Swiney v. Womack

• Decision Date: 09 April 1931
• Docket Number: No. 20151.,20151.
• Citation: 343 Ill. 278,175 N.E. 419
• Parties: SWINEY v. WOMACK et al.
• Court: Illinois Supreme Court

343 Ill. 278

175 N.E. 419

SWINEY

v.WOMACK et al.

No. 20151.

Supreme Court of Illinois.

Feb. 18, 1931.

Rehearing Denied April 9, 1931.

Commissioner's Opinion.

Bill by E. T. Swiney, wherein Kit Swiney was later substituted as party complainant, against James H. Womack, Laura A. Womack, and others, with a cross-bill by defendant last named, as conservator of defendant first named. Decree for defendants and cross-complainant as recommended by the master, and the substituted complainant appeals.

Affirmed.

Appeal from Circuit Court, Moultrie County; D. H. Wamsley, judge.

Bryan H. Tivnen, of Mattoon (Thomas R. Figenbaum and Carus S. Icenogle, both of Mattoon, of counsel), for appellant.

Harry I. Hannah, of Mattoon, for appellees.

PARTLOW, C.

E. T. Swiney filed his bill for partition and the assignment of dower in the circuit court of Moultrie county against appellees James H., Laura A., and Earl Womack, Beulah Womack Garrett, C. C. Firebaugh, as trustee, and A. E. Poulter. After the bill was filed, Swiney made a deed for the land in question to his wife, Kit Swiney, and she was substituted as party complainant. After the bill was filed, Laura A. Womack was appointed by the county court of Shelby county as conservator of James H. Womack, and she filed a cross-bill praying for the cancellation of a deed, certain notes, and a contract from Womack to Swiney on the ground of the mental incapacity of Womack to execute them, and on the ground of fraud and undue influence of Swiney in securing their execution. Upon issue being joined, the cause was referred to a master to take the evidence and report his conclusions. The master found that the original bill should be dismissed for want of equity and that a decree should be entered as prayed in the cross-bill. Exceptions to the report were overruled, a decree was entered as recommended, and an appeal was prosecuted to this court.

The principal ground urged for reversal is that the decree is contrary to the law and the evidence.

The evidence shows that James A. Womack died intestate in 1911, seized of 93.81 acres of land in Moultrie county, and leaving surviving him his widow, Laura A., and his three children, James H., Earl, and Beulah. James H. was then about 6 years of age. After the death of James A. Womack, the family moved to Windsor, Ill., where Swiney was engaged in the automobile business and the operation of a garage. Laura A. Womack was appointed legal guardian of her minor children by the county court of Moultrie county, and she acted as the guardian of James H. until May 1, 1926, when he became of age and she was discharged. He went through the common schools and attended high school for one year. Appellant contends that he was a boy of average intelligence and ability. His mother testified that he became overheated in his boyhood, and when he was about 18 years of age became despondent because of his health and attempted suicide, and while employed in the shops at Granite City he was severely injured. Two doctors who knew him from childhood, his former school teacher, and three or four other witnesses, testified that his mentality was below the average, that he had the mind of a boy of 12 or 14 years, and that he was not mentally capable of transacting ordinary business. Twelve witnesses called by appellant testified to his mental soundness. He loafed around the garage of Swiney, in Windsor, and part of the time he was employed there. When he was about 16 years old, Swiney sold him a secondhand Studebaker car. According to Womack, the purchase price was $450. According to Swiney, it was $250. A note and mortgage were executed for the purchase price. Womack had the car about thirty days, when it was surrendered to Swiney, but the note was not returned, and it enters into the later transaction. In 1922 Swiney sold Womack a Ford car for $150, and a note and mortgage were executed. The car was later surrendered to Swiney, but this note also enters into the later transaction. In 1925 Swiney sold Womack another Ford car for $275 and took a note and mortgage. The car was surrendered, but this note enters into the transaction. During all of these transactions Womack was a minor and had no use for the cars. His mother was his guardian and did not consent to the purchases.

