Eberstein v. Willets

• Decision Date: 12 June 1890
• Citation: 134 Ill. 101,24 N.E. 967
• Parties: EBERSTEIN et ux. v. WILLETS et al.
• Court: Illinois Supreme Court

134 Ill. 101

24 N.E. 967

EBERSTEIN et ux.

v.WILLETS et al.¹

Supreme Court of Illinois.

June 12, 1890.

Appeal from circuit court, Cook county.

Bill by Christian Eberstein and Louisa, his wife, against Martin Willets, Henry Willets, James Mooney, John Boland, F. A. Winkleman, Laura B. Simons, and George G. Newbury to set aside a deed. The circuit court dismissed the bill for want of equity, and complainants appeal.

Miller, Leman & Chase and F. W. Jaros, for appellants.

P. L. Sherman and William B. Bradford, for appellees Henry and Martin willets.

Wilson & Moore, for appellees Simons and Winkleman.

Jesse Holden, for appellee Newbury.

SCHOLFIELD, J.

The substance of the allegations of the bill is that the appellant was arrested by a private detactive, on a warrant issued by a justice of the peace at the instance of Henry Willets and Martin Willets, charging him with the larceny of certain carriage trimmings belonging to them, of the value of $16; and that, instead of being taken before the justice of the peace issuing the warrant, he was taken to a private room of the detective, and there detained, without bail, for two days and nights; that while thus detained, in the room of the detective, his mind being so troubled by recent domestic affliction, and he being so weak mentally and physically that his fears were easily operated upon, he was terrorized by being made to believe that certain innocent acts of his were incapable of explanation by him, except that upon the theory of his guilt, and that such acts would be given in evidence against him, and that this, with other evidence which it was represented would be produced, would be sufficient to convict him of the larceny wherewith he was charged; that he should not be released from custody and restored to his liberty unless he would execute a deed to Martin Willets for sublots 4 and 5 of lot 1, in block 46, in the city of Chicago, and that he should be released from custody upon executing such deed; that he was not guilty of the crime of larceny wherewith he was so charged, but, being thus weak in mind and terrorized, he had no freedom of will, and he executed the deed required in order that he might be released from arrest, and restored to his liberty.

It is elementary, and we need not pause to cite authorities to sustain it, that the relief granted must be in conformity with the allegations of the bill, and that it will never be granted in opposition to those allegations. It is therefore unnecessary to inquire here whether the evidence shows that the deed sought to be set aside was executed to compound a felony. In such case it must be alleged that a felony was committed, and that the instrument sought to be set aside was executed in consideration of an agreement not to prosecute it. 1 Whart. Cent. § 483; Swope v. Insurance Co., 93 Pa. St. 253. In that case, the question may arise whether the parties are in pari delicto, (Haynes v. Rudd, 102 N. Y. 372, 7 N. E. Rep. 287,) but no such question can be relevant here. Here it is only material to inquire, was the act in question the free and voluntary act of the party seeking to set it aside, or was it one prompted by fear to which his judgment never assented? Whitefield v. Longfellow, 13 Me. 146;Smillie v. Titus, 32 N. J. Eq. 51;Felton v. Gregory, 130 Mass. 177.

The evidence is sufficient to authorize the chancellor to believe, as he evidently did believe, that appellant was guilty of larceny as charged, and that the deed was freely and voluntarily executed, in the expectation that it would have the effect to cause an abandonment of the criminal prosecution. Henry and Martin Willets were, and had been for many years, engaged in the business of manufacturing carriages in Chicago. Appellant was a carriage trimmer, and worked for them as such from 1858 until his arrest, in October, 1884. He was in the habit of doing work out of the usual hours of labor both for the Willets and for other parties. For this purpose he had a shop fitted up in the basement of his residence, and to it he was accustomed to take, with the consent of the Willets, material upon which to work. Under guise of taking such material, he was, from time to time, in the habit of taking from their shops other material, not needed for their work, which he made up and sold to other parties. The Willets caused appellant to be arrested by a private detective on a warrant issued by a justice of the peace charging him with larceny. Mooney, the private detective, testified that he did not take appellant before the justice of the peace issuing the warrant, because appellant requested that he should not be; that he was anxious that the matter should not be made public in any way; that he wanted to see his lawyer and his wife, and was anxious to settle the matter with the Willets. It is true appellant, in his testimony, contradicts this; but we hardly feel warranted in saying that the chancellor erred in believing Mooney.

Appellant's wife was brought to him soon after his arrest; remained with him as long as she desired; then went home and returned to him the next day, with his lawyer, Mr. Burke. One of the Willets had an interview with appellant before he saw his lawyer, and it was known to appellant when his lawyer came that claim was made in behalf of Willets that he had stolen property from them amounting to several thousand dollars. Mr. Burke testified, among other things, that, in his interview with appellant, appellant said he had not stolen so much from the Willets as they claimed; that witness replied to appellant that that would make no difference in the question of punishment, provided the amount he had stolen exceeded $15 in value; that witness also informed appellant that, if he were convicted and went to the penitentiary, it would not prevent the Willets from proceeding against his property for the amount he had stolen from them, and that appellant then said: ‘Well, let the property go.’ The deed was acknowledged in due form of law...