Henderson v. Harness

• Decision Date: 19 February 1900
• Citation: 184 Ill. 520,56 N.E. 786
• Parties: HENDERSON et al. v. HARNESS.
• Court: Illinois Supreme Court

184 Ill. 520

56 N.E. 786

HENDERSON et al.

v.HARNESS.¹

Supreme Court of Illinois.

Feb. 19, 1900.

Appeal from circuit court, McLean county; C. D. Myers, Judge.

Bill by Milton Harness against Frank R. Henderson and others. From a decree in favor of plaintiff, defendants appeal. Affirmed.

F. R. Henderson, E. E. Donnelly, and W. E. Hughes, for appellants.

Rowell, Neville & Lindley and Trowbridge, Fleming & Bohrer, for appellee.

BOGGS, J.

This case was before this court at a former term. Henderson v. Harness, 176 Ill 302, 52 N. E. 68. We there determined that the interest in certain lands which vested in the appellee under the provisions of the will of his father, Isaac Harness, was subject to levy and sale under and by virtue of judgments against him, reversed a decree of the circuit court which gave a different construction to the said will, and remanded the cause ‘for such other and further proceedings as to law and justice shall appertain.’ The cause was redocketed in the circuit court of McLean county, whereupon appellants entered a motion that a final decree be rendered upon the judgment of this court. The appellee moved for permission to amend the bill, and for leave to file a supplemental bill. The court denied the motion of appellants, and granted those entered by the appellee. In these rulings the court did not fall into error as appellants strenuously insist. The judgment entered by this court virtually expunged the decree of the circuit court, and the remanding order was so framed as to leave the cause, when reinstated in the circuit court, in the same condition as if no decision had been rendered in that court. The cause having been remanded without specific directions, and for such other and further proceedings as to equity should appertain, it was in the power of the chancellor to permit any amendments to be made to the bill which might properly have been made prior to the hearing of the cause, and to allow the filing of any other pleading which would have been permissible during the former pendency of the cause for trial. Chickering v. Failes, 29 Ill. 294;Cable v. Ellis, 120 Ill. 136, 11 N. E. 188;Perry v. Burton, 126 Ill. 599, 18 N. E. 653;West v. Douglas, 145 Ill. 164, 34 N. E. 141;Rush v. Rush, 170 Ill. 623, 48 N. E. 990.

In pursuance of the leave granted, the bill was so amended as to charge that in making the sales of the lands on the executions issued on the judgments in favor of Terrell and Oberkoetter & Sons, respectively, the requirements of section 12 of chapter 77 of the Revised Statutes, entitled ‘Judgments, Decrees,’ etc., that lands shall be sold in separate tracts or lots, was not observed, but that the lands, consisting of different, distinct tracts, were sold en masse, and at grossly-inadequate prices; that the complainant was induced by fraudulent representations and promises made by the appellant Henderson not to make redemption of the lands from the sales; and that, after the time allowed for redemption had expired, said Henderson refused to accept the redemption money, in violation of such promises, etc. The prayer of the bill was also so amended as to pray that appellee should be allowed to redeem from the said execution sales upon payment of the amount thereof, and interest thereon from the date of said sales. The relief sought by the case made by the bill as amended, namely, the vacation and cancellation of the sale made of the lands under the executions and redemption therefrom, was within the scope of the relief asked by the original bill. A motion to set aside a sale under execution only brings before the court the parties to the judgment under which the sale was made. If, as here, the rights of third parties have intervened, and the appellee can show, as is charged in his bill, that he was induced by the fraud of the appellant not to make redemption within the statutory period, a bill in equity will lie to impeach the sale, or for a decree that he be allowed to redeem therefrom. Day v. Graham, 1 Gilman, 435;Jenkins v. Merriweather, 109 Ill. 647;Clark v. Glos, 180 Ill. 556, 54 N. E. 631. It would therefore have been entirely competent, in framing the original bill, to have presented to the court the contention that the interest of appellee in the lands devised to him by the will of his father was not such an interest as was subject to be seized and sold to satisfy executions against him, and also to attack the validity of the sales made under such executions on the ground set out in the amendments made to the bill. A bill in chancery may be framed with a double aspect, and the prayer thereof be in the alternative,-that, if the chancellor shall decide against the complainant in one view, it shall grant him the relief in another. Story, Eq. Pl. § 42; Varick v. Smith, 5 Paige, 137; Rives v. Walthall, 38 Ala. 329. And this is true though the different aspects presented be not consistent each with the other, if each alternative case made by the allegations of the bill entitles complainant to the relief asked by the prayer. Story, Eq. Pl. § 254; Varick v. Smith, supra. As it would have been entirely competent to have incorporated in the original bill all that is set forth in the amendments allowed to be made thereto, it was within the power of the court to permit the amendments to be made.

