Gibson v. Rees

• Decision Date: 31 January 1869
• Citation: 50 Ill. 383,1869 WL 5239
• Parties: DAVID GIBSON et al.v.JAMES H. REES et al.
• Court: Illinois Supreme Court

50 Ill. 383

1869 WL 5239 (Ill.)

DAVID GIBSON et al.

v.JAMES H. REES et al.

Supreme Court of Illinois.

January Term, 1869.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Chicago.

The opinion states the case.

Messrs. BECKWITH, AYER & ALES, for the appellants; Mr. T. D. LINCOLN, for appellant GIBSON; Mr. J. A. CRAM, for appellants BRYAN & PARKER. Mr. JAMES L. STARK, for appellee REES; Messrs. BORDEN & SPAFFORD, for appellees CASEY & YOUNG; Messrs. DENT & BLACK, for appellee LOUISA C. ELLIS.

Mr. JUSTICE WALKER delivered the opinion of the Court:

On the 13th day of August, 1855, David Gibson, on behalf of himself and all other persons, or their legal representatives, who were, on the 9th day of January, 1838, creditors of Henry King, filed his bill in the Cook County Court of Common Pleas, against Hannah Eldridge, Edward Eldridge, Jr., Helen Eldridge, Henry Eldridge, Constance Eldridge and Harriet Eldridge--the widow and heirs at law of Edward Eldridge, senior--and Ann G. King, Julia King, Susan M. King, Henry King, Harriet A. King, Edward P. King and Thomas P. King--the widow and heirs at law of Henry King, deceased, for the purpose of enforcing the payment of certain claims against lot six, in block thirty-four, and the east half of lot six, in block thirty-eight, in the original town of Chicago. The claims mentioned were alleged to be a lien upon the premises by virtue of a deed of assignment of Henry King to Edward Eldridge, senior, dated January 9th, 1838, conveying the premises mentioned, with other property, to Eldridge, senior, for the benefit of King's creditors.

On the 9th day of April, 1856, the bill was dismissed as to Julia King, Susan M. King, Henry King, Harriet A. King, Edward P. King and Thomas P. King, and as to the east half of lot six, in block thirty-eight, above named.

An appearance having been entered by the other parties on the same day, the bill was taken pro confesso against them for want of an answer, and it was ordered that the defendants, Edward Eldridge, Hannah Eldridge, Helen Eldridge, Henry Eldridge, Constance Eldridge and Harriet Eldridge, convey to Robert S. Blackwell, as a trustee, whatever title to said lot six, in block thirty-four, came to them by descent from their ancestor, Edward Eldridge, senior, and in default of their so doing that such conveyance should be executed by a commissioner. Mr. Blackwell was directed to sell and convey the premises and report to the court, and all persons having claims against Henry King on the 9th day of January, 1838, or their representatives or assigns, were allowed to prove the same and their title thereto before the master within three months from the date of said order, of which notice was to be given by publication.

On the 28th day of March, 1857, the time allowed for proving claims against Henry King was extended to May 9th, 1857.

On the 14th day of July, 1857, Edward G. Hyde presented to the master a claim against Henry King, as indorser of three promissory notes of Reynolds, Jenkins & Lovell, dated November 3d, 1836, for $3,685.79, $3,808.29 and $3,930.79 respectively, payable to Henry King or order, and by him indorsed; which claim was on the 15th day of July, 1857, assigned to James H. Rees.

On the 14th day of July, 1858, it was ordered that Robert S. Blackwell, Esq., theretofore appointed trustee in the cause, do desist and refrain from taking any action whatever as such trustee, and especially from taking any step or proceeding whatever with reference to the sale or other disposition of the premises, or in any manner interfering with the same.

On the 24th day of May, 1859, on motion of Edward G. Hyde, the time for presenting and proving claims against King was further extended to August 22d, 1859, of which notice was to be given by publication. The same order allows Mr. Blackwell to demand a conveyance of the premises from the widow and heirs of Eldridge, and prescribes the manner of so doing, and directs, in default of compliance with such demand, that a deed be made by Freer, as commissioner.

Notice, by publication of the above order, was given May 31st, 1859.

On the 16th day of July, 1859, Henry Young, survivor of Henry Thomas, assignees of James N. Hyde, presented to the master a claim against Henry King for a balance of account due from him to Simeon Hyde, and by said Simeon Hyde assigned to James N. Hyde.

On the 23d day of July, 1859, Isaac L. Hunt presented to the master claims against Henry King, originally in favor of Suydam, Jackson & Co., J. H. Ransom, McNulty & Chapman, Pomeroy & Bull, S. P. Church & Co., Joseph D. Beers et al., White & Richards, J. D. Disosway & Bro., and as endorser of two notes of J. W. C. Coffin, indorsed by said King. Hunt asserted the claims under assignments alleged to have been then lately made by said creditors of King or their representatives.

