Helbreg v. Schumann

• Decision Date: 02 April 1894
• Citation: 37 N.E. 99,150 Ill. 12
• Parties: HELBREG et al. v. SCHUMANN et al.
• Court: Illinois Supreme Court

150 Ill. 12

37 N.E. 99

HELBREG et al.

v.SCHUMANN et al.¹

Supreme Court of Illinois.

April 2, 1894.

Appeal from superior court, Cook county; Phillip Stein, Judge.

Bill for redemption brought by Mathias Helbreg and Sophia E. Schumann, as conservators of Julius Schumann, an insane person, against Gustav Schumann and others. Defendants obtained a decree. Complainants appeal. Reversed.James E. Munroe, for appellants.

Hofheimer, Zeisler & Mack, for appellees.

This is a bill in the superior court of Cook county to redeem, brought by Mathias Helbreg and Sophia E. Schumann, as conservators of Julius Schumann, an insane person, against Gustav Schumann, Theodor Guenther, Magdalena von der Heide, and Thomas J. McGrath, trustee.

In 1881, and prior thereto, Julius Schumann was the owner in fee of a tract of land containing 55 acres in Cook county, upon which he resided as a homestead. On June 6th of that year, Julius executed a trust deed upon the entire tract to secure his note for $2,000, payable to one Johann von der Heide, five years after that date, with 6 per cent. interest, payable annually. Subsequently he sold the north half of the tract to his brother Gustav, the latter assuming to pay one-half of the incumbrance just mentioned, or $1,000. Gustav discharged his half of the indebtedness, including interest, by July 3, 1882. Julius paid no interest after June, 1882; neither did he ever pay the principal. Johann von der Heide, the owner of the note, died June 23, 1887. The note passed into the hands of his administrators, Magdalena von der Heide and Theodor Guenther. Shortly after their appointment as such administrators, they demanded payment of the note, and, failing to obtain the money, on January 6, 1888, they filed a bill in the superior court of Cook county, to foreclose the deed of trust, in which Gustav Schumann was joined as a defendant with Julius Schumann. Prior to January 21, 1888, the administrator of the estate had recovered a judgment before a justice of the peace against Julius Schumann for $40, and, including the amount last mentioned, there was due the administrators from Julius Schmann, on account, of the judgment and on account of the indebtedness secured by the trust deed, $1,435. Julius Schumann made an effort to raise the money from several different parties, but failed. Finally, on January 21, 1888, the following arrangement was consummated between him, his brother Gustav, and the administrators: Julius Schumann and his wife conveyed by warranty deed to Gustav Schumann, the 55-acre tract of land, for a consideration expressed in the deed of $1,450. Gustav Schumann paid the administrators $125 in cash, and executed and delivered to them his note for $1,310, due in five years, with interest at 7 per cent., payable semiannually, and a trust deed on the 55-acre tract, to secure payment of the note. At the same time the following agreement was executed by Julius and Gustav Schumann:

