Phillips v. South Park Com'rs.

• Decision Date: 25 January 1887
• Citation: 10 N.E. 230,119 Ill. 626
• Parties: PHILLIPS and othersv.SOUTH PARK COM'RS.
• Court: Illinois Supreme Court

119 Ill. 626

10 N.E. 230

PHILLIPS and others

v.SOUTH PARK COM'RS.

Supreme Court of Illinois.

January 25, 1887.

Appeal from circuit court, Cook county.

E. H. Sellers, for Charles B. Phillips.

Robert Rae and John S. Miller, for Mrs. E. A. Phillips.M. W. Fuller, for South Park Com'rs.

CRAIG, J.

This was a bill in equity in the nature of a bill of interpleader, brought by the South Park Commissioners against Charles B. Phillips, Elizabeth Ann Phillips, and others. The bill set up that the South Park Commissioners had acquired title to the E. 1/2 of S. W. 1/4 of section 13, township 38 N., range 14 E., in Cook county; that under a contract with Charles B. Phillips dated December 10, 1869, the corporation had agreed to pay Phillips for the land $800 per acre when a good title should be made for each acre; that in about February, 1859, the said premises were conveyed by said Charles B. Phillips and Elizabeth Ann Phillips, his wife, to Daniel S. Sweeney, and by Daniel S. Sweeney to Thomas Wright, and in June, 1863, by Thomas Wright to said David U. Martin; then residing in the city and state of New York, and then and there holding the title to said premises, did, by his certain deed of that date, make conveyance to complainant, for valuable consideration to him by complainant then and there paid, of the S. fractional 1/2 of section 13, in township 38 N., range 14 E., which deed was duly recorded in Cook county, April 5, 1870; that on the first day of July, 1870, one John Phillips, then and there claiming to have some interest in said premises, conveyed the same to complainant by deed duly recorded July 28, 1870; that on the twentieth day of July, 1870, Charles B. Phillips conveyed the same premises to complainant, which deed was on the twenty-eighth day of July, 1870, duly recorded; that the conveyance aforesaid to complainant conveyed all and singular the beneficial rights and interests of the said Phillips, and of his family, of, in, and to said premises, and for the consideration aforesaid, to-wit, $800 an acre, but such consideration was only to be paid for good and indefeasible title to said premises free and clear of incumbrances; that at the time of said con veyances there were divers clouds thereon which had been thereon placed by one William P. Kerr, and which were shown of record in the county of Cook, aforesaid, and that it was essential that said premises should be freed from said clouds before said sum of $800 an acre should be paid; that two certain bills of complaint were filed, involving the title to said S. fractional 1/2 of said section 13, township 38, etc., by said William P. Kerr, in the United States circuit court within and for the Northern district of Illinois,-one against Wilson and others, November 27, 1869, and one against Phillips and others, October 3, 1870, to the first named of which complainant was made a party defendant, September 26, 1870; that these two bills were finally consolidated, and complainant answered the said bill, and such proceedings were thereafterwards taken in such suit as resulted, upon the eighth day of October, 1878, in a decree dismissing said bill as to the E. 1/2 of the S. W. 1/4 of said section 13, and thereby all right, title, and interest of said William P. Kerr, or his assigns, in said 80 acres last mentioned were determined adversely to him and them, but as to the remainder of said premises the said decree was adverse to complainant's title derived as aforesaid, as will appear by reference to said decree;¹ that from said decree of said eighth day of October, 1878, an appeal was prayed by complainant to the United States supreme court, and duly prosecuted therein, which resulted in the affirmance of said decree by said supreme court;² that the litigation as to the said 80 acres having been determined, as aforesaid, complainant is now ready and willing to settle and pay therefor at the said rate of $800 per acre, as it has always been ready to do, upon title being perfected in the same, or any acre thereof. But complainant says that, by reason of the action of said Charles B. Phillips in making conveyances of said 80 acres, and of a controversy which has broken out between said Phillips and Elizabeth Ann Phillips, his wife, complainant has found it impossible to pay over the purchase price of said land with safety. The bill prays that defendants may set forth their claims, and may interplead and settle and adjust their demands between themselves, and that complainant may be at liberty to bring and pay the said purchase price into court for the benefit of such of the defendants as shall appear entitled thereto, and that complainant's title to the 80 acres may be confirmed and established in complainant, and that complainant may have general relief.

