Frame v. Badger

• Decision Date: 30 September 1875
• Citation: 1875 WL 8654,79 Ill. 441
• Parties: NORMAN FRAMEv.AUSTIN BADGER.
• Court: Illinois Supreme Court

79 Ill. 441

1875 WL 8654 (Ill.)

NORMAN FRAME

v.AUSTIN BADGER.

Supreme Court of Illinois.

September Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of McHenry county; the Hon. THEODORE D. MURPHY, Judge, presiding.

Mr. F. CROSBY, and Mr. B. N. SMITH, for the appellant.

Mr. M. S. JOSLYN, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

Appellant sued appellee, in the circuit court of McHenry county, in an action of replevin, for the recovery of a quantity of wheat, oats and corn. The writ was executed and the property delivered to plaintiff. Before a trial was had it was stipulated and agreed that the trial should be had as though all proper pleas in a replevin suit were filed, with replications thereto, and issues in fact joined. A trial was had before the court and a jury, resulting in a verdict in favor of defendant. A motion for a new trial was entered, but was overruled by the court, and judgment was rendered on the verdict, and the plaintiff appeals to this court.

It appeared, on the trial, that appellant had charge of and controlled a farm in McHenry county, which belonged to his brother, who was a non-resident of the State. He had with him an arrangement that he was to cultivate it, and pay his brother what he considered a fair consideration for the use of the farm. Appellant had occupied the place on these terms for five or six years, and a final settlement was made by them in the spring of 1874, for the use of the farm for the years 1871 and 1872. Appellant, under the arrangement, was to pay his brother in cash, and not in a portion of the grain raised on the farm.

During the years 1870 and 1871, appellant had leased a portion of the farm to Leonard Frame, for a third of the grain and hay he should raise on that portion, he finding everything necessary to the cultivation and harvesting the crops, but, being unable to support his family, owing to the sickness of his wife, in the autumn of 1871 it was agreed that Leonard should work the ensuing year for appellant, on another farm, appellant to furnish his family with necessaries, and to pay him as much more as he could afford, depending upon the result of the crops, as we infer. But, owing to the sickness of his wife, Leonard was unable to remove to the other place, but remained on the farm of appellant's brother, and cultivated it as he had previously done. Appellant, in pursuance of the agreement, purchased and furnished goods, groceries, etc., for the use of Leonard's family, to the amount of $311. It also appears that Leonard was a distant relative of appellant.

In the autumn of 1872, Sherwood & Austin, having recovered a judgment in the circuit court against Leonard, for something more than $200, sued out an execution, placed it in the hands of the sheriff, and had it levied on the property in dispute, and for the recovery of which appellant brought this suit. There is no dispute that the grain was raised by Leonard on the farm of the brother of appellant.

It also appears that, in the summer of 1872, E. A. Murphy & Co. caused an execution to be levied on this and other property, on which one Delafield held a chattel mortgage, as the property of Leonard. Appellant and Delafield commenced replevin before a justice of the peace, where, on a trial, the case was decided in favor of the constable, and an appeal was prosecuted to the circuit court, but, before a trial was had, Leonard turned out property not subject to execution, to appellant and Delafield, nearly sufficient to satisfy both debts, and the replevin suit was compromised, and E. A. Murphy & Co. were paid their debt, and the property was released from the levy, and the replevin suit dismissed.

It also appears that, in the summer of 1872, appellant had a conversation with E. A. Murphy, in which he says that appellant told him that Leonard Frame's crops were good, and that he thought he would be able to pay a part of his debts the next fall; that, on the next day, appellant came to him and said he had forgotten to tell him, on the day before, that Leonard was working for him that year. On cross-examination, this witness said he would not be positive whether appellant “said Leonard's crops were good, or that Leonard had raised good crops;” that he would not be positive as to whether appellant “said he had forgotten to tell me whether Leonard was working for him, or that he felt it his duty to come and tell me the way the thing stood.”

Appellant, on being recalled, testified that he told Murphy that Leonard had raised good crops that year, and that, when he saw Murphy the next day, he said to him he thought it his duty to tell him how the matter stood, and that Leonard was working for him, and had been during the year.

The controversy arises on this evidence as to the ownership of the property. Appellant claims that, as he hired Leonard to cultivate the grain, the title is in him. On the other hand, appellee contends that the arrangement was designed and carried out for the purpose of defrauding, hindering and delaying creditors of Leonard in the collection of their debts. This seems to have been the theory of the defense on the trial below.

It is urged, as a ground of...