Evans v. McKinney

• Court: Illinois Supreme Court
• Writing for the Court: FARMER
• Citation: Evans v. McKinney, 308 Ill. 100, 139 N.E. 99 (Ill. 1923)
• Decision Date: 18 April 1923
• Docket Number: No. 15243.,15243.
• Parties: EVANS et ux. v. McKINNEY et al.

308 Ill. 100

139 N.E. 99

EVANS et ux.

v.McKINNEY et al.

No. 15243.

Supreme Court of Illinois.

April 18, 1923.

Suit by William D. Evans and wife against Frederick W. McKinney and others. Decree for complainants, and defendants appeal.

Affirmed.

Appeal from Circuit Court, Marshall County; T. N. Green, judge.

Williams, Loyall & Tunstall, of Norfolk, Va., and McRoberts & Morgan, of Peoria, for appellants.

Barnes, Magoon & Black, of Peoria for appellees.

FARMER, J.

This case comes to this court on appeal from the circuit court of Marshall county, where a decree was entered in favor of complainants, who are appellees here. The original bill was filed August 6, 1921, by William D. Evans and Jeannette Evans, his wife, in the circuit court of Marshall county, making Frederick W. McKinney, his wife, Anna, J. N. Lewis, Ernest Lewis, Charles L. Kent, and A. P. Grice individually and as trustee, defendants to the bill. The McKinneys, Kent and Grice, as trustee, filed their answers, denying the material allegations of the bill. Replications were filed to the answers. Grice as an individual and the two parties named Lewis were defaulted. The cause was referred to the master to take the proof and report his conclusions, after which some evidence was taken by depositions at Belhaven, N. C., and at Norfolk, Va., at which latter place the McKinneys and Grice resided. On January 14, 1922, complainants filed an amended bill, similar to the original bill, making the Guaranty Title & Trust Corporation of Norfolk a defendant.

The amended bill alleged that on and prior to October 16, 1920, the complainants were the owners in fee and in possession of land in Marshall county, Ill. (describing it), known as the Riffey farm, containing 146 1/2 acres and worth $65,925; that H. O. Pattison stated to complainants he had for sale certain lands know as the Shirley tract, comprising 1,148 acres and located in Beaufort county, N. C.; that Pattison represented these lands were level, of high fertility, well adapted for farming and continuous growing of corn and other crops, without soil treatment or fertilization, and were worth at least $125 an acre; that Pattison and some other parties had an option on the Shirley tract for $100 an acre; that at least 425 acres of the land were free and clear from logs; that 90 per cent. of the stumps on the land were of gum trees, well rotted, and could be easily pushed over; that 125 acres were in cultivation, and the balance of the 425 acres could be run over with a disc harrow, and after the vegetation had dried a fire could be run through it, after which the land could be plowed and crops successfully grown upon it; that the expense of preparing the 425 acres would not exceed $1 an acre; that the remainder of the acreage could be cleared and placed in cultivation for not over $2 an acre; that there were sufficient ditches running through it to properly drain the tract, and that there were two good artesian wells thereon; that to induce complainants to buy the tract, Pattison agreed, as part of the deal, that he and other persons interested in the Shirley tract would purchase at a valuation of $22,000 certain Canadian land belonging to complainants, and the payments thereon would be made to complainants in such amounts and at such times as would take care of a certain second mortgage to be given by them upon the Shirley tract; that the sum of $10,000 was on deposit in the Virginia-Carolina Joint-Stock Land Bank at Norfolk to the credit of the then owners of the Shirley land, which would be transferred subject to complainants' order, for development of the Shirley tract; that complainants had never seen or examined the Shirley tract, and, relyingupon the truth of the several statements, representations, and promises of Pattison, they on October 16, 1920, entered into a written agreement with the Pioneer Realty Company, of Peoria, Ill., of which partnership company Pattison was a member.

