Elmore v. Johnson

• Decision Date: 31 October 1892
• Citation: 32 N.E. 413,143 Ill. 513
• Parties: ELMORE v. JOHNSON et ux.
• Court: Illinois Supreme Court

143 Ill. 513

32 N.E. 413

ELMORE

v.JOHNSON et ux.¹

Supreme Court of Illinois.

Oct. 31, 1892.

Appeal from superior court of Cook county; KIRK HAWES, Judge.

Bill by Susie K. Elmore against Frank A. Johnson and Annie C. Johnson to set aside a deed. The bill was dismissed for want of equity, and complainant appeals. Affirmed.Alex. S. Bradley

, for appellant.

James E. Munroe and F. A. Johnson, for appellees.

The other facts fully appear in the following statement by MAGRUDER, J.:

This is a bill filed in the superior court of Cook county on December 11, 1890, by the appellant against the appellee and his wife for the purpose of setting aside a deed made by the appellant to the appellee on January 17, 1884, conveying to him the W. 1/2 of lots 6, 9, 20, and 23, in the subdivision of S. 1/2 of S. W. 1/4 of N. W. 1/4 of section 22, township 39 N., range 13 E., etc., in Cook county; said west half consisting of 16 of the 32 sublots into which said lots 6, 9, 20, and 23 were subdivided. Also for the purpose of requiring Annie C. Johnson, the wife of appellee, to convey to appellant the title held by her to said west half; and also for the purpose of taking an account of moneys paid out by appellee for appellant, and of money received by him for her, and of services by her to him and by him to her, and of losses alleged to have been caused by want of diligence and skill and by alleged misconduct, etc. The defendants answered the bill. Replications were filed to the answers. Proofs were taken, and, the cause coming on to be heard in May, 1891, the bill was dismissed for want of equity, etc. The present appeal is prosecuted from such decree of dismissal.

The deed was executed by appellant to appellee in payment for his services to her as her solicitor and attorney in the matter hereinafter mentioned. The bill charges that the defendant Johnson was negligent and unskillful in the conduct of the complainant's business; that his services were worth less than the value of the 16 sublots conveyed to him; that the complainant was without means, and when defendant began to insist upon pay for his services she agreed to pay him $400 if he would obtain title for her to the 4 lots or 32 sublots; that, after a decision had been rendered in her favor, and before the execution of the master's deed to her, the defendant induced her, by fraudulent representations and false promises, to convey to him the west half of said lots; that she supposed the deed made by her to be a deed of an undivided one-half part of the lots when she signed it; that between the summer of 1883 and November, 1888, she did certain typewriting work for the defendant in his office, for which he had not paid her; that an execution issued in the attachment suit hereinafter mentioned was returned no part satisfied; that the executions issued upon the decree for alimony hereinafter mentioned could have been collected or secured; that a mortgage suit against the property was allowed to go by default; that the lots had been sold for taxes; that complainant did not know any of the facts in regard to said executions, or the abandonment of the mortgage suit, or the value of defendant's services in the chancery case until the day before filing her bill; that she first retained the defendant to collect her alimony, and obtain title to the lots ‘for a reasonable fee and reward;’ that she did not learn of the tax sales until ‘somewhat over a year’ before filing her bill; that she first discoveredthe facts as to defendant's negligence and misconduct, etc., within a few days before filing the bill.

The answer of the defendant denies all the allegations of the bill as to fraud, neglect, or misconduct, and as to the agreement to take $400 for services, and sets forth a history of his professional relations with the complainant, and gives his explanation of the various matters referred to in the bill, and charges laches, etc.

