Grob v. Cushman

• Decision Date: 30 September 1867
• Citation: 1867 WL 5230,45 Ill. 119
• Parties: MICHAEL GROBv.WILLIAM H. W. CUSHMAN.
• Court: Illinois Supreme Court

45 Ill. 119

1867 WL 5230 (Ill.)

MICHAEL GROB

v.WILLIAM H. W. CUSHMAN.

Supreme Court of Illinois.

September Term, 1867.

WRIT OF ERROR to the La Salle County Court.

This was a bill in chancery filed in the County Court of La Salle county, by Cushman against Michael Grob and others. The bill alleges, that one Michael Minehard was the owner of certain lands in La Salle county, subject to a mortgage of $1,400, to one Wylie, dated in 1861; that in October, 1864, one Wm. H. Robinson recovered a judgment against Minehard for $1,000, in the Circuit Court of said La Salle county, upon which execution was duly issued and levied upon the premises described, and the land sold on the 3d of December, 1864, subject to said mortgage, to George H. Rugg, for $650; that on the 1st of January, 1865, the certificate of purchase was assigned to the complainant.

That on the 9th day of December, 1865, Wylie obtained a decree of foreclosure upon his mortgage, and that the premises were sold under the decree, on the 3d day of January, 1866, and bid off by one Crooker, who was attorney for Wylie, for the sum of $2,600, and that no money was paid at the sale; that Crooker afterward, as the attorney for Wylie, receipted for the amount of the decree, interest and costs, $1,655.74, as having been paid by Michael Grob, the plaintiff in error, and for the balance presented the receipt of Hough, attorney for Minehard, for $944.26, as having been paid by Grob, and induced the master in chancery to issue a certificate of purchase to said Grob, reciting that the premises had been sold to him for $2,600; that $2,600 is the full value of the land; that Hough & Crooker were Minehard's attorneys in the suit brought against him by Robinson; that Grob was Minehard's son-in-law.

The bill further alleges, that, in point of fact, Minehard never received the $944.26, and that, long after the sale, Wyle received from Grob the amount of the decree, and that no other or greater amount was ever paid by Grob, or any one for him, on the purchase, but that Grob fraudulently claimed to have paid the whole $2,600 upon the purchase; and alleges that the whole thing was a conspiracy to cheat and defraud the owner of the judgment.

The bill further alleges, that, on the 1st day of January, 1867, two days before the expiration of twelve months from the day of sale, the complainant tendered to Grob, who still held the certificate of purchase, the sum of $1,665.75, with interest at the rate of ten per cent from date of sale. That Grob declined to receive the money and surrender the certificate unless the complainant should pay him $2,600 with ten per cent interest from date of sale.

That the complainant, on the 21st of February, 1867, received from the sheriff of La Salle county a deed for said premises, the same not having been redeemed from the sale on Robinson's judgment; and that the complainant now owns the same, subject to the amount equitably due on the certificate held by Grob, on the foreclosure sale, which is only said sum of $1,655.74, together with interest thereon, from the date of sale to the date of tender.

The bill further alleges, that the complainant was also, at the time of the tender to Grob, the owner of the unpaid balance of the Robinson judgment, over and above the amount made on the execution, and as judgment creditor, he did, on the 19th day of February, 1867, and before the expiration of fifteen months from the sale to Grob, tender to Grob the sum of $1,843.02, being the $1,655.74, and ten per cent interest thereon from the date of sale, and that Grob wholly refused to receive the same.

The complainant asks to be allowed to redeem by paying $1,655.74 and interest. Oath of defendants was waived. Summons was issued, returnable to the March Term, 1867, and was duly served.

The defendants not appearing, a rule was entered requiring them to answer instanter, and a decree pro confesso taken. The cause was referred to the master in chancery to take proof. The master made report. After the filing of the report, at the same term, the defendants appeared and entered a motion to set aside the default, which was allowed, and the answers of Grob, Crooker and Minehard were filed, but not under oath, their oaths being waived. The answers denied all the material allegations of the bill relating to the matters in controversy.

The complainant dismissed the bill as to Crooker, and filed a replication to the answers of Grob and Minehard.

After the issues were formed, the cause was referred to a special master to take further proof, and to report at the next term. Each party was given leave to examine the opposite party before the special master, upon ten days' notice.

At the June Term, 1867, the special master filed his report, that he had, at the instance of the complainant, notified the defendants, and D. L. Hough, by subpœna, to appear and testify, but they failed to appear.

The first report of the special master gives the evidence of Benjamin F. Shotwell, who testified as follows: I know all the defendants; on the 3d of January, 1867, the complainant gave me $1,821.31, with instructions to look up and find out who had bid off the premises in controversy; I found that it had been bid off by James C. Crooker, attorney for Allen Wylie; I called upon Wylie and asked him if he had bid off the land; he said Crocker had bid it off for him; I asked if he still held the certificate of purchase; he said no, that it was in the hands of Jabez C. Crooker, and that some time in the month of August, 1866, some man came to him from Crooker, stating that the amount due him (said Wylie) had been paid, and that the amount then paid was about $1,800; I then asked him the name of the person who paid him the money; he said he did not recollect, but thought he was the son-in-law; here he hesitated for some time, and then said he thought it was Schermerhorne, and that he lived near Mendota; I then asked him if he still had an interest in the certificate of purchase; he said no; I then called at Crooker's office; he was not at home; a young man in the office, Lucien B. Crooker, informed me that he thought Michael Grob owned the land; he went with and introduced me to Grob; I asked Mr. Grob if he owned the land; he said that he did; I asked him if he held the certificates of purchase; he answered and said that Mr. Crooker held them; I asked him if they belonged to Mr. Crooker; he said no, they belonged to him; I then asked him if Mr. Crooker was holding them for him, and he said yes; I told him I had some money to make him a tender for Mr. W. H. W. Cushman, and did make him a tender of $1,821.31; I read to him the description of the land and stated to him the amount due on the decree and foreclosure of the Wylie mortgage, with the amount of costs and interest to that date; he refused to take the money I tendered him; I told him the money would be held safe at his order at Mr. Cushman's office, in Ottawa; I then told Grob the substance of my conversation with Wylie, and asked him if he was the man who purchased the certificate of purchase from Wylie in July or August, A. D. 1866; he said he was; I asked him how much money he paid Wylie; he said $1,700 or $1,800; I called in the latter part of January, 1867, on Michael Minehard, and had a conversation in reference to the matter; he said Mr. Grob was a son-in-law, and lived at Mendota, and worked in shoe shop; he (Minehard) had never received a cent of money on this sale from any body; I then asked him if Mr. D. L. Hough had not paid him $900 on the sale; he said not one cent;...