Perry v. Henry Mchenry.

• Decision Date: 31 December 1851
• Citation: 1851 WL 4333,3 Peck 227,13 Ill. 227
• Parties: HIRAM PERRYv.HENRY MCHENRY.
• Court: Illinois Supreme Court

13 Ill. 227
1851 WL 4333 (Ill.)
3 Peck (IL) 227

HIRAM PERRY
v.
HENRY MCHENRY.

Supreme Court of Illinois.

December Term, 1851.

THE pleadings and proofs of this case are stated in the opinion of the court.

The cause was heard before DAVIS, judge, at the March term, 1851, of the Sangamon circuit court.

S. T. LOGAN and STUART & EDWARDS, for appellant.A. LINCOLN and W. H. HERNDON, for appellee.

TRUMBULL, J.

The complainant filed his bill in chancery in 1849, alleging that, in 1843, he was the owner of various tracts of land situated in Sangamon county, and containing, in all, two hundred and forty acres; that, in 1844, said premises were sold under a mortgage containing a power of sale, executed by the complainant to one Blankenship, and purchased by the Irwins, who received a deed therefor; that, at the time of said sale, the complainant was indebted to the Irwins, and they subsequently agreed that he might redeem the lands from the sale, by paying the amount for which they had sold, the amount of his debt to them, and a small advance thereon, making, in all, the sum of $1,185, which he agreed to pay; that, being unable to raise the money, he made

[13 Ill. 228]

an arrangement with the defendant by which it was agreed between them, that the defendant should advance the whole amount above stated to the Irwins to redeem said lands, and that, in consideration of said payment, the defendant should have all complainant's right and title to the east half of said lands, and that complainant should have the west half of the same; that, in pursuance of said agreement, the defendant, on the 1st of March, 1846, executed his notes to the Irwins, payable in one, two and three years, and received from them their title bond to convey said premises to him upon the payment of said notes; that after the execution of said notes and title bond, the complainant and defendant divided said lands in pursuance of said agreement; and that, since said agreement, said defendant has had possession of the east half of said lands; and that at the time, for many years previous, and since, up to a late period, the complainant has resided upon and had the peaceable and undisturbed possession of the west half of said premises; that within a few months last past the defendant fraudulently claims the whole of said lands, has taken forcible possession of part of the house occupied by the complainant, and refuses to convey to him the west half of said lands; that said lands are worth the sum of $12 per acre; that at the time of their redemption the Irwins were advised of the agreement between the complainant and defendant, and that they have instituted suits upon the notes of the defendant, which remain unpaid, and have obtained judgments thereon.

The bill prays that the defendant may be compelled to convey to the complainant the west half of the premises in question.

The defendant admits, in his answer, that complainant was at one time the owner of the land, but charges that the Irwins, in 1843, purchased the same for the taxes of 1842; that the premises were not redeemed from the tax sale, and that the Irwins subsequently received a tax deed therefor; that in 1842 the Irwins obtained judgment against the complainant in the Sangamon circuit court for $260.51, upon which judgment execution was duly issued, and the premises sold thereon by the sheriff, and purchased by the Irwins for the balance due on said

[13 Ill. 229]

judgment, after deducting $50, which had been previously paid by the complainant; that the premises were not redeemed from said sale, and the Irwins, at the expiration of fifteen months, received a deed for the same; admits the mortgage with power of sale to Blankenship, the sale under the same and the purchase by the Irwins substantially as stated in the bill; charges that the Irwins, by virtue of their various purchases, had acquired a complete title to the lands, and that the complainant, long previous to 1846, when the defendant purchased, had abandoned all claim of title to the land and contracted with the Irwins to retain possession of the same as their tenant and pay rent therefor; admits the purchase of the land of the Irwins in 1846 for $1,185, the paying of $200 down, and giving his three several promissory notes for the remainder, but denies making the contract set forth by complainant in his bill; alleges that complainant is his brother-in-law; that some time previous to his purchase from the Irwins complainant appealed to him as a relative to aid him in getting the land or some part of it back from the Irwins, stating that it could be had for $1,085; and after much importunity on the part of complainant, it was agreed between them that defendant should divide the land into two parts, and that complainant should have choice; that defendant should purchase the land of the Irwins at $1,085, paying $200 down, and giving his notes for the remainder in three equal instalments, which complainant said the Irwins would accept; that defendant should pay the first note that fell due, and the complainant the last two, and that thereupon, the Irwins conveying the whole to defendant, he should reconvey complainant's part to him; that defendant should have possession of his part immediately on making the purchase, and should have possession of the remainder in March, 1849, if complainant failed to pay as agreed; avers that this agreement would leave complainant in possession of part of the land, relieve him from the payment of rent, and give him time to raise...