Dennis v. Mccagg

• Decision Date: 30 April 1863
• Citation: 1863 WL 3199,32 Ill. 429
• Parties: ALEXANDER DENNIS et al.v.EZRA B. MCCAGG et al.
• Court: Illinois Supreme Court

32 Ill. 429

1863 WL 3199 (Ill.)

ALEXANDER DENNIS et al.

v.EZRA B. MCCAGG et al.

Supreme Court of Illinois.

April Term, 1863.

APPEAL from Superior Court of Chicago.

Bill in equity filed by appellants, heirs of Oliver Dennis, Sr., deceased, against appellees, to redeem from a certain conveyance executed by Paul Cornell to Ezra B. McCagg, which the bill prayed might be decreed to be a mortgage.

It appears that said Dennis in his life time purchased the premises in question from Francis Blanchard, who executed to him a bond to convey, upon payment of the purchase money, which was duly recorded; that Dennis, who entered upon the land under his bond, died without having made the deferred payment for said land; that upon a bill filed by Cornell, to whom Blanchard had conveyed the premises by quitclaim deed, for a foreclosure, a decree was rendered against the widow, administratrix, and heirs of said Dennis, that, in default of payment of a certain sum within thirty days, the defendants be foreclosed; but that upon payment made, a conveyance should be executed to them by said Cornell. The remaining facts are sufficiently stated by the court.

The court below dismissed the bill.

D. P. Wilder and Thomas Hoyne, for appellants.

Scammon, McCagg & Fuller, for appellees.

BREESE, J.

The question presented by this record is, What relation did the defendant McCagg sustain to the complainants, and in what capacity did he interfere with the property in question? Can he be regarded, under the evidence, as agent or attorney, either employed by them, or a volunteer in their behalf? The solution of this question determines the controversy.

It is charged in the bill that McCagg was informend by Valliquette, one of the heirs, through his wife, of Oliver Dennis, deceased, the owner of the land by title bond, and who was an employee of J. Young Scammon, the law partner of McCagg, of the decree then existing against the heirs of Dennis, and was requested to advance the money to pay off the decree, and hold the land as security until he should be reimbursed principal and interest and expenses.

McCagg admits, in his answer, that Valliquette did advise him of the decree, and asked him for a loan of money to discharge it, but denies that he desired to borrow it on the security of the mortgaged land, but that Valliquette wished to borrow it on his own credit. He admits that Valliquette spoke to him more than once about the decree, and he told him that he was inclined to lend him the money, and would examine and see about the decree; that he was disposed to help Valliquette if he could do so safely, but denies that he ever told Valliquette he would loan him the money on the security of this land. He also denies having told Valliquette that he had deposited the money, under the decree, or would deposit it with the clerk

These denials are not contradicted by any proof, and to that extent disprove the allegations in the bill, as to those facts, but they establish the fact that McCagg was incited to inquire into the decree, and into the case, by one of the parties then interested in it, who was ostensibly acting for the other parties in interest, the complainants herein.

The testimony of Mr. Kimball, who was clerk of the court in which the decree was rendered, shows that within the thirty days limited by the decree for the payment of the money, the defendant McCagg was at the office, and made inquiries in relation to the payment of the money under the decree. Knowing that Mr. McCagg was not one of the parties to the suit, and was not engaged in it as solicitor, the clerk asked him what he had to do with it, and he told the clerk that he wished to protect the interest of Mrs. Dennis and the heirs, and wished to pay the amount of money decreed to be paid, some seven hundred and odd dollars. The clerk told him he had better go to Mr. Cornell, who was the complainant in the foreclosure suit, and settle the matter with him. The clerk's impression is, that Mr. McCagg brought the money with him, in coin, in a handkerchief, but did not leave it; was in the office but a few minutes. He did not state the names of any parties except that he wished to protect the interests of Mrs. Dennis and the heirs. This was but a very short time before the time for redemption expired.

The decree was entered April 6, 1852, and the time expired on the 6th of May, 1852.

Here is shown an unequivocal act of agency by McCagg, whether by actual employment by the parties interested or as a volunteer, can make no difference as to his responsibilities growing out of that relation. The presumption is a very strong, and a very natural one, that he was thus acting in consequence of the suggestions and by request of Valliquette, with whom, he admits, he had more than one conversation on the subject of the decree. If McCagg was not employed as an agent to investigate the case and to ascertain the rights of these complainants, he voluntarily assumed to do so, and so represented himself to the clerk He assumed a position of trust and confidence, and that relation imposed upon him the observance of the highest morality and integrity. He went to the office at the proper time, to protect the interests of Mrs. Dennis and the heirs, and under no other pretext, and for no other avowed purpose, and that could only be done, consistent with a high morality, by paying the redemption money, and holding the land thus redeemed, as security for his advances. It is evident, from the statements of the bill, and admissions of the answer, that a confidence was reposed in McCagg, that he would conduct this business for the benefit of the parties interested, the heirs of Dennis, and not for his own benefit. This would be an abuse of the confidence reposed, and it is this which courts of equity seize hold of, and rely upon, when they grant relief, in cases of this kind. Now, as to his further conduct in the matter. When advised by the clerk, that he had better see Cornell, and settle the matter with him, he has an interview with that gentleman, who had been apprized by a letter from Mr. Barron, his partner, of the date of April 22, 1852, of movements in regard to the land. Mr. Barron wrote Cornell, under that date as follows: “I am afraid you will lose your Dennis land. Mr. E. B. McCagg has this morning called to see you and said he intended to redeem it. He said that Judge Skinner told him that 30 days were given from the 13th of April, to do so. The decree gives 30 days. * * Your only resource is to buy out the heirs if you can, and it must be done quick, or McCagg will be before you.”

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