Hart v. Seymour

• Decision Date: 26 October 1893
• Parties: HART et al. v. SEYMOUR et al.
• Court: Illinois Supreme Court

147 Ill. 598

35 N.E. 246

HART et al.

v.SEYMOUR et al.¹

Supreme Court of Illinois.

Oct. 26, 1893.

Appeal from superior court of Cook county; Kirk Hawes, Judge.

Bill by Manuel B. Hart and Love Mary Vaughan against Thomas H. Seymour and others and ‘the unknown holders of the stock of the Norwood Land and Building Association’ and ‘all whom it may concern;’ to redeem certain land from execution sale. There was a decree allowing redemption of part only of the land upon payment of $3,190. Complainants appeal. Affirmed.

Wallace Heckman and Jas. G Elsdon, for appellants.

Cutting & Castle, for appellees.

BAILEY, J.

This was a bill in chancery brought by Manuel B. Hart and Love Mary Vaughan, grandchildren and only heirs at law of Mary A. Bishop, deceased, against Thomas H. Seymour and numerous other parties, to redeem certain lands from sale on execution in certain attachment proceedings prosecuted against Mary A. Bishop in her lifetime. It appears that about July 20, 1871, Mrs. Bishop purchased of James E. Tyler, George Field, and John F. Eberhardt, trustees of the Norwood Land & Building Association, block 62 in Norwood Park, and that to secure a part of the purchase money she executed her three promissory notes for $1,050 each, bearing date July 20, 1871, payable to James E. Tyler, trustee, in one, two, and three years from their date, with interestat the rate of 8 per cent. per annum, and that to secure the notes she at the same time executed a deed of trust conveying the property purchased to Charles H. Field, trustee. The deed of trust has never been foreclosed, nor has any attempt ever been made to execute the power of sale therein contained. About May 22, 1876, the last two notes, viz. those maturing two and three years after date, being still unpaid, Tyler, the payee, commenced a suit in attachment against Mrs. Bishop to recover the amount of those notes, she then having removed to the state of Massachusetts, and being a nonresident of this state, and levied his attachment writ on 34 lots in Orvis' subdivision, etc., belonging to Mrs. Bishop, and which were then unincumbered, except perhaps by unpaid taxes and tax sales. In that suit Mrs. Bishop's appearance was entered by her attorney, and a personal judgment was thereupon recovered against her for $2,788.80, the amount of the two notes and costs. On that judgment execution was afterwards issued, and levied on the lots in Orvis' subdivision, and those lots were sold at execution sale for $2,200, Tyler, the judgment creditor, becoming the purchaser. After deducting the costs and expenses, the judgment was satisfied by the sale to the amount of $2,158. Of this sum Tyler afterwards indorsed $1,476.67 on the note maturing July 20, 1873, and the sum of $681.33 on the note maturing July 20, 1874. The certificate of sale was issued to James E. Tyler, trustee of the Norwood Land & Building Association, and was afterwards assigned to Tyler, Field, and Eberhardt, trustees of that association. On December 6, 1881, a sheriff's deed was executed in pursuance of the sale to Tyler, Field, and Eberhardt, trustees of the association. Again, in the early part of the year 1882, Tyler, trustee, etc., commenced a second attachment suit in the superior court of Cook county against Mrs. Bishop, and levied his attachment writ on block 62 in Norwood Park. In that suit he declared upon the two promissory notes, and appended to his declaration an affidavit that his claim was for the balance due on those notes, the amount claimed being $1,470. In that suit there was no personal service on Mrs. Bishop, and no appearance by her, the only service upon her being by publication; and on or about June 7, 1882, a judgment was entered in the cause for $1,470 and costs. On that judgment a special execution was issued for the sale of the property attached, and under that execution block 62 was sold September 18, 1882 for $1,542.08, James E. Tyler, trustee, etc., becoming the purchaser. The certificate of sale having been assigned to Tyler, Field, and Eberhardt, trustees of the association, a sheriff's deed was executed to them bearing date January 25, 1884. The bill claims the right, upon various grounds, which will be discussed presently, to redeem from both of these sales. The court by its decree denied the right to redeem from the sale of the lots in Orvis' subdivision under the execution in the first attachment suit, and from that portion of the decree the complainants have appealed to this court. That portion of the prayer of the bill by which the complainants ask to be allowed to redeem from the sale of block 62, under the execution in the second attachment proceeding, was granted, and, as to that portion of the decree, the defendants have assigned cross errors.

