Hummert v. Schwab

• Decision Date: 30 June 1870
• Parties: FREDERICK HUMMERTv.JACOB SCHWAB et al.
• Court: Illinois Supreme Court

54 Ill. 142

1870 WL 6270 (Ill.)

FREDERICK HUMMERT

v.JACOB SCHWAB et al.

Supreme Court of Illinois.

June Term, 1870.

APPEAL from the Circuit Court of Madison county; the Hon. JOSEPH GILLESPIE, Judge, presiding.

The opinion states the case.

Messrs. GILLESPIE & RANDLE, for the appellant.

Messrs. DALE & BURNETT, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was a suit in equity, brought by appellant to the October term, 1867, of the Madison circuit court, against Schwab and Gagnebin, and Grauz was subsequently made a defendant. The bill charges that, on the thirteenth of October, 1859, Martin Recher recovered a judgment in the Madison circuit court against appellant and one Carl Hummert, for $200 debt, and $37.43 damages, and the costs of suit; that an execution was issued thereon November 8, 1859, and delivered to the sheriff, which was levied on lots 44, 45 and 65, in College addition to Upper Alton; also, on S. W. of the S. E. 11, T. 6, N. R. 9 W.; on a part of the W.1/2 of the N. E. 14, in the same township and range, containing fifty-five acres, as the property of Hummert; that subsequently the sheriff sold the lots and first named tract of land to the plaintiff for the sum of $275.34, and delivered to him certificates of purchase; that afterwards, in June, 1860, Carl Hummert made an arrangement with Schwab to redeem the property from the sale, and at the time also purchased a team of horses from Schwab for $250, which, with the sum necessary to redeem, amounted to about $625, and to secure the redemption money and the price of the horses, Hummert executed a mortgage to Schwab on the lots; that Recher afterwards died intestate; that his widow became his administratrix; that the estate was indebted to Schwab, and that he and the administratrix arranged the claim, partly by Schwab taking the claim on Hummert, held by the estate; and Schwab, instead of redeeming the lots and land as he had agreed, by misrepresentation procured an assignment of the certificates of purchase to himself, and afterwards fraudulently procured a deed for the property from the sheriff; that afterwards, in 1864, appellant being the owner in fee of the forty acre tract, conveyed the same to Heye F. Heines, by deed with covenants of warranty; that afterwards Heines conveyed the same to Jaques Gagnebin by warranty deed; that Hummert paid the notes described in the mortgage to Schwab, and he, on the fourth of June, 1867, entered satisfaction of the mortgage of record; that, for the purpose of defrauding appellant and those claiming title from him, on the thirty-first of March, 1866, he procured the sheriff to execute to him a deed for the lands named in the certificate of purchase, and had put the same on record, and after obtaining the last named deed, threatened to commence suit for the recovery of the land from Gagnebin; that Gagnebin, in ignorance of the facts, had agreed to pay Schwab $800 for the land, and that Schwab quit claimed the land, and Gagnebin had executed a deed of trust on the land to secure the payment of the $800; that Gagnebin was threatening to sue appellant on his covenant for title; that appellant, to prevent suit, placed in Gagnebin's hands notes and monies to secure and keep him harmless in the payment of the note to Schwab; that all of these acts on the part of Schwab were fraudulent, unjust and injurious to appellant.

The oath to the answers was waived. The bill prays that the court render a decree declaring the deed from the sheriff to Schwab null and void, and to find and declare that the deed from Schwab to Gagnebin conveyed no title, and to declare the deed of trust from the latter to the former void, and Schwab be decreed to deliver up the note given to him by Gagnebin, and he be decreed to deliver to appellant his securities, and the money deposited with him.

On the first of February, 1868, Schwab answered the bill, and denied any arrangement was ever made with him to redeem, and states that appellant requested him to procure the assignment, saying he was unable to redeem,...