Dawson v. Vickery

• Decision Date: 19 June 1894
• Citation: 37 N.E. 910,150 Ill. 398
• Parties: DAWSON et al. v. VICKERY.
• Court: Illinois Supreme Court

150 Ill. 398

37 N.E. 910

DAWSON et al.

v.VICKERY.¹

Supreme Court of Illinois.

June 19, 1894.

Error to circuit court, Clay county; C. S. Conger, Judge.

Bill by J. M. Tanner and J. R. Tanner against E. D. Vickery, Kate Vickery, his wife, and Joe H. Dawson and Joe Britton, to foreclose a mortgage; and cross bill by E. D. Vickery against Joe H. Dawson and Joe Britton to set aside a deed of the mortgaged premises. There was a decree setting aside the deed and foreclosing the mortgage. The cross defendants bring error. Modified.

J. R. Eden and W. G. Cochran, for plaintiffs in error.

B. D. Monroe, for defendant in error.

BAKER, C. J.

To the March term, 1890, of the circuit court of Clay county, J. M. and J. R. Tanner filed their bill in chancery against E. D. Vickery and Kate Vickery, his wife, to foreclose a mortgage on the S. W. 1/4 of the S. E. 1/4 of section 12, township 4 N., range 7 E., third P. M., alleged to have been executed by said Vickery and wife on the 12th day of March, 1888, to secure the payment of a promissory note of that date for $225. Joe H. Dawson and Joe Britton, plaintiffs in error, were also made defendants, with the allegation that they claimed some interest in the land, which, if any, was subject to the mortgage of complainants. They answered the bill, setting up that E. D. Vickery and wife, on the 9th of April, 1889, had conveyed the lands to them by warranty deed, which was duly recorded in the recorder's office of Clay county two days thereafter; that the mortgage mentioned in complainants' bill also conveyed an 80-acre tract of land, which the complainants, with full knowledge of the rights of plaintiffs in error in said 40 acres, had released; and alleging that the said 80-acre tract should be first exhausted in the satisfaction of complainants' mortgage debt, and the said 40 acres released therefrom. They also filed a cross bill against complainants in the original bill and E. D. Vickery and wife, alleging the facts set up in the answer, and praying the same relief. To this cross bill a demurrer was sustained, and the complainants therein elected to stand by the cross bill. E. D. Vickery answered the original bill, admitting the facts therein alleged; and filed a cross bill against plaintiffs in error, setting up that he had conveyed the land to them in exchange for a stallion, upon their false and fraudulent representations that he was a sure foal getter, and not over 11 years old, when in truth he was over 20 years old, and impotent; and that, immediately upon learning these facts, he had notified them of the same, and also notified them that the horse was subject to their order, but they had refused to take him; that they well knew of the worthless character of the horse when they made such representations to him; and that the horse, by reason of his age and impotency, was wholly worthless. It also alleged that the keeping of the horse was reasonably worth three dollars per week, etc. The prayer of this cross bill was that the said deed from the complainants therein to said Dawson and Britton be set aside and canceled, and for an accounting as to damages, etc. Plaintiffs in error answered, admitting that the sale of a stallion was the consideration for the conveyance of the land to them, but denying that he was not as represented by them, and averring that he was a valuable horse, etc.

Upon the hearing, the court entered a decree of foreclosure on the original bill, as therein prayed, dismissing the cross bill of plaintiffs in error, but found the cross bill of said Vickery to be true, finding and setting forth in the decree the following facts: ‘That on the 9th day of April, A. D. 1889, said E. D. Vickery and wife, Kate, conveyed by warranty deed to Dawson and Britton, defendants in said cross bill, said S. W. 1/4 of S. E. 1/4 of section 12, aforesaid, which deed was properly acknowledged and recorded in volume 31 of Deed Records, at page 360, in the recorder's office of said county, the express consideration of said deed being $800, but the real consideration was the sale and delivery by said Dawson and Britton to said Vickery of one Clydesdale stallion, named Border Chieftain, No. 87 of the American Stud Book, valued by said parties at the sum of eight hundred dollars. And the court further finds that defendants Dawson and Britton represented to said Vickery that said horse was about eleven years old, etc., and a sure foal getter; that said Vickery, relyingupon said representations, and believing them to be true, executed and delivered said deed to said Dawson and Britton for said premises in payment for said horse, when, in truth and in fact, said horse was more than nineteen years old, and was entirely worthless as a doer and foal getter, and of no value for any purpose; that the said Dawson and Britton made the said representations knowing them to be false at the time and for the purpose of misleading said Vickery, and cheating him out of his said real estate, by reason of said false and fraudulent representations as aforesaid; and that said deed by Vickery and wife, having been made and delivered to said Dawson and Britton upon such false and fraudulent representations, is without consideration, and ought to be canceled on the record, and the title to said premises vested in Vickery, subject to said mortgage to Tanner Bros. And the court further finds that said Vickery, immediately on learning that...