On September 24, 1879, the complainant, who was then about 33 years old, and had been divorced from a former husband named Elmore, delivered to one Collins Pratt, an attorney in Chicago, government bonds, owned by her, to the amount of $600, to be by him converted into money, and loaned out upon real-estate security. Pratt used this money to purchase said lots 6, 9, 20, and 23, and obtained a deed of the same to himself on September 24, 1879. He then executed his own note, dated October 4, 1879, for $600, payable in two years, to the order of complainant, with interest at 8 per cent., and also a trust deed to secure the same, upon said lots, to one Paul Mackenhaupt, as trustee, and delivered said note and trust deed to the complainant. On March 8, 1880, Pratt, who was at that time engaged to be married to the complainant, obtained the note and trust deed from her upon some representation that it would be necessary to change the securities in view of their approaching marriage, and applied to Mackenhaupt for a release of the trust deed, which was executed and delivered to Pratt on said 8th day of March, 1880. On March 24, 1880, the complainant and Pratt were married, and lived together until about May 1, 1880, when he abandoned her. During said marriage, and on April 13, 1880, Pratt borrowed $500 of one Eimers, and executed his note of that date for that amount, payable in two years, to the order of Eimers, and to secure said note he and appellant conveyed said lots 6, 9, 20, and 23 to Charles Thornton, trustee, by trust deed of same date. On the same day, April 13, 1880, there was filed for record a warranty deed, executed by Pratt, and purporting to have been also executed by complainant as his wife, conveying said lots 6, 9, 20, and 23 to one Addie Pratt, a reputed sister of Collins Pratt, in whose name subdivision was made of the 4 lots into the 32 sublots above referred to. On April 30, 1880, the defendant executed his unsecured note to the complainant for $600, payable two years after date, with 8 per cent. interest. This latter note complainant claims to have known nothing about until long afterwards, when she was trying to collect the $600 from Pratt, and he stated that he had given his note therefor. She says that she then examined her trunk and papers, and found the note for the first time. On November 1, 1881, complainant obtained a decree of divorce from Collins Pratt upon the ground of adultery, which decree required him to pay her $40 every month as alimony, and changed her name to Susie K. Elmore. Mr. John W. Waughop was her solicitor in the divorce suit. Soon after the separation between complainant and Pratt, she employed Mr. Leonard Swett to collect the $600 from Pratt, and Mr. Swett succeeded in obtaining $250 of that amount for her. About the time of the decree of divorce, or soon thereafter, Mr. Waughop had made an agreement for her with Pratt, by the terms of which Pratt was to pay $500 in full discharge of alimony and of the balance due upon the claim for $600, said sum of $500 to be paid at the rate of $5 per week. She was paid $5 per week up to and until February 18, 1882. It would appear that Mr. Swett received $50 for his services, and Mr. Waughop nothing. By deed dated January 7, 1879, one Arnold and his wife sold and conveyed to Collins Pratt and Edgar M. Wilson lots 2, 13, 16, and 27 in said subdivision for an expressed consideration of $600; and to secure their note for $500, payable in three years, to order of William Fitzgerald, with 10 per cent. interest, Pratt and Wilson executed a trust deed, dated January 21, 1879, conveying said last-named lots to O. T. Hartigan, trustee.

Such being the condition of affairs, the complainant, about the middle of February, 1882, applied to the defendant Johnson to act as her attorney and solicitor in recovering what might be due to her in money or property from her former husband, Collins Pratt. Accordingly, on February 23, 1882, the defendant filed a bill for the complainant, as her solicitor, in the circuit of Cook county, against the said Collins Pratt, Addie Pratt, Eimers, and Thornton. This bill was sworn to by Mrs. Elmore. It sets up the facts hereinbefore stated. It charges that the note of April 30th was never delivered to her or accepted by her; that Pratt obtained the $600 to use for himself, and deceived her in respect thereto, and attempted to defraud her out of the money; that either her signature to the deed to Addie Pratt was forged, or obtained from her by fraud and misrepresentation, and without consideration; that lots 2, 13, 16, and 27 are of the value of $1,000, and are the only property owned by Pratt; that said $600 was not loaned to Pratt, but intrusted to him for conversion into real-estate securities drawing 8 per cent.; that the note and Mackenhaupt trust deed were obtained from her in order to cheat and defraud her, and get a release of the trust deed; that the Eimers note and Thornton trust deed were without consideration, or accepted with notice of her rights, and with the intent to cheat and defraud her. The bill offers to return and cancel the note of April 30th. It contains the following averment: ‘Your oratrix believes, and on belief avers the fact to be, that said defendant purchased said real estate (lots 6, 9, 20, and 23) with the money so intrusted to him as aforesaid, to be invested by him in good real-estate securities.’ The bill prays that the release deed made by Mackenhaupt may be set aside and canceled, and that the trust deed to him may be declared to be in full force, and a valid lien upon said lots for the balance of the $600 due from said Collins; and for such other relief as the nature of the case may require and may seem meet. On March 18, 1882, the bill was amended by averring that Pratt was then the owner of said lots 6, 9, 20, and 23, and held an unrecorded deed, dated February 9, 1882, from Addie Pratt to himself. On March 10, 1883, the prayer of the bill was amended as follows: ‘Or that Pratt may be declared to hold the...