot 7, in block 57, in the original town of Chicago, it being the same as lot 3, and west half of lot 2, in the canal trustees' subdivision of that lot, to Joseph E. Brown.

H. W. Clarke, who took the acknowledgment of the deed from Amos Pratt to Jeremiah Pratt, thinks Jeremiah was not then present. Stone purchased the agreement assigned to Parker by Pratt, under the advice of Van H. Higgins, an eminent lawyer of Chicago, who told Stone he might, for his own protection, become a bidder at the sale, and that the purchase by him would be a legal and equitable transaction on his part. Amos Pratt never made the payments to Parker which he had covenanted to make. His assignment to Parker was as follows:

“For value received, I, Amos Pratt, do hereby assign,...