Lill v. Brant

• Decision Date: 31 March 1880
• Citation: 6 Bradw. 366,6 Ill.App. 366
• Parties: JOHN LILL ET AL., Ex'rs,v.NAPOLEON B. BRANT, Adm'r.
• Court: United States Appellate Court of Illinois

6 Ill.App. 366

6 Bradw. 366

JOHN LILL ET AL., Ex'rs,

v.NAPOLEON B. BRANT, Adm'r.

Appellate Court of Illinois, First District.

March Term, 1880.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. THOMAS A. MORAN, Judge, presiding. Opinion filed June 22, 1880.

Mr. SANFORD B. PERRY and Mr. WILLIAM A. MONTGOMERY, for appellants; that the claim, so far as regards the personal property, is barred by the Statute of Limitations, cited Lill v. Brant, 1 Bradwell, 272; Hayward v. Gunn, 82 Ill. 385.

There is nothing in the transaction in the nature of a trust which exempts it from the bar of the statute: Angell on Limitations, Ch. 16, § 166; Hayward v. Gunn, 82 Ill. 385.

Where a deed is absolute in terms, the fact that the grantee is a trustee of the land conveyed cannot be established by parol: Rev. Stat. 1877, Ch. 59, § 9; 1 Perry on Trusts, §§ 78-84; Hovey v. Holcomb, 11 Ill. 660; Perry v. McHenry, 13 Ill. 277; Seaman v. Cook, 14 Ill. 501; Lantry v. Lantry, 51 Ill. 458; Rogers v. Simmons, 55 Ill. 76; Walter v. Klock, 55 Ill. 362.

An absolute deed, if intended as security for a debt, will be held as a mortgage: Rev. Stat. 1845, 105; Rev. Stat. 1877, 676.

But such deed will be so held only in equity: Miller v. Thomas, 14 Ill. 428; Ruckman v. Alwood, 71 Ill. 158; Knowles v. Knowles, 86 Ill. 2.

A county court has no equitable jurisdiction: Pahlman v. Graves, 26 Ill. 405.

The evidence must clearly show that the deed was intended as a mortgage: Lindaur v. Cummings, 57 Ill. 195; Smith v. Cramer, 71 Ill. 185; Magnusson v. Johnson, 73 Ill. 156; Remington v. Campbell, 60 Ill. 516; Dwen v. Blake, 44 Ill. 135; Price v. Karnes, 59 Ill. 276; Sharp v. Smitherman, 85 Ill. 154.

Messrs. BRANDT & HOFFMAN, for appellee; that the Statute of Limitations is no bar to this action, cited Goodheart v. Johnson, 88 Ill. 58; Roberts v. Fleming, 53 Ill. 196; Albrecht v. Wolf, 58 Ill. 186; Walden v. Karr, 88 Ill. 49.

A conveyance as security for a debt is a mortgage, and parol proof is competent to show that it was so intended: Blanchard v. Kenton, 4 Bibb, 451; Delahay v. McConnell, 4 Scam. 157; Peterson v. Clark, 15 Johns. 205; Dunham v. Day, 15 Johns, 555; Clark v. Henry, 2 Cow. 324; Lane v. Shears, 1 Wend. 443; Brown v. Dean, 3 Wend. 208; Walton v. Conly's Adm'r. 14 Wend. 63; Tillson v. Moulton, 23 Ill. 648; Nat. Ins. Co. v. Webster, 83 Ill. 470; Hancock v. Harper, 86 Ill. 450.

The county court has jurisdiction of equitable money demands, for which an action at law would not lie: Moore v. Rogers, 19 Ill. 347; Dixon v. Buell, 21 Ill. 203; Albretch v. Wolf, 58 Ill. 186.

If a trustee buys in an outstanding title, he holds it for his cestui que trust:King v. Cushman, 41 Ill. 31; Whitney v. Peddicord, 63 Ill. 249; G. C. & S. R. R. Co. v. Kelly, 77 Ill. 426; Ward v. Armstrong, 84 Ill. 154.

Where the evidence is conflicting, and there is evidence to sustain the verdict, it will not be disturbed: Keeler v. Stuppe, 86 Ill. 310; C. B. & Q. R. R. Co. v. Lee, 87 Ill. 457; Chicago v. Herz, 87 Ill. 542; Stickle v. Otto, 86 Ill. 164; Miller v. Balthasser, 78 Ill. 202; Bell v. Gordon, 86 Ill. 501.

MCALLISTER, P. J.

This case arises upon a claim filed May 14th, 1876, in the County Court of Cook county, by appellee Brant, as administrator of the estate of David Horan, deceased, against the executors of William Lill, also deceased. The claim having been disallowed by the county court, the administrator took an appeal to the circuit court, wherein there have been several trials, with various results. The cause was before this court, on appeal, at the April term, 1878, when a judgment in favor of appellee was reversed, for the reason, among others, that there was a variance between the statement of the claim and the proofs, and it was remanded. 1 Bradwell, 266. Whereupon the statement was amended by leave of the circuit court, and on the last trial there was a verdict for twenty thousand dollars for appellee, on which the court below, overruling defendant's motion for a new trial, gave judgment, and they again appeal to this court.