The interest of Hunt in these claims was afterwards, on the 12th day of November, 1859, assigned to Abraham G. Jennings, who assigned the same to Louisa Compton, now Louisa C. Ellis, on the 6th day of January, 1860.

On the 13th day of October, 1859, and on the 12th day of November, 1859, James H. Rees procured from W. C. H. Waddell, assignee in bankruptcy of S. P. & J. R. Church, assignments of the claim of S. P. Church & Co. against Henry King.

On the 29th day of November, 1859, Freer, as special commissioner, conveyed the premises to Robert S. Blackwell.

On the 22d day of December, 1859, James H. Rees procured an assignment from the Illinois College of a claim against Henry King, on an alleged subscription claimed to have been made by him on the 5th day of July, 1836, for the benefit of that institution.

On the 13th day of January, 1860, James H. Rees filed a petition to become a party complainant in the cause, and by order of court he was so made. At the same time leave was granted him to file a supplemental bill, which was filed August 31st, 1860.

The supplemental bill of Rees sets forth the allegations of the original bill, the orders and proceedings in the cause, and particularly the claim of Rees against Henry King as indorsee of the notes of Reynolds, Jenkins & Lovell, and the claims originally in favor of S. P. Church & Co. and the Illinois College. The bill seeks to charge the east half of lot six, in block thirty-eight, as well as the other premises, with the payment of King's debts, and for that purpose Thomas B. Bryan and J. Mason Parker, the holders of the legal title to the east half of lot six, in block thirty-eight, and James Lorimer Graham, Esther Ann Callett, and Samuel D. Parker, who claimed a lien upon the premises last mentioned, under Thomas B. Bryan and J. Mason Parker, were made parties. The bill further alleged that Gibson had taken possession of lot six, in block thirty-four, and was then in possession of the same by his tenants, who were made parties. It also alleged that Eldridge and Gibson had severally received large sums of money as rents and profits, and prayed an account thereof and a decree for the same. A receiver, and an injunction restraining Mr. Blackwell from intermeddling with the premises, were prayed for. Answers to this supplemental bill were filed by Gibson, October 19th, 1860, and by Bryan and J. Mason Parker, December 20th, 1860, to which replications were filed.

The answer of Gibson asserted an absolute title to lot six in block thirty-four, derived under Henry King, and the widow and heirs of Eldridge, senior, and while it asserted Gibson's ownership of the claims mentioned in the original bill, it insisted that the premises were not chargeable with the debts of King, or with the trusts of his assignment. The title of Gibson is alleged to have been derived in the following manner, viz:

On the 4th day of March, 1843, Henry King was declared a bankrupt by the District Court of the United States for the Southern District of New York, and W. C. H. Waddell was appointed his assignee in bankruptcy. On the 15th day of July, 1845, Waddell, as assignee in bankruptcy of Henry King, conveyed to Gordon L. Ford all of King's interest in the premises. Ford was not a party to the original bill and afterwards, on the 2d day of March, 1860, he conveyed all his interest in the premises to the defendant, Gibson.

On the 28th day of July, 1855, and prior to the filing of the original bill, the widow and heirs of Eldridge made a contract in writing with Zenas Cobb, Jr., to convey to him lot six in block thirty-four, and Cobb was not made a party to the original bill. On the 19th day of September, 1857, and after the filing of the original bill and the decree pro confesso therein, Cobb fully performed the above contract on his part and assigned his interest therein to David Gibson, to whom the widow and heirs of Eldridge conveyed the premises by deed of the same date. The possession of the premises had been delivered to Gibson by Cobb, who obtained the same from the widow and heirs of Eldridge.

The answers of Thomas B. Bryan and J. Mason Parker asserted an absolute title to the east half of lot six, block thirty-eight, derived under an agreement between Henry King and Edward Eldridge, senior, dated October 15th, 1845, and a conveyance of King's interest under the same to Amory Gamage, dated April 5th, 1849. The specific performance of the above agreement was decreed in a suit of Gamage against the widow and heirs of Eldridge, and a deed is alleged to have been executed to Gamage in pursuance of such decree, under whom Bryan and J. Mason Parker claimed title.

On the 20th day of December, 1860, the court appointed Zenas Cobb, Jr., receiver of lot six, block thirty-four, and restrained Gibson from conveying the premises.

On the 12th day of October, 1863, Henry Young, survivor of Henry Thomas, assignees of James N. Hyde, filed an affidavit in the cause, asserting a claim against Henry King as indorser of the notes of Reynolds, Jenkins & Lovell before mentioned, adverse to the claim of James H. Rees upon the same...