Executors v. Brant
| Decision Date | 30 April 1878 |
| Citation | 1 Bradw. 266,1 Ill.App. 266 |
| Parties | JOHN LILL ET AL. Executors,v.N. B. BRANT, Administrator. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Appeal from the Circuit Court of Cook county; the Hon. Henry Booth, Judge, presiding.
Messrs. Montgomery & Waterman, and Mr. Sanford B. Perry, for appellants; cited upon the question of variance: Brock v. Slaten, 82 Ill. 282.
The jurisdiction of county and circuit courts: Propst v. Meadows, 13 Ill. 168; Von Kettler v. Johnson, 57 Ill. 119; Moffit v. Moffit, 69 Ill. 641; Barnett v. Wolf, 70 Ill. 76; People v. Gray, 72 Ill. 343; Bostwick v. Skinner, 80 Ill. 147; Pahlman v. Graves, 26 Ill. 405; Rev. St. 339, § 69; Const. 1870, Art. VI. §§ 12, 18.
The character of the transaction was that of a special contract: Doyle v. Murphy, 22 Ill. 502; Steele v. Clark, 77 Ill. 471; Albrecht v. Wolf, 58 Ill. 186.
That the action was barred by the Statute of Limitations: Angell on Limitations, Ch. 16, § 166; Governor v. Woodworth, 63 Ill. 254; Hayward v. Gunn, 82 Ill. 385.
Upon the creation of a trust: Gross St. Ch. 44, § 5; Perry on Trusts, §§ 77-84; Hovey v. Holcomb, 11 Ill. 660; Perry v. McHenry, 13 Ill. 227; Seaman v. Cook, 14 Ill. 501; Lantry v. Lantry, 51 Ill. 458; Rogers v. Simmons, 55 Ill. 76; Walter v. Klock, 55 Ill. 362; People v. Lott, 36 Ill. 447.
Messrs. Brandt & Hoffman, for appellee; contending that a conveyance of real estate, though absolute in terms, if intended by the parties to be security for a debt, is in law and equity a mortgage only, cited Delahay v. McConnell, 4 Scam. 157; Miller v. Thomas, 14 Ill. 428; Tillson v. Moulton, 23 Ill. 648; Klock v. Walter, 70 Ill. 416; Strong v. Shea, 83 Ill. 575.
Upon the question of jurisdiction of the county court to adjudicate upon the claim in suit: Moore v. Rogers, 19 Ill. 347; Dixon v. Buell, 21 Ill. 203.
On the 14th of May, 1876, appellee filed in the County Court a claim against the estate of William Lill, setting forth in substance that about June 1, 1865, Horan was the owner of a liquor and billiard saloon, with the stock, fixtures and furniture thereof, in the city of Chicago, of the value of $12,000, and of two lots described, and was indebted to Lill for goods sold and delivered in the sum of $3,500, and to others not named, in the aggregate sum of $15,000; that he then conveyed to said Lill all of said property, “upon the understanding and agreement between said Horan and said Lill that from the proceeds of said property said Lill should pay the debt due as aforesaid from said Horan to said Lill, and the balance of the proceeds of said property said Lill agreed with said Horan to pay to other creditors of said Horan or to said Horan himself;” that Lill thereupon converted to his own use the said personal property, and held the said lots until April, 1875, when he sold them for $9,450, and that he never accounted for any of the proceeds of said property, either to said Horan or to any of his creditors; by reason whereof, said Lill in his lifetime became, and his estate now is, indebted to the estate of said Horan for the use of his creditors and heirs, for the value of the personal property so converted less the debt so due to himself, with interest on the balance from June 1, 1865, and for the proceeds of the lots so sold, with interest thereon from April, 1875, less the taxes and improvements and the expenses of the sale and commissions, credited at $3,000, leaving a balance alleged to be due of $21,176.62.
The claim was disallowed by the County Court, but upon a trial in the Circuit Court on appeal, a verdict was returned in favor of the plaintiff for $9,000, on which, after motions for a new trial and in arrest overruled, judgment was entered. Defendants appealed to this Court, and now assign for error the overruling of their several motions to dismiss the claim, to set aside the verdict and grant a new trial, and to arrest the judgment, and the entering of judgment for the plaintiff upon the verdict.
The testimony shows that said Horan and one Charles Dennehey carried on the saloon as co-partners for a year prior to January, 1864, when they dissolved--Horan retaining the assets, assuming the liabilities and continuing the business. They owed Paris & Allen, of New York, about $5,000, and others, including their lessor for rent, and Horan, with Lill as security, executed a bond to Dennehey to indemnify him against these claims. He afterwards became indebted to Brant & Co., of Chicago, and to John Black, of Milwaukee, for liquors, in about the sum of $2,500, and in February, 1865, transferred his interest in the saloon stock and property to said Lill.
The terms on which this transfer was made are not clearly shown. Dennehey was present, but although called by appellants as a witness on the trial he was not asked by either side in reference to them. He speaks of an inventory as having been then made, but this, with the other papers relating to the transaction, if there were any, was destroyed in the great fire, and all the proof we have on this point consists of admissions or statements said to have been made by Lill shortly thereafter. Three witnesses then in the interest of Brant & Co. or of Black, testify to conversations had by them severally with him, in which he said that he had taken all of Horan's property to protect himself as his security for a debt of some $3,500, but that they had no occasion to be uneasy about the claims they represented, since there was means enough in his hands to pay all the creditors so far as he knew; that he would dispose of the property in such time and manner as would be most advantageous to all concerned, and that all would be paid--himself first, and then the others.
Nor is the value of the property satisfactorily shown, the extreme estimates being three thousand and twenty thousand dollars.
Horan remained in charge of the business after the transfer, and under the direction of Lill continued to sell the stock in the usual course along until the summer or perhaps September, following, when the remnant was closed out at public auction, for about the sum of $400.
In May of that year the claim of Paris & Allen was put into a judgment for $4,982.40; on the 14th of July Horan executed to Lill a warrantee deed, in the common form, of the two lots before mentioned for the expressed consideration of $500; and on the 6th of September Lill satisfied the judgment by the payment of $5,145.00.
Horan died in 1868. Dennehey was one of the executors of his will, and although he thought himself familiar with his affairs, talked with him about them shortly before his death and in view of his own appointment as executor, and had been a witness of the transfer, he never knew or heard of any claim by him against Lill on account of this transaction, and settled the estate without reference to it.
In April, 1875, Lill sold the two lots, which had then been improved by the erection thereon of a fence and a cottage, and otherwise, for $5,500, less the commissions--one-fourth in cash and the residue in equal yearly installments. In the following fall he also died, and in the spring of 1876 appellee's letters of administration were taken out and this claim filed.
Upon the record, which is above sufficiently shown to present the questions of law involved, our conclusions are, first, that this claim, as stated by the appellee, was not within the jurisdiction of the Cou...
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