Kingsbury v. Buckner
| Decision Date | 31 January 1871 |
| Citation | 58 Ill. 310,1871 WL 7926,11 Am.Rep. 67 |
| Parties | HENRY W. KINGSBURY, an infant, by his next friend,v.AMBROSE E. BURNSIDE et al.MARY K. BUCKNER and SIMON B. BUCKNERv.HENRY W. KINGSBURY et al. |
| Court | Illinois Supreme Court |
These cases arise upon an original and cross bill in chancery exhibited in the Cook county circuit court.
On the 26th day of June, 1856, Julius J. B. Kingsbury, being seized in fee of the real estate described in the pleadings, and situate in said county, in the State of Illinois, died at the city of Washington, D. C., intestate, leaving him surviving, his widow, Jane C. Kingsbury, and two children, viz: Mary Jane and Henry W. Kingsbury. Mary, on the second day of May, 1850, married Simon B. Buckner, and after her marriage adopted the name of Mary Kingsbury Buckner, by which she was known. Of this marriage was a daughter, born March 7, 1858, still living. Henry W. Kingsbury was about the age of nineteen years at the death of his father; had a considerable time previously kept in school, and soon after his father's death was entered at the military academy, as a cadet, where he remained for the period of almost five years, and from which position he was promoted to one in the U. S. army, in May, 1861. It appears that his father was also a graduate of the same military academy, and spent nearly all of his after life in military service, never acquiring a domicil at any place. That Henry W. had never, at any time, taken any part in the management of the property in question, except that he was sometimes consulted by Buckner, who had the general management of it from March, 1855, under a power of attorney from his father-in-law, until 1858; that Henry W. had very little, if any, experience in business or acquaintance with the particulars of his father's estate; that the relations between Buckner and his father-in-law were friendly and confidential, so much so that in January, 1855, the latter conveyed to the former, by deed, absolute on its face, but really upon a secret parol trust, a strip of land of great value, being a part of that known as the “Kingsbury Tract,” and seventy-five feet wide, lying along the north branch of the Chicago river, in the city of Chicago, the legal title to which remained in Buckner, at the time of the death of his father-in-law, and until May, 1861. The relations between Buckner, Mary his wife, and Henry W., were always of a very confidential and affectionate character. That Buckner received a military education at West Point, and from the time of graduating, in 1844, belonged to the regular army, and as a commissioned officer therein, was engaged in the Mexican war, as was Julius J. B. Kingsbury, also. After his marriage, Buckner, at the solicitation of his father-in-law, resigned his commission in the army, to become, as he did, the general managing agent of the property in question.
It appears that, aside from her interest in the property in question, as heir-at-law of Julius J. B. Kingsbury, Mrs. Buckner had no property in her own right, except a small interest in property inherited from her father, situate in Waterbury, Conn., which interest was of the value not to exceed $3500. That in May, 1861, Buckner was the owner, in his own right, of real estate in Hart county, Ky., valued by him at $40,000; a house and lot in Louisville valued at $20,000, and lands in the State of Minnesota valued at $4000. Under these circumstances, Buckner and wife, on the fifteenth day of May, 1861, at Louisville, Ky., where they resided, joined in a deed to Henry W. Kingsbury, as follows:
“Be it known, that Simon B. Buckner and Mary K. Buckner, his wife, of the city of Louisville and State of Kentucky, in consideration of the sum of one dollar in hand paid, and the natural love and affection we bear to our brother Henry W. Kingsbury, do hereby grant, bargain, sell and convey to said Henry W. Kingsbury, of the United States army, his heirs and assigns forever, the following property, viz:
One undivided half of lots number five (5) and six (6) in block number thirty-five (35), in the original town of Chicago, in the county of Cook and State of Illinois; and also all our right, title and interest in the ‘Kingsbury Tract’ so called, being the tract of thirty-five acres, more or less, purchased from James Kinzie by the late Major Julius J. B. Kingsbury, of the U. S. army, as per deed of said Kinzie on record in the clerk's office of Cook county, Illinois; the said tract being the south half of what remained of the N. W. qr. of sec. 9, in township 39, range 14, in said Cook county, after deducting therefrom the town of Wabansia. The other interest in said lands and tenements, &c., included in this deed, now belongs to said Henry W. Kingsbury, as one of the heirs of the late J. J. B. Kingsbury, and the entire property being subject to the dower interest of Mrs. Jane C. Kingsbury.