A copy of the written contract was attached to and made a part of the bill. The written contract in substance provided that the Pioneer Realty Company agreed to convey the property known as the Shirley farm, containing 1,151 acres, more or less, to complainants, and the latter agreed to pay therefor the sum of $123,732.50, the payments to be made in the following manner: Complainants to deed to the Pioneer Realty Company the Riffey farm at the price of $65,925, to assume a federal farm mortgage on the Shirley tract for $37,500, and to execute a second mortgage thereon in the sum of $20,307.50. It was seemingly further agreed that the Pioneer Realty Company was to take certain Canadian land owned by complainants at a valuation of $22,000, the proceeds of this property to be applied on the second mortgage to be given by complainants on the Shirley tract. The contract also contained other minor details, and was executed by Pattison for the Pioneer Realty Company and by complainants.

The bill further alleged that on or about December 1, 1920, before the delivery of the deeds and papers mentioned in the agreement, complainant Evans informed Pattison that before complainants would complete the deal a more definite contract relative to the taking of the Canadian land would have to be executed and delivered to complainants; that Pattison agreed that the original contract did not plainly express the intention of the parties, and a new contract was prepared by complainants' attorneys, and the provisions thereof were accepted by Pattison; that Pattison recopied the Canadian land contract, changing it materially, and induced complainants to sign it, they believing it was the original contract prepared by their attorneys; that at the time of signing the last-mentioned contract Pattison stated he had sent and assigned the original agreement of October 16, 1920, to the Guaranty Title & Trust Corporation of Norfolk, or to Frederick W. McKinney, of the same place, who were his associates in the deal; that all the members of the Pioneer Realty Company would sign the agreement, and it would later be signed and approved by the trust corporation and McKinney; that Pattison and Evans on December 14, 1920, which was the date of the contract last mentioned, went to Norfolk for the purpose of obtaining the signature and approval of the trust corporation to the contract, and so Evans might satisfy himself as to the title to the property; that Grice and McKinney were there told that complainants would not complete the deal, unless a new contract was executed and delivered relative to the taking of the Canadian land, and that Grice and McKinney said they knew of the provisions of the contract of October 16, 1920, relative to the Canadian land, and promised that the new contract as agreed upon between Evans and Pattison would be signed and delivered to complainants; that McKinney at that time stated to Evans the condition of the Shirley tract, making the same representations to him as to the value, number of acres logged, number of acres in crop, cost of placing the land in cultivation, as to the ditches and laterals being adequate for drainage of the property, as were formerly made to complainants by Pattison; that McKinney also stated to Evans that there was at that time $9,528.92 in cash on deposit in the Virginia-Carolina Joint-Stock Land Bank, which fund would be subject to the order of Evans, to be used by him in the improvement of the Shirley tract when the deal was completed.

The bill alleged that the Shirley farm was in such condition, with vegetation and underbrush growing thereon, that it was imposible to drive a team over it, or to see the condition of the stumps on the land, how much of the land had been logged off, and as to what its actual condition was; that complainants relied implicitly upon the representations of McKinney as to the condition of the property, also as to his promise that a further contract would be executed and delivered relative to the taking of the Canadian land, as well as upon his statement as to the amount of cash in the bank to be used by complainants; that relying upon all of the statements, promises, and representations of Pattison and McKinney, and that the trust corporation was not interested and could act as escrow agent for the delivery of necessary instruments in connection with the transaction, complainants sent to the trust corporation, properly executed, a deed to the Riffey farm, with certain escrow instructions which had been previously prepared by McKinney; that one of the provisions of the escrow agreement was that an agreement be obtained relative to the money in the land bank in amount of $9,528.92, whereby said money should be subject to complainants' order; that McKinney did not disclose that the trust corporation had anything to do with the transaction, but that it now appears that McKinneywas an officer of both the trust corporation and the land bank, and that he knowingly and maliciously deceived and defrauded complainants into sending the necessary instruments to the trust corporation, believing it to be a fair and proper escrow agent; that the trust corporation was in collusion with McKinney and was to profit out of the transaction; that Grice, president of the trust corporation, was also president of the land bank; that McKinney was the farm sales manager of the trust corporation, and also secretary of the land bank; that Grice, as an individual and officer of the trust corporation, was in collusion with McKinney, and knew of the false representations made by him to complainants in the transaction; that Grice, individually and as an officer of the trust corporation, wrongfully and with intent to defraud the complainants, delivered the deed conveying the Riffey farm to McKinney without following the directions in the escrow agreement, and that the deed to the Riffey farm was never legally delivered; that the land bank was a ‘mere puppet’ of the trust corporation; that...