Dean v. Plane

• Decision Date: 21 February 1902
• Citation: 195 Ill. 495,63 N.E. 274
• Parties: DEAN v. PLANE et ux.
• Court: Illinois Supreme Court

195 Ill. 495

63 N.E. 274

DEAN

v.PLANE et ux.¹

Supreme Court of Illinois.

Feb. 21, 1902.

Appeal from appellate court, Second district.

Action by C. B. Dean, trustee of the estate of E. B. Plane, bankrupt, against E. B. Plane and wife. From a judgment of the appellate court (96 Ill. App. 428) affirming a judgment of the trial court granting only a portion of the relief demanded, plaintiff appeals. Affirmed.

William L. Pierce and A. D. Early, for appellant.

Robert W. Wright and Charles Hudson, for appellees.

CARTWRIGHT, J.

Appellant, C. B. Dean, trustee of the estate of E. B. Plane, bankrupt, commenced this suit by filing his bill in the circuit court of Boone county against said E. B. Plane and Nellie E. Plane, his wife, the appellees, praying that two conveyances made by E. B. Plane to Nellie E. Plane should be set aside, and the premises therein described be declared assets of E. B. Plane, or that Nellie E. Plane should be decreed to keep said premises and pay their value to the appellant, as he might elect. The bill, as amended, was answered with averments that the conveyances were made in payment of a bona fide indebtedness due and owing from said E. B. Plane to Nellie E. Plane. On a hearing the court found the conveyances valid, but that they overpaid the amount due by the sum of $141.50, which, with interest, appellees were ordered to pay to appellant; and the decree was made a lien on the premises, and costs were decreed against appellees. Appellant removed the case to the appellate court for the Second district, and appellees assigned cross errors. The appellate court affirmed the decree, and this further appeal was prosecuted.

The facts are, in substance, as follows: E. B. Plane was engaged in the hardware business in Belvidere. He wanted more money, and his wife, Nellie E. Plane, who had inherited money from her father's and mother's estates, and had invested it, called in $1,000 and loaned it to him. On May 8, 1893, he gave her his promissory note for said sum, payable on demand, with interest at 7 per cent. per annum. Later he sold out his hardware business, and, after other work for a few years, opened a grocery store in Belvidere in March, 1898. He put $500 or $600 in the business, and borrowed $1,200 of the People's Bank of that place. His father, John Plane, had died; and he had inherited, subject to the widow's rights, a one-seventh interest in his estate, which consisted of personal property, six or seven lots of a subdivision of the Plane homestead, and a store-building property, known as the ‘Plane Block.’ By agreement of the parties in interest, the rights of dower, homestead, and all other benefits of the widow were transferred to the Plane Block, under an agreement by which she was to have stated amounts monthly and quarterly, during her life, out of the rentals of the store building. The lots in the subdivision were all sold, except one. During the summer of 1899 E. B. Plane received $2,250 in cash in the final settlement of the estate, and paid to the People's Bank $700 on the amount borrowed. He then owned an undivided one-seventh interest in the remaining vacant lot, and a like interest in the Plane Block, subject to the rights of the widow and the payment out of rentals to her. In November, 1899, Robert A. Childs, attorney for Nellie E. Plane, had a conference with her and her husband to arrange for the payment of the note due her; and an arrangement was made, in pursuance to which E. B. Plane on November 27, 1899, at Mr. Childs' office in Chicago, executed, acknowledged, and delivered to Mr. Childs, for her, a deed conveying to her his interest in the Plane Block for an expressed consideration of $1,365, and also a quitclaim deed of his interest in the vacant lot for a consideration stated at $200. The note to Nellie E. Plane bore three indorsements of small sums,-one in the handwriting of E. B. Plane, and two in her handwriting,-and these two amounts were also indorsed upon it; the parties thinking that the note was not entirely paid. Mr. Childs neglected to record the deeds. In July, 1900, Mrs. Plane went to Chicago with her husband on her way to Colorado, as she was in poor health, and Mr. Childs saw them at that place. Before returning home, Mr. Plane called at the office of Mr. Childs, who asked him if he would take the deed and record it, and gave him the deed to the Plane Block, and $1 for recording; overlooking the fact that there were two deeds. On July 20, 1900, Mr. Plane filed that deed for record, and the recorder returned it by mail to Mr. Childs. The other deed for the interest in the vacant lot was never recorded. Mr. Plane's creditors began to press him for payment. He owed a clerk about $200 for labor, and about that time told the clerk to take enough accounts to satisfy his claim. On July...