Peabody v. Samuel Hoard.

• Decision Date: 30 September 1867
• Parties: FRANCIS B. PEABODYv.SAMUEL HOARD.
• Court: Illinois Supreme Court

46 Ill. 242

1867 WL 5361 (Ill.)

FRANCIS B. PEABODY

v.SAMUEL HOARD.

Supreme Court of Illinois.

September Term, 1867.

APPEAL from the Superior Court of Chicago; the Hon. JOHN M. WILSON, Chief Justice, presiding. The facts are fully stated in the opinion.

Messrs. COPELAND & CRAM, for the appellant.

Messrs. BARKER & TULEY, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was a bill in chancery, filed by Francis B. Peabody, in the Superior Court of Chicago, against Samuel Hoard and Henry F. Balch, to enjoin Hoard from prosecuting an action of ejectment which he had commenced in that court against the tenant of appellant, for the recovery of eighty acres of land. It appears from the record, that Henry F. Balch, prior to the 24th day of August, 1853, owned the land in controversy. That he being in immediate need of money, and residing in Salem, Massachusetts, on the 14th day of March, (the year is not given), wrote a letter to his brother, Moses P. Balch, in which he authorized him to sell the land. He directed him to sell it, if he could get $225 for the prairie, and $25 for the timber land; and all over that price he authorized him to retain for his trouble. He says, “I shall want all the money I can scrape together to pay my way through.” From other evidence in the case, it seems that this letter was written in March, 1851.

It further appears, that Moses owned an adjoining eighty acre tract, which he had bought of one Hall, and was paying him five per cent. per month, as interest on $300 of the purchase money. He was anxious to get rid of this debt, and offered to sell his own 80 acre tract to one Smith, but he would not purchase without he could at the same time obtain the 80 acres belonging to Henry F. Balch. A sale was, however, finally made, by Moses to Smith, of both eighties, and it was so arranged that Smith paid Hall the three hundred dollar debt with interest already accrued. This payment was thus made, and the three hundred dollar incumbrance to Hall removed from Moses' 80 acres, and the balance of $750 was paid to Moses in jewelry. Hall conveyed the 80 acres belonging to Moses, for which he held the legal title, to Smith, and Moses, as the attorney in fact of Henry F. Balch, conveyed to him Henry's 80 acres.

It appears that Moses lived upon his, and that Henry's was unimproved land; but it appears that Smith removed to the eighty purchased of Moses, and subsequently fenced the tract which had belonged to Henry. In March, 1860, appellant purchased and paid Henry F. Balch for the land, with no other or further notice than such as arises from adverse possession. In June, 1860, Smith having previously died, appellant purchased the land at a sale made by Smith's administrator, and paid $96 as the consideration. Probst was a tenant, in possession under the heirs of Smith; he subsequently attorned to both appellee and appellant, but appellee afterward brought the action of ejectment, to restrain the prosecution of which, the bill was filed.

The evidence discloses the fact, that Smith, before purchasing, advised with an attorney, who informed him that Moses could not make a valid conveyance under the letter as a power of attorney, and informed him that if he purchased, he would have to run the risk of getting Henry F. Balch to ratify it. He, acting on this advice, took from Moses a bond, in which he bound himself to procure a deed from Henry for the land, conveying it to Smith, within “one year and fifteen months,” and in case of failure he was to be liable to pay Smith $800, as liquidated damages, and upon his paying that sum, Smith was to quitclaim the land to Henry. Moses never procured the deed and did not pay the liquidated damages.

It also appears that Smith paid to Hall five hundred dollars, and to Moses the balance in watches and jewelry. And upon this state of facts, the question is raised whether appellant is entitled to the relief sought by his bill.

It is undoubtedly true, that the letter of Henry F. Balch to his brother Moses, gave the latter authority to contract for...