The amount is so large, the case itself so peculiar, that we have felt bound to bestow upon it all the care and consideration its importance demands. From plaintiff's own showing, it appears that Horan, sometime prior to Feb. 1, 1865, kept a billiard saloon in Chicago, in partnership with one Dennehey, who wished to withdraw from the business; but the firm had become indebted to Paris & Allen, of New York, in the sum of about seven thousand dollars. Horan wished to buy out Dennehey's interest, but the latter would sell only upon condition that Horan would assume that debt, and give him, Dennehey, a bond of indemnity; which was accordingly done, and Lill executed it as surety. Horan, thereupon carried on the business alone, paying upon the Paris & Allen debt, from time to time, until he had paid in all about two thousand dollars. Meanwhile he had become indebted to other creditors, in all about twenty-seven hundred dollars. Paris & Allen were pressing him for the balance of their debt, and so were his other creditors; and it seems he was either unable or unwilling to pay any of them.

Under this state of things, Paris & Allen, either having brought, or being about to bring, suit upon their demand, and debts being due his other creditors, about February 1, 1865, Lill being liable on his bond of indemnity for the amount of the Paris & Allen debt, an arrangement was entered into between Horan and Lill, to the effect that the latter should take all Horan's property, pay the Paris & Allen debt out of it, and turn over what was left to Horan. The arrangement was merely verbal, and was subject to terms which will be hereafter set forth. In pursuance of such agreement, as the plaintiff insisted, Horan put all his personalty, including a large stock of goods, which had been provided for his business, into Lill's hands; that such goods were readily convertible into money; and, as plaintiff claimed and gave evidence tending to prove, were worth between sixteen and seventeen thousand dollars; also that the arrangement of February 1, 1865 (though verbal), embraced all of Horan's property, including his real estate, of which he had two suburban lots of considerable value; also, that this transfer included the same goods, with slight diminution, which Horan had recently bought on credit of D. R. Brandt & Co. and John Black, of Milwaukee, on account of which purchase he had paid nothing at all. And it appeared that soon after the transfer was made, application was made to Lill, on behalf of these last-named creditors, whose debt amounted to about twenty-seven hundred dollars, to give them some undertaking or obligation to pay them out of Horan's property in his hands; but that Lill, while admitting that he had sufficient to pay them all as well as himself, nevertheless refused to bind himself, because, as he said, after paying himself, he was bound to return the surplus to Horan himself.

It appears that Paris & Allen, having brought suit against Horan and Dennehey in the early part of the year 1865, in May of that year got judgment for $5,040.00, which Lill paid September 6, 1865. It further appears, from the plaintiff's own showing, that notwithstanding Lill already had in his hands the personalty, readily convertible into money, of the value of upwards of sixteen thousand dollars, and the amount of his liability on account of the Paris & Allen debt was fixed by judgment at $5,040.00, yet afterwards, July 14, 1865, Horan voluntarily conveyed to Lill, as was claimed by plaintiff, in pursuance of said original arrangement, all of his, Horan's, real estate, being the two lots above referred to; and Lill, with full knowledge of the fact of there being other creditors, accepted such conveyance. The deed, however, was an absolute warranty deed. As before said, Lill paid the Paris & Allen debt for which he was so bound, Sept. 6, 1865; but it was plaintiff's theory that he paid it out of the proceeds of said goods, so put into his hands by Horan. Horan died some time in 1868, and it inferentially appears that he had children. Lill, still having in his hands said real estate, and, as was claimed by plaintiff, a residue of the personalty, after paying said judgment of about $10,000, in April, 1875, converted the said real estate into money, realizing about $5,000, and died afterwards, in the same year. The residue of the personalty and proceeds of the realty, with interest, constitute the only elements of the verdict in this case.

The amended statement of the claim, after describing the property conveyed, sets forth the terms of the transfer thus: “All of said property, real and personal, was conveyed to said Lill upon the trust, understanding, and agreement, that he, said Lill, should hold said property as trustee or mortgagee, for his indemnity as surety as aforesaid, during his pleasure and discretion, and until he should deem it advisable and for the best interests of himself and said Horan to dispose of the same, at which last named time or times he should dispose of the same, and out of the proceeds thereof indemnify himself as such surety as aforesaid, and after indemnifying himself as such surety as aforesaid said Lill should account for and pay to said Horan such sum as should remain of the proceeds of said property, if any. Said Lill thereupon took possession of all said property, real and personal, and from time to time converted the same into money, and realized from said personal property a large sum, to-wit, $25,000, between said February 1, 1865, and April 1, 1875. Said Lill held said real estate as such trustee or mortgagee, until to wit, April 1, 1875, when he disposed of the same, and realized therefrom a large sum of money, to wit, $10,000.”

There was no writing in reference to this transfer, or any part of it, except the absolute warranty deed. But taking the terms of it as set out in the statement of claim, we...