Harms v. Coryell

• Decision Date: 21 December 1898
• Citation: 177 Ill. 496,53 N.E. 87
• Parties: HARMS et al. v. CORYELL.
• Court: Illinois Supreme Court

177 Ill. 496

53 N.E. 87

HARMS et al.

v.CORYELL.¹

Supreme Court of Illinois.

Dec. 21, 1898.

Appeal from superior court, Cook county; John Barton Payne, Judge.

Bill by Mary E. Coryell against Antonia Harms and others to establish a trust and for other relief. From a decree for complainant, defendants appeal. Affirmed.

Oliver & Mecartney and Simmons & Winston, for appellants.

W. S. Harbert, for appellee.

MAGRUDER, J.

This case has been here before, and is reported as Coryell v. Klehm, 157 Ill. 462, 41 N. E. 864. Some of the facts disclosed by the present record were presented by the record in Webber v. Clark, 136 Ill. 256,26 N. E. 360, and 32 N. E. 748, and some of the questions here involved were passed upon in the last-named case. In Coryell v. Klehm, supra, it appears that the original bill herein was filed on March 24, 1886; that an amended bill was filed on May 29, 1893; and a supplemental bill was filed on October 18, 1893, the complainant being the present appellee, Mary E. Coryell, and the defendants, as finally brought in, being Charles Harms and George C. Klehm and their wives, and Antonia Harms, the daughter of Charles Harms, and George Chambers, trustee, as hereinafter stated. The wives of Harms and Klehm were made defendants because they were supposed to have inchoate rights of dower in such interests in the premises involved as were held by their husbands. The deed executed by William C. Grant to Klehm in January, 1883, was taken by Klehm for the benefit of Charles Harms, and whatever title was thereby conveyed was held by Klehm for the benefit of Harms. The deed subsequently made by Klehm to Antonia Harms was also made for the benefit of her father, Charles Harms, and was executed after the commencement of this suit, and after service of process therein, so that Antonia Harms was affected with notice of appellee's equities in the subject-matter of the suit under the doctrine of lis pendens. This controversy thereforeis really between the appellee on the one side and Charles Harms on the other. Demurrers were filed to said amended and supplemental bills, and sustained by the lower court; and thereupon appellee elected to stand by her bills, and the same were dismissed for want of equity on January 3, 1895. The appeal, when the case was here before, was taken from this decree of dismissal, and the question determined in Coryell v. Klehm, supra, was that the allegations of the bill, as appearing upon the face of it, were sufficient to justify the relief asked for. Our order therein was as follows: ‘The decree of the superior court is reversed, and the cause is remanded, with directions to overrule the demurrer to the bill, and to allow the bill to be amended, if the complainant therein shall so desire, and to give the defendants leave to answer, if they shall be so advised by counsel.’ 157 Ill. 485,41 N. E. 871. On December 9, 1895, the mandate from this court was filed in the superior court of Cook county, and the cause was redocketed and reinstated in the latter court. On February 15, 1896, Antonia Harms, Charles Harms, and George C. Klehm, and the wives of the two latter, filed their answer to the said amended and supplemental bills. On May 12, 1896, appellee filed an amended bill; and on May 16, 1896, the same was answered by the defendants. Replication was filed, and, upon hearing had, documentary and oral testimony was introduced. On March 13, 1897, the superior court entered a decree, finding that appellee had become vested with all the equitable interest, right, and title in and to said premises, and that she was entitled to a conveyance thereof from the defendants. The present appeal is prosecuted from such decree by the appellants, Charles Harms, Antonia Harms, and George C. Klehm.

