Gaumer v. Snedeker

• Decision Date: 23 June 1928
• Docket Number: No. 18720.,18720.
• Citation: 330 Ill. 511,162 N.E. 137
• Parties: GAUMER et al. v. SNEDEKER.
• Court: Illinois Supreme Court

330 Ill. 511

162 N.E. 137

GAUMER et al.

v.SNEDEKER.

No. 18720.

Supreme Court of Illinois.

June 23, 1928.

Suit by William F. Gaumer and others against Maude Marley Snedeker, in which defendant filed a cross-bill. From the decree, defendant appeals.

Reversed and remanded.

Appeal from Circuit Court, Edgar County; Charles A. Shuey, juge.

Harvey Gross, of Paris, and Brewer & Grant, of Danville, for appellant.

Fred Rhoads and O'Hair & McClain, all of Paris, for appellees.

DUNN, J.

The circuit court of Edgar county rendered a decree setting aside a sheriff's deed to F. E. Marley of lot 4 in Crawford's addition to Paris and a subsequent deed of the same lot by Marley to Maudo Marley Snedeker, the appellant,enjoining her from prosecuting a suit in forcible entry and detainer begun by her against the appellees, William F. Gaumer and Ella Gaumer, to recover the possession of the lot, canceling a judgment of the circuit court against the Gaumers for $3,893.61 in favor of the First National Bank of Paris, and dismissing the cross-bill of Mrs. Snedeker for want of equity. Mrs. Snedeker has appealed.

William F. Gaumer owned 200 acres of land in Edgar county, subject to a mortgage of about $65 an acre. There were judgments of the circuit court against him-one in favor of the First National Bank of Paris for $3,893.61; one in favor of W. S. Logan amounting to about $3,400, one in favor of Henrietta Mapes, and another in favor of Eliza E. James. James Marley, the father of F. E. Marley, was security for him on two notes held by the bank, on which judgment had been taken by confession on March 29, 1920. Execution had been issued on the judgments of Henrietta Mapes and Eliza E. James and levied on the land, which was advertised to be sold on August 14, 1920. On August 5, 1920, a contract was entered into by W. F. Gaumer, Henrietta Mapes, Eliza E. James, and James Marley in the following form:

‘Agreement made and entered into this 5th day of August, 1920, by and between W. F. Gaumer, party of the first part, Henrietta Mapes and Eliza E. James, parties of the second part, and James Marley, party of the third part, witnesseth:

‘That whereas the party of the first part is the owner, subject to certain incumbrances of record, of the following described real estate, to wit: The E. 1/2 of the N. E. 1/4, E. 1/2 of the S.E. 1/4 of section 15, and the N.W. 1/4 of the S.W. 1/4 of section 14, all in town 12 north, range 11 west of the Second P. M. in Edgar county, Illinois.

‘And whereas each of the above-named parties of the second part has a judgment in the circuit court of Edgar county, Illinois, against the party of the first part and his wife, and have made a levy on the above described real estate, and the same has been advertised for sale under the executions issued on said judgments for the 14th day of August, 1920;

‘And whereas the above-named James Marley is a surety on a note for first party, and a judgment has been rendered on said note against first party and an execution levied on said real estate:

‘It is hereby mutually agreed between the parties hereto as follows: That the parties of the second part will at such sale bid for the above described real estate the full amount of their judgments and costs, and if they or either of them become the highest bidder at such sale and acquire a sheriff's deed for such land, they hereby agree to convey by quit-claim deed the same to said third party, as trustee, immediatelyupon the receipt of such sheriff's deed or deeds.

‘In consideration of the covenants and agreements herein made by the other parties hereto, the said party of the first part hereby agrees to convey by quit-claim deed to the said James Marley as trustee, all his interest in and to the above described real estate for the purposes hereinafter set forth.

‘For and in consideration of the covenants and agreements of the other parties hereto, the said party of the third part hereby agrees to accept such conveyances to him as trustee, and does hereby promise and agree upon the receipt of such conveyances to proceed at once to try to find a buyer for said premises, and when such property is sold, and in any event within one year from this date, the said party of the third part does hereby agree to pay to the said parties of the second part the full amount of their respective bid or bids at such sale of said real estate, together with interest at the rate of 6 per cent. per annum from the date of such sale to the date of such payment, said party of the third part further agrees that when said real estate is sold he will account to first party for the proceeds thereof, and will pay out of such proceeds any valid judgments or liens against said real estate owing by said party of the first part, and will also pay the necessary expenses incurred in connection with the selling and conveying of said real estate to the purchaser, and, if there is any balance left after making such payments, including the payment so agreed to be made by third party to the parties of the...