Reynolds v. Sumner

• Decision Date: 26 October 1888
• Citation: 18 N.E. 334,126 Ill. 58
• Parties: REYNOLDS v. SUMNER.
• Court: Illinois Supreme Court

126 Ill. 58

18 N.E. 334

REYNOLDS

v.SUMNER.¹

Supreme Court of Illinois.

October 26, 1888.

Appeal from circuit court, Iroquois county; ALFRED SAMPLE, Judge.

For statement see 14 N. E. Rep. 661.

Kay & Evans, MacDonald, Butler & Mason, S. P. Baird, and John B. Sherwood, for appellants.

Doyle, Morris & Pierson, R. P. & J. C. Davidson, and Coffroth & Stuart, for appellees.

SHOPE, J.

This is a bill to establish and enforce a trust in favor of appellants. On December 31, 1852, William F. Reynolds, under whom appellants claim, entered into a written agreement with Edward C. Sumner, under whom appellees claim, respecting the purchase of land-warrants, and the entry of public lands therewith. Under this agreement Reynolds was to furnish Sumner with warrants calling for 4,000 acres of land, and the latter was to enter the land with such warrants in the joint name of Reynolds and Sumner, and, after the expiration of one year, he was to refund to Reynolds one-half of the cost of the land, including expenses, but without interest thereon. At the time this agreement was entered into, Sumner gave Reynolds his promissory note for $2,000, which was supposed to be about one-half of the cost and expenses of the land-warrants and of the entry of the land; and it was also agreed that if this note was discounted, or used by Reynolds, he was to protect the same for one year by renewal or otherwise, when it was to be paid by Sumner, or so much thereof as would be equal to one-half of the cost of said lands, without interest. There can be no question as to the giving of a note of $2,000 by Sumner to Reynolds, which matured in less than one year after its date, and that it was given for part of the purchase price of land-warrants the latter had agreed to procure and furnish the former. This is apparent from the written agreement of the parties referred to. It appears also from entries in the books of the Branch Bank of Indiana that this note was discounted in favor of Reynolds, and was after wards renewed when due, whereby the time of payment was extended one year, as provided in the written agreement. On February 1 and 2, 1853, Sumner located 24 land-warrants, each of 160 acres, and shortly afterwards another for a like number of acres, making in all 4,000 acres of land, in his own name, and which is the land involved in this controversy. The making of the written agreement of December 31, 1852, and the entry of the land, are not disputed; but it is denied that Reynolds furnished the 25 land-warrants with which the entry was made. Appellants contend that Reynolds, on the day of the date of the written agreement, wrote to Gibson, Stock well & Co., commission merchants of New York city, asking for 25 land-warrants of 160 acres each, and promising to send a draft for the cost, etc.; and that on January 10, 1853, he sent a letter to that firm, inclosing a draft for $4,823.38, in which he stated that the draft was for the purpose of paying for the 25 land-warrants ordered December 31, 1852, and that this firm on January 15, 1853, sent by letter to Reynolds 25 land-warrants, as ordered, which he delivered to Sumner, to make the entry upon said land, and that they were so used. For the purpose of proving these facts, and as tending to show that the land-warrants used by Summer in the entry of these lands were furnished by Reynolds, and also that Sumner's note of $2,000 was given, renewed, and finally paid by the latter in part performance of the written agreement, the appellant produced in evidence the letters of said commission merchants to Reynolds, and sworn copies of the entries in their books and the books of the Branch Bank of Indiana, each of which was objected to as hearsay and incompetent. In the view we take of the case it is not necessary to determine whether these letters were competent evidence or not. We think, however, that the entries in the bank-books, and the notices given by the cashier to Reynolds respecting Sumner's note, after having been proved and identified as genuine, and proof of the death of the person making the same, were admissible in evidence. The entries made by the bank officers at the time of discounting and renewing of Sumner's note were a part of the res gestoe, and, being made by persons having no interest in the subject in litigation, since deceased, are competent evidence. But if they are not competent, the frequent statements and declarations of Sumner as to Reynolds' interest in the land afford sufficient evidence, when considered in connection with the written agreement and the undisputed facts, that Reynolds did furnish the land-warrants with which to make the entry of the land, as he had agreed. His statements and admissions to the witnesses Slaughter, Vennum, Evans, Brown, Stephens, O'Fenall, Hitt, and others, and his letters to Reynolds, in 1861 and 1865, asking for money with which to pay taxes on the land, show clearly that Sumner then regarded Reynolds as the equitable owner of one-half of these lands; and this could only be so on the hypothesis that Reynolds owned one-half of the consideration paid in acquiring the government title. When Sumner's note fell due he wrote to Reynolds, of date August 17, 1853: ‘I received your letter day before yesterday. I find it was the ninth. I have sent my bill back as soon as I could. I had forgotten all about it. E. C. SUMNER. N. B. You need not have sent me the bill; you might have put my name on it yourself.’ This corresponds in date with the entries in the bank-books and the notices issued by the bank, and would seem to strongly corroborate the position of appellant. It is not shown there was any transaction other than the renewal of Sumner's note to which it could refer.

Appellees introduced no evidence tending to show how Sumner came into possession of the land-warrants used by him in the entry of this land, or that he paid anything therefor; but, as the warrants show an assignment on their face to Sumner direct from the persons to whom they were issued, prior to the date of the written agreement, they contend that it will be presumed that Sumner acquired them directly from the assignors, and at the several dates of the assignments. This presumption might arise if the law did not recognize the assignment of such warrants in blank, and authorize the holder, before or at the time of making entries with them, to fill the blank with the name of the person making the entry. In addition to this, it is evident from the written contract that Sumner on December 31, 1852, did not have these warrants. If he had, he would probably not have entered into an agreement with Reynolds to furnish them. The fact that on the 1st day of February, 1853, a month after the date of the written agreement, we find Sumner in possession of the precise amount in warrants agreed to be furnished by Reynolds, and used by him for the purpose indicated in such agreement; and the further fact that Sumner paid his note given for one-half of the cost of the warrants; and his often-repeated admissions of Reynolds' interest in the land,-afford very strong and convincing proof that Sumner obtained the land-warrants under and in pursuance of his written contract with Reynolds. The law is well settled that if a party purchase land and pay the purchase price, taking the title in the name...