Russell v. Fanning
| Decision Date | 30 November 1878 |
| Citation | 2 Bradw. 632,2 Ill.App. 632 |
| Parties | JOHN S. RUSSELL ET AL.v.ALTHA FANNING, Adm'x, etc. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Morgan county; the Hon. CYRUS EPLER, Judge, presiding.
Messrs. KETCHAM & HATFIELD, and Mr. T. G. TAYLOR, for appellants.
Messrs. EPLER & CALLON, Mr. OSCAR A. DELEUW and Mr. H. G. WHITLOCK, for appellees; that oral evidence may be admitted to enlarge the consideration in a deed, cited Murray v. Smith, 1 Duer. 412.
That the acknowledgment of a consideration in a deed is prima facie evidence of its payment, as against any person impeaching it collaterally: Thalhimer v. Brinckerhoff, 6 Cow. 90; Jackson v. McChesney, 7 Cow. 360; Carpenter v. Freeland, Lalor, 37.
A bill of exceptions cannot be taken on the trial of a feigned issue out of chancery, but if at all, only on a motion for new trial: 2 Daniel's Chancery Pr. 1305; Johnson v. Harman. 96 U. S. 372; Ex. Parte Story. 12 Pet. 343.
There was no error in dismissing the bill: Jordan et al. v. Matthews et al. Supreme Court of Illinois, Jan. T. 1878.
The bill in this case sets out that on the 15th Sept., 1869, Sampson, Wm. and Samuel A. Fanning executed to Andrew Russell, agent of complainants, their promissory note for $2,097, due in one year from date, and on the 8th day of March, 1871, their other note to same payee, due in 18 months from date, each bearing interest at the rate of ten per cent. per annum, for $9,000. That at the time of the execution of said notes, Samuel Fanning was the owner in fee of the following described real estate, to wit: (1.) N. W. 1/4 Sec. 9, No. 13, N. R. 10 west, 160 acres; (2.) N. E. 1/4 sec. 9, same town and range; (3.) W 1/2 S. E. 9, same town and range, 80 acres; (4.) N. end E. 1/2 N. W. Sec. 35, 13, 18; (5.) N. W. N. E. 6, T. 13, N. R. 9--all of which was unincumbered.
That on Aug. 23, 1871, Sampson Fanning and wife executed a deed of trust to Morrison & Dodd to secure payment of note of that date for $2,000 on the W. 1/2 N. W. 1/4 Sec. 9, T. 13, R. 10; note to become due Aug. 25, 1874.
That Nov. 25, 1871, the said Sampson Fanning borrowed of Hiram K. Jones $4,000, and he and his wife executed their mortgage to secure the same on the E. 1/2 N. W. Sec. 9, T. 13, R. 10, and W 1/2, N. E. 8, T. 13, R. 10; note due three years after date.
That on the day following, said Sampson Fanning and wife (Nov. 24, 1874,) executed their several deeds of conveyance to their respective sons as follows: (1.) To George W. and Wm. F. Fanning for N. W. 9, T. 13, R. 10, and 54 acres off of E. side of the E. 1/2 N. W. 8, same town and range, consideration mentioned in deed as follows: cash in hand $1,000 and $12,000 deferred payments. That $6,000 was made up of the two above-named mortgages and the other $6,000 in four notes each, $1,500, due 24th Nov., 1876; that the four notes were payable to his daughters, Anne Creswell, Mary E. Phelps, Matilda J. Spencer and Margaret R. Reaugh; deed called exhibit “A.” (2.) To Wm. F. Fanning 53 acres off of the north end W. 1/2, S.E. Sec. 9, T. 13, R. 10, and N. end east half N. W. Sec. 35, in T. 13 R. 10; also N. W. N. E. for 1/4 Sec. 6, T. 13, R. 9, and Lot 4, B. 7, in Chamber's Addition to Jacksonville, for the pretended sum of $3,500; deed marked Exhibit “B.” (3.) To Andrew J. Fanning, the W. 1/2, N.E. 8, and 26 acres off of the W. side, E. 1/2 N.E. Sec. 8, and 27 acres off of the S. end of the W. 1/2, S. E. 1/4, Sec. 9, T. 13, R. 10, for the pretended sum of $3,500--called Exhibit “H.” A vendor's lien was reserved in this deed to secure two notes of $1,500 each, to his two daughters, Sarah A. Fanning (now Donald), and Caroline Fanning--said notes also due five years from date. That at the time the said Wm. and Samuel A. Fanning, who signed the said Russell notes with Sampson Fanning, were insolvent, that the said Sampson Fanning, at about that time, disposed of all his personal property, so that he was entirely insolvent.
The bill charges the lands were worth $16,000; that each of the above conveyances were made without any valuable consideration, in fraud of complainant's rights. That the deeds were not recorded till March 6, 1873.
