Smith v. Sarah J. Brittenham.

• Decision Date: 26 March 1884
• Parties: COLUMBUS C. SMITHv.SARAH J. BRITTENHAM.
• Court: Illinois Supreme Court

109 Ill. 540

1884 WL 9822 (Ill.)

COLUMBUS C. SMITH

v.SARAH J. BRITTENHAM.

Supreme Court of Illinois.

Filed at Springfield Mar. 26, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of De Witt county; the Hon. GEORGE W. HERDMAN, Judge, presiding.

On the 14th day of August, 1874, Sarah J. Brittenham, the appellee, filed in the circuit court of De Witt county the original bill in this cause, against Columbus C. Smith, the appellant, to set aside a conveyance of two hundred and thirty-seven acres of land, made by her to him, on the 12th day of January, 1869, in payment of a stock of goods sold by him to her husband, John A. Brittenham, on the alleged ground said conveyance was obtained from her by means of fraud practiced on her by Smith, acting in concert with her husband. At the December term, 1874, of the court, the appellant, having failed to answer the bill, was defaulted, and at the December term, 1876, a final decree was entered against him, in conformity with the prayer of the bill. At the following March term Smith entered a motion to vacate the decree, and for leave to answer the bill, which the court refused to allow, and entered an order accordingly, which, on appeal to this court by Smith, was affirmed. (See Smith v. Brittenham, 88 Ill. 291.) As this decision did not, as was then held, affect the merits of the case as made by the bill, Smith then sued out a writ of error from the Appellate Court for the Third District to the circuit court, which brought before that court for review a complete record of the cause. Upon a final hearing on the merits, the Appellate Court reversed the decree in so far as it ordered a writ of assistance, but affirmed it in all other respects, and remanded the cause to the circuit court. That court, upon the cause being replaced upon its docket, at its March term, 1879, ordered another writ of assistance, from which order Smith prosecuted an appeal to the Appellate Court, where the order of the circuit court was affirmed, and this court, on appeal by Smith, affirmed the judgment of the Appellate Court. (See Smith v. Brittenham, 94 Ill. 627.) Smith then sued out a writ of error from this to the Appellate Court, by which the entire record in the case was for the first time brought before this court for review. The cause was heard and determined at the March term, 1881, of this court. Upon an examination of the case, as then presented, the conclusion was reached by this court that the original bill was fatally defective, and insufficient to support the decree, and on that ground the judgment of the Appellate Court was reversed, and the cause remanded, with directions to the Appellate Court to reverse the decree and remand the cause to the circuit court, with leave to amend bill, etc., which was accordingly done. (See Smith v. Brittenham, 98 Ill. 188.) It appears, however, before the reversal of the decree by the Appellate Court, in pursuance of the directions of this court, the master in chancery had already made a conveyance of the land in question to Mrs. Brittenham, as required by the original decree in the cause. This conveyance was made on the 31st of March, 1879. Four days after the making of this deed, to-wit, on the 3d of April, 1879, Mrs. Brittenham conveyed the premises to Harvey E. Husten, the law partner of William E. Lodge, who, it is conceded, was at the time one of Mrs. Brittenham's solicitors in the case, and it is also admitted that Husten's name, as well as Lodge's, appears on the briefs filed in the cause on her behalf, though Lodge testifies Husten personally had no connection with it.

