Henderson v. Palmer

• Decision Date: 31 January 1874
• Citation: 1874 WL 8729,22 Am.Rep. 117,71 Ill. 579
• Parties: S. W. HENDERSONv.O. H. PALMER.
• Court: Illinois Supreme Court

71 Ill. 579

1874 WL 8729 (Ill.)

22 Am.Rep. 117

S. W. HENDERSON

v.O. H. PALMER.

Supreme Court of Illinois.

January Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Morgan county; the Hon. CHARLES D. HODGES, Judge, presiding.

Mr. N. M. KNAPP, for the appellant.

Mr. WM. THOMAS, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

It appears from the record in this case, that one H. B. Henderson, the son of appellant, was employed as an operator by a telegraph company, in Chattanooga, in the State of Tennessee, prior to the year 1867; that the officers of the company instituted a criminal prosecution against him for embezzling $220, money of the company; that by the laws of the State of Tennessee embezzlement is made a felony. After the prosecution was commenced, on the 26th day of November, 1867, appellant was, to stop the prosecution against her son, induced to execute a note, with her husband and another, for $980, and a mortgage on the house and lot in which she and her husband lived, to one O. H. Palmer, an agent of the company, to secure the payment of the note. The house and lot was her sole property, derived from other sources than from her husband. There seems to be no question that the consideration for the note and mortgage was a promise that her son should he discharged and the prosecution dismissed. There was no agreement even that the son should be discharged from the claim of $220, which was set up against him by the officers of the company.

On the 25th day of February, 1869, she was induced to execute a new mortgage on the same premises to secure the payment of the same note, and the first mortgage was canceled. She claims that she was induced to do so under threats of foreclosure and sale; but this is denied, and it is insisted that time was given as the inducement to execute the new mortgage, which was desired to cure a defect in her acknowledgment of the first mortgage. Afterwards, Palmer, the mortgagee, sued out a writ of scire facias from the circuit court of Morgan county to foreclose the mortgage. A judgment by default was entered, no defense being made, and on a sale of the property, Thomas, the attorney for the mortgagee, became the purchaser for his use, and the time for redeeming the house and lot had expired. Thereupon this bill was filed to set aside and cancel the note, mortgage, judgment and sale of the property, as to complainant, because they were, as to her, void, but operated as a cloud on her title. Appellant, in her bill, alleges that she was informed by her husband that the attorney for mortgagee had agreed not to take judgment in the scire facias proceeding, without giving him notice, but had given none. This is denied, but the husband testifies that such was the agreement, and the wife that she was so informed by her husband. Thomas, on the other hand, testifies that no such agreement was made. On a hearing, the court below denied the relief and dismissed the bill, and complainant appeals to this court.

We regard the evidence as clear and convincing that the property mortgaged belonged to appellant in her own right, and that the only consideration of the note was the agreement to dismiss the criminal prosecution against the son of appellant. Even if it could be inferred that it was intended to secure the $220 claimed to have been used by the son, still there would be $760 for which there was no other consideration than the agreement to dismiss the prosecution. Is this, then, such a consideration as will support the note and mortgage; or is such a consideration illegal, and does it render them voidable? If there had been an indebtedness, as claimed, we presume that it could and would have been proved against H. B. Henderson. But there is no proof that he owed the telegraph company even the $220 claimed to have been embezzled, nor any other sum. It was denied that he owed the company that or any other amount, and the evidence of Van Duger, who examined the books, tends to prove that he was not indebted to the company in any sum whatever. The copy of the indictment did not prove it, or any other fact. But even if he did owe a small portion of the amount, that would not warrant the extortion of the balance. When such a prosecution was pending, those pressing the prosecution knew the power it gave them to extort money of the mother, and the evidence seems to show that they availed themselves of the power to procure the note and mortgage. The rule is fully recognized, that when a contract grows immediately out of, or is connected with an illegal or an immoral act, a court of justice will not lend its aid in its enforcement. Nash v. Monheimer, 20 Ill. 215. Where money is paid to compound a felony, or an agreement,...