Hopkins v. Granger

• Decision Date: 30 September 1869
• Citation: 52 Ill. 504,1869 WL 5482
• Parties: WILLIAM T. HOPKINSv.ELIHU GRANGER et al.
• Court: Illinois Supreme Court

52 Ill. 504

1869 WL 5482 (Ill.)

WILLIAM T. HOPKINS

v.ELIHU GRANGER et al.

Supreme Court of Illinois.

September Term, 1869.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. ERASTUS S. WILLIAMS, Judge, presiding.

The opinion states the case.

Mr. B. C. COOK and Mr. WILLIAM T. BURGESS, for the appellant.

Mr. U. F. LINDER, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

It appears that appellant, on the tenth day of June, 1868, filed a bill in the Cook circuit court against appellees. In it, he charges that, on the first of January, 1858, appellant, with Couch and Gould, executed to Granger two notes of that date, each for $600, payable, with interest, one in six and the other in eighteen months from date. At the same time, Couch, in order to secure the same, made to Shipman a deed of trust on two tracts of land, one containing seventy and the other eighty acres. The deed provided that, in case of default in payment of the notes, or any part thereof, then, on the application of the holder thereof, Shipman, after giving notice as specified, should sell the same at auction, make a deed to the purchaser, out of the proceeds pay the costs or expenses of advertising and selling the premises, and the principal and interest due upon the notes, or upon payment of the notes by the makers, re-convey the premises to Couch. It further appears that, soon afterwards, Couch and wife conveyed the premises to appellant, subject to the deed of trust, and, on the ninth of March, 1858, it was recorded, and became notice to Granger and Shipman; that, about the fifteenth of February, 1859, Granger caused Shipman to advertise the land for sale under the trust deed on the third of March, 1859; that, on the second day of March, appellant filed in the Grundy circuit court a bill in chancery against Granger and Shipman, alleging that the sale, if allowed to proceed, would be contrary to the duty of the trustee, and to equity and good conscience; and prayed that the sale might be restrained. A writ of injunction was thereupon issued, and served upon Shipman and Granger.

That afterwards, about the first of September, 1859, while the suit was still pending and the injunction still in force, Shipman made a conveyance of the premises, for the consideration of $20, to Addison Weeks. The deed recited the execution of the trust deed; that notice of sale was given; that Weeks had become the purchaser for that sum; but there was no advertisement, in fact, of the time, place and terms of the sale, in any newspaper published in the county, as required by the deed of trust; that Shipman did not attend the sale, and if made, it was by one George H. Robinson, at the instance and on the procurement of Granger, and in the absence of Shipman. This was all done without the knowledge or consent of appellant, with intent to defraud him; that Weeks, in fact, paid no money on the purchase, but it was falsely pretended that the sale was made to him, to give the transaction the color of a bona fide transaction; that Weeks was ignorant of the transaction, was not present at the sale, but, when afterwards informed of it, acceded to the arrangement to aid Granger and Shipman in carrying out their fraud; that he never paid any money on the sale; that he confessed judgments in favor of several persons in the superior court, for various sums, upon which executions were issued to the sheriff of Grundy county, who levied upon the lands as the property of Weeks, which were sold thereunder to Taylor for the amount of the judgments. The land not having been redeemed, the sheriff executed a deed to the purchaser; that the levy, sale and sheriff's deed were all procured by Taylor to further the fraudulent designs of Granger and Shipman, to defraud appellant out of this land.

For the purpose of setting aside these various proceedings, appellant filed a bill in the Grundy circuit court, against Granger, Shipman, Weeks and Taylor, on the nineteenth of July, 1862, in which he charged the same facts as are set forth in this bill. In it, among other things, it was prayed that the title of Weeks and Taylor might be held for naught; that, on the hearing, those deeds were decreed to be canceled. Taylor prosecuted a writ of error to the supreme court to reverse that decree, but, on a hearing, it was affirmed; that thereupon Shipman again proceeded to advertise the land under the trust deed, on the twenty-seventh day of November, 1865, and sold the same for $1610, which was paid to Granger, and Shipman executed a deed of conveyance to the purchaser, and appellant, to cure a defect in the notice, executed a release to the purchaser.

The bill alleges that, in consequence of the fraudulent acts of Granger and Shipman, appellant was put to great expense and sustained loss by being compelled to employ counsel to set aside the sale; also to sustain the decree in the supreme court on error; that he lost time, incurred expense and costs in prosecuting and defending that litigation, by which he had been damnified and suffered loss to the amount of $1500, which Granger and Shipman should pay; that, by reason of the fraudulent sale, appellant had been prevented from selling the land to pay the debt, by which a large amount of interest had accrued, which they should pay; that, on the twenty-fourth day of September, 1859, Granger sued appellant, and the other makers of the notes, in the Cook circuit court, and, on the twelfth of October following, recovered a judgment thereon for the sum of $1524.62, the amount due and unpaid; that, on the twenty-fourth of March, 1866, execution was issued, under which lands were sold for $100, of which $68.06 was paid to Granger; that afterwards an alias execution was issued to the sheriff of Grundy county, endorsed by the $68.06 and $1024.49 as of November 27, 1865; that Granger, instead of allowing appellant the sum of $1610, less the costs of sale, for which the land was sold by Shipman, only allowed a credit of $1024.49, and has refused, fraudulently, to credit the balance on the debt; that the judgment should be deemed satisfied; that Granger and Shipman...