Thomas v. Whitney

• Decision Date: 21 June 1900
• Citation: 57 N.E. 808,186 Ill. 225
• Parties: THOMAS v. WHITNEY.
• Court: Illinois Supreme Court

186 Ill. 225

57 N.E. 808

THOMAS

v.WHITNEY.

Supreme Court of Illinois.

June 21, 1900.

Error to appellate court, First district.

Action by Richard U. Piper against Granville S. Thomas to set aside a trust deed and other transactions between them on the ground of fraud. Upon the death of plaintiff, his executrix, Anna V. Whitney, was substituted as complainant. From a judgment of the appellate court (83 Ill. App. 247) affirming a decree of the superior court of Cook county in favor of complainant, defendant brings error. Affirmed.

Pinney & Orr, for plaintiff in error.

John F. Holland, for defendant in error.

WILKIN, J.

This is a writ of error to the appellate court for the First district to reverse its judgment affirming a decree of the superior court of Cook county, based on a bill in chancery by defendant in error's testate, Richard U. Piper, against plaintiff in error, Granville S. Thomas. The bill alleges that for several years prior to January 24, 1893, the complainant had personally known the defendant, believed him to be an honest man, and intrusted and confided to him the care and management of his property in the city of Chicago (which is shown by the evidence to be worth about $12,000); that at this time complainant was sojourning in Saratoga, N. Y., and was very much broken down in health, weak in mind and memory because of his advanced age, he being about 77 years old, and much depressed in mind and spirit by reason of the death of his wife, which occurred a few days prior to this date; that defendant, Thomas, knowing the weak and enfeebled condition of complainant, and with intent to overreach and defraud him out of his property, by urgent and repeated requests promises to give him a home with his family in Chicago, render him medical care (defendant being a physician), and guard his interests, prevailed upon him to go and take up his abode at the home of defendant in Chicago; that while complainant, being in the condition described, was residing there, defendant, taking advangage of his position as medical adviser, and taking advantage of the weakness of complainant, fraudulently and wrongfully induced him to transfer to him certain moneys, aggregating $7,797, and execute and deliver to one Moore, trustee, a deed purporting to convey to him, in trust for the benefit of defendant, all his real property, part of which was located in Washington, D. C. (valued at about $22,000), and the remainder in the city of Chicago, the deed containing the following clauses: ‘Said party of the first part is now making his home with Granville S. Thomas, in the city of Chicago, county of Cook, and state of Illinois, and an arrangement has been entered into by and between said party of the first part and the said Thomas under and by virtue of which said Thomas has agreed to provide a home for the said party of the first part, and to care for him during the remainder of his natural life, without making any charge therefor, or receiving any compensation, except as follows: Upon the death of said Piper the said Thomas, or his heirs or devisees, are to become the owners in fee simple of the premises hereinbefore described, subject to the condition that if said Thomas shall, at any time during the life of the said first party, fail to furnish and provide a satisfactory home and care for said party of the first part, said party of the first part shall have the right to terminate this agreement, and in such case said Thomas shall be entitled to receive at the rate of $2,000 per annum from the 1st day of April, 1893, until the said party of the first part shall cease to live with said Thomas, as compensation for furnishing a home and caring for said party of the first part, for which sum said Thomas shall have a first and valid lien upon the premises hereinbefore described, said party of the first part to be entitled to receive the net rents and income from said property during his life.’ It is further alleged that about June 15, 1895, complainant left the home of Thomas, notifying him that he terminated the contract for care and board above mentioned. It is alleged the consideration stated as compensation for keeping complainant is unreasonable and unconscionable; that complainant is ready and willing to pay defendant a reasonable sum for board and care during the time of his residence with defendant, but the latter has refused to accept a reasonable sum and allow the trustee to release the deed aforesaid. The prayer of the bill is that the deed of trust may be set aside; that the defendantbe allowed a reasonable compensation for the board and care of complainant, and that he be ordered to pay to complainant the balance of the said money, and account for the rents of the Chicago property.

The answer of the defendant, for the purposes of this opinion, may be treated as a general denial. The master to whom the cause was referred found and reported the allegations of the bill to be substantially true. On the hearing the chancellor overruled exceptions to that report, approved the same, and rendered a decree accordingly. Complainant having died before the entry of the decree, the name of Anna V. Whitney, as executrix and individually, and Victoria A. Whitney, legatees, were substituted as complainants.

It is recited in the decree that complainant Piper gave to the defendant of his moneys on March 16, 1893, $3,000, on April 12th following $2,200, and on October 26th following $2,000; that the deed mentioned in the bill was executed as therein alleged; that the value of the real estate thereby conveyed was $34,000; that the defendant is entitled to retain of the moneys so received $1,860 for board, room, and care of complainant from January 22, 1893, to June 17, 1895, and the sum of $550 for services subsequent to January 14, 1893, part of the time as a physician and part of the time as nurse. The decree sets aside all of the transactions between the parties as having been procured by fraud and undue influence on the part of the defendant, and finds upon an accounting that the complainant is entitled to receive from the defendant the sum of $5,354.30, and interest thereon from July 12, 1897, the date of the master's report; and it was ordered that the defendant pay said sum to the complainant, with interest, and that the deed of October 17th be set aside, and that the trustee, Moore, reconvey the property within 10 days thereafter. Substantially the only ground upon which a reversal of the judgment below is insisted upon is that the evidenceproduced upon the hearing failed to sustain the finding and decree of the superior court. That the relation of principal and agent existed between the parties at the time of the...