Needles v. Hanifan
| Citation | 11 Ill.App. 303,11 Bradw. 303 |
| Parties | HENRY M. NEEDLES, Adm'r,v.THOMAS HANIFAN, Adm'r. |
| Decision Date | 31 August 1882 |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of St. Clair county; the Hon. W. H. SNYDER, Judge, presiding. Opinion filed September 29, 1882.
Mr. GEORGE D. GREEN and Mr. R. F. WINGATE, for appellant; that the court erred in not admitting evidence to explain the receipt, cited Elder v. Hood, 38 Ill. 533.
It was competent to show that there was no agreement to give five hundred dollars per acre for the whole tract, and to show the actual value of the trust land: White v. Merrill, 32 Ill. 511; Robinson v. Stow, 39 Ill. 568; Broom's Legal Maxims, 416; Winchester v. Grosvenor, 44 Ill. 426; Rand v. Schofield, 43 Ill. 167.
Mr. R. A. HALBERT, Mr. C. F. NOETLING, Mr. J. J. RAFTER and Messrs. G. & G. A. KOERNER, for appellee; that having sold the estate the trustee is estopped to deny the validity of the transaction, and whatever gain he derived belongs to the beneficiaries, cited Hill on Trustees, 535; Van Horn v. Fonda, 5 Johns. 388; White v. Swain, 3 Pick. 365; Irby v. Kitchell, 42 Ala. 438; Bigelow on Estoppel, 435.
The estate passed to the executor and not to the heirs: 1 Williams on Executors, 559; Duffin v. Abbott, 48 Ill. 17.
A different price than that stated in the memorandum can not be proved: Browne on Statute of Frauds, § 376; 1 Chitty on Contracts, 140; 2 Kent, § 556.
This case was before us at a former term. McDonough v. Hanifan, 7 Bradwell, 50. The main question as to the liability of the estate of Short was then examined and determined, and we see no occasion to modify the views then announced. The case was then reversed on the ground that the amount allowed was higher than warranted by the evidence, because, while the whole tract sold to Lovingston was nominally rated at $500 per acre, yet it was manifest that the more valuable parcel of seventeen and a half acres, which really belonged to Short, was made to sell the less valuable parcel of twenty acres, which he held for the estate of Mrs. Hays, and though he was bound to account for all he received up to the real value, yet he was not chargeable with more. On a subsequent trial the plaintiff produced in evidence the following receipt, which was proved to refer to the transaction in question:
“Received of John B. Lovingston, five hundred dollars, in part payment of thirty-seven acres of land in the Cahokia Commons, adjoining the City of East St. Louis, sold to him this day, at the rate of five hundred dollars per acre; one third cash at the signing of the proper papers; one third cash in one year, and one third in two years, with eight per cent., to be secured by deed of trust upon the property sold.
JOHN his X mark. SHORT.
Witness: A. WOLFER.
EAST ST. LOUIS, August 3, 1871.”
The plaintiff having closed, the defendant called as a witness John B. Lovingston, who bought the lands of Short, who testified: I bought of Short thirty-seven and a half acres; twenty acres of that was land said to belong to the estate of Mary Hays. I did not know that at the time I bought it. I supposed it was all Short's. Lot 28 a contains twenty acres. I paid $18,750 for the thirty-seven and a half acres--at the rate of $500 an acre. I made simply an agreement to pay him at the rate of $500 an acre; that is, $18,750 for the whole. He always claimed to own it all; as far as my knowledge went, it was all his.
Question. Was there any difference in value between these two tracts?
Objected to. Defendant's counsel proposed to prove by this witness that the seventeen and a half acre tract was nicely situated, and was good land even for farming purposes; that it was the highest point in and around East St. Louis; that it was not overflowed in 1844; that it was adjoining the town, and sixty feet away from it land was selling for twenty-five, thirty and fifty dollars per foot; that witness considered the property cheap to lay out into town lots at from $750 to $1,000 per acre; that the twenty acre tract was land lying much lower and not good for farming purposes at all, and that the situation of the seventeen and a half acre tract induced the witness to make the purchase; that the seventeen and a half acre tract was worth a great deal more than the other; that the witness held the seventeen and a half acre tract, owing to its location, to be worth about $750 an acre, and the twenty acre tract $250 an acre. That witness bought the two pieces as an entirety, containing thirty-seven and a half acres.
Objected to; objection sustained. Exception taken.
Defendant's counsel proposed to prove that witness never would have given $500 an acre for the twenty acre tract itself; that there was no agreement that witness was to give $500 an acre for the twenty acre tract.
Objected to; sustained. Exception taken.
Witness was asked whether Short would have sold him the seventeen and a half acres for $500 an acre; whether he would have sold that tract without the twenty acre tract; whether witness would have paid $500 an acre for the twenty acre tract alone; what sum he would have paid per acre for the twenty acre tract alone; what sum he would have paid per acre for the seventeen and a half acre tract alone. Which questions were severally objected to; objections sustained by the court, and exceptions taken by defendant's counsel. Defendant then offered Ferdinand Heim, Thomas...
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