Gibbs v. Meserve

• Decision Date: 31 March 1883
• Citation: 12 Ill.App. 613,12 Bradw. 613
• Parties: GEORGE A. GIBBSv.EMMA P. MESERVE.
• Court: United States Appellate Court of Illinois

12 Ill.App. 613

12 Bradw. 613

GEORGE A. GIBBS

v.EMMA P. MESERVE.

Appellate Court of Illinois, First District.

March Term, 1883.

OPINION TEXT STARTS HERE

ERROR to the Superior Court of Cook county; the Hon. GEORGE GARDNER, Judge, presiding. Opinion filed April 24, 1883.

This was a bill in equity brought by the defendant in error against the plaintiff in error, and one Buschwah, to redeem certain lands alleged to have been conveyed by defendant in error to Gibbs, as security for money loaned. The bill alleges in substance, that the complainant in 1877, conveyed to Gibbs by a deed, absolute in form, but in fact as security for moneys advanced and to be advanced by Gibbs, lots 2, 3, 24, 25 and 26 in McDaid's subdivision, etc., that thereupon Gibbs loaned to her from time to time small sums of money, amounting in the aggregate to not more than $500.

Avers that she has tried to make a settlement with him in order that she might pay him whatever is justly his due, but that Gibbs refuses to account with her and to reconvey said lots. Alleges that Buschwah pretends to have purchased said lots from Gibbs, but avers that if he did so purchase, it was with knowledge that Gibbs held the title only as security. Prays that an accounting may be had, and Gibbs may be decreed to reconvey the lots to her upon the payment by her (which she offers to make) of whatever she owes Gibbs, or that if a reconveyance can not be had, that Gibbs be required to account for the proceeds of the sale of the same.

The defendants filed separate answers. Buschwah denies all knowledge of the dealings between Gibbs and the complainant; denies upon information and belief, that the lots were conveyed to Gibbs by way of security, but avers they were conveyed absolutely, with the intention to convey an unconditional title to the same to Gibbs, and alleges that he, Buschwah, purchased the same in good faith for full value paid by him, and without any knowledge or information that the complainant claimed any right or interest in or to the lots.

The answer of Gibbs denies that the lots were conveyed to him by way of security, but alleges, on the contrary, that the conveyance was made for the purpose of conveying to him the absolute and unconditional title. Denies all allegations in relation to a loan, and denies that he has refused to account with complainant, and says if there is any money due from him to complainant, he is ready to account therefor in any proper tribunal, etc., and refers to the answer of Buschwah, for a full and complete statement of the facts in relation to the sale and purchase by the latter, of the lots in question. Replications were filed, and the case was heard upon proofs taken in open court.

The court found that the lots were conveyed by defendant in error to Gibbs as security for moneys advanced and to be advanced. That previous to the filing of the bill, Gibbs h??a conveyed the lots to innocent third parties for value, who purchased without notice of complainant's equities, and defendants were therefore unable to reconvey to complainant. That the lots were then worth the sum of $2,700, and that upon an accounting Gibbs should be charged with that amount, together with the further sum of $354 upon a certain outstanding note, making the total amount to be charged to him $3,054 from which was to be deducted $1,107.98 being the amount with interest thereon of moneys loaned and advanced by Gibbs to complainant, leaving a balance due from Gibbs to complainant of $1,946.02. That Buschwah was an innocent purchaser of the lots for value, and that the bill as to him be dismissed.

The court decreed that the complainant recover from Gibbs the sum of $1,946.02 subject to a reduction of $354, if Gibbs within three days should bring into court for the benefit of complainant, a certain outstanding note for $300.

Gibbs brings the case here by writ of error.

Mr. A. D. RICH and Mr. H. S. MONROE, for plaintiff in error; that a complex and intricate account ought to be referred to a Master to examine and report in order to a final decree, cited Dubourg v. N. S. 7 Peters, 625; Moss v. McCall, 75 Ill. 190; Steere v. Hoagland, 39 Ill. 264; Groch v. Steinger, 65 Ill. 481.

In the absence of fraud, a trustee selling is only liable for the value of the property at the date of the sale with interest: Woodcock v. Bennett, 1 Cowen, 744; Dennis v. McGagg, 32 Ill. 429; Pybus v. Smith, 1 Vesey, Jr. 193; Gaulden v. Shehee, 24 Ga. 438; Enos v. Sutherland, 11 Mich. 538; Eames v. Downing, Bradford (N. Y.) 321; Heth v. R. F. & P. R. R. Co. 4 Grattan (Va.) 482; Hardin v. Eames, 5 Bradwell, 153.

WILSON, J.

It appearing from the answers and proofs that the defendant Buschwah was a bona fide purchaser of the lots in question, without notice that defendant in error claimed any interest therein, the case was narrowed down upon the hearing, to a mere question of accounting by Gibbs, as to the amount of money loaned by him to defendant in error, and the amount received by him on the sale of the lots. His business dealings with her seem to have been conducted in a very careless, slovenly way, advancing money in small sums from time to time, sometimes taking notes but oftener not, sometimes paying the money to defendant in error, but more frequently to her mother who appears to have transacted most of the business. He also paid some small bills for defendant in error, and taxes upon the...