Mulcahey v. Strauss

• Decision Date: 13 June 1894
• Citation: 151 Ill. 70,37 N.E. 702
• Parties: MULCAHEY et al. v. STRAUSS.
• Court: Illinois Supreme Court

151 Ill. 70

37 N.E. 702

MULCAHEY et al.

v.STRAUSS.¹

Supreme Court of Illinois.

June 13, 1894.

Appeal from appellate court, third district.

Bill by Fannie Strauss against Daniel Mulcahey, Jr., and others, to foreclose a mortgage. Complainant obtained a decree, which was affirmed by the appellate court. Defendants appeal. Affirmed.Frank R. Henderson, for appellants.

John Stapleton and Williams & Capen, for appellee.

This is a bill filed in the circuit court of McLean county, on April 7, 1892, by Fannie Strauss, the appellee, against Daniel Mulcahey, Sr., and Julia, his wife, and their four children, Daniel Mulcahey, Jr., and Mary A. Mulcahey, adults, and Thomas F. Mulcahey and William H. Mulcahey, minors, and one William Scott Arnold, to foreclose a mortgage, dated March 1, 1890, upon 120 acres of land in said county, executed by said Daniel Mulcahey, Jr., to secure five notes for $5,720, of that date,-four for $500 each, due in two, three, four, and five years after date, and one for $3,720, due in six years after date,-all drawing 7 per cent. interest. The bill charges that the note falling due on March 1, 1892, and the interest on all the notes, had not been paid, and that, by reason of such default, the whole had become due, etc. Default was entered against Daniel Mulcahey, Sr. A guardian and litem was appointed and answered for the two minors-Arnold answered, saying ‘that personally he has not nor claims any interest in said cause more than an officer of this honorable court, being appointed by said court a receiver for personal property, and, having filed his bond, as directed by the court, is now and at all times ready to obey the orders of this honorable court; wherefore he asks to be dismissed,’ etc. Daniel Mulcahey, Jr., Julia Mulcahey, and Mary A. Mulcahey filed their answer, denying that complainant was entitled to relief; that the notes were due or made for any consideration; and allege that another chancery suit, entitled ‘Daniel Mulcahey, Sr., v. Daniel Mulcahey, Jr., and others,’ was then pending in the same court, in which all matters here sought to be adjudicated were in litigation, and between the same parties, and in which the court was, and had been since February 1, 1892, in possession of the same property here in litigation. Replications were filed. References were had to a master in chancery, testimony was taken, reports were made, and finally a decree of foreclosure and sale was entered, on March 21, 1893. Upon appeal to the appellate court, this decree has been affirmed, and the present appeal is prosecuted from such judgment of affirmance by Daniel Mulcahey, Jr., his codefendants Julia, Mary A., William, and Thomas Mulcahey joining with him in the assignments of error.