The defendant Charles B. Phillips denied the contract set up in the bill, and filed a cross-bill claiming the value of the entire 80 acres. Elizabeth A. Phillips put in an answer, and also filed a cross-bill. She denied that she was bound by the contract set up in the bill, and claimed- First, the entire 80-acre tract under a trust created in her favor by Phillips in 1852; second, in the event of a failure to establish title to the entire tract, she claimed that part of the 80 acres which lies south of the north 103 acres of fractional half of section 13 originally owned by Phillips, under an alleged family settlement made through one Atkins in August, 1868.

The decree of the circuit court found that Mrs. Phillips was the owner in equity of the south 34.17 acres of the premises, and was entitled to be paid by the South Park Commissioners the value thereof upon the twenty-seventh day of August, 1870, when the Park Commissioners took possession thereof, with interest thereon from that time; and that Phillips was entitled to be paid for the balance, 45.83 acres, the sum of $800 per acre, the amount fixed by a contract between Phillips and the Park Commissioners under which the Park Commissioners claim, with interest thereon from the twenty-seventh day of August, 1870; and the decree also established the rights of the assignees of Phillips, Rawson, McConnell, Ingersoll, Seeley, and Gates, in the portion of the fund decreed to Phillips.

From the decree so rendered Phillips has appealed, and assigned errors which question the finding in favor of Mrs. Phillips and of the South Park Commissioners and of the intervening claimants, etc. Mrs. Phillips assigned crosserrors in not being decreed the value of the whole 80; in the awards to claimants under Phillips, etc. The South Park Commissioners assigned cross-errors to the awarding of 34.17 acres to Mrs. Phillips; the allowing of interest from August 27, 1870, ets.

The first question relied upon to reverse the decree is a variance between the contract set out in the bill and the contract put in evidence. The complainants produced, on trial, a contract executed December 10, 1869, by the South Park Commissioners and Phillips, which in substance provided that Phillips would perfect in the commissioners a good title to the S. fractional 1/2 of section 13, township 38 N., range 14 E. of third principal meridian, free and clear of all liens, for which they agreed to pay $800 per acre. It turned out, however, on the trial that on the same date another agreement was executed by Phillips, of the one part, and Beckwith, Ayer & Kales, of the other part, which refers to the other agreement, and provides that Beckwith, Ayer & Kales shall use their best endeavors and skill, by process of law and otherwise, to perfect the title to the land sold in the South Park Commissioners, according to the meaning of the contract, and to render their services to defend against all adverse claims, and Phillips agrees to pay for such services one-quarter of what he may be entitled to secure from the South Park Commissioners, which said quarter is assigned and transferred by Phillips to the attorneys. Conceding that the two agreements are to be treated as one transaction, as contended by counsel for appellant, there was no such variance between the proof and allegation of the bill as would lead to a reversal of the decree.

The object of the averments in complainants' bill was to show that they had acquired the Phillips title for a stipulated price under a contract in writing executed by them and the said Phillips, and it is not perceived in what way the contract executed by and between Phillips and Beckwith, Ayer & Kales had any bearing on this question. This latter contract was a mere agreement for professional services, in which the service to be performed was stated, and the price to be paid determined by the parties; and, if it is to be regarded as a part of the contract set up in the bill, it had such a remote bearing on the real point involved between Phillips on the South Park Commissioners that we think it might be put in evidence, although the bill contained no allegation in reference to it. We fully recognize the rule that the allegations and proofs must agree; but there was here no such variance as to be regarded a violation of the rule.

It is next urged that the contract is champertous and void as against public policy. It is true that the land in question was in the possession of Kerr at the time the contract involved was entered into, and the contract provided that the litigation should be carried on, and Beckwith, Ayer & Kales were to render the professional services, and were to secure one-fourth of what should be realized for such services. If an agreement of this character, entered into between attorney and client, is champertous, then the point is well taken; but, as we understand the law, the contract lacked one essential element to render it champertous, and that is that the attorneys should prosecute the litigation at their own costs and expense. Had the contract provided that the attorneys should carry on the litigation for a share of what they might...