Fitts v. Davis

• Decision Date: 30 November 1866
• Citation: 1866 WL 4704,42 Ill. 391
• Parties: MONTREVILLE FITTS et al.v.NANCY DAVIS et al.
• Court: Illinois Supreme Court

42 Ill. 391

1866 WL 4704 (Ill.)

MONTREVILLE FITTS et al.

v.NANCY DAVIS et al.

Supreme Court of Illinois.

November Term, 1866.

WRIT OF ERROR to the Circuit Court of the county of Williamson; the Hon. WILLIAM J. ALLEN, Judge, presiding.

The facts of the case are stated in the opinion of the court.

Messrs. TANNER & CASEY, for the plaintiff in error. Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

This was a suit in chancery, brought by Montreville Fitts and Wiley Marvell, in the Williamson Circuit Court, against Nancy Davis, administratrix, and Thomas D. Davis, administrator, of the estate of John F. Davis, deceased, and John B. Tanner, for a strict foreclosure of a mortgage, or for an account and a sale of the mortgaged premises, to satisfy a debt; also to vacate and set aside a sale of the premises made by the sheriff of Williamson county, in favor of defendants, on an execution sued out by them, on a judgment in favor of their intestate.

The bill alleges, that, on the 2d day of April, 1855, complainants conveyed to Tanner the fee in eighty acres of land on which there was a steam grist-and saw-mill, for the sum of $1,800.90, and took the promissory note of Tanner, payable one year after date, for the purchase money; and, to secure the payment of the same, Tanner executed a mortgage to them on the premises, which was duly recorded on the 6th day of April, 1855. That, on the 24th day of that month, John F. Davis, since deceased, recovered a judgment in the Circuit Court against Tanner for the sum of $193.22. That Davis subsequently died intestate, and letters of administration were granted, on the 14th day of August, 1855, to Nancy and Thomas D. Davis; and, on the 17th day of January, 1857, they caused an execution to issue on the judgment, which was levied upon the premises in controversy, which were sold thereunder, and they became the purchasers.

The bill charges that the Davises are fraudulently setting up a claim of title to the premises by virtue of that sale; that, after the mortgage was executed and before the purchase money became due, on the 15th day of June, 1855, complainants, at the request of Tanner, surrendered to him the note, and he reconveyed to them the premises in fee, which was the only means by which the mortgage was ever paid or discharged; that the land was not worth the amount of the note when it was surrendered; and that Tanner was then wholly insolvent. The bill prays that the sale made by the sheriff to the Davises be set aside, or that the mortgage premises be sold, or that a strict foreclosure be had, and the title vested in complainants.

The answer admits that Tanner purchased the land as charged in the bill, and for the consideration named; that his deed was recorded on the 16th of January, 1857; also, that he executed the mortgage as charged, but denies that Tanner made default in paying the mortgage debt, and that he, for a sum of money not named in the answer, conveyed the premises in fee to complainants, Davises; that the legal estate was vested in complainants, but insists that it was in Tanner, for the reason that he and complainants canceled the mortgage, and he reconveyed the property on the 14th day of June, 1855. They admit that John F. Davis recovered the judgment on the 14th of April, 1855, against Tanner, and that the land was sold under it, as alleged. They deny all fraud as charged.

Exceptions were filed to the answer, but, so far as we can discover from the record, they were never disposed of by the court. Afterward, defendants filed a demurrer to the bill, which the court sustained, and rendered a decree dismissing the bill. Complainants bring the case to this court on a writ of error, and ask a reversal of the decree.

There is no pretense that the transaction between plaintiffs in error and Tanner was tainted with fraud. The transaction, then, appearing to be bona fide, the question presents...