Upon re-docketing the case in the circuit court, the complainant amended her bill, which was answered by Smith, admitting the sale of the goods in exchange for the land, but denying all fraud or improper conduct on his part. He also filed a cross-bill, praying a cancellation of the deed from Mrs. Brittenham to Husten, and other relief. The general outline of the amended bill does not differ materially from the original bill, as set out in the opinion in this case in 98 Ill. 188. It charges, in substance and effect, that complainant was the owner of the land in controversy, having acquired it by inheritance from her father; that Smith owned a stock of goods at Wapella, and that her husband, John A. Brittenham, was about starting a general store at Monticello, Illinois; that Smith made a proposition to trade his stock of goods for said land; that she visited Wapella, and there agreed to exchange said land for said stock of goods, upon the following terms: Smith to take the land at $14,000, and pay for the same at that price in said goods, at their wholesale price; that Smith agreed to invoice the goods at their wholesale cost price, and if they exceeded $14,000, she was to pay the excess, and if they fell short, Smith was to pay the deficit; that she was unacquainted with the price of such goods; that she returned home, and John A. Brittenham remained at Wapella to assist in taking the invoice of said goods; that John A. Brittenham was subject to fits of distraction, and of unsound mind, and incapable of doing business; that Smith, knowing the condition of his mind, induced him to guess or lump the stock of goods and fixtures at $14,000, instead of invoicing them according to the terms she had agreed on; that Smith and Brittenham, well knowing that she would not convey said land if she knew that said goods had been lumped or guessed off, and to get the goods in John A. Brittenham's hands, agreed to and did make out a false and fictitious invoice of said goods, showing them to be worth, at wholesale prices, $14,000, when the goods actually received by Brittenham did not exceed $6000, whereby complainant was induced to make said conveyance; that after the goods were received by Brittenham, Smith fraudulently secreted and converted to his own use the most valuable part of them, amounting in the aggregate to $4000; that she was thus damaged about $4000; that Smith, after receiving the deed, shipped the goods, to the amount of about $6000, to Monticello; that he left the invoice of the goods at Wapella, for the fraudulent purpose “of opening up and putting the goods with other goods, and prevent her from repudiating the contract;” that she did not discover the fraud practiced upon her until four or five days before the March term, 1874, of the court,--more than five years after the commission of the fraud,--when she repudiated the contract, and filed her bill for the purpose of having it set aside; “that she was prevented from discovering the fraud by the action of Smith, in colluding with her husband to guess off the goods, and then mix them up with said Brittenham's goods, without any invoice, so that she could not distinguish them;” that when the fraud was discovered she could not return the goods, for the reason that her husband and his assignee in bankruptcy had long since disposed of them.

Upon the hearing, the circuit court found the equities, both upon the amended original bill and cross-bill, with Mrs. Brittenham, and entered a decree accordingly, from which Smith has appealed to this court.

Mr. THOMAS F. TIPTON, and Mr. H. V. TIPTON, for the appellant:

Before a party can rescind a contract for fraud, he must return, or offer to return, the consideration received. The only exception is when the thing received is entirely worthless. Smith v. Brittenham, 98 Ill. 188, and authorities there cited by appellant. A transfer of the title to land by a decree of court is not a judicial sale, and any one purchasing from either party is chargeable with notice of all that is pending in the suit, and takes subject to his title being defeated by a reversal of the decree. Gilman et al. v. Hamilton et al. 16 Ill. 225; Talbott's Exrs. v. Bell's Heirs, 5 B. Mon. 523; Madison's Heirs v. Hopkins, 12 Id. 600; Clary v. Marshall's Heirs, 3 Dana, 99.

The original decree in this case was simply a divestiture of Smith's title and vesting the same in Mrs. Brittenham, and the burden of proof laid on Husten to show that he took the deed in good faith, and actually paid the money for the same previous to notice. Roseman et al. v. Miller, 84 Ill. 299; Brown v. Welch, 18 Id. 343; Moshier v. Knox College, 32 Id. 155; Baldwin v. Sager, 70 Id. 603; Boone v. Child, 10 Pet. 209.

Husten being the law partner of Lodge, and his name appearing all the time on all briefs, he is estopped, as against Smith, to deny that he was one of the solicitors of Mrs. Brittenham. Burnham v. Roberts, 70 Ill. 19.

An attorney can not be treated as a bona fide purchaser, so as to be protected against a reversal of the judgment. Hays v. Cassell, 70 Ill. 669; Mason v. Thomas, 24 Id. 287.

The possession of Smith at the time of the conveyance to Husten, and the litigation, then, were full notice to him of the rights Smith had to the land. He is a lawyer, and to some extent, at least, connected with the case, and he was bound to know the extent of Smith's rights. Flint v. Lewis, 67 Ill. 299; Dyer v. Martin, 4 Scam. 146; White v. White, 89 Ill. 460; Mathison v. Prescott, 86 Id. 493; Brown v. Gaffney, 28 Id. 150; Riley v. Quigley, 50 Id. 304; McDowell v. Lucas, 97 Id. 489.

The possession of land is notice to all persons dealing with the land of all the rights of the party in possession. Morrison v. Kelly, 22 Ill. 610; Doolittle v. Cook, 76 Id. 354; Rupert v. Marts, 15 Id. 540; Bartling v. Brasuhn, 102 Id. 441. This case has none of the elements of a judicial or execution sale, and hence the cases cited by appellee have no application. In this case the original bill contained no allegation sufficient to give the court jurisdiction to cancel the deed. Smith v. Brittenham, 98 Ill. 188; Fitzgibbon v. Lake, 29 Id. 177. See, also, Smith v. Race, 27 Ill. 393; Alabama Conference v. Price, 42 Ala. 49; Cooper v. Sutherland, 3 Iowa, 114; Moore v. Neil, 39 Ill. 256; Frazier v. Steinrod, 7 Iowa, 339; Torrence v. Torrence, 53 Pa. 505; Long...