As to the other chancery suit referred to, Daniel Mulcahey, Sr., at the September term, 1891, filed a bill in said court against Daniel Mulcahey, Jr., Julia Mulcahey, and Fannie Strauss, alleging that in 1889 he bought said 120 acres from Fannie Strauss for $7,720, taking a written agreement of purchase from her, by the terms of which he was to pay her $1,000 in cash on March 1, 1890, and execute a mortgage and notes for the balance of the purchase money in the manner above stated, and she was to give him a warranty deed on that date; that his wife, Julia Mulcahey, and his son Daniel Mulcahey, Jr., took $1,000 belonging to him, and paid it to Mrs. Strauss, and, by representing to her that he was willing to have the deed made to his son, induced her to execute the deed to said Daniel, Jr., and to take from him the purchase money, mortgage, and notes above described; that the title was conveyed to his son without his knowledge or consent; that he did not know of it until a long time afterwards; that he was 60 years old, could not read or write, and, during late years, had intrusted his business transactions to his son and wife; that said son and wife took possession of the stock and property on said premises, and ordered him to leave the place, and, upon his refusal to do so, swore out a warrant against him, and procured him to be locked up in the county jail; that his said son and wife conspired to defraud him, and deprive him of his property; that they sold off the last year's crop and a part of the stock; that his said son held the title as his trustee,-and praying in said bill that said title and mortgage be canceled; that said Strauss be required to deed the land to him; that he be allowed to execute notes and mortgage for the unpaid purchase money; that his said son and wife be enjoined from disposing of said land or personal property, etc. Daniel Mulcahey, Jr., and his mother, Julia Mulcahey, filed an answer, denying the allegations of the bill; but there is nothing in the record to show that Fannie Strauss was served therein or entered her appearance or took any part in said proceeding. Said premises were the homestead of said family, and were in the possession of Mrs. Mulcahey and her children. In the progress of the suit, said Arnold was appointed receiver of the personalty on the premises, except the household effects, and of the crops of corn and other grain thereon, and of the stock. By another order, he was authorized to lease the land for one year from March 1, 1892, but it does not appear whether he did so or not. The said Julia filed a cross bill therein, praying for a divorce from said Daniel, Sr., on the ground of extreme and repeated cruelty, and praying that he be enjoined from interfering with said premises, which bill was answered by the defendant thereto, and its charges were denied. It seems that an effort was made to settle the difficulties between the members of this family, which resulted in the execution, on August 3, 1891, of a deed by Daniel Mulcahey, Jr., and his father and mother, by which the title was vested in the four children, subject to a life estate in the father and mother, and to their occupancy of the premises during their lives as a homestead, and with an agreement that they should apply the income of the farm, after taking out family expenses, to the payment of the said mortgage. At the February term, 1892, said Daniel Mulcahey, Sr., filed a supplemental bill in said cause against his wife and children, charging that said last-named deed of settlement had been obtained by fraud and misrepresentation, and askingthat it be set aside, and that a receiver be appointed, which appointment was made, as above stated. At the November term, 1892, a decree was entered in said cause granting the relief prayed for in the original and supplemental bills, and dismissing the cross bill. In said decree the receiver was ordered to deliver the money and personalty in his hands to Daniel Mulcahey, Sr. The defendants and said receiver were ordered to deliver the possession of the land to said Daniel Mulcahey, Sr., and, in default of their doing so, it was ordered that a writ of possession be issued. Daniel Mulcahey, Jr., was ordered to execute a deed conveying the land to his father, subject to said mortgage, which the said Daniel Mulcahey, Sr., was to assume and pay, and said Daniel Mulcahey, Jr., was thereby ‘released from any personal obligation for the payment of said mortgage.’ It was also therein ordered that said deed of August 3, 1891, be set aside. An appeal was allowed from this decree, and the time to perfect it expired on January 2, 1893. Subsequently, at the February term, 1893, a stipulation was entered into in said cause for the settlement thereof, by the terms of which the cause was redocketed. The leave to appeal and appeal bond were withdrawn. The decree entered at the November term, 1892, was modified in the following respects: The question of divorce was reopened and reheard. The defendant to the cross bill withdrew his answer thereto. The personal property was decreed to belong to Daniel Mulcahey, Jr., and the receiver, Arnold, having accounted, was discharged. A hearing was had on the cross bill, and a decree of divorce was granted, and the custody of the children was given to Mrs. Mulcahey. On February 24, 1893, a deed was executed by Daniel Mulcahey, Sr., and his wife, conveying the premises to Daniel Mulcahey, Jr. Daniel Mulcahey, Jr., at the same time, executed a declaration of trust, wherein, after reciting that he had purchased the premises and all the personal property thereon from his father, he declared that he held the same in trust ‘to pay the mortgage debt now on said premises,’ to pay certain expenses of said law suit, to support his mother during her life, to pay his sister a certain amount, to make sales of the premises if necessary, to pay said incumbrance, to hold certain interests in trust for his brothers, etc.

MAGRUDER, J. (after stating the facts).

1. The point is made that it was a contempt of court to file the bill to foreclose the mortgage against the receiver appointed in the chancery suit, theretofore instituted, to set aside the title of the mortgagor, without first obtaining the leave of the court for that purpose. Arnold states in his answer that he was appointed receiver of the personal property. The order appointing him recites that he is appointed receiver of the personal property, and he is therein directed to take charge of the personal property only. While, however, the pleadings and proofs leave it somewhat doubtful whether a receiver of the land was actually appointed or not, yet, in the consideration of the...