Hood v. Moore
| Decision Date | 31 December 1847 |
| Citation | 1847 WL 3845,9 Ill. 99,4 Gilman 99 |
| Parties | ARCHIBALD HOODv.WILLIAM MOORE et al. |
| Court | Illinois Supreme Court |
BILL IN CHANCERY for an injunction, etc., in the Washington circuit court, filed by the appellant against William Moore, James Smith, John H. McElhanan and John N. Vernor. The case was heard on bill, answers, replications and depositions at the May term, 1847, before the Hon. GUSTAVUS P. KOERNER, when the bill was dismissed and the injunction, previously granted, dissolved.
It was alleged, that Moore recovered a judgment against the complainant in the circuit court aforesaid in 1842, for $545.52, and costs, upon which execution was issued in December of that year, and levied in the month of March 1843, upon the lands of the complainant,to wit: The west half of the south east quarter, and the west half of the north east quarter of section twenty-seven (27), and the east half of the south west quarter of section twenty-six (26), all in township one (1) south, and range four (4) west. During the month next ensuing, a second execution was issued and levied upon the same lands, and in the month of January and February of the next year, a third execution was issued and levied thereon, and likewise in September of the same year, a fourth execution, when the lands were sold to James Smith for $200, who credited the same on the said judgment without paying anything to the sheriff therefor.
In January, 1845, a fifth execution was issued and subsequently levied on other lands of the complainant, to wit: The north west quarter of the south west quarter, the south east quarter of the north west quarter, the south west quarter of the north east quarter, and the north east quarter of the south west quarter, all in section twenty two (22), in township three (3) south, and range three (3) west, which were also sold to the said Smith for $100.
In May, of the same year, a sixth execution was issued, and, in August following, levied upon still other lands of the complainant, to wit: The north east quarter of the south west quarter, and the north west quarter of the south west quarter of section thirty (30), and the north half of the north west quarter of section twenty-six (26), the west half of the north east quarter of section twenty (20), and the south east quarter of the south east quarter of section twenty-seven (27), in township three (3) south, and range four (4) west.
A seventh execution was afterwards issued and placed in the hands of John N. Vernor, the sheriff of said county, and this execution is sought to be enjoined.
The bill charged that Smith had acted throughout the proceedings as the agent of Moore; that no money passed on either of said sales to said sheriff; that on the 11th April, 1845, Hood paid and satisfied said judgment, while the sheriff had the execution, issued January 23, 1845, in his hands; that the sheriff at the time of giving the receipt was acting under the directions of Smith, agent as aforesaid, and was by him authorized and empowered to receive payment, etc., and that, at the time of payment, Hood was ignorant that any sale of his property had taken place; that since the sale Smith had caused the sheriff's successor, Vernor, to execute a deed to him for the lands first sold, and that he claims and intends to demand a deed for the lands afterwards sold. The bill then prayed for an injunction against the execution issued, that the sales might be set aside, and for general relief.
Smith answered the bill, admitting the recovery of judgment by Moore and the issuing of executions and sales as alleged in plaintiff's bill, but denied that he gave any order to the sheriff to return any of the executions; alleged that Moore resided in South Carolina; and that he, Smith, has been Moore's agent throughout the proceedings in the case; admits that no money passed from him to the sheriff on said sales; that he caused the last execution to issue, etc., and says that he does not admit or believe that Hood paid the judgment as alleged by him; does not know that the sheriff executed said receipt, or while he had no execution in his hands; denies that he ever gave the sheriff any authority to give said receipt, or any authority in reference to said claim; insists that Hood knew of, and permitted said sales of said land; admits that he has received a deed for the land sold at the first sheriff's sale, and intended to claim a deed for the land sold at the second sale; alleged that he believed there was some sort of an understanding between Hood and McElhanan, that McElhanan should take property from Hood and redeem said lands or settle said debt for him, but denies that he, Smith, was a party to said arrangement, if any such there was; that he, Smith, purchased the land in good faith and accounted to Moore for the amount by him bid, and the only amount of money ever paid by said McElhanan on said execution was $26.34.
The bill was taken for confessed as to Moore and Vernor.
McElhanan answered the bill, admitting whatever Smith admitted, and denied what he denied denied further, that he received the amount set out in his receipt or any other amount; but states that in the year 1843, he bought land of Hood, and in 1844, sold the land to B. D. Hunter, and that he, McElhanan, gave receipts to complainant covering the whole amount of the judgment; and the amount of the receipts was to be in part payment of the said lands, and the deed to be made to Hunter, but Smith knew nothing of the receipts until the spring of 1845, when Smith gave him, McElhanan, notice in writing of his intention to apply to the judge of said circuit court, for a rule against him to show cause, etc., why he had not paid over the money collected, etc. After said notice he went to complainant, took back the three receipts, and gave the one receipt in question, with the agreement that he was to sell the remaining lands levied upon, and redeem the same for complainant.
The following is the substance of the depositions taken in the case:
Robert T. Harris, for the complainant, testified that he was deputy sheriff for McElhanan, from September, 1844, to September, 1845; that McElhanan told him, witness, after his return from the south, that Smith had agreed to wait with him, until he, McElhanan, had returned from the south with horses, and also, that he intended to make witness acquainted with the arrangement before he started south, so that witness would not have gone on with the execution against Hood, but entirely forgot it; that Smith told witness that a man had been at his mother's, and left word, that he, Smith had better attach McElhanan's horses before he left with them; that Smith said he still believed McElhanan would settle the demand when he returned home, if he had good luck. Harris also proved the handwriting of McElhanan to a letter to Mr. Bond, one of complainant's attorneys, in relation to this case. In this letter, McElhanan said: “I understand that they are trying to make it out all fraud between Hood and myself. I received full payment from Hood as my receipt will show. I sold the pay I received from Hood for horses. Smith agreed to wait till I returned from the south, and it was to be applied to the executions. This was a contract between Smith and myself.
John H. McElhanan.”
On cross-examination Harris stated that when he went with an execution to complainant, he asked witness if McElhanan had not informed him of the arrangement made with McElhanan, and then produced McElhanan's receipts, as many as three, for about the amount due; that the receipts were of different dates; that McElhanan told witness he got horses from complainant, and gave those receipts against the execution, and when he returned from the south he would then pay off those executions. On re-examination he stated, that complainant told him in the conversation before referred to, that he had paid off the judgment. The handwriting of McElhanan was proved by another witness.
Gabriel S. Jones testified, that McElhanan told him that complainant had paid him the full amount of the said execution, and he had given him a receipt; that he, McElhanan, had seen Smith, and Smith was satisfied and agreed to wait till he, McElhanan, came back from the south to pay the money over to him, Smith. He also proved...
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