That on June 9, 1874, complainant recovered judgment in the Morgan county Circuit Court against Sampson, Wm. and Samuel A. Fanning for $8,057.90; that in 1874, execution was issued thereon and returned “no property found.” That on Dec. 8, 1874, the lands embraced in the Morrison and Dodd mortgage were sold and purchased by Andrew Russell. That the mortgage executed to Jones was in process of being foreclosed. That the said deeds were executed to his children as advancements, and without valuable consideration, and were fraudulent and void. Prays that said lands be subjected to sale for the payment of said judgment, subject to the Jones mortgage.
Defendants Sampson, Altha and George W. Fanning, and Wm. F. and Andrew J. Fanning, answer, admitting most of charges as to the judgment and deed, and charge that the interest on said notes to the daughters of Sampson Fanning was annual, and made payable to the latter. Setting up that there was an incumbrance on said land by mortgage to Eliza Thomas for $1,650. That said George W. and Wm. F. paid it off in pursuance of the contract of purchase between them and their father. Aver that they, G. W. and Wm. F., paid to Sampson Fanning $5,000 cash, and assumed the $6,000 in the Morrison and Dodd and Jones mortgage, and $9,000 note.
That on Dec. 8, 1874, the W. 1/2, N. W. 1/4, S. 9, T. 13, R. 10, was subject to purchase made by Sampson Fanning for George and Wm. Fanning, on Nov. 18, 1850, and by purchase from Sampson Fanning, Nov. 1, 1861, and subject to their peaceable possession since Nov., 1861, and payment of taxes since 1863; charge that George W. and Wm. F. Fanning have paid $9000 of the indebtedness on the trust deed and mortgage, and grantees in said deed have paid all the taxes since for ten years on 400 acres of said land since 1863.
That originally and at the time Sampson Fanning purchased said lands, George W. and Wm. F. furnished about one-half the money that purchased said lands.
That George W., Wm. and Andrew J. Fanning worked on said lands for a number of years in improving the same, with a verbal understanding and agreement that at some future time that Sampson would convey in fee, as compensation for such money and labor, to each of the respondents, George W., Wm. F. and Andrew J. Fanning, an 80-acre tract of said land; accordingly each one took possession of an 80-acre tract of said land: George, of his, in Dec., 1854; Wm. in Nov., 1861; Andrew, in March, 1869; and since then each one has had undisturbed and continuous possession, with the necessary acts of ownership, etc.
The answer of James M. Epler avers that the notes to Sarah A. and Caroline Fanning are signed by Andrew J. Fanning. That the notes to the other daughters are signed by George W. and William Fanning; that all the notes draw ten per cent. interest, payable annually to Sampson Fanning, and are all secured by vendor's lien on the real estate described.
That the notes payable to Caroline, Sarah, Mrs. Phelps and Mrs. Reaugh, were indorsed to him for value received, and that he is a holder without notice of fraud or collusion.
The court below made up an issue out of chancery, and submitted the question to the jury to find what the consideration of the several deeds were, and whether Sampson Fanning, at the time of the conveyances, had other property sufficient to pay his debts.
After trying the issue, the jury found as to “Exhibit A,” the deed by Sampson Fanning and wife to George W. and Wm. F. Fanning, that the consideration was $1,000, cash and four notes of $1,500 each, being $6,000. That as to ““Exhibit B,” executed by the same grantors to Wm. Fanning, the consideration was cash $1,300, and cash of George Fanning, $583.
That as to “Exhibit H,” the deed by same grantors to Andrew J. Fanning, the consideration was, cash $500, and two notes, $1,500 each; and the jury found that at the time the said conveyances were executed (Nov. 24, 1871,) Sampson Fanning had other property sufficient to pay his indebtedness. The evidence shows, and in fact there is no dispute but that the notes referred to in the finding of the jury, were the same notes executed by the Fanning sons to their sisters, set out in the pleadings.
The testimony of all goes to show that these notes were intended as an advancement to them by their father, and was to be their distributive share of the estate. It will appear that the consideration mentioned in all the deeds was $20,000; taking from this amount the notes given to the six daughters and the Morrison and Dodd & Jones mortgages, in all $15,000, and there remains $5,000, which would be $500 more than enough to give each one of the sons $1,500 each.
In all probability this was about the division of the estate that was intended to be made, for it would hardly be supposed that Sampson Fanning would cut off the three sons without anything. Yet it is contended that all this balance was paid by the sons and no portion given to them. All the circumstances of the case are opposed to such a claim. Sampson Fanning only reserved to himself the interest on the notes intended for his daughters for five years and until his death. The consideration named in the deed, exhibit “A,” is $13,000. This, it is asserted, is made up of four $1,500 notes assumed to be paid to the daughters, the Jones mortgage of $4,000 and the Morrison and Dodd trust deed of $2,000, and one thousand in cash. The $1,000 George W. Fanning claims to have paid to Eliza Thomas, who held a mortgage on one portion of the land, and insists that it was his father's debt, and that his father accounted to him for it in the settlement for the land described in deed “A.”
James Thomas, husband of Eliza...
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