Pry v. Pry

• Decision Date: 22 January 1884
• Citation: 109 Ill. 466,1884 WL 9813
• Parties: JOHN W. PRYv.JOHN PRY, Sr. et al.
• Court: Illinois Supreme Court

109 Ill. 466

1884 WL 9813 (Ill.)

JOHN W. PRY

v.JOHN PRY, Sr. et al.

Supreme Court of Illinois.

Filed at Springfield Jan. 22, 1884.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Franklin county; the Hon. DANIEL M. BROWNING, Judge, presiding.

The bill in this case charges, in substance, that William Pry, the father of John W. Pry, the complainant, on the 13th of August, 1862, enlisted as a soldier in the service of the United States, for three years; that about the 1st of May, 1864, the former, being then with the army in the State of Georgia, wrote to John Pry, Sr., the father of the said William, and grandfather of complainant, at Frankfort, Franklin county, this State, directing him to sell and convert into money certain personal property then in his possession, and belonging to the said William, and to invest the proceeds thereof, together with about $50 then in his hands belonging to the said William, in the south-east quarter of section 19, town 7 south, range 3 east, of land in said county, belonging to one Bailey Martin, being of the value of $200, and also directing him to have the deed for the land made jointly to complainant and Hamilton Pry, a minor son of the said John Pry, Sr.; that in pursuance of these directions the said John Pry, on the 5th of August, 1864, purchased of the said Bailey Martin the above mentioned quarter section of land, at the said sum of $200, and paid for the same with the proceeds of said property and the money then in his hands belonging to the said William, as above stated; that the said Bailey Martin and wife, by a good and sufficient deed of that date, conveyed the land in question to complainant and the said Hamilton, in conformity with the directions of the said William, and that upon its execution and acknowledgment it was handed by the grantors to the said John Pry, Sr., to be kept by him for the use of the grantees therein, complainant being then an infant about three years of age, and the said Hamilton, his uncle, near seventeen; that the said Hamilton Pry, in the month of September, 1864, died intestate, without any children or descendants of children; that shortly after Hamilton's death, and before the deed from Martin to him and complainant had been put on record, the said John Pry fraudulently erased the “W” in complainant's name, and the name of Hamilton Pry altogether, from said deed, thereby making it in form a deed to himself, instead of to complainant and the said Hamilton, as originally written; that afterwards, to-wit, on the 22d of August, 1871, with a like fraudulent purpose, he caused the same, in its altered form, to be recorded as a deed from Martin and wife to himself; that after the said William's return from the army, and before said fraudulent deed was recorded, to-wit, on the 2d of March, 1865, the said John Pry, Sr., by quitclaim deed of that date, fraudulently conveyed to the said William the west half of said quarter section of land, and again on the 20th of September, 1871, by a like deed, conveyed to him another portion of the land in controversy; that on the 7th day of February, 1872, the said John conveyed, by quitclaim deed to John Pry, Jr., a son of the said John Pry, Sr., a portion of the east half of said quarter section. The bill also shows that various other parties were in possession of different parts of said tract of land, all of whom claim title, mediately or immediately, from said John Pry, Sr., through deeds executed since the said 5th day of August, 1864, when the same was conveyed by the said Martin and wife to complainant and the said Hamilton Pry, as heretofore stated, all of whom are made parties to the bill. The bill prays to have the original deed from Martin and wife, and the record thereof, corrected, and that the title to said lands be confirmed in complainant; that said deed in its altered form, and all subsequent deeds from the said John Pry to said land, or from those claiming through him, be declared null and void, and set aside as clouds on complainant's title, and that the defendants be required to account for the rents and profits.

The defendants filed a joint and several answer to the bill, denying the alteration and forgery therein charged, and the defendants other than John Pry, Sr., who disclaimed all interest in the land, set up the defence they were purchasers for a valuable consideration, without notice of complainant's rights. To this answer a general replication was filed, and the cause was heard upon bill, answer, replication and proofs, resulting in a decree finding that the land in question was conveyed by Martin and wife, on the 5th of August, 1864, to complainant and Hamilton Pry, and that John Pry, Sr., subsequently altered and changed the deed in manner and with the intent charged in the bill; but further found that all the defendants other than John Pry, Jr., were purchasers for a valuable consideration, without notice of complainant's rights, and for that reason dismissed the bill as to them. As to John Pry, Jr., the decree was in conformity with the prayer of the bill, the court having found that he purchased with knowledge of the alteration of Martin's deed. The complainant prosecutes this writ of error to reverse the decree of the circuit court in dismissing the bill as to part of the defendants, and in subordinating his rights to theirs on the ground they were innocent purchasers.

