Hicks v. Deemer

• Decision Date: 19 October 1900
• Citation: 58 N.E. 252,187 Ill. 164
• Parties: HICKS v. DEEMER.
• Court: Illinois Supreme Court

187 Ill. 164

58 N.E. 252

HICKS

v.DEEMER.

Supreme Court of Illinois.

Oct. 19, 1900.

Appeal from appellate court, Third district.

Action of fraud by William L. Deemer against R. T. Hicks and others. From a judgment of the appellate court (87 Ill. App. 384) affirming a judgment of the circuit court in favor of plaintiff, defendant Hicks appeals. Reversed.

Matthews & Grigsby, for appellant.

Wm. Mumford and Hugh Johnston, for appellee.

CARTWRIGHT, J.

This is an action on the case brought by appellee, William L. Deemer, against Ransom Kessinger, William F. Hess, and appellant, R. T. Hicks, for damages on account of alleged fraud and deceit in misrepresenting to the appellee the title which he had in certain lands, and thereby causing him to convey and cause to be conveyed said lands to appellant, R. T. Hicks, for a sum much less than they were actually worth. The declaration contains three counts, in each of which it is averred that the plaintiff is a person of weak understanding, unlearned, unlettered, and unable to read or write; that his father, Jacob Deemer, being the owner in fee simple of the said lands, devised them unto the plaintiff in fee simple; and that the defendants, knowing the contents of the will, and the estate thereby devised, fraudulently represented to plaintiff that he had only a life estate in said lands. The first count alleged that the legal title to the lands was in the plaintiff. The second alleged the title to be in him subject to an incumbrance to his brother, Wesley Deemer, and the third alleged that Wesley Deemer held the legal title in trust for the plaintiff. The first and third charged that, by means of the false and fraudulent misrepresentations of the defendants, the plaintiff was induced to convey, and cause to be conveyed, the lands to defendant R. T. Hicks. The second charged that plaintiff, with his brother, Wesley Deemer, directed a deed of the life estate, only, to the defendant R. T. Hicks, to be prepared, but the defendant Hess prepared an instrument, under the direction of the other defendants, conveying the whole title. The case was tried upon a plea of the general issue, and at the close of the evidence the suit was dismissed as to the defendant Ransome Kessinger. There was a verdict against the defendants R. T. Hicks and William F. Hess for $1,200, followed by a judgment for that amount, which the appellate court affirmed.

The wrong charged against the defendants at the trial was in causing plaintiff to believe that he owned only a life estate in 120 acres of land in Pike county, whereas in truth he owned the same in fee simple, and in causing him to part with his interest in the land under the mistaken belief, induced by the defendants, that he owned a life estate only. On the question whether the alleged representations were made by defendants, the evidence was conflicting. After the death of plaintiff's father there were judgments against plaintiff and Truman Fisher, with whom plaintiff had been in partnership in business, aggregating about $1.900. Plaintiff, hearing that the judgment creditors would endeavor to make the money out of this land, made a deed, together with his wife, to his brother, Wesley. This deed was made with an agreement, as he testified, that his brother should pay off the judgments, and, on being repaid, should reconvey the land to plaintiff's wife. The judgments were not paid, and bills were filed by the creditors to set aside the deed and subject the lands to executions on the judgments. Plaintiff testified that he was unlearned and unlettered, and consulted the defendant Hess, a lawyer, as to what he had better do, and through Hess a sale was made to the defendant Hicks. A conveyance was made from Wesley Deemer to Hicks in consideration that Hicks would pay off the judgments and the sums named in the will to be paid by plaintiff, and pay $1,000 to plaintiff. Hicks afterward conveyed the land to a third party.

It was proved that the legal title to the lands was vested in plaintiff's brother, Wesley Deemer, and that plaintiff's title was equitable only; and on these grounds it is contended that there was no right of action at law in the plaintiff, but that, his right or estate being purely equitable, the jurisdiction is in equity for any wrong done to that right or estate. It is urged that the party vested with the legal title is the only person permitted to sue at law, although the suit be for the benefit of another party having the equitable right. That question is not in the record before us. The second and third counts of the declaration charged that the legal title was not in plaintiff, but in Wesley Deemer, his brother. The first count averred that the legal title was in the plaintiff. The defendants demurred to the declaration, but pleaded over, and did not afterwards in any way raise the question whether the action could be maintained on the ground now stated.

The court admitted, against the objection of defendants, a paper purporting to be the original will of Jacob Deemer, filed in the office of the county clerk of Pike county, and which appeared to have been recorded in said office. The part of the alleged will and codicil thereto relating to this litigation is as follows: ‘I give and bequeath to my son William Deemer, and to his lawful heirs, the following...