Ogden v. Larrabee
| Decision Date | 30 September 1873 |
| Citation | 1873 WL 8636,70 Ill. 510 |
| Parties | WILLIAM B. OGDENv.WILLIAM M. LARRABEE, Admr. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Cook county; the Hon. JOHN A. JAMESON, Judge, presiding.
Messrs. MCCAGG, FULLER & CULVER, for the appellant.
Mr. JOSIAH H. BISSELL, for the appellee.
This bill was filed by appellee, as administrator of James Spence, deceased, and the object was, to charge appellant with the proceeds of certain notes secured by mortgage, and some other collaterals which, it is alleged, Spence had assigned to him, as agent of Butler, in 1837, to secure the payment of the purchase money of a tract of land in Chicago, sold by Butler to Spence in 1836, one half of which was subsequently conveyed to Mark Skinner, at the request and for the benefit of Spence. On the hearing, the court found appellant held the funds in trust for the estate of Spence, and, accordingly, decreed that an account should be taken. For this purpose, the cause was referred to the master, to take and state an account, who reported there was due the sum of $32,848.48. To this report exceptions were filed by appellant, which were overruled by the court, and a final decree entered, from which an appeal was taken to this court at the September term, 1870. 57 Ill. 389.
The cause was reversed for an error in the mode of stating the account, and was remanded, with specific directions as to the decree that should be entered. We then said, the court below adopted the true rule for stating the account between the parties, and it was approved in every particular except one, viz: the court ought to have directed the master to charge the estate with one-half the original purchase money of the land contracted to Spence, on account of the one-half conveyed to Mark Skinner. After directing this single correction in the master's report to be made, the court was required to decree, in all respects, as in its former decree.
At the next succeeding term, a rehearing was asked for and allowed, on one point only, that the payments made on his contract by Spence ought not to be wholly applied on one-half the land conveyed to Skinner, but ought to be divided, so as to apply one-half of them on that, and the other half on that part of the land which was retained by Butler after forfeiture of the contract. No other ground for a rehearing was suggested. In view of the fact the payments that were made by Spence, in his lifetime, were made on the whole lot, the directions given in the original opinion were then modified, and the Superior Court required to direct the master, in making the computation, to charge appellant with one-half of the payments made by Spence, in his lifetime, on the contract, and to regard the other half of such payments as lost to the estate, according to the terms of the agreement.
On the remandment of the cause, it was again referred to the master, who stated the account between the parties in accordance with the directions given. Exceptions were taken to the report, but were overruled by the court, and a final decree rendered for the amount found due. The cause is again brought to this court on appeal, and the only error to which our attention is called is, the decision of the court overruling a single exception to the master's report.
The item in the master's report, of which complaint is made, is, that he credited appellant with taxes paid prior to December, 1841, $37.78, when he should have allowed him credit for the sum of $136.06.
The error is said to have occurred in this way: The master took the item of $37.78 from a statement made by Mr. McCagg, from the books of appellant. The account was made up from his books when appellant was absent, and, when he came upon the stand as a witness, he states that there was a mistake in the account as rendered by Mr. McCagg, and gives the actual amount of the taxes...
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