Dutcher v. Leake

• Decision Date: 30 April 1867
• Citation: 1867 WL 5173,44 Ill. 398
• Parties: ELISHA W. DUTCHER et al.v.EMILY LEAKE et al.
• Court: Illinois Supreme Court

44 Ill. 398

1867 WL 5173 (Ill.)

ELISHA W. DUTCHER et al.

v.EMILY LEAKE et al.

Supreme Court of Illinois.

April Term, 1867.

APPEAL from the Circuit Court of Lee county; the Hon. W. W. HEATON, Judge, presiding.

The facts are fully stated in the opinion of the court.

Mr. EMERY A. STORRS, for the appellants.

Mr. JAMES K. EDSALL and Mr. BERNARD H. TRUESDELL, for the appellees.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

On the 6th of August, 1856, the Shelburne Manufacturing company, of which Frederick R. Dutcher was president, borrowed from one Daniel Leake, now deceased, the sum of $9,822.92, and, to secure its payment, executed a deed of trust on certain real estate to Lemuel W. Atherton as trustee. On the 12th of November, 1860, the company borrowed another sum of $2,750 from said Leake, and executed another deed of trust to said Atherton. On the 1st of April, 1857, Atherton sold the real estate to Leake under the deeds of trust, and executed to him a deed. In June, 1857, Cummins and House filed a petition for a mechanic's lien against the company, making Leake and Atherton parties. Leake died on the 27th of September, 1857, intestate, and leaving infant children, who, on the 11th of June, 1858, were, with the administrator and administratrix of Leake, brought into court by a supplemental petition. The petition alleged that Cummins and House furnished lumber under a contract made in September, 1856, and that the last lumber was furnished in December, 1856. The decree found the company was seized, on the 16th of December, 1856, of a fee simple in the premises, and ordered the sale of the title of which it was seized on that day. On the 29th of January, 1861, the property was sold by the sheriff under the decree, and struck off to Elisha W. Dutcher for the sum of $540.19, and on the 7th of March, 1861, the sheriff made to him a deed.

In the mean time Emily Leake, the mother of the infant heirs of Daniel Leake, had been appointed their guardian, and in November, 1857, she obtained from the Circuit Court of Lee county permission to sell their real estate. Acting under this authority, she sold the premises in controversy, on the 6th of March, 1858, to Joel L. Coe, for $15,000, executed a conveyance, and took back a mortgage to secure the purchase money. This not being paid, Emily Leake and the minor heirs filed their bill against Coe to foreclose the mortgage, and made parties Frederick R. Dutcher, Edward F. Dutcher, Elisha W. Dutcher, Solon Cummins, Willis T. House and the Shelburne Manufacturing company, asking that the sale and decree in the mechanics' lien case be set aside. The Circuit Court, after hearing the case on the pleadings and proofs, so decreed, and Elisha W. Dutcher, Frederick R. Dutcher and the Shelburne Manufacturing company appealed.

The counsel for the appellants does not deny that there are technical errors on the face of the record in the mechanics' lien case, for which that decree is liable to be set aside on a bill of review, which the bill in the present case was in part designed to be; but he claims for Elisha W. Dutcher the position of a bona fide purchaser at a judicial sale for a valuable consideration, and that his title is therefore unaffected by errors in the decree. If Dutcher occupied that position the sale could not be disturbed, but we have arrived at the contrary conclusion, and will briefly state the reasons for our opinion.

The gross inadequacy of consideration is the first thing to be remarked in connection with this sale. The property is shown to have been worth $15,000. About this there seems to be no controversy. It was struck off at the sheriff's sale for $540.19, about one-thirtieth part of its entire value. Now, although mere inadequacy of consideration, standing by itself, is not a sufficient reason for setting aside a judicial sale, yet, if it exist in connection with other circumstances tending to impeach the fairness of the transaction and the good faith of the purchaser, it is certainly entitled to great weight. If the consideration is adequate, that fact alone furnishes an argument in favor of the presumptive fairness of a sale, and would induce a court to lend a less ready ear to other circumstances of a questionable character. But, if property has been sacrificed at one-thirtieth of its value, and that too the property of infants, this fact may well turn the scale in a case where the other objectionable features might not furnish a just ground of interference. Dickerman v. Burgess, 20 Ill. 266.

Meeting this fact, then, at the very threshold of this case, we proceed to inquire whether, notwithstanding this circumstance, Elisha W. Dutcher can claim protection as a bona fide purchaser for a valuable consideration.

Frederick R. Dutcher was the president of the manufacturing company against which this judgment was rendered, and had been from the beginning a large stockholder and its active manager. Elisha W. Dutcher and Edward F. Dutcher were his brothers. The decree in the mechanics' lien case was taken in May, 1859. The sale did not take place until January, 1861. The complainants in that suit had, in the mean time, received payment from some person, and had assigned their decree, as claimed by the appellants, to Edward F. Dutcher. Frederick R. Dutcher continued to control the premises and the business of the company. In his capacity as president he had executed the original deeds of trust to Atherton, and he knew of the subsequent sale under those deeds, and of the sale by the guardian to Coe, and that the title of the property was gone from the company, subject, however, to the decree under the mechanics' lien. Under these circumstances he himself directed the clerk to issue the execution under which the sale was made, and paid to the clerk his fees therefor. When the day of sale arrived, DeWolf, the administrator of the estate of ...