Smith v. Sarah J. Brittenham.
| Decision Date | 31 January 1878 |
| Citation | 88 Ill. 291,1878 WL 9866 |
| Parties | COLUMBUS C. SMITHv.SARAH J. BRITTENHAM. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of De Witt county; the Hon. LYMAN LACEY, Judge, presiding.
Messrs. TIPTON & POLLOCK, for the appellant.
Messrs. LODGE, HUSTON & WELDON, for the appellee.
On the 12th day of January, 1869, Sarah J. Brittenham, who was the owner in fee simple, conveyed the lands in controversy to Columbus C. Smith, and this bill was filed by her to set aside the conveyance, because of the fraud, as she alleges, practiced upon her to induce the making of the deed. It is charged, the lands were sold to defendant for $14,000, to be paid for by a stock of goods, to be delivered to complainant's husband, since deceased, at invoice prices; and the difference either way was to be made up by the party against whom it should be found to exist. An invoice was made, showing the value of the stock of goods to be about $15,000, but the bill charges it was false and fraudulent, and made with a view to defraud complainant; that many of the goods invoiced were never delivered to her or her husband; that others were invoiced at fictitious prices; and the whole value of the entire stock of goods actually received did not exceed $4000.
One reason assigned why the alleged fraud practiced was not sooner discovered was, that complainant was herself wholly unacquainted with such business--that it was managed by her husband, who was then afflicted with unsoundness of mind, and so continued until his death, and, by reason of such unsoundness of mind, he was unfit to detect the fraud or protect the rights of complainant. After the alleged frauds were discovered no unreasonable delay was suffered to intervene before this bill was filed.
It is also alleged, the rents of the lands since defendant came into possession exceed in value all the goods delivered to complainant's husband, and the prayer of the bill is that the conveyance of the lands be set aside, and for other and further relief.
Service of summons was had on defendant more than ten days before the September term, 1874. A rule was laid upon him at that term of court to answer the bill, and the cause seems to have been then continued. At the ensued December term of court, there being no appearance by defendant or any one for him, a default was entered, and a decree made ordering the bill to be taken as confessed as against defendant. At the December term of court, 1876, the cause was referred to the master in chancery to take testimony, and state an account of the rents of the lands. Notice was given to defendant of the time when and place where the master would take testimony, but he did not attend or any one for him. Testimony was taken, from which the master found the value of the goods delivered to be $4500, and the rental value of the lands during the time defendant was in possession to be $5300. The report was approved by the court, and a final decree rendered at that term granting relief substantially as prayed for in the bill. Having given previous notice of his intention so to do, defendant, at the March term of court, 1877, entered a motion to vacate the decree in the cause and for leave to answer the bill. With the motion defendant submitted an offer to pay all costs of the preceding terms, and tendered an answer, supported by affidavits. Counter affidavits were filed, and on the hearing the court overruled the motion, and from that decision defendant prosecutes this appeal.
It is not perceived how the appeal, in this case, can bring before this court anything but the decision of the circuit court overruling the motion of defendant to vacate the decree in the cause, and for leave to answer to the merits of complainant's bill. Section 17 of the chancery act provides, “if the defendant shall appear at the next term and offer to file his answer to the bill, the court may permit him to do so,...
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