Flint v. William Lewis.

• Decision Date: 30 September 1871
• Citation: 61 Ill. 299,1871 WL 8254
• Parties: SOLOMON F. FLINTv.WILLIAM LEWIS.
• Court: Illinois Supreme Court

61 Ill. 299

1871 WL 8254 (Ill.)

SOLOMON F. FLINT

v.WILLIAM LEWIS.

Supreme Court of Illinois.

September Term, 1871.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Knox county; the Hon. ARTHUR A. SMITH, Judge, presiding.

Messrs. WILLIAMS, CLARK & CALKINS, and Messrs. FROST & TUNNICLIFF, for the appellant.

Messrs. CRAIG & HARVEY, and Mr. S. C. LANPHERE, for the appellee.

Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

On the 23d day of May, 1863, the appellee, William Lewis, being indebted to a firm doing business in the city of Galesburg, in this State, under the name of C. S. Colton & Sons, in the sum of $874.08, executed to said firm his four promissory notes of that date, for the sum of $218.52 each, and payable respectively in one, two, three and four years from date, with interest at the rate of ten per cent per annum, payable annually. As security for the payment of these notes, he, at the same time, executed a trust deed, for the benefit of the payees, to one Milo D. Cooke, as trustee, the deed covering two forty-acre tracts of land situate in Knox county, near said city, and properly described in the deed, which declared the trust and contained the power that, in case of default in the payment of the notes, either, or any part of them, then, on the application of any legal holder, it should be lawful for said trustee to sell and dispose of said premises and all right, benefit and equity of redemption of the grantor therein, at public auction, at the south door of the court house of said county, for the highest and best price the same will bring in cash, ten days public notice having been previously given of the time of such sale, by advertisement in one of the newspapers at that time published in said county. It also authorizes the trustee to execute a deed to the purchaser.

Under this power, the trustee sold the land conveyed. It was purchased by one Stoddard, for $100 for each forty-acre tract, to whom the trustee executed a deed, and Stoddard quitclaimed to Flint.

Lewis filed his bill in the Knox county circuit court, alleging a fraudulent collusion between Stoddard and one of the Coltons, to cheat him out of said lands, and breach of duty on the part of the trustee, and asked to have the sale and deeds thereunder set aside, and to be allowed to redeem, alleging that Flint purchased with notice, etc.

Flint, Stoddard, the Coltons, and Cooke, the trustee, were made parties defendant, and filed their answers, to which replication was filed.

The cause was heard upon pleadings, proofs and exhibits, and a decree was rendered in favor of Lewis, setting aside the sale and deeds. The defendants appealed from that decree, to this court.

It appears that Lewis paid the first three notes, and all interest, not precisely when due, but in a manner satisfactory to the payees. When the last note came due, in May, 1867, it seems that Colton did not want the principal. The interest was paid, and by mutual consent the principal was to remain unpaid another year. About the time it would be due by that understanding, Lewis called on C. S. Colton and inquired of him if he wanted his money. The latter proposed to him to pay the interest and $18.52, so as to reduce the principal to just $200, and let that remain another year.

William Lewis was far advanced in life, and was blind. Relying probably on the previous dealings between him and C. S. Colton, with whom he had all the dealings, so far, when May, 1869, came around, he did not go to see Colton until the 29th day, some three days after the balance was due, by their verbal understanding. He then asked C. S. Colton if he wanted his money. The latter replied that he needed the money. Lewis then said, as he testifies: “Give me the mortgage, and I will go to Stoddard and get the money.” Colton then said: “Don't do it; don't you let this mortgage go into any stranger's hands; it is safe in our hands, and we can do very well without the money for another year.” This, William Lewis testified, was the first time he had ever said he wanted the money, and witness supposing, in his blindness, that Colton was still present, replied: “I will have it in a few days.” But before this remark was uttered, Colton had gone.

It is true that C. S. Colton, though rather evasively, denies having such conversation, at the time alleged, and his son, John B. Colton, who himself claims to have been present, denies it in toto. But the complainant, testifying to an affirmative fact, is corroborated by his son, who was with him, and there is an inherent probability in his favor arising from other circumstances.

John B. Colton testifies “that Wm. Lewis wanted to pay him money on the notes before they were due, and witness told him he would rather have the trust deed than the money. Afterwards, Lewis wanted witness to take the money to accommodate him. It was a portion of what was due on the trust deed, but not all.”

So it was true, in fact, that they could get along another year very well without the money, and, indeed, it is very apparent, from the evidence, that until C. S. Colton parted with control over the note, and it was supposed that an opportunity had been presented to John B. Colton and Stoddard to overreach old Mr. Lewis, and wrongfully deprive him of his farm by means of the trust deed, the holders of the note were very willing to let the balance lie and take their interest, which had been promptly paid. Besides, old Mr. Lewis, before he gave the deed, and ever afterwards, was extremely anxious lest some advantage would be taken of him, and he lose his farm. The Coltons, including John B., were perfectly aware of this, and had given him strong assurances that no such advantage would be taken of him. Acting under this fear, which was perhaps stimulated somewhat by the abrupt manner in which C. S. Colton had left him while talking about the balance, he proceeded at once to raise the money with which to pay it. He succeeded; and on the 10th of June, 1869, sent his son, Hiram, with it, to make the payment; but, strange to say, neither of these Coltons could be found, and he went back with the object unaccomplished. On the 20th of the same month, Hiram was sent again, and although using every reasonable degree of diligence, neither of them could be found....