To have and to hold the same to the said grantee, his heirs and assigns forever, the grantor covenanting that…… will warrant the property hereby conveyed.
In witness whereof we have hereunto set our hands and seals at Louisville, this fifteenth day of May, 1861.
Be it remembered that on this fifteenth day of May, A. D. 1861, before me, C. L. Thomasson, a notary public in and for said State and county, duly commissioned and qualified, personally appeared Simon B. Buckner and Mary K. Buckner, his wife, who are personally known to me to be the persons whose names are subscribed to the foregoing deed as having executed the same, and acknowledged that they had executed the same for the uses and purposes therein expressed.
And the said Mary K. Buckner, wife of the said Simon B. Buckner, being of lawful age, and having been by me separate and apart from her said husband examined, and the contents of the said deed fully made known and explained to her, acknowledged that she had executed the same and relinquished her dower to the lands and tenements therein mentioned voluntarily and without compulsion of her said husband.
In witness whereof I have hereunto set my hand and affixed my official seal this fifteenth day of May, A. D. 1861.
+------------------------------------+
¦ ¦C. L. THOMASSON, ¦
+-------+----------------------------¦
¦[L. S.]¦Notary Public for ¦
+-------+----------------------------¦
¦ ¦Jefferson county, Kentucky.”¦
+------------------------------------+
It appears that there was in fact no pecuniary consideration for this deed. That it was signed, sealed and acknowledged in the absence of the grantee and wholly without his knowledge, and without any previous arrangement or communication between the parties on the subject. That it was sent by Buckner to his agent at Chicago, with directions to place it on record, which was done on the seventeenth day of May, 1861. The deed appears never to have been in the hands or possession of the grantee, but to have remained in the recorder's office. Buckner, in the letter accompanying the deed to his agent, directed him “to report all further proceedings to General Burnside, as he did not wish to be consulted in the matter any further.”
On the seventh day of July, 1861, Buckner, while walking with Henry W. Kingsbury, in the city of Washington, said to the latter: “By the way, the property of your sister has been deeded to you, and I want you to look after her interests, and see that she has her property.” To which Henry replied, “All right,” or “Very well,” or words to that effect. This appears to be the first knowledge Henry had of the transaction. It appears that the interest of Mrs. Buckner in the property covered by the deed was of the value, at that time, of $500,000.
In August or September, 1861, Henry W. Kingsbury and his mother, Mrs. Jane C. Kingsbury, met at Old Lynn, Conn., and she testifies that she then asked him in regard to his sister's property; whether it had been turned over to him (Henry), and told him that Simon had told her so. That he replied: “That is so; but don't look concerned, it is only turned over to me for safe keeping; it will be restored to her.” After this conversation, and on the 23d day of October, 1861, Henry W. wrote a letter to his mother, at Arlington, Va., and bearing that date, which she received, in which he said: This letter was closed and signed by Henry W. Kingsbury, thus: “Believe me, dear mother, your affectionate Henry.”
She testifies that between the time of the conversation with him at Old Lynn, in August or September, 1861, above stated, and the receipt of this letter, she had not seen him, written to him or received any letter from him.
The power of attorney referred to in this letter is dated October 22, 1861, and was executed by Henry W. to Ambrose E. Burnside, appointing him attorney “to transact and conduct the business of the Kingsbury estate of Chicago,” &c.
At the time the letter was written and the power of attorney made to Burnside, Buckner was in the army of the so called Confederate States, and his wife within its military lines, they having gone there September 16, 1861, and at the same time Henry W. Kingsbury was first lieutenant in the fifth regiment of artillery, and was in the service of the Union army, at Arlington, Va. On the fifth...
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