‘This agreement, made this 21st day of January, A. D. 1888, by and between Julius Schumann and Gustav Schumann, both of the county of Cook, in the state of Illinois, witnesseth: Whereas, the said Gustav Schumann is the owner in fee of the north half of the following described property, situated in the county and state aforesaid, to wit [here describes the fifty-five acre tract of land], and the said Julius Schumann is the owner in fee of the south half thereof; and whereas, the said above-described property is incumbered by a trust deed, dated the 6th day of June, 1881, executed by the said Julius Schumann to Louis Luchtemeyer, as trustee, to secure the payment of one promissory note of said Julius Schumann, of even date with said trust deed, for the sum of $2,000; and whereas, foreclosure proceedings have been commenced and are now pending in the superior court of said county by the legal holders of said note to foreclose said trust deed; and whereas, there is now due to Theodor Guenther and Magdalena von der Heide, administrators of the estate of Johann von der Heide, deceased, the legal holders of said note, and under the provisions of said trust deed, as principal, interest, attorney's fees, and costs of said foreclosure suit to date, the sum of $1,435, which said sum of money of right should long since have been paid by said Julius Schumann; and whereas, the said Julius Schumann has this day executed and delivered to the said Gustav Schumann a warranty deed conveying the said above-described property; and whereas, the said Gustav Schumann has this day caused said trust deed above mentioned to be released by paying the sum of $125 in cash, and executing and delivering to said Magdalena von der Heide and Theodor Guenther his promissory note for the sum of $1,310, secured by trust deed to Thomas J. McGrath, on the whole of the land above described: Now, therefore, it has been and is agreed between the parties hereto that if the said Julius Schumann shall well and truly pay or cause to be paid the said note last above mentioned, so made by the said Gustav Schumann, and the interest thereon from time to time, promptly, when the same becomes due and payable, together with all taxes and assessments laid, levied, or assessed on the south half of the above-described land (time being the essence of this agreement), then the said Gustav Schumann will, as soon as said indebtedness is fully paid and said trust deed released, on the payment of the further sum of $125 to him, together with interest thereon from the date hereof to the time of payment, at the rate of seven per cent. per annum, reconvey to said Julius Schumann the south half of the above-described property, and it is expressly agreed that should said Julius Schumann, for any cause, fail to pay the said above-mentioned indebtedness secured by said trust deed to said McGrath, together twith the interest thereon, or any installment of interest, or the taxes or assessments aforesaid, or any or either of them, promptly, when the same become due and payable, respectively, then this agreement shall be void absolutely, and withoutany notice to or demand on said Julius Schumann, and all money paid by said Julius Schumann on account of principal, interest, taxes, assessments, or otherwise, shall be forfeited to said Gustav Schumann. The possession of said premises shall be and remain in said Gustav Schumann. In case of the death of said Julius Schumann before said south half of said premises are reconveyed to him as above agreed, then this agreement, and all provisions therein contained, shall be void, but payments made under this agreement in such case shall not be forfeited, but shall be paid to the widow or next of kin of said Julius Schumann by said Gustav Schumann. In witness whereof, the said parties have hereunto set their hands and seals on the day and year first above written. [Signed] Julius Schumann. [Seal.] Gustav Schumann. [Seal.]’

At the date of the above memorandum, Julius Schumann was residing on the south half of the 55-acre tract, and he continued to occupy the land until July 17, 1889, when he was taken before the county court of Cook county on a complaint that he was insane, and on a trial before a jury he was adjudged insane, and placed in the Cook County Insane Asylum, where he still remains. Schumann's wife continued to reside on the premises until December, 1889, when Gustav Schumann demanded possession of the premises, and threatened to remove her with an officer, and she finally left, and Gustav went into possession of the property, which he still retains.

The bill was filed March 18, 1891, and subsequently an amended bill was filed, in which, among other things, it is alleged that the said warranty deed from orator and his wife to said Gustav Schumann, although appearing on its face to be absolute, was not intended to be such by orator and said Gustav Schumann, but, on the contrary, it was expressly agreed and understood between them, at and before orator signed the same and gave the same to Gustav Schumann, that the same, and the south half of the premises thereby purportingto be conveyed, were to be held by said Gustav Schumann simply as security for the payment of the said sum of $125 paid by said Gustav Schumann, to said Theodor Guenther and Magdalena von der Heide as aforesaid, and interest thereon at the rate of 7 per cent. per annum, and as security for any taxes levied or assessed against the south half of said 55-acre tract, and paid by Gustav Schumann, and to indemnify said Gustav Schumann from loss or damage to him arising from the execution by him of the $1,310 note, secured by the trust deed to McGrath, and the interest thereon; and that upon payment by orator of said $125, and interest thereon at 7 per cent. from January 21, 1888, to the date of such payment, and of all such taxes levied or assessed on the south half of said 55-acre tract, and all money paid by Gustav Schumann on said $1,310 note, and upon payment of said $1,310 note, or upon said Gustav Schumann being indemnified from all loss because of his execution of said $1,310 note, or the trust deed securing the same, that said Gustav Schumann should reconvey to orator the south half of said 55-acre tract by an absolute deed of conveyance in fee simple. The bill also contains the following: ‘That orator is ready and willing and offers to pay to Gustav Schumann said $125, and interest thereon at seven per cent. from January 21, 1888, and all the interest paid by Gustav Schumann on said $1,310 note, and all taxes paid by him; and orator offers to pay said $1,310 note, both principal and interest, or, in case the legal holder thereof refuses to accept payment thereof, orator offers to pay into this court the whole of the principal and interest due or to become due thereon, and to secure said Gustav Schumann by bond, with security to be approved by this court, against all loss and injury caused by his...