The appellee also filed a supplemental bill, which set forth, in substance, that, about a month after the filing of the original bill, the appellant Frank R. Henderson told the appellee, in substance, that he was glad he had filed his bill to construe his father's will; that he would soon learn whether his sales were any good; that he had other cases or questions of like character, and wanted a decision of the courts, and that, regardless of how the suit terminated, he did not want appellee's land, but would take his money when the suit was finally determined; that appellee then and there told him that his circumstances were such that he could not pay at that time, but that he intended to pay the judgments as soon as he possibly could, and that appellee relied upon the statement so made by the said Frank R. Henderson, and but for said statement would have redeemed from said sales; that during the fall of 1897 and the early spring of 1898 he paid off and settled all of his old indebtedness, amounting to more than $5,000, except that owing to these defendants; that, several months before the supreme court decided this case, complainant got money to pay off the defendants herein in the full amount of their judgments, interest, and, costs, and during the spring of 1898, long before this case was decided in the supreme court, complainant offered to pay to the said F. R. Henderson the amount of the said Terrell and Oberkoetter judgments, with interest and costs thereon, and complainant now offers to pay and bring into court the full amount of said judgments, interest, and costs; that when he offered, in the spring of 1898, to pay said judgments, interest, and costs, the said F. R. Henderson refused to accept the same, notwithstanding the statements he made shortly after the filing of the said original bill, and gave as a reason for so refusing that he wanted the court to decide the question involved, because of other cases in which he was interested. A demurrer was filed to the supplemental bill, the grounds thereof being that, (1) under the order of reversal entered by this court, the cause was not open for amendments or further pleadings; (2) because the matters therein sought to be litigated had been already determined, and were res judicata; and (3) complainant was estopped from again litigating the same because complainant, by laches, had waived his right to the relief sought. That the first of these grounds of demurrer was not tenable, we have already seen. It is sufficient, as to the second ground of demurrer, to say that, though other matters may be referred to historically, the issues to be litigated under the supplemental bill were only such as arose out of transactions and agreements alleged to have occurred or to have been entered into subsequent to the filing of the original bill. The court also correctly ruled that appellee was not guilty of such laches as would operate as a bar in a court of equity. When the sales sought to be vacated were made, appellee was in possession of the lands struck off at such sales. He continued in peaceable possession thereafter, and had undisputed actual possession when the supplemental bill was filed. It is a general rule in equity that laches will not be imputed to one in peaceable possession of land, for delay in resorting to a court of equity to establish his legal right or title thereto. Wilson v. Byers, 77 Ill. 76;Parker v. Shannon, 137 Ill. 376, 27 N. E. 525; 12 Am. & Eng. Enc. Law, p. 606. We see nothing to prevent the operation of this general rule in this case. Aside from this, the allegations of the supplemental bill, which are to be accepted as true, so far as the demurrer is concerned, are that the appellant Henderson had induced the appellee not to make redemption of the lands from the sales during the pendency of the cause on the original bill, assuringhim that he (Henderson) desired judicial determination of the points involved in the original bill, and would, after the determination of such points, accept the amount necessary to redeem the lands from the sales, without regard to what his rights might be declared to be by the final decision of the case; and the supplemental bill proceeded upon the theory the appellant Henderson, after the case as first presented had been decided by this court, refused to accept the money as in redemption of the land. The judgment of this court finally disposing of the points of law involved by the issue under the first bill became effective December 14, 1898. The supplemental bill was filed January 10, 1899. There is therefore no unreasonable delay whereon to base an imputation of...