In Coryell v. Klehm we said (page 484, 157 Ill., and page 871, 41 N. E.): ‘The title of appellant [the present appellee, Mary E. Coryell], as we have already seen, is not barred or affected by the limitationstatute. She is now, so far as this 20 acres of land is concerned, the absolute owner of the entire interest in the equitable and beneficial title, interest, and estate that was in its inception vested in Sayles and Walker, and she is entitled to a conveyance of the Brant-Klehm-Harms title, provided the material facts alleged in her bill of complaint are proved, and no valid defense is established.’ The decree here appealed from finds that all the material allegations in appellee's amended and supplemental bills are true; and we are of the opinion that the proofs in the case sustain the findings of the decree. The material facts thus established by the testimony are fully set forth in Coryell v. Klehm, supra, and will only be here adverted to so far as it may be necessary to understand the defense set up by the appellants since the remandment and reinstatement of the cause as above specified. That defense is based upon an alleged mistake in the deed under which Charles Harms claims to have derived his title to the 20 acres of land here in controversy, known, after the subdivision of the same and other lands by Sayles and Walker, as lot 4 of owners' subdivision, etc.; and also upon an alleged possession of said premises by Harm, as affording notice to appellee of his claimed equities growing out of said mistake, or as operating to put her upon inquiry to ascertain such equities. Charles Harms claims that he went into possession of the tract here in dispute, containing 19.55 acres, in 1864 or 1865, as tenant of one Philip Beaubien, and remained in possession thereof until the execution of the conveyance of the same to Antonia Harms by George C. Klehm. He states that in 1866 he purchased said tract from Philip Beaubien, and received from him a deed therefor, dated, acknowledged, and recorded on October 19, 1866. This deed is in evidence, and is the only deed ever made to Harms, which is presented as evidence of title to said tract of 19.55 acres, otherwise called lot 4, etc. It does not convey lot 4, but does convey an entirely differenttract, described by metes and bounds, containing 16.73 acres, and lying north of and entirely beyond lot 4. It is asserted by the defendant Harms that he never discovered this mistake in the description of the land in the deed until January of February, 1896, nearly 30 years after the execution of the deed. It will be observed that the mistake does not refer to the township or range or number of acres or point of beginning or a single call in the description, but the description in the deed of October, 1866, does not in any particular cover or conform to the description of the tract here in controversy.

The position of the appellants is that, prior to 1866, William Beaubien, Henry Beaubien, Philip Beaubien, and Caroline Beaubien, children of Josette Beaubien and John B. Beaubien, her husband, owned 256 acres of land, of which lot 4 was a part, and made partition thereof among themselves, by which Philip Beaubien became the separate owner of a certain tract of 50 acres, including and embracing lot 4. It is thus conceded that in October, 1866, Philip Beaubien was the owner of lot 4. But there is no testimony except that of Charles Harms himself, an interested party, that Philip Beaubien intended by the deed of October, 1866, to convey to Harms lot 4, or that he intended to convey to him any other land than the tract of 16.73 acres described in the deed. The fact of mistake in description rests upon the evidence of Harms alone. To establish such a mistake, the proof should be clear and convincing. Purvines v. Harrison, 151 Ill. 219, 37 N. E. 705. The deed specifically recites that the tract which it conveys contains 16.73 acres, while the tract claimed to have been purchased contains 19.55 acres. The consideration named in the deed does not correspond with the amount which Harms swears that he paid for lot 4. The premises named in the deed are described as adjoining the land of one Draper, which was known to Harms to be located not only north of lot 4, but north of land lying north of lot 4. Harms was made defendant to a burnt records proceeding instituted against lot 4 and other lands by Thaddeus B. Beecher in December, 1872, and then made search for his title papers, and took his deed from Beaubien, and an abstract of title and other papers, to his attorney, to enable the latter to defend his interests in such proceeding. Again, between 1876 and 1883 he was called upon to consider the question of his title in reference to the claim made upon this land by an assignee in bankruptcy of said Beecher. In view of all these circumstances, it is somewhat remarkable that he should have had this deed in his possession or under his control for 30 years, and should not have discovered that there was a mistake in the description, until this suit had been pending for 10 years, and a decree therein had been taken to the supreme court, and reversed. We are unable to say that the proof of a mistake in the description is clear and convincing.

But, if it be true that there was a mistake in the description, the appellee had no notice of it, and acquired her rights in lot 4 in good faith. On March 22, 1875, she loaned $3,000 to John E. Sayles, and took his note of that date for that amount, payable to her order, in six months; and to secure said note, the payment of which was afterwards extended to March 22, 1876, Sayles executed to George Chambers, trustee, a trust deed upon lot 4, as described in the bill herein. This trust deed was recorded on March 24, 1875. In Coryell v. Klehm, supra, we said: ‘At the time appellant loaned her money and took the mortgage security, in March, 1875, the abstract of title was examined by her attorneys, and it showed that Sayles was the owner of the...