The Norwood Land & Building Association is an unincorporated joint-stock association, composed of some 28 individuals, and the form of their organization, the nature of their business enterprise, and their respective rights, duties, and obligations were evidenced by a trust agreement, signed and acknowledged by each of the associates, and bearing date June 1, 1868. That agreement was between the several associates of the first part, and James E. Tyler, George Field, and John F. Eberhardt of the second part, as trustees, and, after reciting that the associates had purchased, and were contemplating the further purchase of, certain lands, particularly described, a portion of the purchase money for which had been paid and a portion was yet to be paid, and that a purchase of some of the lands had been made in the names of certain of the associates for the benefit of all with the understanding that all the property purchased should, for management and disposition, be vested in the trustees named, for the benefit of all the parties in interest and their assigns, and that the parties of the second part had agreed to take and execute such trust upon the terms and conditions thereinafter stated, it was agreed that the following articles be adopted as the agreement between the parties: Article 1 fixed the name of the association as above stated, and declared its objects to be the management, improvement, development, lease, sale, or other disposition of the lands acquired for the benefit of the association. Article 2 provided that the officers of the association should be a president and secretary, and fixed their mode of election and term of office, and the times for holding the meetings of the association. Article 3 was as follows: ‘James E. Tyler, John F. Eberhardt, and George Field are hereby created trustees, for the purpose of carrying into effect these articles, and the title of all property owned or held for the benefit of this association shall be held by the trustees of this association, in their individual names, in fee simple as joint tenants, and not as tenants in common, to them and their assigns, and to the survivors and survivor of them, and to his heirs, assigns, and successors.’ Articles 4 fixed the amount of the capital stock at $100,000, to be divided into 1,000 shares of $100 each, that being the estimated cost of the lands owned and to be owned by the association. Section 5 provided that each shareholder and his assigns shall pay to the trustees his due proportion of the payments made and agreed to be made in the purchase of lands, and all expenses incurred on their account, when called for by the trustees, the aggregate of the payment not to exceed the stock subscribed, and it was made the duty of the trustees to see that payments for purchases were duly and promptly made out of the funds thus provided. Article 6 made it the duty of the trustees, from time to time, to fix and assess the pro rata amount to be paid by each shareholder on account of purchase money, interest, and expenses, and call the amount by letter mailed to each stockholder 30 days before the time fixed for payment, and it was agreed on the part of the stockholders and their assigns to make payment at the time and in the manner required by the calls, and provision was made, in case of nonpayment, to forfeit and sell the shares of delinquents. Article 7 provided that any property thereafter purchased by the trustees should be conveyed to them for the same uses and purposes and upon the same conditions in the agreement provided, and should be paid for in the same manner as the balance of the purchase already made, the aggregate of all property purchased not to exceed the capital of the association. By article 8 the trustees were authorized to cause the lands purchased and to be purchased to be carefully surveyed, and to have proper maps, plats, and diagrams thereof made, and to cause the land to be laid out into lots, blocks, streets, and alleys, and also into public squares and grounds, if they should think proper, in such manner as in their judgment would secure the greatest advantage and benefit from the property, and cause maps and plats of the subdivisions to be filed and recorded according to law, with full power and authority to vacate, change, or alter the subdivisions in whole or in part, in their discretion, for the benefit of the association; and the trustees were suthorized to open, grade, and plank or otherwise pave the streets and alleys, as they might think proper, and to construct such bridges as they should deem desirable and advantageous, and to make any and all other improvements on the land which they should deem calculated to develop,adorn, and enhance the value thereof, and to employ the necessary agents, superintendents, and workmen to take charge of and execute the same, and generally to do all other acts and things relating to the property, business, and interests, by them deemed needful and proper, in order to carry fully and favorably into effect the purposes and objects of the association. By article 9 they were given the power and it was made their duty to man age, protect, control, improve, use, lease,...