Graham v. Day

• Decision Date: 31 December 1847
• Citation: 9 Ill. 389,4 Gilman 389,1847 WL 3873
• Court: Illinois Supreme Court
• Parties: WILLIAM F. GRAHAM et al.v.JAMES DAY et al.

4 Gilman 389

9 Ill. 389

1847 WL 3873 (Ill.)

WILLIAM F. GRAHAM et al.

v.JAMES DAY et al.

Supreme Court of Illinois.

December Term, 1847.

BILL IN CHANCERY, in the La Salle circuit court, filed by the appellees against the appellants, April 21, 1845, to set aside a sheriff's sale en masse of divers tracts of land and town lots. The sale was vacated by a decree at the November term, 1846, the Hon. JOHN D. CATON presiding.

The facts, as alleged in the bill, the substance of defendants' answers, and of the decree of the court below in the case, are fully stated in the opinion of the court.

S. T. LOGAN, for the appellants.

A. T. BLEDSOE, for the appellees.

Opinion of the court by TREAT, J.

In April, 1845, James Day, Lyman Rhodes, Charles Weed, William H. Weed, Charles R. Swords, William M. Halstead and Edward Corning exhibited their bill in chancery, in the La Salle circuit court, against William F. Graham, John V. A. Hoes, Edwin S. Leland, Henry L. Brush, and fourteen others. The bill alleges, that the defendant Graham recovered a judgment against the complainant Day, and the other defendants, except Hoes, on the 22d of September, 1847, for $246.29 debt, and $22.75 costs, and that an execution issued thereon on the 20th of October, on which was collected $233.55; that an alias execution issued on the 8th of April, 1839, on which the sheriff made return, that he levied the same on eight tracts of land, containing seven hundred and twenty acres, and four town lots; and that on the 29th of the same month, he offered the lands and lots for sale in separate parcels, and there being no bid for any of them, he sold the whole in a body to the defendant Hoes for $50.62, which satisfied the judgment; that on the 30th of July, 1840, the sheriff conveyed the land and lots to Hoes, the deed reciting the sale of the property en masse, which deed was filed for record on the 14th of April, 1842; that Hoes was the attorney of Graham in recovering the judgment; that the title to the lands and lots was mostly in Day, and the whole was worth $4000; that at the April term, 1838, the complainants, Rhodes and C. & W. H. Weed recovered a judgment against Day for $3355.21, and on an execution issued thereon they purchased five of the tracts of land and one of the town lots for $2900, on the 20th of December, 1839, and have since received a sheriff's deed therefor; that at the same term the complainants, Swords, Halstead & Corning recovered a judgment against Day for $1123.44, and under an execution issued thereon, they purchased two of the tracts of land for $900, on the 20th of December, 1839, which have since been conveyed to them by the sheriff; that Day has no other property out of which the judgment can be satisfied, and that he was, at the rendition of the judgments, and has been most of the time since, a lunatic, and incompetent to transact business; that the other complainants reside in New York, and their attorneys, Butterfield & Collins, have had the sole management of their interests; that their attorneys, after diligent search, could find no record of any judgment against Day, and never knew anything of the Graham judgment until the summer of 1842, when Hoes showed them his deed from the sheriff; that at the November term, 1842, their attorneys moved the court to set aside the sale to Hoes, and the court took the motion under advisement until the November term, 1843, when it overruled the same, and this decision was affirmed by the supreme court at the December term, 1844; and the bill dispenses with the oaths of the defendants to their answers, and prays that the sale and coneyance to Hoes may be set aside.

The defendant, E. S. Leland, admits the recovery of the judgments and the proceedings under them, as alleged in the bill; denies that the lands and lots were the property of Day, and worth $4000; denies the alleged incapacity and insolvency of Day; alleges that on the 6th of March, 1845, he purchased from Hoes, for the consideration of $500, two of the tracts of land, and received a warranty deed therefor; that this purchase was made in good faith, and without notice of the irregularity in the sale to Hoes, and that Hoes was then in possession of a part of these tracts, and had made improvements thereon; insists that the complainants are barred by the lapse of time from avoiding the sale, and denies generally the other allegations of the bill.

Hoes admits the allegations of the bill respecting the recovery of the judgments, and the proceedings had under them, and that he was the attorney of Graham; states that Butterfield and Collins consulted him concerning the lands in the summer of 1842, when he informed them of his purpose, and showed them his deed from the sheriff; admits the motion in the circuit court to set aside the sale, gives a history thereof, and copies the affidavits introduced by him in resisting the application; denies that the lands and lots were worth $4000, and that the title was mostly in Day; denies that Day was either insane or insolvent; sets up the sale and conveyance to Leland, and alleges that he was in the possession of the two tracts of land at the time of the sale, and had made improvements thereon.

Graham admits the recovery of the judgment against Day and his co-defendants, and the proceedings thereon, and denies the other allegations of the bill. The defendants, Brush, Green, Pitzer, Bergen, Norris, L. Leland, Hale and the administrators of Cloud, admit the recovery of Graham's judgment, and the proceedings under it, and deny generally the other allegations of the bill.

Replications were filed to these answers, and ...