Emmons v. Moore

• Decision Date: 31 January 1877
• Citation: 85 Ill. 304,1877 WL 9546
• Parties: MARTHA E. EMMONS et al.v.CATHARINE MOORE.
• Court: Illinois Supreme Court

85 Ill. 304

1877 WL 9546 (Ill.)

MARTHA E. EMMONS et al.

v.CATHARINE MOORE.

Supreme Court of Illinois.

January Term, 1877.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. W. W. FARWELL, Judge, presiding.

Messrs. SCOVILLE & BAYLEY, for the appellants.

Messrs. SLEEPER & WHITON, for the appellee.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was a bill in equity, brought by Catharine Moore, to set aside and cancel, as a cloud upon her title to a tract of land near Chicago, consisting of one hundred acres, a levy under a writ of attachment at the suit of Scoville against Alex. McClurg, a judgment, sheriff's deed, and also a deed from the purchaser at the sheriff's sale to Alfred W. Davidson, and a deed from him to Martha E. Emmons.

The defendants to the bill put in their answers, and after replications were filed, the cause proceeded to a hearing on the evidence, and a decree was rendered as prayed for in the bill, to reverse which this appeal was taken.

The land in question consists of one hundred acres, and was originally owned by Asa Farnsworth. About the first day of March, 1856, James McClurg, Sr., purchased this tract, and Watson S. Hinckley, at the same time, purchased an adjoining tract, consisting of one hundred and sixteen acres. The consideration paid by each party was $5000. The land bought by Hinckley was conveyed to him by Farnsworth, but the tract purchased by James McClurg, Sr., was conveyed to Alex. McClurg, a son, who then resided at Racine, Wisconsin. Hinckley and McClurg, Sr., resided at Westfield, in the State of New York. The deed from Farnsworth, conveying the land to Alex. McClurg, was placed upon record on the 21st day of May, 1856.

At the time the land was purchased, George Scoville was residing in Chicago, and was engaged in the practice of law. He claimed that Alex. McClurg was indebted to him in the sum of $100, for services as an attorney in a certain case instituted by the firm of Smith, Turner & McClurg against the Racine and Mississippi Railroad Company, and, on the 16th day of June, 1859, he sued out an attachment, and levied upon the land in question. In the following August judgment was rendered, and on the 8th day of October the premises were sold, and bid off by Scoville for $128, the amount of his judgment and costs. The certificate of purchase was sold to Davidson, but, by his direction, it was assigned to one Dyer, who obtained a sheriff's deed for the premises on the 14th day of April, 1863. Dyer then conveyed to Davidson, who subsequently conveyed to his daughter, Martha E. Emmons, and this is the title relied upon by her, which the bill was brought to set aside.

It appears, from the evidence, that at the time James McClurg, Sr., purchased the land, he had a crippled son, James McClurg, Jr., and the land was intended by the father as a provision for the son. At the time the deed was written for Farnsworth to execute, Mr. Hinckley, who assisted in buying the land, and was familiar with the whole transaction, testified that when he sat down to make out the papers, James McClurg, Sr., told him he intended the land for his son James, but as James was at the time involved in litigation, he did not want the title then in his name; but the deed could be made to Alexander, to hold until he could safely have the land conveyed to James. McClurg, Sr., at the time, was living with a wife by a second marriage, and she would sign no deed with her husband unless she was paid a bonus. For this reason he did not want the deed made to him, as he would not then be able to carry out his intention of eventually investing the title in the name of his son. This evidence in regard to the object and intent of James McClurg, Sr., in having the land conveyed to Alexander, is from a witness who seems to be entirely reliable, and who has no interest whatever in the result, which might have a tendency to prejudice his testimony. Alex. McClurg had no knowledge that the land had been conveyed to him until the 1st day of November, 1859, when, upon the request of his father, he executed a deed conveying the land to James McClurg, Jr., the person for whom it was originally intended, which deed was recorded Nov. 11, 1859.

It is, therefore, apparent, that while the naked legal title to the premises was vested in Alexander McClurg, the equity was in another. He held the title in trust. As said by Story, Equity Jurisprudence, vol. 2, sec. 1201, where a man buys land in the name of another and pays the consideration money, the land will generally be held by the grantee in trust for the person who so pays the consideration. This, as an established doctrine, is now not open to controversy.

The fact, however, that Alexander held the legal title in trust, nothing appearing upon the deed to show that fact, would not preclude Scoville from obtaining the title by sale upon judgment against Alexander, if he had no notice of the manner in which the title was held. But the right of Scoville to levy upon, sell and acquire title to his client's land, under the circumstances under which the land in question was sold, might well be questioned. It will be remembered that McClurg was Scoville's client. He resided only sixty miles from Chicago, was in business and responsible for all contracts. The collection, therefore, of a fee of $100, if it was meritorious, and justly due, would seem to be an easy task. A judgment could have been obtained before a justice of the peace where McClurg resided, within a short time, attended with little expense, and the debt collected. This course, which prudence would seem to dictate, if the only object was to collect a small debt, was not pursued. But a tract of land, consisting of one hundred acres, which three years before had cost $5000, and which, in the meantime, had, no doubt, largely increased in value, and which, as appears from the evidence, is now worth from $60,000 to $80,000, was seized by attachment, and sold for $128, to satisfy a debt of $100. This was done, and the time allowed by law for redemption expired, and Scoville gave no notice whatever to McClurg of the proceedings.

While it is true an attaching creditor was at that time under no legal obligation to give personal notice to the debtor of the proceedings, but would be entitled to be protected in his judgment by giving the notice...