Mr. GEORGE C. Ross, and Mr. CHAS. H. LAYMAN, for the plaintiff in error.

Mr. F. M. YOUNGBLOOD, and Mr. W. J. N. MOYERS, for the defendants in error.

Mr. JUSTICE MULKEY delivered the opinion of the Court:

Two questions arise on this record,--one of law, the other of fact: First, does the evidence sustain the findings of the decree,--or, differently put, do the proofs sustain the case made by the bill; and second, assuming the findings of the decree are warranted by the proofs, can the decree, as matter of law, be sustained. We will consider these questions in the order stated.

It is conceded the deed from Martin and wife, as originally written, was made to complainant and Hamilton Pry, and that it was subsequently altered by striking out the “W” in complainant's name, and the name of Hamilton Pry altogether. So far there is no controversy. The case, upon the evidence, therefore hinges upon the question whether the alterations in the deed took place before or after its execution. The evidence bearing on this issue is too voluminous to be set out in extenso. We must therefore content ourselves with giving a summary of what we regard as the substance of it.

By agreement of parties the original deed is submitted for our inspection. After a careful examination of it we are unable to discover anything in the character of the alterations which are manifest on the face of it, that satisfactorily indicates when the alterations were made,--whether before or after delivery. William Furgerson, the first witness in the case, testifies to a conversation between himself and John Pry, Sr., in April, 1883, in which the latter told him that William Pry wrote to him to buy the land and have the deed made to complainant, but in the same conversation claimed the erasures in the deed were made at the time of its execution, and before it was signed by the grantors. Munroe C. Neal, a sonin-law of John Pry, Sr., testifies to a conversation with him in 1879, in which the latter stated, in substance, that William Pry wrote to him to have the deed made to complainant and Hamilton Pry, and that it was so made out. W. M. Walker swears that in 1869 John Pry, Sr., told him that when complainant became of age the land would belong to him; that his father's money had paid for it, and that the deed from Martin and wife was made to complainant. James A. Doan testifies that in a conversation with him, in May, 1883, old man Pry told witness that William Pry wrote to him to buy the land and have it deeded to complainant and Hamilton Pry, and that he did so; that William Pry afterwards came home from the army, and on being shown the deed, said it was all right,--and this statement is corroborated by the testimony of William Pry. Mary Neal, daughter of old man Pry, testifies she heard him say the deed was made to Hamilton and John W. Pry, and he aimed for them to have it, and that he aimed to pay witness for her interest in the place. The testimony of this witness we regard as important in more than one respect. The circumstances which she states as having led to the conversation, in our judgment, greatly increase the probability of its truth, while at the same time it shows the alteration of the deed had become a matter of discussion in the family, and from this fact alone it is but reasonable to presume that all the family had become cognizant of the fact. It is very clear the sister understood that she had an interest in the land as heir of her brother, and assuming the deed under which her father claimed was a forgery, it was very natural he should be willing to pay her the amount of her interest in the land in order to quiet her, and prevent further discussion of the matter. David N. Willard swears that in 1863 or 1864 he was at the shop of old man Pry, and that while there he told witness he had received a letter from William Pry, directing him to buy a piece of land, and to make the deed to complainant and Hamilton Pry, and offered to show witness the letter, but witness did not read it. William Pry testifies that he wrote to his father, some time in 1864, to sell his property then in his father's possession, and invest the proceeds in land; that his father replied, by letter, he could get the land in controversy, whereupon witness wrote again, directing him to buy it, and have the deed made to complainant and Hamilton Pry, and that his father replied he had done so; that in 1865, a few months after this correspondence, witness returned home on a furlough, when his father again informed him that he had bought the land, and had...