Jeneson v. Jeneson

• Decision Date: 30 September 1872
• Citation: 66 Ill. 259,1872 WL 8557
• Parties: SUSAN JENESON, Admx., etc.v.ROBERT J. JENESON et al.
• Court: Illinois Supreme Court

66 Ill. 259

1872 WL 8557 (Ill.)

SUSAN JENESON, Admx., etc.

v.ROBERT J. JENESON et al.

Supreme Court of Illinois.

September Term, 1872.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Will county.

Mr. GEO. HERBERT, for the appellant.

Mr. T. L. BRECKINRIDGE, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was a suit in equity, brought by Robert Jeneson, in his lifetime, in the circuit court of Will county, against Thomas H. Jeneson, Jeremiah J. Cole, A. B. Hall, T. Dalson and Robert J. Jeneson, for the purpose of setting aside a conveyance made by him to his son Robert J. Jeneson, and to cancel a mortgage and a number of promissory notes executed to him as a part of the consideration on the purchase of certain lands embraced in the deed. It appears that complainant, at the time he executed the deed of conveyance, was advanced in years, and had become physically and mentally weak, and incapable, in a proper manner, of conducting his farm and general business and of providing and caring for his family; that about the 29th of March, 1856, all of the members of his family came together, and, after consultation, they entered into an arrangement that complainant should convey his farm and real estate to his son Robert, who was to take the same with the personal property on the farm, and pay therefor $4500; to pay in hand $1000, and give his seven promissory notes for $500 each for the balance, payable to the heirs or executors of complainant; the notes to become due severally in from one to seven years after the death of complainant and his wife; the notes to bear ten per cent interest from date, payable annually, and Robert J. to execute a mortgage on the land to secure the payment of the notes. The deed, notes and mortgage were executed according to the arrangement.

It was further agreed that Robert J. should borrow the $1000, to make the cash payment, and execute a mortgage on the farm to secure the lender. It was found that George Gorden would make the loan, and on the same day that complainant conveyed the premises to Robert J. he borrowed the money from Gorden and executed to him a mortgage on the farm to secure its payment, and that mortgage was recorded before that given by Robert J. to his father.

It also appears to have been a part of the arrangement agreed upon by the family that Thomas H. Jeneson, another son of complainant, should, with the money thus obtained of Gorden, purchase a small house in the village of Oswego, for a residence for complainant and his family, which he did, and the family removed to and occupied it until and after the death of complainant. The notes, with the mortgage executed by Robert J. to complainant, were placed in the hands of Thomas, who was to collect and apply the interest to the support of complainant and his wife. About the 14th day of June, 1857, Thomas, it seems, went to Robert J. and induced him to execute two notes, one for $1500 and the other for $2000, the first due in one year and the other in ten years from date, and to execute a mortgage on the farm to secure their payment, both notes and mortgages payable to their father, and Thomas then surrendered the seven notes, and the mortgage given to secure their payment, to his brother Robert.

Afterwards, Thomas induced his father to indorse the $1500 note in blank, and, being in embarrassed circumstances financially, to raise means to meet his own indebtedness, he sold the note to Theophilus Dalson, who was subsequently made a defendant by an amended bill. Afterwards, complainant having died, the suit was revived in the name of Susan Jeneson, his widow, who had become administratrix of his estate.

By supplemental bill, it appeared that all of the heirs of Robert Jeneson, deceased, except Elizabeth, had conveyed all of their interest in their father's estate to Susan Jeneson, his widow and their mother, who is the complainant prosecuting this suit.

Gorden filed a cross bill to foreclose his mortgage, and Dalson likewise filed a cross bill to foreclose to the extent of his interest in the mortgage given by Robert to his father, held by the assignment of the $1500 note sold him by Thomas. To avoid the foreclosure of these mortgages, the mental incapacity of Robert Jeneson deceased is set up and relied upon by answers.

Thomas, subsequently to the sale of the $1500 note to Dalson, sold the $2000 note to Asher Hall for about $700 or $800, and endorsed it to him, in his father's name, by himself as his father's agent, and delivered the note to Hall.

On a hearing in the court below, a decree was rendered for the foreclosure of the Gorden and Dalson mortgages, but relief was refused to Hall on his cross bill, which was dismissed. The decree finds that Gorden's mortgage was a prior lien, and that Dalson held a junior lien for the $1500 note, and the land was ordered to be sold for the payment of these sums, and the surplus, if any, was ordered to be paid to the administratrix, and the $2000 note held by Hall be surrendered up and canceled. The record is brought to this court and a large number of errors are assigned, a portion only of which we deem it material to discuss.

It is first urged that the deed conveying the premises from Robert Jeneson to his son Robert was void, because, at the time of its execution the maker was mentally incapacitated for the transaction of business, being incapable of comprehending the nature of the transaction, or the effect it was to have.

It is manifest from the evidence that the conveyance and the notes and mortgage given by Robert to his father, as also the loan of the...