About 1921 Womack began indorsing notes for various persons who bought cars of Swiney, some of which indorsements were made without the knowledge of the principals on the notes, some of whom were entire strangers to Womack. Womack testified that he had no knowledge or memory of indorsing any of these notes except the $1,000 note of Forrest Lovins. Swiney testified he knew Womack was a minor, but had in mind the fact that he would come into possession of this land and the notes would be good. He admitted that Womack received nothing for his indorsements. He said that one or two of the principals on some of these notes had indorsed notes for Womack, but Womack and the principals denied this statement.

In 1921, when Womack was about 16 years of age, he left Windsor and worked in Kankakee and several other places. On May 1, 1926, the day he was of age, he returned to Windsor. He and his mother went to Sullivan, where she filed her final account as guardian and was discharged. The next day Womack traded a secondhand Buick car owned by him for a Chevrolet car owned by Swiney, valued at $600. Womack testified that he was to receive $200 for his Buick, and he gave his note and mortgage to Swiney for $475.68; that Swiney said he would have to have a mortgage on Womack's interest in the land to secure this transaction, and a warranty deed was executed by Womack to Swiney which was intended as a mortgage, the description being filled in with a lead pencil. The next day Swiney took the deed to Sullivan and from the records put in the correct description in ink and had the deed recorded. Swiney testified that he did not take the Buick for $200, but was to sell it, with the understanding that he would credit Womack with whatever was obtained from its sale; that Womack gave him his note for $240 to cover the down payment plus two other items; that as a part of this same transaction Womack on the same date executed three other notes, for $444.52, $832.83, and $2,345.93, respectively; that the first and third notes were to take up notes which Womack had signed while a minor, as security for other principals who owed Swiney, and that the second note was to take up some notes and an open account which Womack had incurred while a minor. Womack testified that he did not sign these notes, or that he had no knowledge of signing them. On the same date a purchaser's statement which Swiney used in his business in selling notes and mortgages to a finance company was executed. The answers to the questions in the statement are in the handwriting of Swiney. They state that Womack was the owner of thirty acres of land worth $4,000, upon which there was no mortgage, and that no past debts were owing by Womack. Following Womack's signature was a statement signed by Swiney as follows: ‘The undersigned does not warrant the above purchaser's statement but in good faith believes the same to be true and warrants that the down payment as listed has been paid in full by the purchaser in cash or trade, or both, and that no portion of the same is owing by separate note or open account.’ This statement was not true in several respects.

After this transaction Womack went to Kankakee to work, and from there he went to Cairo. He made default in the payments on the Chevrolet car, and the finance company endeavored to locate him. On December 6, 1926, Swiney wrote to Womack that he was delinquent in his payments to the finance company. He told him to make himself scarce around Windsor and vicinity for some time because there was a warrant out for him. He inclosed a quitclaim deed from Womack to Swiney for the land in question and asked him to go before a notary public and execute it. He asked him to drive the car to some other town and send Swiney the name of the garage in which it was left and Swiney would send for the car, but that Womack was to stay ‘in the clear’ at all times until Swiney told him to come; that Womack was booked in police courts, and for him to get his real estate out of his name and stay out of Windsor for a while. The evidence shows that there was no warrant out for Womack, and that Swiney knew where he was all of the time, but did not tell the finance company. In response to this letter, Womack wired Swiney to meet him in St. Louis, but Swiney replied by letter telling Womack to leave the car at Carbondale in a garage and send Swiney the ticket for it, sign the bill of sale inclosed and return it with the other papers. The car was later surrendered by Womack to the finance company.

On December 21, 1926, Swiney again wrote to Womack telling him that there was a warrant out for him. On December 26, 1926, Swiney wrote to him telling him that his note for $240 was due on November 2, 1926, and asking payment of the same. This note was payable on demand, yet Swiney fixed November 2, 1926, as the date on which it should be paid. On February 17, 1927, Womack had a talk with Swiney in Windsor. Swiney wanted him to pay the $240 note. Womack testified that he did not know what the note was for, but that he relied upon Swiney and trusted him, and he told Swiney if the land could be sold he would pay the note. Swiney asked the privilege of selling the land, and on the following day he drew an instrument which directed him to sell, at either public or private sale or in partition, the one-third interest of Womack in the land inherited from his father. The instrument directed Swiney to collect the purchase price so that the total, principal and interest, of the three notes of May 2, 1926, and the note of $240 would be paid out of the proceeds of sale. The contract recited that all these notes were past due and no part of...