Thurman v. Burt

• Court: Illinois Supreme Court
• Writing for the Court: BREESE
• Citation: Thurman v. Burt, 53 Ill. 129, 1870 WL 6163 (Ill. 1870)
• Decision Date: 31 January 1870
• Parties: CORNELIUS THURMANv.BENJAMIN BURT.

53 Ill. 129

1870 WL 6163 (Ill.)

CORNELIUS THURMAN

v.BENJAMIN BURT.

Supreme Court of Illinois.

January Term, 1870.

WRIT OF ERROR to the Circuit Court of Champaign county; the Hon. A. J. GALLAGHER, Judge, presiding.

The opinion states the case.

Messrs. LANGLEY & WOLF, for the plaintiff in error.

Messrs. MCKINLEY & TULLEYS, for the defendant in error. Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

This was a bill in chancery in the Champaign circuit court, by Cornelius Thurman and against Benjamin Burt and two others, nominal defendants, to compel him to deliver up to complainant certain notes it was alleged he had extorted from complainant, he being under duress by the defendant, and that they were without consideration and unjustly obtained. The cause was heard on the bill and answer, and proofs taken, when the bill was dismissed at the costs of complainant.

To reverse this decree, the record is brought here by writ of error.

It appears from the record that the defendant had brought suit to the November term, 1867, against complainant, claiming about twelve hundred and fifty-nine dollars ninety-five cents, which amount complainant denied, and had employed counsel to defend the action, but, as complainant alleges, in order to avoid delay and expense of litigation as to the matters in controversy between them, and for the consideration set forth in the agreement, they executed an agreement, which recited an agreement between these parties on the twenty-sixth of November, 1867, by which it was stipulated that defendant should have a judgment against complainant at the then term of the court, for the sum of twelve hundred and fifty-nine dollars and ninety-five cents, and complainant should have a stay of execution on the judgment for three years from that date--the judgment to be paid in three equal annual installments, with interest at ten per cent per annum, with leave to Burt to take out execution after any installment should become due, for the amount unpaid on such installment.

The creditor, Burt, being apprehensive, after this agreement was made, that the effect of it might be to stay execution on the entire judgment for three years, they subsequently agreed that Burt should have judgment at the then term of the court for the above sum, and that he should stay execution for twelve months from the date of the judgment. This last agreement bears date on the following day, November 27th, and it recites that it is still the wish of the parties to carry out the spirit of the first agreement, and in consideration thereof, it was agreed that, after the lapse of eleven months, Burt might take out execution for the whole amount of the judgment, but in case Thurman should pay one-third of the judgment at the expiration of one year from the date of the judgment, Burt would return the fi. fa. at the end of the year, at his own costs--that no other fi. fa. should issue until two years from the date of the judgment, unless Thurman should fail to pay the second installment, and a third execution was not to issue until the end of three years from the date of the judgment, at which time fi. fa. might issue for all unpaid balance of the judgment, and it was further stipulated that this agreement should be filed with the papers in the cause. This agreement was so filed as a part of the record in the cause, whereupon this entry was made by the court: “And now come the parties by their respective attorneys, and by agreement entered into, it is ordered by the court that the plaintiff have and recover of the defendant the sum of twelve hundred and fifty-nine dollars and ninety-five cents, together with his costs, and that execution issue therefor in accordance with the agreement filed herein.” This entry bears date December 19, 1867.

The complainant alleges he was at all times ready and willing to perform this agreement, and had actually paid upon it one hundred and six dollars; that he...